My association library is updating our meeting room policy. I've read Ask the Lawyer's previous advice on meeting rooms, as well as ALA's guidance. I have two questions that I can't find guidance on:
1. Private Use: We have only one meeting space that's used for library programs and by outside groups. It's adjacent to office space and a kitchen, so staff may need to walk through the meeting room at any time. When people reserve the room, we do tell them that it's not completely private for that reason so they know what to expect.
Our current policy states that the room "may not be used for private social functions, such as showers, birthday parties, wedding receptions, etc. unless permission is granted by the board of trustees." In practice, we have groups of card players, knitters or private meetings (local businesses, homeowners associations) regularly at no charge. If someone rented the room for a party, we would charge. I see those private meetings or activities as different from parties. Are we able to differentiate between types of private uses of the space?
2. Different fees for residents: If we charge fees, can we have different charges for people in our service area vs. people from out of town? We do live in a tourist area, and people will meet here as a destination. If a local non-profit reserves the room, I'd like it to be free, but if a non-profit that's not located in or serving our area wants to book it, I'd want to charge them. For out-of-town profit-making entities, I'd want to charge more. Can we set whatever fee structure we want?
For context, our chartered to serve area is our town, but we receive a tax levy from a larger area (our school district). We'd consider school district residents local.
As the member points out, there have been a few other "Ask the Lawyer" RAQ's on room use, so for those who want to do some background reading, here are the RAQ's the member refers to:
And with that, we'll jump right to the questions:
Are we able to differentiate between types of private uses of the space?
My guidance on this is NOT to differentiate between types of private uses. Here is why:
As an alternative to "renting" or "giving" room spaced based on different types of users and uses, in a recent RAQ,[2] I suggested that rooms could be "checked out" just like other library resources, using a uniform set of rules (enforced through the Code of Conduct) to keep the room in good shape and ready for use by others.
I prefer this approach, because it enables libraries to grant access to card holders without having to ask questions about what the person will be doing, while also enforcing rules such as:
...basically, rules to keep the space clean, to regulate the time any one person can have it, and make sure the use is not disruptive to others in the library (rules that will, coincidentally, also bar most people's definition of a "party").[3]
I am not saying the approach of barring use based on user type and type of activity isn't workable...but as I write, it invites a hassle. So as your library revises its policy, it's worth considering this approach.[4]
Okay! Onto the next question:
If we charge fees, can we have different charges for people in our service area vs. people from out of town?
Unless something says otherwise,[5] yes, this could be done...again by tying use of the resource (the room) to a person's library card (presumably, most people in town for a short spot of tourism will not have a card).
Using this approach, the room could be available to card holders for a nominal charge (related to cleaning, perhaps, or to a budget line for carpet replacement,[6] etc.), while for non-card holders, it could be available for a higher rate, per a facility use contract.
The trick in this is to ensure the price doesn't "price out" card holders who may most need the room (perhaps someone without a lot of resources, hoping to meet with a potential client and start a small business), while setting a "reasonable" price for out-of-towners (based on wear and tear and used to keep up the space), that doesn't turn into "unrelated business income."[7]
So yes, hit those out-of-towners with the non-resident cost for using the room!
In closing, I want to note: I know for many it is odd to think that it could be okay for a person to "check out" a room at the local library for a business meeting. But here is a list of business uses of library resources...which ones are forbidden, and which ones are okay?
All of these are "commercial" uses of library resources. So, if a room is just another library resource, it can be used the same way.
Just make sure the rules protect the finite resource, and specify that no one gets to advertise that their office is "in the library"!
I hope this is helpful. I wish you productive drafting as you revise the policy.
[1] This is one of the "big" considerations in room use; for more on the tax and regulatory considerations in NY on that, see this RAQ: https://www.wnylrc.org/ask-the-lawyer/raqs/268.
[2] Located here: https://www.wnylrc.org/ask-the-lawyer/raqs/260
[3] Of course, one person's party is another person's meeting. If a person wants to use the room for 1 hour to have a "silent disco" party, and everyone is dancing gently (and silently) in headphones, the event might be less disruptive than some of the more rowdy knitting parties I have attended.
[4] We linked this above, but I'll mention again that there is a template policy for this approach in this ATL: https://www.wnylrc.org/ask-the-lawyer/raqs/167.
[5] This is another issue that's discussed in an ATL: https://www.wnylrc.org/ask-the-lawyer/raqs/260. Basically, when setting rules for library space, libraries need to ensure there is no restrictive covenant, lease, local law, policy, etc. that will impact the library's approach.
[6] Basically, using this approach, you want the charge "rationally related" to the use (wear and tear), not based on market rate or to turn a profit.
[7] More on that in Economic Barriers to Information Access: An Interpretation of the Library Bill of Rights found here: https://www.ala.org/advocacy/intfreedom/librarybill/interpretations/economicbarriers.
Tags: Association Libraries, Fees and Fines, Meeting Room Policy, Policy
We recently received 2 questions that raised related issues, so we've merged them in this "Ask the Lawyer Meeting Room Question Mash-Up" RAQ.
Here is question 1:
"Students frequently meet in the library with tutors. This typically happens in the open areas of the library but also in a few small study rooms. These rooms are available to everyone, restricted only by number of people and available for 1 hour on a first come, first served basis. Individuals and groups may stay longer in a particular room if no one else is waiting for the space. Rooms are not available to book ahead of time.
Some of the tutors are likely charging for their time, though many are not (studying with friends or similar). We have always considered the library's service to the students as paramount over any benefit to the tutor but is this an allowable use of library space due to the possible inurement and aid to an individual?"
Here is question 2:
"I've just finished viewing the first amendment audit webinar.... Such a great resource. Thank you!! I was wondering about meeting spaces and the language we can use to protect patrons in areas that they have been reserved for private meetings (scouting group in the meeting room, deposition in a tutoring room, tutoring, tele-med sessions, supervised visits etc.)"
These meeting-room related submissions to "Ask the Lawyer" were inspired by two separate resources: the first one, an "Ask the Lawyer" RAQ on meeting room policies, and the second, an ESLN-sponsored training.
If you've read the questions, you know they will not have the same answer. So, as recent viewers of the new Spider-Man movie may have asked,[1] why the mash-up?
Because the answers share the same foundation: the rules around community access to space.
The first question is based on a concern we addressed in the RAQ on meeting room policies. Here is the part that inspired the question:
"No, there is no legal requirement for public libraries to limit access to space to non-profit organizations.
However, there IS a requirement for any "charitable" entity[7] in New York to not allow any of its assets to “inure” to any one individual, while non-association libraries have to follow an even stricter rule against "aid" to individual people or businesses as set by the NY Constitution (this is why a town library can't use funds to throw a big "bon voyage" party to celebrate a retiring employee, but its not-for-profit "Friends" can)."
The second question is asking for model language, within the framework of what is allowed, to protect the rights of those using the rooms.
So, like a webslinger arcing majestically from issue to issue, let's do this.
The First Question
Is a person using free resources at the library for personal gain violating the law against "inurements"? Most likely: no.
The resources at public libraries can often serve as the first, critical building blocks of a small business. A person wanting to research an idea, create a 3-D printing of a product prototype, select neutral ground to meet a potential investor, or offer compensated services (such as tutoring) can often find what they need--for free--at the library.
The dawn of the co-working space might be changing this for people who can afford to rent space in a co-working facility that will supply desk space, internet, and even a mailing address. But for fledging entrepreneurs on a budget, the free resources and information provided by libraries can be essential.
And why doesn't such use of library resources for a business/personal gain risk tripping the bar on "inurements"?
Because the resource is available to the community equally, per library policy. In the member's scenario, the library is providing first-come, first-served space suitable for, among other things: group work, a political discussion, or tutoring (with or without compensation). The library is providing a place for people to sit and talk, so long as they arrive in time to gain access to a finite resource.
Once people are availing themselves of library services, a library can't set further rules about the relationship between the parties; so long as their interaction remains within library policy (not disruptive, not in excess of established time limits, etc.). In other words, the relationship between the parties, or an activity that fits within authorized use, can't change the otherwise compliant use of the library space.
Where the member's scenario could get out of hand would be if:
In each of the above examples, the service is exceeding the use generally available to any person using the library. This is where the "inurement" can begin, and the use of public library resources for unambiguously private gain would begin. But so long as no one is claiming or actually using the resource in excess of what is generally allowed, there is no issue.
The Second Question
Now that we've reviewed that "what applies to one must apply to all," we can turn to the other question: how can a library designate space used per policy and by reservation as "private," to avoid meeting crashers?[3]
Below this answer is listed a myriad of resources from the ALA[4] on this topic. I urge readers to review these, as each one sets out important considerations on the use of library space. But for now, we're dealing with this single, incremental question in the State of New York.
Once a library policy sets the terms of community access to private meeting space, here is language for signage at the entrance to the meeting space:
When reserved, this space is for designated users only. To reserve this space, or to obtain a copy of the rules and contract for reservation, please visit [INSERT] or [INSERT].
A library can make this posted language as friendly ("This room is only for reserved events, and is private when in use. Visit our circulation desk for more information!) or imposing ("Reserved, please do not enter without permission.") as it likes. The important thing is that the rules and terms of use are consistent with the law,[5] clearly established by a board-approved policy, and uniformly applied.
And there we go!
Thanks to both members for their insightful questions.
Additional Resources
For those of you who wanting more at the intersection of law, libraries, and meeting rooms, paralegal Klara in the LOSA[6] assembled this list of resources from ALA:
1. Meeting Rooms: An Interpretation of the Library Bill of Rights
- overview on library meeting rooms, suggestions for policies
- includes standard definitions for terms included in policies
- lists what meeting room policies should cover
3. Guidelines for the Development of Policies and Procedures Regarding User Behavior and Library Usage
4. The Library's Legal Answers for Meeting Rooms and Displays
- an ALA eBook by Mary Minow, Tomas Lipinski, Gretchen McCord
- limited public forum vs. designated public forum vs. nonpublic forum
- lists legal cases relevant to library meeting rooms and exhibit spaces
5. OIF Blog - Library Meeting Rooms for All, by James LaRue (former director of the ALA Office for Intellectual Freedom)
[1] The answer to the Spider-Man part of this is of course obvious: because it’s a witty convergence of web-slingers. Of course, as a Gen X nerd (b. 1973), I was a target demographic. Well played, Marvel.
[2]Such a policy would be far too overbroad. If a paid babysitter takes the kids to the library regularly, would that be a violation? If an accountant uses a library computer to check the tax code, would that be a violation? If a professional writer uses the reading room every day to write/think/draft, would that be a violation? That said, a policy against the sale or distribution of material items makes sense.
[3] Including those identifying as "First Amendment auditors"...a term I am loath to use. I am a huge fan of the First Amendment, but those claiming to “audit” for it often demonstrate a less-than-fully developed familiarity with the Constitution. To me, people trying to film in a library while asking questions about budget, etc. are just "people who want to record in the library," and they warrant the same respect, and must follow the same rules, as other people who may want to record in the library.
[4] ALA is the national go-to for information on library matters, and we try not to replicate materials already available. At "Ask the Lawyer" we deal with the legal nitty-gritty in New York, only.
[5] For more on that, see that meeting room RAQ at https://www.wnylrc.org/ask-the-lawyer/raqs/260
[6] "LOSA" = The Law Office of Stephanie Adams, PLLC.
Tags: Meeting Room Policy, Policy, Privacy, Signage, Templates
My library (municipal public library) is working on updating the meeting room policy for a number of reasons. Two major pieces of focus are what types of groups/organizations are able to request use of the meeting rooms. The other piece is requiring all meetings to be open to the public.
Currently the policy indicates that the primary use of meeting rooms are for library-sponsored activities. Any remaining time may be scheduled by nonprofit organizations for educational, cultural, or civic activities on a first-come basis. Use of this room does not constitute endorsement by the Library and must not interfere with or be disruptive to other library users.
Questions #1 - Is there a legal requirement for public libraries to limit to non-profit organizations? If not, what is the basis for limitations?
I am leaning towards shifting the mindset from limiting meeting room use to the above mentioned non-profit organizations (education, civic, cultural, etc.) and to advance public libraries in supporting local businesses and economic development in our communities.
Question #2 - Is it a legal requirement for all meetings to be open to the public?
Question #3 - Is there any benefit for the different type of meeting rooms to have different policies? Why should Large Study Rooms, Conference Rooms, and/or Meeting Rooms policies differ?
Before I answer this thoughtful array of questions, it is important to establish that aside from law, regulation, and library-specific policy, use of and access to space at public and association libraries can be governed by:
So, before a reader tries to use this answer to tackle issues like those posed by the member, assess if any of those factors are at play in your library.
Okay. Now, IF NO OTHER CONTRACTUAL OR OTHER RESTRICTIONS IMPACT YOUR LIBRARY, OR A SPACE IN YOUR LIBRARY, here we go:
Questions #1 - Is there a legal requirement for public libraries to limit to non-profit organizations? If not, what is the basis for limitations?
No, there is no legal requirement for public libraries to limit access to space to non-profit organizations.
However, there IS a requirement for any "charitable" entity[7] in New York to not allow any of its assets to “inure” to any one individual, while non-association libraries have to follow an even stricter rule against "aid" to individual people or businesses as set by the NY Constitution (this is why a town library can't use funds to throw a big "bon voyage" party to celebrate a retiring employee, but its not-for-profit "Friends" can).
To avoid tripping over this bar on "inurement" and "aid," many libraries adopted a rule that only charitable entities can use their rooms.[8] This, however, goes beyond what is required. Rooms and space can be used by any type of person or organization...but there needs to be a rational basis related to library services and the library's plan of service, and not creating a prohibited benefit, when allowing that access.
How is that done? Examples include:
Question #2 - Is it a legal requirement for all meetings to be open to the public?
No, there is no legal requirement for meetings in rented or "borrowed" space in a public library to be open to the public. However, the library must ensure that renters and borrowers do not restrict access on the basis of any protected category of identity (age, religion, gender, sexual orientation, etc.), or they risk a discrimination claim.
Here is an example of what I mean by "risk a discrimination claim": If I want to rent a 50-person capacity room at my public library to host a "Women In the Law" monthly meeting, and I publicly advertise the event "For Women Only,"[10] and I let the first 49 people whom I think fit the bill in at the door (while rejecting others), I am creating an exclusionary event that risks a discrimination claim...as well as a PR issue that no library wants to be a part of. [11] In other words: DO NOT DO THIS.
Contrast that with this scenario: I rent the library's 50-person capacity room to stage an event open to the public (no identity-based restrictions), but the topic of the event is a Lincoln-Douglas format "Women Shouldn't Be Lawyers: A Debate."[12] In this example, I risk a similar PR nightmare...but because access to the event is not restricted by a protected category, I do not risk a discrimination complaint based on access.
Question #3 - Is there any benefit for the different type of meeting rooms to have different policies? Why should Large Study Rooms, Conference Rooms, and/or Meeting Rooms policies differ?
Yes, there is a benefit: purpose-built rooms, with purpose-built policies based on identified needs in a library's area of service, justify how the library decides who gets access. For example, a room with no windows might be designated as the preferred space for a support group for survivor's domestic violence and others that need "discrete" space. A room with the best wiring might be the space designated for groups gathering to use technology (such as an e-sports club). A room with the best ventilation might be designated for crafts and chair yoga. And even though not required, a room could be reserved for only not-for-profit community organizations.
With this approach, a library could have a policy applicable to all rooms (requiring that all attendees follow the library's Code of Conduct), and use room-specific overlays to further set the fair and equally applied terms for access. This gives the library the flexibility to set different use privileges, while not seeming arbitrary.
Which brings me to the member's comment:
I am leaning towards shifting the mindset from limiting meeting room use to ...non-profit organizations (education, civic, cultural, etc.) and to advance public libraries in supporting local businesses and economic development in our communities.
This is the tricky part. Remember the bar on "inurement" and "aid"? It is possible to "support local businesses and economic development" without the benefits accruing specifically to one person--but a library has to be careful.
For instance, say the library wanted to have an "entrepreneur in residence" every week, providing space to new business owners to showcase their products/services, and their story.
A risky example of this would be: the library provides space in its "Entrepreneur Room," and the entrepreneur charges money for services offered on site for the week. In that scenario, the library is basically providing free space to a for-profit business, which as we discussed above, is a no-go.
A "go-go" version of this would be: based on a commitment in their plan of service, the library uses data to assess under-served or under-represented members or geographic areas of the business community.
The library then announces to the public that a business owner in the identified zone will be the "Entrepreneur in Residence" in the "Entrepreneur Room" throughout the week, to answer questions about being a business owner in their community. The library will feature information about the business, as well as its industry.
During their week in the library, the entrepreneur makes connections, showcases their product/service, and gains valuable connections and potential clients...but makes no sales on-site. However, while sharing their experience with other members of the community, they do get a boost to their business...which the library knows, because it collects follow-up data to show how the program has impacted the local business environment.
This is just one example; there are many ways to do this...and with proper planning, it won't cause issues with either a library's charitable status, or with the New York State Constitution.
Meeting room issues are tough, but a library that bases meeting room[13] access on the commitments in its plan of service, develops space-use programs based on data-derived community needs, and takes care to avoid "inurement" and "aid," can navigate these issues. Space-specific policies are not required for that, but they can help.
From the care taken by the member in writing this question, it is plain to see: it's worth it.
Thank you for a good set of questions.
[1] Many libraries occupy space they don't own, without a lease. Aside from many other risks, this can lead to the owner imposing restrictions on space without warning.
[2] A common space restriction in a lease for library space will be a bar on the space being used for anything other than "purposes of conducting library business."
[3] "Deed and zoning restriction" is a catch-all for terms the overall property (the building and land) could be subject to.
[4] For instance, if a donor leaves money to the library to create the "Needlework Room", and the library accepts the money that comes with the restriction, the room could be confined to books about needlework and related activities.
[5] Just like with donor restrictions, a grant can condition an award of money or assets on specific terms that govern a space.
[6] This is another catch-all: for example, if the library has always housed its Town archives in a room, but the terms were never formalized, is there enough in the record to make this a "restriction?"
[7] All chartered libraries in New York are considered "charitable," per State Education Law 216-a.
[8] Confession: I don't actually know for sure if this is the reason, but it's the only reason I can think of.
[9] If your library rents rooms, check with your accountant to ensure the income won't be considered as derived from "unrelated business activity."
[10] For those of you paying attention to these types of issues, you know this example is just the tip of the iceberg.
[11] If I rent the room for a private event for which I happen to personally invite only female lawyers, but I never publicly articulate a gender-based restriction, I could lessen the chance of a claim of discrimination, but in theory, the risk is still there.
[12] To this notion, I say: Belva Lockwood.
[13] All of this can apply to outdoor space, too.
In light of recent accusations of alleged misconduct by community organization volunteers utilizing public library facilities, how should libraries protect themselves moving forward?
Many of our libraries have community rooms that are reserved at no cost, or minimal cost, for service organizations, community groups, or private events. Typically these events are not monitored by library staff, and often occur outside of normal library operating hours. Although community room use by the public may be limited based on scheduling and other parameters, discrimination based on the type of program/service is generally prohibited.
What best practice measures should libraries implement to reduce liability? Is there particular language that we should include in our community room rental agreements or policies?
On a related note, what about other library visitors that make use of library common space on a regular basis for tutoring or counseling that doesn't constitute a library sponsored program or group? Library staff cannot always monitor what occurs out of view of staff workstations, and cameras don't typically capture every secluded space within the building.
Finally, what about staff who often work alone in the library, or alone in the children’s' room? Even with policies regarding unattended children under a particular age, those age limits are often well below adulthood and library staff are in a one-on-one situation for extended periods of time.
This concern is primarily related to accusations of sexual misconduct and abuse of minors, but could apply to anyone, at any time, for any reason.
In 2012, I was an in-house attorney at a university when the "Penn State Scandal"[1] broke. Along with the nation, I was horrified to learn about the serial sexual abuse of children by a powerful coach in an NCAA Division I football program--and just as critically, the system that allowed the abuse to go unchecked for so long.
If I hadn't been before, at that point I became acutely aware of the responsibility of an institution to safeguard the vulnerable populations it serves—even when only hosting or renting a part of its facility.[2] I looked to the law and other guidance for solutions, and spent time working on contracts, policies, and trainings for safeguarding minors--and avoid liability for failing to do so.
As the member's questions point out, in a busy, community-oriented library, that liability can enter the scene in many ways. Let's tackle their questions one-by-one.
Member question: Many of our libraries have community rooms that are reserved at no cost, or minimal cost, for service organizations, community groups, or private events. What best practice measures should libraries implement to reduce liability? Is there particular language that we should include in our community room rental agreements or policies?
I have spent a lot of time over the last four years[3] reviewing various library policies. And if there is one thing I have learned, it's that almost every library governs the use of its space by outside organizations differently.
This makes a uniform approach to this question difficult, but I think I can give you some good initial food for thought by providing two answers:
ANSWER #1: adopt a “Protection of Minors” addendum to written policies and (ahem[4]) "handshake procedures" for allowing use of your facilities for one-time (or very rare) use by outside groups.
Thank you for using the ABC Library for your gathering!
At the ABC Library, our mission is based on service to the community, and that includes a commitment to practices that keep our community safe.
Therefore, a representative of your organization must fill out this "Assurance Regarding Minors" before granting you permission to use the space.
1. Will your event include minors (children under the age of 18)? YES NO
If "NO", we're all set, please sign and date below.
If "YES", please continue
2. Will your event require the guardian or parent of any minors attending to be present?
YES NO
If "YES", we're all set, please sign and date below.
If "NO", please continue
3. If minors unaccompanied by a parent or guardian will be at your event, please list the adults responsible for the well-being of the minors, and how your organization has confirmed they do not pose a risk to the minors.
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Name |
Role in your organization |
Method of risk assessment |
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Thank you for filling out this assurance.
DATE: ________________
SIGNATURE: _______________________
PRINT NAME: ________________________
ADDRESS: ____________________________
WITNESS: _______________________
PRINT NAME: ________________________
ADDRESS: ____________________________
ANSWER #2: Add a "Protection of Minors" provision to the standard contract your library uses to set the terms of regular/routine use of your facilities by outside groups.
[NOTE: A "Facility Use Agreement" should name the organization in the contract,[5] set out the rules for use, confirm if the use is paid, bar use for political purposes,[6] and—critically—if there is a heightened risk to the activity,[7] require insurance. What I have set out below is just the provision related to minors. A template facility use agreement is on "Ask the Lawyer" at https://www.wnylrc.org/ask-the-lawyer/raqs/167.]
Protection of Minors
The ABC Library expressly forbids abuse or sexual abuse of minors on its premises.
As a condition of using space in the Library, ORGANIZATION represents and warrants:
a. ORGANIZATION has verified, and shall verify every six months, that all employees and volunteers who will be at the Library per this Facility Use Agreement are not listed on the New York State Sex Offender Registry.
b. ORGANIZATION maintains a policy barring sexual abuse within its operations, and requires all employees and volunteers to report instances of sexual abuse to law enforcement within 24 hours of observation or receiving a report of sexual abuse; a copy of the policy is attached.
c. The indemnification and insurance provisions in this agreement expressly include indemnification and coverage of the Library, its trustees, officers, employees, volunteers and agents for any complaint, claim, or cause of action related to alleged sexual abuse.
Next member question: On a related note, what about other library visitors that make use of library common space on a regular basis for tutoring or counseling that doesn't constitute a library sponsored program or group?
This is a very tough one, because the risk will vary based on the design and capacity of your library.
Libraries with space in wide-open areas near circulation and reference desks obviously have an advantage in this regard: there is lots of space for people to meet as described in the question, without the seclusion that can provide protective cover for illegal behavior.
That said, libraries also provide secluded areas so people have places for quiet contemplation. Quiet contemplation being one of the things we need more of in this world, I imagine most libraries are not considering totally getting rid of it any time soon.
There is no perfect solution to this issue, but here is the best input I can offer: once every few years (at least), a library should review its floorplan, policies, and any and all safety-related concerns with the library's insurance carrier. They will be in a position to help the library assess its unique position in this regard.
Finally, what about staff who often work alone in the library, or alone in the children's room? Even with policies regarding unattended children under a particular age, those age limits are often well below adulthood and library staff are in a one-on-one situation for extended periods of time.
At least once a year, staff—especially staff who work alone or in isolated areas—should be trained on practices to keep themselves and others safe. This should include:
For some libraries, this training will draw on a large collection of formal policies. For others, it will simply be running through a series of standard operating procedures.
The goal of such training--and the answer to the member's question--is to develop and enforce good boundaries (set by written policy or a well-articulated "standard operating procedure"[8] or "SOP") that includes a clear set of rules[9] for how to interact with minors, and every person and co-worker in the library. By developing such rules/procedures while focusing on the entire spectrum of how a library keeps its employees and patrons safe, the energy spent on training and thinking about safety-related best practices will be maximized.
...positions a library to both diminish the risk of child abuse at its premises, and to have the documentation to show the library did the best it could to diminish that risk. This reduces both the likelihood of harm, and liability.
And as always when it comes to managing risk and liability, as often as is practical, invite your attorney and your insurance carrier to participate in these efforts--they are critical partners in such initiatives.
Thank you for a very important set of questions.
[1] I am sure you can Google it, but here is a link to a thorough summary: https://www.chronicle.com/package/penn-state-scandal/.
[2] I am also a parent. However, you'll only get the cool, rational lawyer part of my brain for this answer, since the "parent" part of my brain does not think about this issue either coolly or rationally.
[3] That's right, "Ask the Lawyer" has been around for almost four years!
[4] Since COVID has killed the handshake, we'll just call these "unwritten policies."
[5] In the sample language, I am calling the organization using the library's room "ORGANIZATION."
[6] For more on this political issue, see https://www.wnylrc.org/ask-the-lawyer/raqs/95.
[7] Like learning how to make stained glass (which can lead to nasty palm cuts), and leading a group of minors (which requires consideration of how an organization guards against abuse).
[8] Like, for instance, not having physical contact with patrons (no matter what their age). Of course, such a protocol is a lot easier to enforce in COVID-times.
[9] If I ran your library, those rules would be: no physical contact with patrons (regardless of age), no unaccompanied minors under 16 allowed if the library only has one employee on staff, no leaving the circulation desk when patrons are in the library if there is only one employee on hand, no being in a room alone with an unaccompanied minor. It would also be a rule that these rules are consistently applied.
[10] Answer #2.
[11] Answer #1.
Tags: COVID-19, Meeting Room Policy, Templates, Behavioral misconduct
Can you provide a template facility use agreement for renting or allowing community groups to regularly use space in a public or association library?
Yes, I can! But first, a few caveats:
ABC Library
FACILITY USE CONTRACT
This contract for facility use is between the ABC Library (the "Library") and INSERT NAME ("Organization") an [insert type organization/individual] ("Organization") with an address of [INSERT], for temporary use of [INSERT ROOM# or Description] in the Library (the "Space").
Details of Temporary Use
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Date(s) and time(s) of use
NOTE: If use is routine ("Every Monday in 2020") note the routine
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Purpose of use (the "Event/s"). Please describe the activity to be conducted while you are using the Space.
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Estimated maximum attendees
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Will you bring in any contractors or third parties under contract for this event?
If so, you must provide the Library with a copy of the contract and they must name the Library on their certificate of insurance.
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Please list any special details
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Person from Organization who will oversee Organization's use of the Space (must be present at all times) and their back-up person |
Name: Cell number: E-mail:
Name: Cell number: E-mail: |
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[If applicable]
Rental Fee on a per-use basis
NOTE: If the use is charitable and the fee is to be waived, the use must not involve any political activity as defined by the IRS.
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[If applicable]
Fee is payable to [INSERT] and shall be paid by:
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Will minors unaccompanied by parents/guardians be attending the event at the Space?
If yes: does Organization have a policy barring abuse of minors, and requiring instances of abuse of minors in connection with Organization's programs to be reported to law enforcement within 24 hours?
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Is Organization a chapter or affiliate of a larger organization?
If so, include larger organization's name.
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Will the event involve food or the creation of materials to dispose of?
If yes, what time will clean-up, including removal of all trash and recycling generated by the event, be completed?
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Organization's Library Contact (the person who will help them with any questions and address any concerns)
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Name: Email: Cell: |
Library Mission and Terms of Use
The ABC Library's mission is [INSERT].
As part of its mission, the Library requires that all people on Library property abide by all the Library's policies. In addition, while using the Space, Organization and any person at the Space in affiliation with Organization must at all times follow the below rules, and any reasonable request of any Library representative.
Rules include:
No harassing, abusive, or demeaning activity directed at any person or the Space.
No contact that violates any applicable law or regulation.
In the event of an emergency at the Library, Organization shall abide not only by the reasonable request of any Library representative, but also any first responder assisting with the emergency.
In the event of any injury to any person, or incident of property damage while the Space is in use, Organization will immediately notify the Library Contact listed in the chart above immediately. In the event of a crime or medical emergency, call 911.
Aside from those attending the event(s) in the Space sponsored by Organization, no filming or taking pictures of any individual in the library (visitor or employee) is allowed, without their express permission.
After use, the Space will be restored to the condition it was in prior to Organization's use, by the Organization, unless otherwise specifically confirmed with the Library Contact.
Organization will not promote the event using the Library/Space as the location until this contract is fully signed and (if applicable) Organization has paid the applicable Rental Fee.
Drafting note: if the Library does not own the building, add any other rules based on requirements in the lease.
Violation of any rules may result in the termination of this Contract with no refund, and denial of future use.
Emergency Cancellation
This Contract guarantees that Library will reserve the Space for Organization as set forth in the "Details" section, above. However, in the event the Library or a related entity experiences an emergency which, in the sole determination of the Library, requires the cancellation of the use (including but not limited to condition at the facility, weather emergency, or event requiring Library's emergency use of the space), Library shall notify Organization as soon as possible, and work with Organization to refund the fee or determine a new date, whichever is preferable.
Indemnification
To the greatest extent allowed by law, Organization hereby agrees to indemnify and defend and hold harmless the Library, its Board of Trustees, employees, agents, and volunteers, from any and all causes of action, complaints, violations, and penalties, and shall pay the cost of defending same, as well as any related fines, penalties, and fees, including reasonable attorneys' fees, related to Organization's use of the Space, including conduct by any third party or contractor present at the Space as part of the Event/s.
Insurance
Organization shall provide insurance meeting the requirements shown in exhibit "A."
Drafting Note/Instruction: the person at the Library organizing the contract will either select the default insurance requirement, which is the conventional insurance demand, or it shall be determined that no insurance is required. For organizations conducting routine meetings, and especially if children are served by the Organization, the library's lawyer, and/or your insurance carrier will almost always advise insurance be required.
Person signing for Organization
The person signing on the line below on behalf of organization is at least 18 years of age and has the power to sign for the Organization.
Venue for Dispute
This contract and any related action shall be governed according to the laws of the state of New York, and Venue for any dispute shall be INSERT county, New York.
Accepted on behalf of the Library:___________________ on:___________
Print name:__________________
Accepted on behalf of the Organization:___________________ on:___________
Print name:________________________
Tags: Association Libraries, COVID-19, Emergency Response, Meeting Room Policy, Policy, Public Libraries, Templates
My library's reopening plan calls for not allowing group meetings/ programs for a time.
There is some concern for a BOT member as to if the library can legally do this. The concern is if a community group or club that regularly meets in the library were to want to meet again, could they challenge the library in regards to this issue? In a nutshell, the question is "Do we legally have the right to suspend and not allow all meeting room use as the library reopens?"
As library director my thought process is that as long as the policy is being equally and fairly enforced to everyone then there should not be an issue. This does beg the question however as to what may happen if the city, which owns the building calls "eminent domain" and quickly demands use of a meeting space they own in an emergency circumstance. This is rare but has happened a few times in the past.
Any input you have would be greatly appreciated.
I have been looking at some of my post-COVID "Ask the Lawyer" responses, and they are pretty grim. Such serious writing.
Of course, these are serious days, and operating during COVID-19 is a serious topic.
But I have been on the lookout for a chance for some joy, if not some outright levity. And finally, this question supplies one!
Why would a question about temporary disuse of a meeting room make me happy? Well, as some of you may have noticed, very little gratifies me more than emphasizing a library's autonomy.[1]
So, hear me rejoice: Yes, your library has the right to disallow all meeting room use in the interest of safety!
And if that isn't joyful enough, get ready for more good news: this is true whether your library is a tenant or a landowner, a public library or an association library, a library in a big city or a library in a small rural village!
Why is that? If a chartered library in New York has assessed its unique space, its unique operational capacity, and its unique ability to operate safely, and as a result has adopted a Safety Plan that does not allow meeting spaces or on-site programming, then...there will be no meeting use or on-site programming. It's as simple as that.
Now, that said, can someone try and complain about it? Sure.[2] Can a building owner (like a town or a landlord) try and over-ride it? Yes.[3] Could a pre-COVID contract be implicated?[4] Yes. But as an autonomous entity governed by an independent board, can your library make a Safety Plan and stick to it? Yes.
As it should be.
Of course, within that autonomy is the obligation to steward and utilize library assets responsibly, and in compliance with the law.[5] This is why the member's point about uniform enforcement and clarity is so important. If the access is restricted for the Book Club, it needs to be restricted for the Comic Book Club, and even for the Garden Club.[6] But after ensuring basic fairness and compliant use of library resources, the baseline decision about what facilities to allow access to during the pandemic is in the hands of the library's board and director. And as I have said in many of my recent answers: they must put safety first.
Only one thing remains to be said: despite my obvious relish for the task, I want to assure the reading public that I still did my homework for this reply. As of this date,[7] the only court rulings in New York to address litigation or complaints about library access as impacted by COVID-19 are numerous claims about transmission concerns impeding access to a prison law library[8] (now, in that case, I can understand why someone would complain). But I found nothing regarding action against public and association libraries due to COVID-induced closure, reduced operations, and impediments to general access. Hopefully it stays that way.[9]
Thanks for a good question and for some time on the bright side.
[1] It gives me a very "we the people" thrill that no amount of election-year jitters can override.
[2] I am sure that by now (August 25, 2020), MANY of you have heard MANY complaints...complaints about masks violating the ADA, complaints about the Library being too open or too closed, complaints that your signage is in the wrong font, or perhaps complaints about the smell of your hand sanitizer being too fruity. These days, people just need to complain about something—it helps us feel more in-control. I know I directed a very strongly worded message to my local government regarding document retention policies after the repeal of Civil Rights Law 50-a; for about 10 minutes, I felt really in charge of my own destiny.
[3] This is why a lease, or at least an agreement with a municipality who may own the library building, is a good idea. At the bare minimum, such a document should address security/confidentiality, insurance for loss, the protocol for an on-site slip-and-fall, and the process for planning capital improvements.
[4] For instance, a facility rental agreement.
[5] For instance, once your meeting room is again accessible to the public, you can't let a start-up business owner hold a pop-up retail stand there to turn a profit, since that would risk compliance with several laws and tax regulations.
[6] Comics are very cool, but obviously your library doesn't want to play favorites. And just because the Garden Club shows up with trowels is no reason to give them special treatment.
[7] August 25, 2020.
[8] There are already over a dozen of these. A typical case can be seen in Vogel v Ginty, 2020 US Dist LEXIS 148513 [SDNY Aug. 14, 2020, No. 20-CV-6349 (LLS)].
[9] It will be hard enough sorting out the impact on budgets and various regulatory requirements.
Tags: COVID-19, Emergency Response, Library Programming and Events, Meeting Room Policy, Policy, Reopening policies
My Director has asked me to ask you the following question. In normal circumstances the library would host the meetings of local organizations that do not have a building of their own. The library hosts the meetings of organizations like "Concerned Citizens", "Race Unity Circle", the "Bahá'í society", etc. All nonprofits that do not have large budgets and utilize the library for their meetings. Is the library legally allowed to use the library's Zoom subscription to host meetings for these groups as an Outreach Program? In the same way the librarian would be there to book the meeting, set up tables/chairs, and greet the group, the Zoom meeting would be booked, the link distributed to members, and the librarian there to open the meeting up at the specified time. I would be interested if your answer is different depending on whether the library is in an emergency closure situation or not.
Life is full of surprises. When I was in third grade, I was surprised to learn that this strange country called “Canada” occupied the upper half of North America. When I was in fifteen, I was surprised to learn that “brooch” rhymes with “roach.”[1] And upon researching the answer to this question, I was surprised to learn that Zoom doesn’t have an “exclusive use” clause in their service agreement.[2]
Now, let me be clear, the Zoom “Terms of Use,” most certainly bar simply enabling a “third” party to use a library’s account. Here is the clause that does that:
You may not offer or enable any third parties to use the Services purchased by You, display on any website or otherwise publish the Services or any Content obtained from a Service (other than Content created by You) or otherwise generate income from the Services or use the Services for the development, production or marketing of a service or product substantially similar to the Services.
In other words, Zoom doesn’t want you to “offer” your account out to another party (even if that party is a legit not-for-profit).
But the member has asked if they can serve as the “host” of the meeting, mirroring the way their library opens its doors for certain groups and gatherings. Both functionally and grammatically—and thus legally—this means the library is the one using the service. It’s like my law firm using our Zoom to host a board meeting for a client, since I need to be there anyway. Or, perhaps more closely, an educational institution letting a student group use its Zoom, so the student newspaper can soldier on.
So the stark, simple answer to the member’s question (“Is the library legally allowed to use the library's Zoom subscription to host meetings for these groups as an Outreach Program?”) is “YES.”
That said, being a detail-oriented, pro-risk-management, and liability-averse kind of attorney, I can’t just leave it there.
Physical meetings at your library all must follow some rules. Some libraries set these rules by policy, others confirm them with both a written policy and a facility use contract.
These documents ensure that the particular rules at that library will be followed.[3] The same should apply when the library is hosting a Zoom meeting for your community.
In addition, since the Zoom “Terms of Use”[4] and related agreements impose certain rules, and hold the licensee (your library) responsible for any violations, the conditions for library-hosted meetings should not only require adherence to your rules, but also to Zoom’s.
Zoom’s “Acceptable Use” Policy expressly bars numerous types of activity, including but not limited to:
I imagine most libraries can endorse these conditions, but some may be (rightly) wary to impose content restrictions on meetings. While the limits your library has agreed to with Zoom is a contract the library has voluntarily accepted, I can see a (very) few instances where perhaps a first amendment concern could loom. So any library considering hosting Zoom meetings for users should think that aspect through thoroughly, and be ready to address it just as you address such concerns for physical meetings.
To help a library navigate these straightforward but choppy legal waters—especially the Zoom Terms’ bar on letting a third party use your account—here is a template “Virtual Meeting” Agreement.
NOTE: As always, template agreements should be reviewed by your library’s legal counsel to ensure they conform with your library’s charter, bylaws, unique identity, and other policies.
Videoconference Meeting Agreement—TEMPLATE ONLY
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Person filling out this form [must be cardholder] |
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Group |
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Meeting date, time, duration |
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Target date to send out the invitation
Please note: for the orderly operation of the meeting, pre-registration should be required, OR attendees should be given only limited participation ability.
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Purpose of meeting (must be a purpose consistent with library operations) |
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Estimated number of attendees |
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Record meeting? |
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Live stream meeting? Please list where the livestream will be accessible |
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Please list your group’s Meeting Facilitator [see Meeting Facilitator Responsibilities below] |
Name: Title: E-mail: Phone number: Address: |
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[To be filled in by library] Library Staff serving as “host” on the videoconference. |
Name: Title: E-mail: Phone Number: |
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Facility Use Policy |
[attach] |
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Additional terms of use |
https://zoom.us/reasonableusepolicy
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On the above date and time, the [NAME] library will host a meeting of the above-listed group for the above listed purpose.
It is understood that every attendee of the meaning will be expected to abide by both all the applicable rules of the library for meetings at our facility, and to observe any and all above-listed additional conditions.
The above-listed “Meeting Facilitator” should be logged in to the meeting at least 10 minutes before so they can discuss the orderly conduct of the meeting with Library Staff.
The Meeting Facilitator must discuss the functional aspects of the meeting with library staff before the start of the meeting; they should be prepared to discuss how attendees will be able to interact and how the relevant functions of the meeting will be used to meet the meeting's stated purpose.
The Meeting Facilitator should also be comfortable with using Zoom's capabilities to assist the Library Staff in hosting the meeting (monitoring the chat, moderating the discussion, muting or removing participants if needed).
When it is time for the meeting to begin, the library staff hosting the meeting will state:
“Welcome to [MEETING NAME]. Hosting an online meeting with your group is a service the library provides to our community groups without charge. Just as with hosting meetings in our physical space, the library must enforce rules regarding respect, non-discrimination, and accessibility. If you have concerns in that regard, please let me know by sending me a private message during the meeting. And now I’ll turn it over to [NAME] to start the meeting.”
It is expressly understood on behalf of the group that:
Please alert the library to any ADA considerations for hosting this meeting. For meetings with more than 50 participants, the Meeting Facilitator should be ready to discuss accessibility objectives with the Library Staff member.
We welcome your ideas for making our co-hosted meetings better. Constructive feedback may be sent to [e-mail].
Signed: ___________________________________
[library representative]
Acknowledged: __________________________________ on DATE: ______________.
[cardholder]
Unless there is a bylaw, policy, or contract barring staff serving as the meeting host, this is most definitely a service that can be offered even when your library cannot be physically open to the public. However, at all times, it must be clear that this is the library’s meeting. Account ID’s, passwords, and hosting capabilities should not be given away. Co-hosting should never be converted into changing the host. The meeting “intro-text” should be read every time; it is there to make sure that the library’s primary role is documented in every single meeting you host. Just like a meeting room should never be used when the library is not staffed, the virtual meeting room must remain in the control of your institution—otherwise, there could be concerns with the license.
And with that, I wish whoever at your library becomes the “virtual meeting staffer,” a stout heart, a quick finger on the mute button, and lots of community-oriented fun.
[1] I have since been informed that either pronunciation is acceptable. Fortunately, with my spare fashion sense, it is not a word I use often.
[2] As found May 23, 2020 at https://zoom.us/reasonableusepolicy.
[3] The conditions in these documents will change from library to library. Some libraries have to enforce the rules of a landlord. Others will decide to charge a nominal fee (DO NOT do that for a Zoom meeting), or restrict use to a charitable use.
[4] As found on May 23, 2020 at https://zoom.us/terms.
[5] By the time I got to this part of the list, I was thinking “Jeez, it’s an ugly world out there, and Zoom has a front-row seat to it.”
Tags: COVID-19, Emergency Response, Meeting Room Policy, Library Programming and Events, Local Organizations, Online Programming, Policy, Zoom, Templates
As we look to re-opening our public libraries with abridged services, we want to limit the chances of legal challenge from organizations who seek to make a statement about government response to COVID-19 and social distancing measures. We are considering a recommendation to have a brief policy manual addendum with policy adjustments that supersede the policy manual, have a short review and renew period (aligned with the library board meeting schedule), and are triggered by an objective, external to the library, event. What elements would we need to include in this addendum to make it legally enforceable, while not re-writing the entire policy manual?
Take, for instance, a library's meeting room policy. For a library with a 2,000 sq ft community room, with a normal occupancy of 250 persons and a seated occupancy of 150 persons (fake numbers), in which the board meets every other month.
- Initial addendum policy would have a line which said "Meeting Room: The meeting room is closed to all groups. Policy approved April 27, 2020. Will expire June 26, 2020."
- At the June board meeting the board passed "Meeting Room: The meeting room will open for library sponsored programming July 1st. Registration will be required and limited to 20 persons to follow current social distancing guidelines. Policy approved June 26, 2020. Will expire August 27, 2020."
And so on.
What are recommendations for the pre-amble of such an addendum? What should we make sure to include in the board motion to enact the emergency policy addendum such that it supersedes the standard manual?
This answer is being composed on May 9, 2020. New York is still fully on PAUSE, but the Governor has divided the State into ten districts who must hit seven defined metrics to begin rolling back various restrictions.[1] Careful prognosticators are cautioning that what is rolled back can also be re-implemented, so caution and flexibility are the watchwords of the times.
In this context, many libraries are considering a phased resumption or extension of operations, and to do so, may need to adjust many of their standing policies.
As the member’s question highlights, the stakes for such adjustments can be high. The greatest risk in taking emergency and temporary measures are that: 1) they are not legal; 2) they create legal but mission-averse collateral consequences[2]; 3) they are legal and perfectly mission-aligned, but still just make people mad.
Right now, libraries don’t have the luxury of time to fully mitigate these risks. But collecting, assessing, and documenting some steps, a library can do its best to avoid them.
Here is how to do that:
Step 1: Inventory your board’s authority and obligations
Library leadership seeking to temporarily adjust library policy to address COVID-19 must first assemble the following:
Many libraries will already have these assembled from previous such exercises.
Step 2: Inventory the specific policies your library needs to adjust
This “inventory” should include a citation to each policy your library needs to adjust, the basis of the need, any legal compliance considerations, what the precise terms of the proposed temporary change are, and, as the member writes, the reversion trigger of duration of the change.
This sounds painstaking and arduous, and it will be. Fortunately, when it comes to the painstaking and arduous act of organizing information, libraries have a home team advantage.
And don’t worry, in the next step I give you a chart to sort it all out.
Step 3: Identify what’s needed: alteration of the policy, or complete suspension?
In some cases, a policy will just need some small, temporary alterations to continue serving the requirements of the law and the needs of the library and its community. However, some policies are so complex, or so rife with temporarily unsafe practices, they will simply need to be suspended.[4]
Here is a chart template that sets the “inventory” categories of Step 2, with examples the two types of adjustments:
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1. Policy or obligation to adjust |
2. Basis of need to adjust |
3. Law or policy governing change |
4. Proposed Adjusted provision |
5. Reversion trigger or duration |
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Example: Policy temporarily altered
Policy B-2: Board Meetings |
Limits on large gatherings and social distancing requirements requires limiting in-person contact |
Board meetings are controlled by the Education Law Section 260 and Article 7 of the Public Officers’ Law (“Open Meetings Law”), but are temporarily governed by Executive Order 202.12. |
As allowed by the EO 202.12, the Board shall meet via teleconference, and the audio shall be simultaneously available at a link on the library’s website, as well as recorded and transcribed. |
This adjustment shall be in effect until the expiration of the terms of EO 202.12. |
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Example: Policy temporarily suspended
Meeting Room Policy allowing use on a reservation basis. |
The Library wants to use the Meeting Room but must suspend community use to observe current social distancing requirements and health-oriented practices.
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Executive Order # and #, as well as the usual laws governing use of library property. |
To ensure observance of [cite EOs] the Meeting Room policy is suspended until two weeks after the last remaining restriction is lifted.
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To allow time for cleaning and operational adjustment, the regular policy will go back into effect two weeks after the last remaining restriction is lifted. |
Step 4: Contrast the adjustments with your library’s obligations
This is really a second look at the third column- “Law or policy governing change.”
It encourages your leadership—and ideally, your lawyer—to take a deep look at any standing legal obligations, and make sure your temporary adjustment doesn’t run afoul of them.
For instance, in the Meeting Room Policy example, let’s say that, per the policy, the library had a standing, written agreement for the room to be used by a writer’s group on a weekly basis. This might require an extra step in your adjustment to the policy, with some targeted outreach to cancel what might be regarded by the group as a written contract.[5]
SPECIAL NOTE FOR LIBRARIES WITH UNIONS: Step 4 is especially critical if there is a union contract involved. Throughout this time of COVID-19 response, I have seen many examples of situations where a library’s prospective plans have been impacted by CBA provisions for emergency closure or other obligations. I have written about that at length elsewhere,[6] so for now, will simply say: in all of this a library’s union should be an ally and critical stakeholder promoting employee well-being, and hopefully the need for any changes to routine policy and procedure can be approached in that spirit.
Step 5: Diplomacy Check
Technically, this is not a “legal” step, but I can say that in many ways this step is the most important part of avoiding needless legal threats and hostility.
Step 5 involves taking yet another look at the chart, and adding other two columns, covering: “Who will be impacted by this policy change?” and “How can we roll out the change to lessen any negative impact?”[7]
Here is what these columns look like in my imaginary examples:
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6. Who will be impacted by this policy change? |
7. How can we roll out the change to lessen any negative effects? |
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Board Meeting Policy Example:
Everyone who relies on library board meetings as a chance to scour the budget and yell at the treasurer about how much was spent on new shelving, even though the purchase followed every bidding step required by state procurement rules.[8] |
The library will put up a sign on the front door, and in the usual places where the library sends formal notices about the meetings, saying:
“As you know, our board is meeting via telephone and working to keep our library ready to serve the community! You can hear our meetings at [link] or get a recording at [way]. We’ll have transcripts ready a month after the meeting. Please keep in touch by sending your comments to [NAME] at [ADDRESS].”
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Meeting Room Policy Example:
People who really, really just want to see their writing group.
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The director will ask [STAFF] to outreach to the regular groups, to see if they need assistance finding alternate resources while we wait to welcome them back.
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And with all that legwork done, we can now answer the member’s core questions:
Question 1: What elements would we need to include in this addendum to make it legally enforceable, while not re-writing the entire policy manual?
The elements would be 1) a preamble setting forth the board’s authority, goal and process for the temporary changes; 2) a list identifying the policies that are temporarily suspended or temporarily altered; and 3) an articulation of the replacement policy or temporary changes.
Question 2: What are recommendations for the preamble of such an addendum?
Here is a template for the preamble:
The [NAME] Library was chartered in [YEAR] by the New York Board of Regents, and operates under the authority of that Charter, the New York Education and Not-for-Profit corporation law. In accordance with that authority and in compliance with the Library’s bylaws [OPTIONAL IF UNION AGREEMENT OR OTHER CONTRACTS ALSO GOVERN: and all other applicable obligating documents], to promote the mission of the library, the safety of all it serves and employs, and the needs of the community at this time, the following temporary changes to the following policies are made:
And here is how you link it to the other elements:
[INSERT chart with only columns 1, 4, and 5].
Question 3: What should we make sure to include in the board motion to enact the emergency policy addendum such that it supersedes the standard manual?
Here is template language for a board motion:
WHEREAS the State of New York is currently subject to Executive Orders governing the State’s response to the COVID-19 pandemic; and
WHEREAS the [NAME] Library’s mission is to [INSERT]; and
WHEREAS some of the Executive Orders impact the ability of the Library to fulfill its mission while abiding by its usual policies and procedures; and
[INSERT ONLY IF APPLICABLE] WHEREAS the Library is also subject to the terms of a collective bargaining agreement signed on DATE: and
[INSERT ONLY IF APPLICABLE] WHEREAS the Library is also subject to [variable]; and
WHEREAS the Library has developed temporary adjustments to its usual policies and procedures, with all due consideration of its standing obligations, to aid itself in operating safely and in compliance with the orders, and in period of recovery to follow;
BE IT RESOLVED that the following temporary changes, for the corresponding durations sets forth below, are enacted, effective immediately:
[insert chart with columns 1, 4, and 5]
AND BE IT FURTHER RESOLVED that the full chart setting forth these temporary adjustments shall be posted on the Library’s usual place for posting policies no later than [DATE]; and
AND BE IT FURTHER RESOLVED that the following measures to positively communicate these temporary adjustments shall be taken:
[INSERT measures identified in column 7].
Final thoughts
When using these steps, it will be important to remember that an individual library’s response will be informed by not only their unique documents and priorities, but which of New York’s ten regions[9] they are in. This means that what works for one library won’t necessarily work for a similar library in the next county over. Nor should one library be judged by what is being done at another.
And finally—and I have mentioned this in several columns lately, but I will mention it again—attorneys throughout New York State are stepping up to the pro bono plate these days. Now is the time to see if your library can enlist an attorney familiar with municipal, education, employment law, even if it is just to take a fresh, hard look at your final product. If you can’t find that attorney, you can ask for a referral from your local bar association.
By assembling the documents listed in this answer, and identifying your priorities and concerns in the chart, you’ll help that attorney help your library. In addition, I welcome questions from local attorneys who are helping their local libraries pro bono; they can reach me at adams@losapllc.com, or my library paralegal Jill at libraryspecialist@losapllc.com.
As the member’s excellent question suggests, the more unified and well-developed the response of libraries can be, the more we can avoid challenges, and focus libraries’ energy on the business of serving the public. Sadly, the need for that energy will be great.
Thank you for giving me the opportunity to answer this very important question.
[2] Like a writers’ group saying: “Forget it. We’ll just meet at Starbuck’s.”
[3] For instance, if a patron brought a legal action under ADA, and the library reached a compromise it is legally bound to follow. Most libraries will not be subject to any such restrictions, but I want to ensure they aren’t forgotten.
[4] In my experience, unless the law mandates that you have one (for instance, certain libraries must, under the Education law, have an internet access policy) suspending a policy is also the way to avoid inviting arguments with people who will try and word-smith your temporary adjustments. As a lawyer, I do enjoy a good quibble, but there’s a time and place for it, and debating when a writer’s group can get back in the community room might not be the best use of energy right now.
[5] It really sounds like I am picking on this writer’s group! I’m not, we’re a fan of writer’s groups in my law firm (they produce writers, who are part of our client base). I think it’s just that in my mind everyone is, at this mid-May point, is very eager to resume normal social activity. I know I am. Meeting on Zoom is like eating low-fat olive oil.
[7] This is not a legal tactic tested on the bar exam. I learned this from my mentors at Niagara University, where I served as General Counsel for ten years. When legal strategy was proposed, their first thoughts were always about how it would hit the very real people involved.
[8] One of my favorite quotes about this phenomenon is from Parks and Recreation: “So what I hear when I am being yelled at is people caring loudly at me.”
[9] My poor staff. They just got used to New York being divided into nine library council districts, and 23 public library system districts. Val, our keeper of the “library map,” should be getting danger pay.
Tags: COVID-19, Emergency Response, Meeting Room Policy, Policy, Templates
I need clarification about the IRS regulations on 501c3 organizations. A local political group asked to use our meeting room space for a 'meet the candidates' event, a library trustee thinks this is not compliant with the "The Restriction of Political Campaign Intervention by Section 501(c)(3) Tax-Exempt Organizations" https://www.irs.gov/charities-non-profits/charitable-organizations/the-restriction-of-political-campaign-intervention-by-section-501c3-tax-exempt-organizations
I think our meeting room policy is very out of date and restricting access to the room based on content of the meeting violates 1st amendment rights, as outlined by ALA: http://www.ala.org/advocacy/intfreedom/librarybill/interpretations/meetingrooms
No staff are involved in this event, we have not helped plan it and it was made clear on all the publicity the political group put out that the library is only the venue, we are not hosting, this is not a library program.
Thank you!
This answer comes with many disclaimers, because the legal parameters of room access and rental at chartered libraries in New York is variable territory. In other words: the answer can depend on the library’s “type” (set by its charter), its fundamental rules (found in the bylaws), its IRS status (the “501 (c)(3) mentioned by the member”), its day-to-day rules (controlled by policies), its lease (not all libraries own the space they occupy), and any deed restrictions (although deed restrictions on the basis of speech would bring concerns).
That’s right: education law, not-for-profit corporation law, tax law, real property law…this question has it all!
That being said, the member’s question centers on federal tax law; specifically, the library’s 501(c)(3) status, which not only makes the library tax-exempt, but allows it to receive tax-deductible donations. This status is an important fund-raising asset, and its many conditions (including not engaging in politics) cannot be taken lightly.
Here is what IRS Publication 557, the go-to for creating a tax-exempt entity, has to say about political activity:
If any of the activities (whether or not substantial) of your [501(c)(3)] organization consist of participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for public office, your organization won't qualify for tax-exempt status under section 501(c)(3). Such participation or intervention includes the publishing or distributing of statements. Whether your organization is participating or intervening, directly or indirectly, in any political campaign on behalf of (or in opposition to) any candidate for public office depends upon all of the facts and circumstances of each case. Certain voter education activities or public forums conducted in a nonpartisan manner may not be prohibited political activity under section 501(c) (3), while other so-called voter education activities may be prohibited. [emphasis added]
Like many guides from taxing agencies, this one is superficially helpful (I put that part in bold), but upon examination, employs a disclaim that gives very little concrete guidance (I underlined that part). So, what’s a library with a spare room to do?
As alluded to in both the member’s question and my opening paragraph, this question doesn’t turn solely on the IRS. Any 501(c)(3) library that rents or allows free use of space should have a robust “Facility Use Policy”[1] that considers not only IRS regulations, but safety, equal access, and operational priorities (requiring users to clean up after their meeting, to not be noisy, to respect the space). For a library in a municipally-owned building, care must be taken to ensure use fees are applied in a way that does not violation the NYS Constitution. And for a library that rents, the Facility Use Policy must harmonize with the lease.
But the member’s question is about 501(c)(3). So, having established that this consideration is but one of many when giving access to or renting space, here are the three things to consider when a 501(c)(3) rents or gives access to space:
1) Rental income needs to be a very small percentage of the library’s revenue.
Section 501(c)(3) requires that income from renting space can’t outweigh donations and other sources of income related to the library’s tax-exempt purpose. This is something to discuss with the library’s accountant; while rental income isn’t barred, it can bring funding ration and tax consequences that warrant the attention of a professional.
2) The use of the space can’t “inure” to the benefit of any one company or individual.
Section 501(c)(3) also requires that a qualifying organization’s resources can’t directly benefit any one person or entity more than the general public. For example, free use of the spare room by a person conducting a stained-glass workshop with an admission fee (even a nominal one), can be considered an “inurement.” [2]
3) As raised by the member’s trustee, the use of the space cannot violate the bar on lobbying (influencing legislation) and political activity (supporting a particular candidate for office).
And as reviewed, Section 501(c)(3) bars political activity (as further defined in the excerpt from 557, above).
“Ask the Lawyer,” has had some fairly large answers, but I don’t have space to address every occurrence that could run afoul of the bar on “political activity.” But what about renting space, on the same terms as to any other entity, to an event like the one described by the member?
Here is what the IRS has to say:[3]
Can a section 501(c)(3) organization conduct business activities with a candidate for public office?
A business activity such as selling or renting of mailing lists, the leasing of office space or the acceptance of paid political advertising may constitute prohibited political campaign activity. Some factors to consider in determining whether an organization is engaged in prohibited political activity campaign include:
a. Whether the good, service or facility is available to candidates in the same election on an equal basis,
b. Whether the good, service or facility is available only to candidates and not to the general public,
c. Whether the fees charged to candidates are at the organization’s customary and usual rates, and
d. Whether the activity is an ongoing activity of the organization or whether it is conducted only for a particular candidate.
When developing a Facility Use Policy, if a library is a 501(c)(3) charitable organization, and wishes to be able to rent space to (among others) political organizations for event, the above-listed factors should be built right into the policy.
Here is some sample language (some of it will sound familiar):
As a 501(c)(3) organization, the NAME library does not participate or intervene, directly or indirectly, in any political campaign on behalf of (or in opposition to) any candidate for public office depends upon all of the facts and circumstances of each case. Therefore, the use of space in our facility by political organizations or for partisan political events is only available on the same rental terms as for the general public, and is subject to a rental fee that is charged equally to any political group or other individual or group. NOTE: Certain voter education activities or public forums conducted in a nonpartisan manner may qualify for a fee waiver, just as do other free and open events conducted by a charitable entity for the benefit of the public.
So, what about the member’s scenario? In the absence of a spot-on facility use policy, I suggest the following process:
If the library’s past practices make following those three steps too blurry, it is best to take a pass on this precise event, and take the time to develop an up-to-date and thorough Facility Use Policy that considers the types of uses the library will allow, and how and when it will charge for them. There are many good models out there to draw inspiration from, but before the board passes such a policy, it would be good to have it reviewed by a lawyer (who has ready the charter, bylaws, other policies, lease, deed, and any other relevant documents).
The member’s library is fortunate to have leadership that is thinking about both the first amendment and safeguarding the organization’s tax status. Good work. No matter what the final decision, awareness and commitment to these values serves your community.
[1] The member has stated their policy might not be suited to addressing this situation. We’ll tackle that in a bit.
[2] If this just caused a stab of panic because your library let’s an instructor host a “Yoga for Seniors” class for a minimum fee to the instructor, don’t worry, this event can happen…you just have to do it right.
Tags: IRS, , Library Programming and Events, Meeting Room Policy, Policy, Taxes, Templates
