MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This is a timely question, because New York's Committee on Open Government (the authority on all things FOIL), has recently stated[1] that not only do public libraries have to follow FOIL, but cooperative public library systems have to, as well. So, the answer will be useful for libraries and library systems[2] alike.

NOTE: For those of you who need a quick primer on FOIL to get the most of this question: FOIL is the state law requiring timely public access to public agency records (with exceptions). As you can imagine, complying with this obligation requires a clear understanding of what constitutes a "public agency" is, what a "record" is, and what any exceptions might be.

FOIL defines a public agency record as “any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever…” FOIL §86(4).

There is the potential for financial costs for agencies that fail to make timely and compliant FOIL disclosures.[3]

Further guidance on FOIL is available at https://opengovernment.ny.gov/freedom-information-law.

Before we dive deeply into this question, aside from the above small primer on FOIL, it is necessary to consider what "social media" is, in the FOIL context.

When websites were first developed and published by local governments (and libraries), the phrase "social media" was not used to refer to them.

Since that time, government agency use of not only web sites, but more socially interactive utilities like Facebook and Twitter, has exploded. From public "state of emergency" announcements via Twitter, to town council meetings streamed live via Facebook, government use of social media is rampant.

Despite this explosion, the phrase "social media", as used today, is not legally defined. Most critically, the phrase "social media" is not found in the LGS-1[4], which in New York's comprehensive list of record "types" that are subject to mandatory retention.[5]

Among other things, this means there is no one catch-all obligation to retain (and thus have them around to have to disclose) records posted via social media. Which means that instead of focusing on the medium (social media) we have to focus on the message (the "type" of record the social media is being used to create and/or transmit).

While certainly not the exclusive "type", the LGS-1 category social media is mostly used to create and/or transmit is type #68: "Public Relations".

Here is how the LGS-1 categorizes public relation records and sets their retention periods:

Public Relations 68 CO2 11, MU1 11, ED1 11, MI1 11

Official copy of publication, including newsletter, press release, published report, calendar, bulletin, recording, homepage or other website file, educational or informational program material prepared by or for local government, and associated consent forms.

NOTE: Specific publications are listed in other places in this Schedule. Before using this item to determine the minimum legal retention for a publication, determine if that publication is covered by a more specific item.

a

Publications which contain significant information or substantial evidence of plans and directions for government activities, or publications where critical information is not contained in other publications: RETENTION: PERMANENT

b

Publications where critical information is also contained in other publications or reports, publications which document routine activities, publications which contain only routine information, or publications (such as webpages) that Local Government Schedule (LGS-1) General Administration 15 facilitate access to government information on the Internet: RETENTION: 0 after no longer needed

NOTE: Appraise these records for historical significance prior to disposition. Records with historical value should be retained permanently. Local governments should consider permanent retention of samples of publications covered by part "b" of the above item. Contact the State Archives for additional advice in this area.

What does this quote mean? Among other things, unless a library is using a social media publication to be the "official copy" of news, it does not have to retain the copy.

And if the copy of the social media post is not retained, it is not available to be disclosed per FOIL (although the official copy might).

So, with all that established, let's re-visit the member's questions:

For public libraries that must comply with Freedom of Information Law (FOIL), how does FOIL impact our organization's use of social media? What sort of social media records can be FOIL-ed and what are some best practices for using social media in regards to FOIL?

Considering that the LGS-1 confirms that libraries are not obligated to retain everything posted on social media, but FOIL requires that if the record exists and is subject to FOIL, the library must disclose it, I will boil the answers down to 4 very simple things:

1. The library should have a FOIL compliance policy.

Why?

This will ensure the library has the right system and designated personnel for receiving, evaluating, replying to, and considering appeals of FOIL requests.

For more information on putting a policy in place, see the "model rules for agencies" at https://opengovernment.ny.gov/freedom-information-law#model-rules-for-agencies.

2. Social media should never be the sole copy of a notice or publication put out by a library.

Why?

If it is, the social media content may be subject to a "permanent" or a defined period of retention, even though the library doesn't control the means of publication (thus creating more work to properly retain the copy). This means that when the record is requested under FOIL, the Library had better be able to provide it, even if the social media provider is no longer in business, or for some reason, the content is no longer in existence.

3. Every public library[6] should have a records retention policy that tracks its obligations as set forth in the LGS-1 and sets the retention periods and purge times for routine records.

Why?

First, it's the law.[7]

Second, using the LGS-1 forces your library to consider what "type" of records it is generating and what retention periods apply to them--including records generated on and/or being pushed out by social media.

Third, but just as critically, it will encourage your library to purge or formally archive records no longer actively needed, minimizing the content to be disclosed under FOIL.

Fourth, it will better position your library's FOIL officer to timely respond to requests.

And fifth (but of the most relevance to the questions) it will enable your library to determine what, if any, of its social media content must be retained and thus ready for disclosure under FOIL (hopefully not much).

4. Whenever possible, the library should use its own media for primary communications, only relying on social media for secondary "boosting" of content.

Why?

This will make sure the primary copy the library is obligated to retain (if the LGS-1 requires retention) is controlled by the Library, making it simpler to fulfill a FOIL request.

5. The Library should only use its own social media (not accounts belonging to employees) for creating library records.

Why?

Because if the library relies on social media owned by employees and doesn't take care to generate in-house primary copies of certain records, the content generated by the employee could be subject to FOIL (for an example of how that can happen, see the COOG commentary FOIL AO 19732, found at https://docsopengovernment.dos.ny.gov/coog/ftext/f19732.htm).

Still with me? Have I lost you in the morass of FOIL and LGS-1? Hang in there!

I realize this is getting rather complex. So here are some practical examples of social media messages a library might post, and how that post might play out under the lens of FOIL, LGS-1, and other factors.

When considering the examples above, and the member's questions, the important take-aways are:

• Know what records the library has; and
• Have a good system for disclosing those records upon request (if they are subject to FOIL).

In each of these examples, it should be clear that reliance on third-party social media to house the sole copy of the FOIL-able record is not the optimal way to do business. On the flip side, no fancy software is needed to archive contemporaneous social media records; rather, libraries should be using their record retention policies to determine how their records are generated, and how they are managed to be ready for disclosure under FOIL.

With a little planning, this can be done economically and in a way that furthers the library's commitment to information access and transparency

Thank you for hanging in there with me on this one! May all your FOIL requests be clear, and all your social media be impactful.

Below are the retention periods set by the LGS-1, specifically for libraries.

591 CO2 340, MU1 304, ED1 165, MI1 254

Incorporation, chartering and registration records: RETENTION: PERMANENT

592 CO2 341, MU1 305, ED1 158, MI1 255

Accession records: RETENTION: 1 year after accessioning procedure becomes obsolete NOTE: Some libraries accession manuscripts, rare books and special collections, but not their general library holdings. In these cases, the accession records need to be retained only for the kinds of materials still accessioned.

593 CO2 342, ED1 166, MI1 256

Informational copies of records prepared by and received from public library system, including but not limited to directories, minutes, budgets and reports: RETENTION: 0 after superseded or obsolete

594 MU1 306

Directory of public library system and member libraries, prepared by public library system (member library's copy): RETENTION: 0 after superseded or obsolete

595 Library card application records: RETENTION: 3 years after card expires or is inactive

596 CO2 343, MU1 307, ED1 159, MI1 257

Borrowing or loaning records: RETENTION: 0 after no longer needed

597

Interlibrary loan records, including requests to borrow or copy materials from other libraries, receipts for materials, copy logs, accounting records, and circulation records

a When no copies of original materials are requested: Local Government Schedule (LGS-1) Library/Library System RETENTION: 0 after no longer needed

b When copies of original materials are requested: RETENTION: 5 years after order is completed

598 CO2 344, MU1 308, ED1 160, MI1 258

Catalog of holdings

a Manuscript or published catalog: RETENTION: PERMANENT

b Continuously updated catalog: RETENTION: 0 after superseded or obsolete

599 CO2 345, MU1 309, ED1 161, MI1 259

Individual title purchase requisition which has been filled or found to be unfillable: RETENTION: 1 year

600 CO2 346, MU1 310, ED1 162, MI1 260

Records documenting selection of books and other library materials: RETENTION: 0 after no longer needed

601 CO2 347, MU1 311, ED1 163, MI1 261

Library material censorship and complaint records, including evaluations by staff, patrons' complaints and record of final decision: RETENTION: 6 years after last entry NOTE: Appraise these records for historical significance prior to disposition. Some library censorship records deal with serious constitutional issues and may have value for future research.

602 CO2 348, MU1 312, ED1 164, MI1 262

Patron's registration for use of rare, valuable or restricted non-circulating materials: RETENTION: 6 years

603

Program and exhibit file documenting planning and implementation of programs, services and exhibits sponsored or co-sponsored by the library, including but not limited to photographs, sketches, worksheets, publicity, brochures, exhibit catalogs, inventory lists, loan agreements, correspondence, attendance sheets or registration forms, and parental consent forms:

a Parental consent records: RETENTION: 6 years, or 3 years after child attains age 18, whichever is longer

NOTE: Photo release records are covered under item no. 68 in General Administration section. Local Government Schedule (LGS-1) Library/Library System 156 b Attendance sheets and registration forms, when no fee is charged: RETENTION: 0 after no longer needed c All other records: RETENTION: 6 years after exhibit closed or program ended NOTE: Appraise these records for historical significance or value for collections documentation prior to disposition. Some of these records may have continuing value for historical or other research and should be retained permanently. Contact the State Archives for additional advice.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This is the right question at the right time.  As we wrap up 2022, remote work, work travel, work-from-home, work abroad...all these are evolving in a tangle of legal considerations.

Whenever an employer adopts policies or practices that can impact the physical situation of an employee, questions about liability must be addressed.  The same is true for an organization that offers grants.

Liability is only one consideration among many, however.  When the terms for compensation or funding are being set, equally important are: support for institutional mission, individual well-being, and meaningful assessment of how funds are spent.

Fortunately, consideration of liability can be harmonized with these other priorities, by considering the purpose of the funding, and the way it is awarded.

Here are some examples of this balance, based on the member's scenarios:

Scenario 1 (regarding travel to Albany): "To promote member and professional participation in NYLA Legislative Day, member organizations can apply for travel grants up to [AMOUNT].  Member organizations who apply must submit a copy of their lobbying policy to demonstrate they are set up to properly receive, administer, and report lobbying-related funds."

Scenario 2 (regarding professional development): "To promote professional capacity-building at member organizations, member organizations can apply for professional development grants of up to [AMOUNT].  Recipient members will be required to send a short report describing the use of funds so professional capacity-building can be assessed."

How does this limit liability?  In both of the above examples, the grant recipient is the member organization, not the acting/receiving individual.  This would be emphasized further in the grant application and award conditions[1], which would require the funds be spent in a certain way (emphasizing mission and assessment), but would rely on the member-recipient to administer the funds to their employee, as a term of employment.

This separation reduces the chance for liability to be directed at the grant funder, while the chance for liability between the employee and the employer remains the same (unless the grant is conditioning funding on something inherently dangerous, like sky-diving into Albany, or professional development as an underwater welder).

On the flip side of this arrangement is the fact that any time an employee is travelling or engaging in any activity for business--whether the trip is specially funded by a grant, or to promote the employee's individual professional development--the trip or activity may result in an injury that could result in worker's compensation claim.

This is true whether the employee is at the employer's office, a home office, an off-site work location, or travelling for business, and is true whether or not the activity is grant-funded, or funded out of general operating expenses.[2]

Such injury, when incurred by an employee, should be reported promptly to the employer, so the employer can file the appropriate claim for workers' compensation insurance.  If the incident involved injury to another, or injury to property or assets, the matter might involve other types of insurance.[3]

Of course, there are some professional development opportunities and grants that may go straight from a grant-giving organization to an individual, rather than to that individual's employer.  When that is the case, the application materials and recipient award notice (which should double as a "terms of acceptance" document) must make it clear that the funded tasks are not being performed by the recipient as an employee, agent, or contractor of the donor.  That is another task for a lawyer.

Thank you for a nuanced question!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

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:

• Use of Meeting Room Space Question Mash-Up (06/14/2022) - https://www.wnylrc.org/ask-the-lawyer/raqs/268
• Updating meeting room policies (4/27/2022) - https://www.wnylrc.org/ask-the-lawyer/raqs/260
• Protecting Against Misconduct (10/14/2020) - https://www.wnylrc.org/ask-the-lawyer/raqs/169
• Template Facility Use Agreement (9/29/2020) - https://www.wnylrc.org/ask-the-lawyer/raqs/167
• 501c3 Rules for Meeting Room Use (11/6/2019) - https://www.wnylrc.org/ask-the-lawyer/raqs/95

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:

• it necessitates inquiry and assessment of a person or organization's basis for using the room;
• it invites debate;
• it opens the door to assertions of unfair treatment;
• it risks accusations of enabling forbidden benefits to for-profit ventures and individuals.[1]

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:

• no food;
• limited capacity;
• no audible sound outside the room;
• no assurance of privacy;
• no more than one reservation per card holder per week.

...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?

• A local lawyer is writing an advice column and wants to sit in the library for a change of scene;
• A catering company is using the library's old yearbooks to scout out former class presidents to pitch catering reunion events to;
• A tutor is meeting with a student at a table once a week, for a small hourly fee;
• A person is drafting their business plan and designing their website on the library's computers;
• A designer is creating prototypes on the 3-D printer;
• A professional genealogist is visiting the library to research family histories.

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.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

New York's Freedom of Information Law, or “FOIL”, applies to government agencies (including public libraries) but cannot be used to compel private companies (or individuals) to allow inspection or copying or records.

So, in the scenario described by the member, the private company employing the guard is not subject to FOIL, but the library is, as is the county, so information about the security company can be accessed.

Of course, that doesn't mean a person gets everything they might want, but it does mean that information about private companies working for public entities can be accessed.

We'll talk about this in more detail, but to illustrate my point, here is a short, one-act play:

CITIZEN (to security guard at public library): Who are you?!?! The Power of FOIL compels you!

SECURITY GUARD: Well, as you can see on my ID, my name is Phil. But I am not subject to FOIL.  Ask my boss.

CITIZEN (to Phil's private employer, whose company name and logo are on the ID): Who is that guy "Phil"?!? What's his last name and his qualifications?!? What does he get paid a year?!? The Power of FOIL compels you!

PRIVATE SECURITY COMPANY:  We're so glad you like Phil! We do, too. Unfortunately, we are not subject to FOIL, and we don't provide information about private employee to third parties.

CITIZEN (to the library): Your private security company is hiding information! Tell me everything about Phil! EVERYTHING!!! The Power of FOIL compels you!

LIBRARY (answering within 5 days): Your request is a bit broad, but we do have records relating to how we arranged the services of a security company through the County. Would you like to inspect those records, or be provided with copies?

CITIZEN (to the county): I don't just want to know "the arrangement," I want to know about Phil, the actual guy providing security at the Library!  Give me all the information you have on him!!! The Power of FOIL compels you!

COUNTY (replying within 5 days, and helping to narrow down the request): We are not quite sure what you're asking for, but we can definitely provide information about the security company. Do you want just the contract, or the complete procurement process, including their proposal?

[End Scene]

Of course, in this (hopefully fictional) scenario, the citizen asking for the information might not be able to get (such as what "Phil" is making per hour, or Phil's address, or Phil's resume). But if the information the person is really hoping to access falls into the accessible materials held by an entity subject to FOIL (like a county or a public library), they will hopefully get what they need.

Unfortunately, we live in a world where many times requests under FOIL can be perceived as aggressive. And sometimes the FOIL request is clearly being made by a person with an axe to grind.[1]

That's one of the many prices, to be cheerfully paid, of living in a democracy. Good government thrives on transparency, and prompt disclosures show respect for the public, as well as competence.

In my experience, the best way for an entity subject to FOIL to de-escalate any hostility accompanying a FOIL request is to:

• Always require that employees be treated with respect;
• Have a clearly articulated and easily located FOIL policy;
• Have clarity within the organization as to who is responsible for requests and appeals under FOIL[2];
• Maintain records in such a way that FOIL requests are easy and economical to fulfill;
• Allocate time and budget to train the person responsible for responding to FOIL request, so they know what to do (and when to consult a lawyer).

All of the above-listed bullets can be achieved through a policy that sets out the proper timelines and procedures for following the law.

The great thing about a FOIL request being submitted to a library is that if there is one thing librarians know how to do, it's how to help people find information. So, unlike other "agencies" subject to FOIL, where records management and disclosure can be perceived as a hassle, in some ways, fulfilling a FOIL request is just business as usual: enable access.

The below "Template Public Library FOIL Policy" is based on the model policy supplied by the New York State Committee on Open Government (the COOG), found at https://opengovernment.ny.gov/freedom-information-law.  Since it is right from the COOG (with a few added bells and whistles from me), it checks all the boxes on mandatory reply times, providing copies, and how to reply to a request.

Having a policy, and a posting a summary setting out how to request a library record under FOIL, is a good way to diffuse any tension underlying a FOIL request.

As with any template, before a public library's board passes a version based on this one, it is best to have it reviewed by your library's lawyer.

Section 1: Purpose and scope of this FOIL Compliance Policy:

The NAME Library (the "Library") believes in the right of the People to know the process of decision-making and to have access to the documents and information underlying the operations of the Library.  

In addition, a part of the mission of the Library is to enable access to information the public is entitled to.

To that end, the Library shall furnish to the public the information and records required by the Freedom of Information Law, using this policy to enable, effect, and document such compliance.

Section 2: Designation of Library Records Access Officer:

1. The Library designates the following person(s) as "Records Access Officer(s)":

Job title or name:  _____________________________________________

Business address: _____________________________________________

Email address: ________________________________________________

2. The Records Access Officer is responsible for ensuring appropriate library response to public requests for access to records, and shall ensure that the Library:
   1. Maintains an up-to-date subject matter list of type of Library records, based on the categories of documents in the LGS-1[3].
   2. Assist persons seeking public library records to identify the records sought, if necessary, and when appropriate, indicate the manner in which the records are filed, retrieved or generated to assist persons in reasonably describing records.
   3. Contact persons seeking records when a request is voluminous or when locating the records involves substantial effort, so that personnel may ascertain the nature of records of primary interest and attempt to reasonably reduce the volume of records requested.
   4. Upon locating the records, take one of the following actions:
      1. Make records available for inspection; OR,
      2. Deny access to the records in whole or in part and explain in writing the reasons therefor.
   5. Upon request for copies of records:
   1. Make a copy available upon payment or offer to pay established fees, if any, in accordance with Section 8 of this Policy; OR,
   2. Permit the requester to copy those records under appropriate supervision to ensure the records' physical integrity.
   3. Upon request, certify that a record is a true copy; and
   1. The NAME Library is not the custodian for such records; OR,
   2. The records of which NAME Library is a custodian cannot be found after diligent search.
   3. Upon failure to locate records, certify that;

Section 3: Location

Records shall be available for public inspection and copying at:

(Location)____________________________________

(Address)____________________________________

____________________________________________

____________________________________________

____________________________________________

Section 4: Hours for public inspection:

Requests for public access to records shall be accepted and records produced during all hours the Library is regularly open for business, however, timing of fulfillment will be impacted by staff capacity.

Section 5: Requests for public access to records

1. A written request may be required, but oral requests may be accepted when records are readily available.
2. If records are maintained on the internet, the requester shall be informed that the records are accessible via the internet and in printed form either on paper or other information storage medium.
3. A response shall be given within five business days of receipt of a request by:
   1. informing a person requesting records that the request or portion of the request does not reasonably describe the records sought, including direction, to the extent possible, that would enable that person to request records reasonably described; OR,
   2. granting or denying access to records in whole or in part; OR,
   3. acknowledging the receipt of a request in writing, including an approximate date when the request will be granted or denied in whole or in part, which shall be reasonable under the circumstances of the request and shall not be more than twenty business days after the date of the acknowledgment, or if it is known that circumstances prevent disclosure within twenty business days from the date of such acknowledgment, providing a statement in writing indicating the reason for inability to grant the request within that time and a date certain, within a reasonable period under the circumstances of the request, when the request will be granted in whole or in part; OR,
   4. if the receipt of request was acknowledged in writing and included an approximate date when the request would be granted in whole or in part within twenty business days of such acknowledgment, but circumstances prevent disclosure within that time, providing a statement in writing within twenty business days of such acknowledgment specifying the reason for the inability to do so and a date certain, within a reasonable period under the circumstances of the request, when the request will be granted in whole or in part.
4. In determining a reasonable time for granting or denying a request under the circumstances of a request, the Library shall consider the volume of a request, the ease or difficulty in locating, retrieving or generating records, the complexity of the request, the need to review records to determine the extent to which they must be disclosed, the number of requests received by the agency, and similar factors that bear on the ability to grant access to records promptly and within a reasonable time.
5. A failure to comply with the time limitations described herein shall constitute a denial of a request that may be appealed. Such failure shall include situations in which the Records Access Officer (or other employee):
1. fails to grant access to the records sought, deny access in writing or acknowledge the receipt of a request within five business days of the receipt of a request; OR,
2. acknowledges the receipt of a request within five business days but fails to furnish an approximate date when the request will be granted or denied in whole or in part; OR,
3. furnishes an acknowledgment of the receipt of a request within five business days with an approximate date for granting or denying access in whole or in part that is unreasonable under the circumstances of the request; OR,
4. fails to respond to a request within a reasonable time after the approximate date given or within twenty business days after the date of the acknowledgment of the receipt of a request; OR,
5. determines to grant a request in whole or in part within twenty business days of the acknowledgment of the receipt of a request, but fails to do so, unless the agency provides the reason for its inability to do so in writing and a date certain within which the request will be granted in whole or in part; OR,
6. does not grant a request in whole or in part within twenty business days of the acknowledgment of the receipt of a request and fails to provide the reason in writing explaining the inability to do so and a date certain by which the request will be granted in whole or in part; OR,
7. responds to a request, stating that more than twenty business days is needed to grant or deny the request in whole or in part and provides a date certain within which that will be accomplished, but such date is unreasonable under the circumstances of the request.

Section 6: Subject matter list

1. The Library shall maintain a reasonably detailed current list by subject matter of all records in its possession, based on the categories of records set forth in the LGS-1, whether or not records are available pursuant to subdivision two of Section eighty-seven of the Public Officers Law.
2. The "Subject Matter List shall be sufficiently detailed to permit identification of the category of the record sought; the LGS-1 breakdown and description of record categories is the default system the Library shall use.  Whenever possible, this Subject Matter List shall accord with the categories in the Library's [Document Retention and Destruction Policy OR equivalent].
3. The Subject Matter List shall be updated annually by POSITION. The most recent update shall appear on the first page of the subject matter list.

Section 7: Denial of access to records

1. Denial of access to records shall be in writing stating the reason therefor and advising the requester of the right to appeal to the individual or body established to determine appeals, [who or which] shall be identified by name, title, business address and business phone number.
2. If requested records are not provided promptly, as required in Section 5 of this policy, such failure shall also be deemed a denial of access.
3. The following "FOIL Appeal Officer" shall determine appeals regarding denial of access to records under the Freedom of Information Law:
   Name: ___________________________________________________

Title or position: ____________________________________________

Address for FOIL purposes:___________________________________

_________________________________________________________

Phone number:____________________________________________
 

4. Any person denied access to records may appeal within thirty days of a denial.
5. The time for deciding an appeal by the individual or body designated to determine appeals shall commence upon receipt of a written appeal identifying:
   1. the date and location of requests for records;
   2. a description, to the extent possible, of the records that were denied; and
   3. the name and return address of the person denied access.
6. A failure to determine an appeal within ten business days of its receipt by granting access to the records sought or fully explaining the reasons for further denial in writing shall constitute a denial of the appeal.
1. The person or body designated to determine appeals shall transmit to the Committee on Open Government copies of all appeals upon receipt of appeals. Such copies shall be addressed to:
   
   Committee on Open Government
   Department of State
   One Commerce Plaza
   99 Washington Avenue, Suite 650
   Albany, NY 12231
    
2. The person or body designated to determine appeals shall inform the appellant and the Committee on Open Government of its determination in writing within ten business days of receipt of an appeal. The determination shall be transmitted to the Committee on Open Government in the same manner as set forth subdivision (f) of this section.

Section 8: Fees

1. There shall be no fee charged for:
   1. inspection of records;
   2. search for records; or
   3. any certification pursuant to this part.
2. Copies may be provided without charging a fee.
3. Fees for copies may be charged, provided that:
1. the fee for copying records shall not exceed 25 cents per page for photocopies not exceeding 9 by 14 inches. This section shall not be construed to mandate the raising of fees where agencies or municipalities in the past have charged less that 25 cents for such copies;
2. the fee for photocopies of records in excess of 9 x 14 inches shall not exceed the actual cost of reproduction; or
3. an agency has the authority to redact portions of a paper record and does so prior to disclosure of the record by making a photocopy from which the proper redactions are made.
1. an amount equal to the hourly salary attributed to the lowest paid employee who has the necessary skill required to prepare a copy of the requested record, but only when more than two hours of the employee’s time is necessary to do so; and
2. the actual cost of the storage devices or media provided to the person making the request in complying with such request; or
3. the actual cost to the agency of engaging an outside professional service to prepare a copy of a record, but only when an agency’s information technology equipment is inadequate to prepare a copy, and if such service is used to prepare the copy.
4. The fee an agency may charge for a copy of any other record is based on the actual cost of reproduction and may include only the following:
5. When the Library has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, or when doing so requires less employee time than engaging in manual retrieval or redactions from non-electronic records, the Library shall retrieve or extract such record or data electronically. In such case, the Library may charge a fee in accordance with Section 8.3 above.
6. The Library shall inform a person requesting a record of the estimated cost of preparing a copy of the record if more than two hours of an agency employee’s time is needed, or if it is necessary to retain an outside professional service to prepare a copy of the record.
7. The Library may require that the fee for copying or reproducing a record be paid in advance of the preparation of such copy.

Section 9: Public notice

A notice containing:

• the title or name and business address of the Library Records Access Officer
• the title or name and business address of the Library's FOIL Appeal Officer
• the location where records can be seen or copied

shall be posted in a conspicuous location in the Library, and on the Library website at ADDRESS.

Section 10: Severability

If any provision of these regulations or the application thereof to any person or circumstances is adjudged invalid by a court of competent jurisdiction, such judgment shall not affect or impair the validity of the other provisions of these regulations or the application thereof to other persons and circumstances.

YOU HAVE A RIGHT TO SEE YOUR LIBRARY'S PUBLIC RECORDS

The amended Freedom of Information Law ("FOIL"), which took effect on January 1, 1978, gives you the right of access to many public records, including many of those related to the operation of your public library.

Records related to the Library, if not considered exempt from FOIL, can be seen and copied at:

(Location)____________________________________

(Address)____________________________________

____________________________________________

____________________________________________

____________________________________________

The following Library employee(s) will help you to exercise your right to access:

Library Records Access Officer(s)

(name)_____________________________________________

(job title)____________________________________________

(business address)_____________________________________

____________________________________________________

(phone #)____________________________________________

If you are denied access to a record, you may appeal to the following person(s) or body:

(name)_____________________________________________

(job title)____________________________________________

(business address)_____________________________________

____________________________________________________

(phone #)____________________________________________

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

When New York’s "proper-cause requirement" for obtaining an unrestricted license to carry a concealed firearm was struck down by the United States Supreme Court on June 23, 2022[1], the New York State Legislature--in a state still reeling from fatal gun violence in Buffalo just weeks before--swiftly passed laws to replace it.[2]

The law they passed on July 1, 2022 was a different approach than "proper cause". Rather than require someone to prove they had a reason to carry a concealed weapon; it removed that SCOTUS-invalidated section from the Penal law, and added Section 265.01-e of the New York State Penal Law: "Criminal possession of a firearm, rifle or shotgun in a sensitive location".

255.01-e goes into effect on September 1, 2022.   It provides:

1. A person is guilty of criminal possession of a firearm, rifle or shotgun in a sensitive location when such person possesses a firearm, rifle or shotgun in or upon a sensitive location, and such person knows or reasonably should know such location is a sensitive location.

2. For the purposes of this section, a sensitive location shall mean:

(a) any place owned or under the control of federal, state or local government, for the purpose of government administration, including courts;

(b) any location providing health, behavioral health, or chemical dependance care or services;

(c) any place of worship or religious observation;

(d) libraries, public playgrounds, public parks, and zoos; ...

Criminal possession of a firearm, rifle or shotgun in a "sensitive location" is a class E felony.  [emphases added; rest of law is below answer]

So, the very plain answer to the member's question is: libraries that inform visitors that the area is a "sensitive location" per Penal Law 255.01-e can bar firearms, rifles, and shotguns on library property.

There are a few practical considerations for this:

1.  Because enforcement of the law requires people to be aware of it, libraries should maintain a map of their property and use it to develop signage that informs those licensed to carry firearms of the applications of the law.

2.  Libraries should work with their local law enforcement and/or private security to be sure their plan for 255.01-e enforcement is well-thought out, is in a written policy passed by the Board, and is practiced plan for enforcement.

3.  Libraries should not rely solely on 255.01-e for assurance of safety, but rather, should consider it another tool in the box (other tools are: a workplace violence prevention policy, an all-hazards response plan, and customized safety measures).

4.  Libraries with shared spaces should meet with their neighbors to assess the application of the law in common areas (note: many of the entities libraries tend to share spaces with--historical societies, community centers, town buildings, etc.--are "sensitive locations" too; see the rest of the list below).

5.  Libraries in areas where local law already restricts firearms in certain areas should explore how this new "sensitive location" law interacts with the laws in their municipality (a job for the library's lawyer).

6.  Libraries in areas immediately adjacent to places where people go hunting should pay particular attention to the 255.01-e's modifications for hunters, and be ready to enforce the law with suitable refinements.[3]\

7.  Since enforcement of 255.01-e depends on a person being clearly informed of the area being a "sensitive location", signage should be developed carefully, and reviewed by an attorney before posting.

And now, let's talk about the hard part: diplomacy.

The U.S. Supreme Court's decision to strike down the "proper cause" requirement brought dismay to some, and satisfaction to others.  The reaction to New York's swift response in creating new gun control measures will likely be similarly schismatic. Since a good implementation of 255.01-e will require thorough discussion of it, I think it might be helpful to provide some additional information for perspective.

But before we do that, I will share a small story.

In 2021, I attended a pistol permit class.  A colleague of mind had obtained her permit and invited me to target practice, and since I am a relentless seeker of skills, I wanted to give it a try, and getting a permit was the only way onto the range.

While at my pistol permit class, I learned (or re-learned) several things, the most repeated one being: never point a gun at something you don't want to shoot.[4]

As it turned out, I finished the class, but I didn't apply for a pistol permit. Rather than become a casual weekend target shooter, I opted to learn welding[5], instead.  But I do remember something from the class that is relevant to this answer; when the instructor coached us on how to fill in the application for a pistol permit, he explained how if you wanted to conceal-carry, we would need a special reason (a "proper-cause" as discussed by the Supreme Court)...and then assured the females in the room that for us, it was probably enough of a safety risk that we were women--but the men should be ready with a bit more justification.

If you ever meet me out when I am feeling chatty, we can unpack the implications of this assurance.[6] For now, I'll say, when presented with this, my first thought was: this does not seem consistent with the U.S. Constitution.

It's not every day I find myself aligned with Justice Thomas (who wrote the majority opinion scuttling "proper cause") but for this one, I actually get it.

Which brings me to a cool thing about law, and the reason that despite its ups and downs, I cherish my profession.

In ruling that NY's "proper cause" requirement violated the Second and Fourteenth Amendments, Judge Thomas wrote:

After holding that the Second Amendment protected an individual right to armed self-defense, we also relied on the historical understanding of the Amendment to demark the limits on the exercise of that right. We noted that, “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” Id., at 626. “From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

...

For example, courts can use analogies to “longstanding” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” to determine whether modern regulations are constitutionally permissible. Id., at 626. That said, respondents’ attempt to characterize New York’s proper-cause requirement as a “sensitive-place” law lacks merit because there is no historical basis for New York to effectively declare the island of Manhattan a “sensitive place” simply because it is crowded and protected generally by the New York City Police Department. Pp. 17–22.

So, the Supreme Court trashed New York's law as unconstitutional, but while doing it, reinforced other elements of Second Amendment jurisprudence related to "sensitive spaces." 

The NY Legislature, taking Hon. Thomas at his word, has now created a lengthy list of "sensitive spaces"...and while it doesn't quite cover the entire "Isle of Manhattan", it is a very comprehensive list.

          In addition to the "sensitive locations" listed above, it includes:

(e) [licensed child care providers];

(f) nursery schools, preschools, and summer camps;

(g) [programs] for people with developmental disabilities;

(h) the location of any program licensed, regulated, certified, operated, or funded by office of addiction services and supports;

(i) the location of any program licensed, regulated, certified, operated, or funded by the office of mental health;

(j) the location of certain disability assistance programs;

(k) homeless shelters, runaway homeless youth shelters, family shelters, shelters for adults, domestic violence shelters, and emergency shelters, and residential programs for victims of domestic violence;

(l) residential settings licensed, certified, regulated, funded, or operated by the department of health;

(m)  educational institutions;

(n) public transportation...airports, train stations, subway and rail stations, and bus terminals;

(o) [any place where you can consume alcohol or cannibis];

(p)  theaters, stadiums, racetracks, museums, amusement parks, performance venues, concerts, exhibits, conference centers, banquet halls, and gaming facilities and video lottery terminal facilities as licensed by the gaming commission;

(q) any location being used as a polling place;

(r) any public sidewalk or other public area restricted from general public access for a limited time or special event that has been issued a permit for such time or event by a governmental entity, or subject to specific, heightened law enforcement protection, or has otherwise had such access restricted by a governmental entity, provided such location is identified as such by clear and conspicuous signage;

(s) any gathering of individuals to collectively express their constitutional rights to protest or assemble;[7]

(t) the area commonly known as Times Square.[8]

Will this list survive a challenge to the law, with people claiming they have a right to bear arms in some of these locations?  Here is the plain-language personal right that the list is up against;

It is undisputed that petitioners Koch and Nash[9]—two ordinary, law-abiding, adult citizens—are part of “the people” whom the Second Amendment protects. See Heller, 554 U. S., at 580. And no party disputes that handguns are weapons “in common use” today for self-defense. See id., at 627. The Court has little difficulty concluding also that the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense. Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms, and the definition of “bear” naturally encompasses public carry. Moreover, the Second Amendment guarantees an “individual right to possess and carry weapons in case of confrontation,” id., at 592, and confrontation can surely take place outside the home. Pp. 23–24

Why do I bring this up?  I am from Central NY (raised in a pro-gun rights area) and my adopted hometown is Buffalo.  I know and respect people on both sides of the gun debate.  This issue isn't going away soon...and libraries that want to implement this law will need to discuss it.

So, when your library decides to adopt a 255.01-e policy and put up some signage, it is worth thinking deeply about the local character of your community, and how they will best absorb and honor this message. The law does not prescribe any particular way to designate how an area is posted as a "sensitive location;" your signage can sound as helpful and friendly--or as formal and stern--as you like. It can quote the law, or, so long as the final text is reviewed by an attorney, it can paraphrase it. The choice is yours, and can reflect the character and needs of your particular community.

Just as critical will be discussing with local law enforcement (or contract security) how this law will be enforced in your libraries.  Training staff to understand and speak knowledgeably about the policy will be critical, too.

Writing this from Buffalo, I wish we lived in the world where we didn't have to address this type of question for something so beautiful as a local library. But we do, and I am grateful for the person who submitted the question, and I wish you well as your libraries work with the new legislation.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

For a person who hasn't run into this concept yet, a so-called "First Amendment audit" is an increasingly popular trend where people visit government buildings and demand access to information--along with the privilege to film on site--all in the name of the law, democracy and transparency.

As a lawyer and U.S. citizen, I am all for the law, democracy, and transparency.

The concern raised by the member is that so-called "First Amendment auditors" don't just pop by their local town hall to live out a civics lesson.  Most of these folks are "monetized", meaning they post their recordings on YouTube...for money.  And since nothing draws in viewers like controversy, in the quest to get tens of thousands of hits, "First Amendment auditors" often[1] swap law, democracy, and transparency for rhetoric, bullying...and borderline harassment.

How do these YouTubers[2] create this concern?  As can be seen in their videos, they often come out swinging: filming or streaming while walking around as if "casing" a civic building, knowing that for some workers, this will cause concern.  Further, if/when confronted about what they are doing (usually some version of "Can I help you?") the best YouTubers are masters at using standoffish nonchalance, or passive-aggressive behavior, to trigger suspicion and fear.

Sadly, however, it is sometimes the fearful or angry reaction of those being filmed (town clerks, other employees) that tips things into a legal quagmire...and creates "click-worthy" material.

While mainly focused on municipal buildings (town halls, village halls, etc.) a growing sub-set of "First Amendment auditors" are visiting public libraries. I'd put a link in to some of the more egregious examples that have been created in New York in the last year or two, but I don't want to make money for these folks (they are doing just fine without me).  Let's just say that when the YouTuber is able to hit all the right pressure points, they can really tick off a civil servant--including a librarian.

The frustrating thing is that this doesn't have to happen.

Libraries--even those wholly housed within a municipally-owned structure--are, as the member says, "limited public forums" meaning that the library gets to set policy and rules imposing reasonable, operationally-related parameters on speech ("speech" in First Amendment jurisprudence, includes the right to film and access information).

Among other things, this means that libraries can totally bar or limit filming to certain areas of the library.

Of course, such a bar or limit can't be arbitrary--it must be "rationally related" to the operational needs of the library.  But so long as there is a "rational relationship" between the policy and the needs of the library, such a bar can be enforced.[3]

This means that through policy, a library can decide that patron confidentiality, information access, and the library's overall service to the public require limiting recording and/or streaming on site--a rule that can be enforced just like rules to be quiet in certain rooms, to not eat in certain areas, and to not deface any of the books.[4]

This means that the confident swagger many YouTubers bring to their "audit" game can be met, in the field, with a series of rules restricting their behavior--something (from what I've seen) that many YouTubers are not emotionally nor intellectually ready to honor in the moment.  In other words, just because your policy is legal, doesn't mean a YouTuber will magically turn their camera off!

So enforcing such policy requires forethought...especially since most YouTubers know that if they can get in an argument with a librarian, they will double (or triple) their number of hits.

So, as the member asks: "[H]ow can we stop the filming, as quietly as possible without causing a social media frenzy?"

Here are 10 different tactics[5]:

Have a Policy

Have a policy regarding filming in the library, and make sure that any decision to bar filming is rationally related to library priorities such as protecting patron confidentiality, respect for employees, and smooth operations.[6]

Use Good Signage

However your library decides to exercise its rights as a limited public forum, once it is confirmed in a policy, use prominent and effective signage to inform the public about the rules.

Transparency through FOIL

Since claiming the right to film anywhere in a public library is only part of the YouTuber package, make sure your library has a clear policy and process for requesting library records through the New York State Freedom of Information Law (or "FOIL").[7]

Designated Non-Public Areas

All staff rooms, break rooms, and other areas not accessible to the public should be designated as "No Public Access", with appropriate means of securing the area.  Give your employees a place of refuge (and a place for private information to securely reside).

Select Your Library's Response and Non-Escalation Method

As we've discussed, if you argue with a YouTuber, you might as well just hand them money.

So, while there is no one "right" way to resist escalating a situation, each library should pick its own particular brand of how to keep interactions with YouTubers civil, non-confrontational, and above all very, very, very boring.

For those libraries that do allow filming (whether without restriction,[8] or with some limits), but want to be part of the narrative, I like the idea of chatty engagement about the library's mission, services, and budget (and fundraising).  After all, the YouTuber is there to get information...why not provide it?  Think of the YouTuber's visit as a chance to inform the public of the history of the library, to showcase its services, and alert the public as to how they can donate money to support special initiatives (this is a good reason to have a copy of the library's annual report on hand). If YouTube is helping to draw attention to your library, you might as well put your best foot forward!

For those libraries that don't allow filming, or restrict it to certain times/areas, ensuring that a person who is attempting to film in the library is aware of the duly authorized and posted policy is essential.  After that, if a person persists in violating the policy, a response is down to what enforcement method is selected and practiced, which can include a combination of:

• Policy enforcement in the moment (using practiced security procedures);
• Policy enforcement after the moment (the recording happens without confrontation, but there is a subsequent action for trespass, or other action under Code of Conduct);
• Deliberate non-engagement with the YouTuber using pre-determined language ("It is against our policy for you to film in this location"; and/or "You do not have my consent to film me, I consider it harassing; please stop." said once, calmly.[9]);
• Use of pre-determined, quiet withdrawal of most employees into employee-only areas.

Do not argue. Do not debate. 

And finally, it is important to acknowledge: for some library employees, the visit of a YouTuber can feel threatening (remember, many of these entertainers are trying to get a rise out of people). So as with any other interaction with the public, the clear message to employees must be: Safety First.  If employees are feeling threatened, they should withdraw using the same protocol in place for other safety concerns.[10]

Practice, Practice, Practice

Once there is a policy and clear, engaging signage, set aside time to train employees in the policy, and give them time to practice addressing YouTubers in a non-confrontational manner.  Use role-playing techniques (done right, this can be a fun exercise, even though the actual event might not be so fun).

Coordinate with Security

Not all libraries have private security, but for those that do, make sure they understand what is at stake when dealing with a YouTuber; include security personnel in the practice sessions (if time and budget allow). At the bare minimum, confer with the local police department to know what the response will be if the situation warrants intervention by law enforcement.[11]

Remember: YouTubers are Human, Too

I know it can be hard to recall when someone is pointing a camera in your face and wandering about your library looking like they are creating a map of its security vulnerabilities, but one thing I've learned from working with libraries who have lived through a "First Amendment audit"[12] is that very often the visitor is a member of the community.

In fact, some libraries have received calls from national groups in advance alerting them that a longstanding member of the community will be visiting to film!  (I suspect the "advance warning" was to create an adrenalin rush, but the library was able to use its long-standing relationship with the person to make it a positive interaction.)

So long as a library employee dealing with a YouTuber feels confident about their safety, thinking about the YouTuber as a person who is genuinely curious about your library, and treating them as just another patron on a quest for information, can help cut down on click-bait drama--and serve the mission of the library to provide access to information.

Maintaining that type of perspective is easier if the employee is:

          a) confident that they know the library's policy about filming in the library;

          b) confident that the policy is clearly posted;

          c) confident that the library is on solid legal ground;

          d) confident of how the library as a whole responds to Code of Conduct violations;

          e) confident that the library abides by the law governing access to information; and;

          f) confident about if/how to engage, because they have practiced techniques for positive interactions and non-escalation, and they know leadership will have their back.

And that is how a library can turn YouTube drama into a non-dramatic civics lesson. It is not fool-proof, because if a person is determined to enter a library and create a scene, they will create a scene. But with good policy and practice, a library and its employees won't contribute to it.

Thank you for a great question!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Several considerations impact the answer to this question:

For a public library, the bare minimum record retention periods are found in a document called "the LGS-1."[1]  The LGS-1 has rules for retention covering everything from your library's charter, to how long you hold onto circulation records.

For an association library, which does not have to follow the LGS-1, those retention rules in the LGS-1 are a good baseline, but you have a bit more latitude.

However, no matter what baseline a library or other cultural organization chooses to adopt, it is good to keep in mind that required retention periods are routinely extended by things like:

• Insurance policy requirements
• Union contracts (for personnel records)
• Grants, and other sponsored funding
• Lawyers instructing a client to retain records as part of a "litigation hold"

In addition, while it can't be considered a formal "retention period", documents are also "retained" by institutions simply due to a tendency to hoard records.  At times, this can be a healthy tendency (like when letters from a first grade class from 1945, written to thank the local library for a story hour, are found in moisture-resistant storage, and they are turned into an exhibit).  Other times, it is not so healthy (like when borrower records from 5 years prior[2] are accessed during a burglary or hack).

For a large library (or museum, or other cultural institution) with robust funding and a large staff, "records management" per the LGS-1 or a customized "record retention policy" is often part of a person’s (or department's) job description--and is supported in the annual budget.  For a smaller library (or museum, or other cultural institution) with less-than-robust funding, and a smaller staff, "records management" is often an afterthought.  This can cause complications when the records pile up, and there is no person--or budget--to sort through them and make sure they are properly retained/purged.

But this question is about retention periods, not the drama they can cause!  So here is the answer:

For the types of records mentioned in the question ("employee records, payroll records, sales and purchase records, mortgage and loan documents"), the retention periods vary; some are "permanent", and others are as short at 6 years.  The LGS-1 (which will pop up when you search "LGS-1") will give you the breakdown.

For an association library that doesn't want to follow the precise requirements of the LGS-1, but still wants a retention policy, below is a model policy.

Thank you for submitting an important question!

[ABC] ASSOCIATION LIBRARY

RECORD RETENTION AND DISPOSAL POLICY

Items in yellow are to be changed or removed

Policy

The ABC Library retains and disposes of records as required by law, contracts, and based on the board's determination of what is in the operational best interests of the Library.

I.        Records are retained as follows:

-Association Library Charter, bylaws, Plan(s) of Service, Annual Reports: PERMANENT

-All records made available per the Open Meetings Law: PERMANENT

-Deeds: PERMANENT

-Contracts: (includes leases, mortgages, loan documents, vendor contracts, employee benefit contracts, warrantees, use of independent contractors): Seven years after termination of all obligations and rights created by contract; in some cases, PERMANENT. See "Archives."

-Employee-related: Seven years after termination of employee.  See "Archives."

NOTE: This will be impacted by an association library's union contracts, employee manual provisions, and employee-related policies; check these documents to ensure consistency.

-Fiscal & Financial: Seven years, unless the relevant fiscal policy, document or transaction it is related to requires longer. See "Archives."

-Archives: PERMANENT

-Records pertaining to library operations (based on the LGS-1 to ensure consistency with non-association libraries in the XYZ Library System):

-Accession records: 1 year after accessioning procedure becomes obsolete

NOTE: Some libraries accession manuscripts, rare books and special collections, but not their general library holdings. In these cases, the accession records need to be retained only for the kinds of materials still accessioned.

 -Informational copies of records prepared by and received from public library system, including but not limited to directories, minutes, budgets and reports: 0 after superseded or obsolete

-Directory of public library system and member libraries, prepared by public library system (member library's copy): 0 after superseded or obsolete

-Library card application records: 3 years after card expires or is inactive

-Borrowing or loaning records: 0 after no longer needed

-Interlibrary loan records, including requests to borrow or copy materials from other libraries, receipts for materials, copy logs, accounting records, and circulation records

a) When no copies of original materials are requested: 0 after no longer needed

b) When copies of original materials are requested: 5 years after order is completed

-Catalog of holdings

a) Manuscript or published catalog: PERMANENT

b) Continuously updated catalog: 0 after superseded or obsolete

-Individual title purchase requisition which has been filled or found to be unfillable: 1 year

-Records documenting selection of books and other library materials:

0 after no longer needed

-Library material censorship and complaint records, including evaluations by staff, patrons' complaints and record of final decision: 6 years after last entry NOTE: Appraise these records for historical significance prior to disposition. Some library censorship records deal with serious constitutional issues and may have value for future research.

-Patron's registration for use of rare, valuable or restricted non-circulating materials: 6 years

-Program and exhibit file documenting planning and implementation of programs, services and exhibits sponsored or co-sponsored by the library, including but not limited to photographs, sketches, worksheets, publicity, brochures, exhibit catalogs, inventory lists, loan agreements, correspondence, attendance sheets or registration forms, and parental consent forms:

a) Parental consent records: 6 years, or 3 years after child attains age 18, whichever is longer

NOTE: Photo release records are covered under item no. 68 in General Administration section. Local Government Schedule (LGS-1) Library/Library System

b) Attendance sheets and registration forms, when no fee is charged: 0 after no longer needed

c) All other records: 6 years after exhibit closed or program ended

NOTE: Appraise these records for historical significance or value for collections documentation prior to disposition. Some of these records may have continuing value for historical or other research and should be retained permanently. Contact the State Archives for additional advice

II.       Records are disposed of as follows:

At the end of the retention period, physical copies are purged via shredding as their retention period expires.[3]

At the end of the retention period, electronic records are routinely disposed of by [insert input from your IT professional].

Archives

Prior to purging, all records of the Library are appraised for historical significance or value for collections documentation prior to disposition. Some of these records may have continuing value for historical or other research and should be retained permanently. Records retained permanently due to historic or research value are designated as "Archives."

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

DO ensure your school district library system, school district, or school has a robust and well-thought-out "school library materials policy"[1] ("Policy") governing selection, procurement, cataloging, lending, concerns, re-evaluation, and removal of library materials.

DON'T forget to train every person with a role in that Policy[2] on how it works, and why the district has it in place; this includes spending time on the law, regulations, and ethics[3] that govern it.

DO ensure that experienced lawyers and policy-makers have reviewed the Policy for both legal compliance, and compatibility with the unique environment at your district or school.

For example, if your school has an active PTA that likes to fund-raise and donate books to the school library, the method of accepting those donations should conform to the "selection" part of the Policy.[4]

DON'T adopt a Policy and then let it gather dust.  A policy that governs selection, procurement, cataloging, lending, concerns, re-evaluation, and removal of school library materials is a vital part of a school's library--which is a vital part of a school.

DO make sure your Policy honors the professionalism and qualifications of your school librarians and media specialists.  When considering how your district's Policy applies in real-world situations, remember that your school library staff are trained in the selection of library materials.   Because of that, your district's Policy will delegate responsibility for selection and cataloging to those professionals[5] ...and the law in New York, policy of your district, and job descriptions will back that authority up.

DON'T create a potential liability for your school by taking quick steps related to library collection management issues without checking with your district's Policy and lawyer.  Cases such as Pico[6],  the seminal case regarding school board over-reach regarding school materials, happened because school leadership took hasty action without considering policy.

DO maintain familiarity with the most basic tenets of the law in New York regarding school district library systems and school library operations.  This includes Education Law § 1709(1), Education Law §1711[2] [c, d], Education §Law 701, Education law §702, Education Law §310, 8 NYCRR § 90.18 and 91.2.  For a good primer on these, review the NYSED Commissioner Decision 14,229  "Matter of Carney."[7]

Notably, the case law and NY Education Commissioner decisions emanating from these laws and regulations show that ad hoc decisions about curricular and library materials imposed without consulting policy can lead to legal claims, creating unnecessary media attention, community tension, and expense for school districts.

DON'T impose "creative work-arounds" such as using "soft" directives to influence school library collection issues without following policy.

Hypothetical examples of such "creative work-arounds" include:

• Directing library staff to keep "controversial" books in the collection, but move them off the shelves and into a store-room;
• Stigmatizing books in the collection by making them available "by request only";
• Telling parents and guardians with concerns that library material will be removed, without referring them to the relevant policy for lodging a complaint or requesting that it be re-evaluated;
• Identifying books that may only be checked out after obtaining parent/guardian consent[8];
• Sharing lists of books checked out by students in excess of what professional ethics, FERPA and CPLR 4509 (regarding privacy) allow;
• Directing school library employees to avoid selecting a certain "type" of material, even if that material is otherwise appropriate per the district's Policy;
• Basing content bans on categories of identity protected by local, state, and federal civil rights laws.

These are just a few examples...but anything that would remove or restrict access to school library materials, without applying due process, risks a legal concern and tripping the factors found unconstitutional in Pico.

DO build an administrative and educational team that is READY to respond to concerns about curricular and library materials.  

When it comes to content choices in the classroom or in the library, no Superintendent, Principal, or school board chair can do it all. 

A team consisting of the school librarian, experienced teachers and administrators, the district's lawyer, and as needed, the school board, should be ready to respond promptly when there are materials concerns. [9]

DO remember that for every school library material challenged, there are people being impacted by the challenge--including yourself.

These are tough times for school administrators.   Across the country, there is a great awakening to the importance of school boards and the leadership of public institutions such as libraries.

This is good, but it has turned school districts and libraries into zones of potential controversy, with administrators charged with keeping the peace--and people threatening lawsuits on all sides.

At such times, there are three things that, when combined, can create refuge and stability:

First: a cool head.

Do not take an ad hoc action when presented with a library materials concern; lead with policy.

Second: a good team. 

Rely on your people.  They will help ensure legal compliance, the well-being of students, and good service to the community.

Third: a solid policy.

Have it, know it, follow it.

Administrators who find the culture wars on the doorstep of their schools cannot avoid controversy.  But when controversy arrives, if they DO follow policy, and DON'T take ad hoc steps in a panic, school administrators can provide a structure for communities to navigate open and honest discussions[10] of library materials, community values, and their educational environment.

Below is a template[11] for organizing a response, when a library materials[12] issue happens at your school.

School library material concern worksheet

For internal and personal use only

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

YES. Expressly barring library displays based on categories protected by law, such as sexual orientation and gender, is--among other things--a legal issue.

This is not to say a library can't pass a policy on library displays.  A library could easily implement a policy that requires displays to be timely, that they be reflective of the needs of the community, and that they display an array of materials from different sources.  Such a policy, done thoughtfully and with director and attorney input, could be perfectly appropriate, legal, and in line with the mission of a public library.

In addition, such a policy could address and provide established and well-thought-out procedures for the library to address:

• Concerns that a library display violates the bar on political activity by a library;
• Concerns that a library display is age-inappropriate;
• Concerns that the content in a library display is illegal;
• Concerns that the display could objected to by members of the community; and
• Concerns that the display is boring, non-engaging, and/or irrelevant.

But what such a policy could NOT do (without tripping legal concerns) is make blanket rules about display content based on categories that align with identities protected by law. [1]

Further, if such decisions are made in a vacuum, without policy (like an ad hoc board resolution), they run the risk of being both discriminatory and "arbitrary and capricious."  Such a ban--especially coupled with the dialogue and community interaction that might precede and follow it--could set the stage for:

• A claim of discrimination by a trustee;
• A claim of discrimination by an employee;
• A civil rights claim by a patron;
• A report triggering an investigation by the New York Division of Human Rights[2];
• A really awkward moment at the next sexual harassment training, since in New York, "sexual harassment" includes harassment on the basis of sex, sexual orientation, gender identity and the status of being transgender.

In addition, there are many local municipalities that have their own protections for certain protected categories, including sexual orientation and gender identity and expression.  So there is a risk of implicating not just state and federal, but local law, as well.

Of course, such a ban is FAR MORE that a legal issue.  But amidst everything else, it IS a legal concern.  And while their primary duty is to serve the library's mission, public library trustees also have a fiduciary duty to guard against claims that the library has violated state, federal and local civil rights laws.

How would a library board walk back having taken such a position?  Ideally, very quickly and decisively, with confidential legal advice from their local attorney[3].  This is because in and of itself, such a ban might not be enough to trigger legal action...rather like how just vodka isn't enough to make a martini.  But who knows when the vermouth will show up?

That said, if a board is at this point (and especially if the library director and staff are watching, without being consulted[4]), even after serious consideration of a such a policy or directive, change is possible. 

After all, each and every library trustee and employee in New York (and even their lawyers) can always learn more about the New York Human Rights Law,[5] federal civil rights law, and perhaps even the protections in their municipality.

And public libraries are there to enable learning by everybody.

Everybody.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

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:

• The tutor starts advertising for services and uses the library as a business address;
• The tutor starts "camping" (holding the space past established limits) in violation of the policy;
• The tutor is an employee or independent contractor whose company specifically requires offering the services in the library;
• The library has a policy against any compensated activity, whatsoever, being conducted on site.[2]

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

2. Meeting Rooms Q&A

- 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)

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This is a VERY sensitive issue. There are many factors that could contribute to a person sleeping in a public space, including:

• An undiagnosed medical condition
• A diagnosed medical condition
• Non-medical factors impacting behaviors
• Temporary or serial lack of a safe, stable place to rest
• Simply wanting to take a nap[1]
• Any combination of the above-listed factors

Each one of these brings their own array of legal (and ethical, and moral) considerations.

But before we get into all that, let's discuss: for purposes of this question, what is "sleep"?

For purposes of this question, let's call "sleep" a "state of healthy, restful, and restorative unconsciousness."  In other words, "sleep" is that great thing we all do when our eyes get heavy, we yawn, and lie down, dozing into blissful unawareness.

Sleep: we all do it, and many of us love it.[2]

Now, let's talk about what sleep isn't for purpose of this question.  "Sleep" isn't, for purposes of this question; the result  of a concussion, a seizure, a stroke, an opioid overdose, or dangerously low blood sugar.   And yet, to the untrained eye, any one of these dangerous conditions could be mistaken for "sleep."[3]

Because of this, no matter how much my bleeding heart and sense compassion want to say, "Just let the person sleep in the library, and don't say anything," I can't.  I just can't bring myself to normalize ignoring what could be "sleep" one day, and a diabetic coma the next.[4]

That said, because it could be related to a real or perceived medical condition and/or disability, denying or restricting library services (including the right to simply be present in the library) on the basis of simply falling asleep could pose risks of disability discrimination.  Sleep happens, folks, and sometimes people can't help it.

So, what is the solution, here?

Well, as with many things, there is no one "right" answer.  But I will say:

1.  Every library should have a policy, or at least a "standard operating procedure" (or "SOP"), regarding "Suspected or Actual Medical Events in The Library."   That policy should address (among other things) what to do about perceived loss of consciousness or coherence by library users.[5]

2.  A" Suspected or Actual Medical Events in the Library" policy or SOP can also address incidental (meaning unintended) and deliberate use of the library for napping.
3.  This is where a library's discretion and autonomy kick in.

A library can decide if it is going to normalize sleeping in the library, or not.

If a library decides NOT to normalize sleep in the library, a simple statement such as "For assurance of safety, the library is a no-nap, no-sleep zone.  Thank you for helping us maintain this rule.  We understand that sleep happens; if you need to request ADA accommodations due to this rule, please contact NAME at INFO."   Then, as a rule, patrons who fall asleep should be awoken (just as patrons who bring food in might be asked to remove it, or patrons who don't wear shoes might be asked to put some on).

On the flip side, if a library decides, as a matter of policy, to allow users to sleep in the library[6], such a policy can also create the protocol for "safe napping," with those planning to sleep notifying staff, so the nap is not mistaken for an overdose, seizure, etc.

NOTE: Before selecting this option, a library should check with its general liability insurance carrier to make sure it is consistent with the library's risk threshold and coverage.

What does a "Suspected or Actual Medical Events in the Library" with a "sleeping" section look like?  Here is an example (with both a "sleep okay" and "no sleep" option at the end):

The XYZ Community Library is a welcoming, service-oriented, and inclusive space for all. To promote the health and safety of those using our library, the following possible medical events will result in the staff calling 911:

• Any perceived or actual loss of sustained coherence or consciousness;
• Any library user exhibiting signs that they may require emergency medical attention,

who does not expressly instruct staff that immediate medical attention is not required;

• Any person requesting emergency medical response.

Definitions

For this policy, "loss of sustained coherence or consciousness" is the inability to communicate meaningfully with library employees in the user's primary language.

For this policy, express instructions to staff that "immediate medical attention is not required" may be disregarded at the considered discretion of the library employees; such a decision will be based on consideration of: the specific facts of the situation, respect for the agency of the user, and respect for the mission and operational needs of the library.

ADA

If a library user has a medical condition that can potentially result in perceived or actual loss of coherence or consciousness, you may use the library's ADA Accommodations policy to arrange reasonable accommodations so your library experience is not unnecessarily impacted by this policy. For example, if a library user has narcolepsy and wishes to be woken in the event, they fall asleep, the library can consider a reasonable accommodation such as allowing the user to use a specific type of alarm in an otherwise quiet space.

Specific Situations

Whenever possible, the library uses the following specific guidelines from the CDC with respect to common medical events that can impact coherence or consciousness:

Seizures

Seizures do not usually require emergency medical attention. Only call 911 if one or more of these are true:

• The person has never had a seizure before;
• The person has difficulty breathing or waking after the seizure;
• The seizure lasts longer than 5 minutes;
• The person has another seizure soon after the first one;
• The person is hurt during the seizure;
• The seizure happens in water;
• The person has a health condition like diabetes, heart disease, or is pregnant.

Suspected opioid overdose
Call 911 if an overdose is suspected.

Recognizing an opioid overdose may be difficult. If it is unclear, treat the situation like an overdose and proceed with treatment. Even if the patient wakes up or seems better after one or two doses of naloxone, emergency medical assistance is still necessary.

Severely Low Blood Sugar

Blood sugar below 55 mg/dL is considered severely low. If any of the following happens, you should call 911:

• A person with low blood sugar passes out;
• A person with low blood sugar needs a second dose of glucagon;
• A person with low blood sugar had glucagon but are still confused;
• A person with low blood sugar stays too low 20 minutes after treatment or doesn’t respond to the usual treatments.

Concussion
Signs and symptoms of a dangerous concussion can include:

• One pupil larger than the other;
• Drowsiness or inability to wake up;
• A headache that gets worse and does not go away;
• Slurred speech, weakness, numbness, or decreased coordination;
• Repeated vomiting or nausea, convulsions or seizures (shaking or twitching);
• Unusual behavior, increased confusion, restlessness, or agitation;
• Loss of consciousness (passed out/knocked out). Even a brief loss of consciousness should be taken seriously.

Call 911.

This policy, and sleeping in the Library

CHOICE 1: USE IF THE LIBRARY DECIDES TO NOT ALLOW PEOPLE TO SLEEP IN THE LIBRARY Because loss of consciousness can be a sign of a medical emergency, library users are asked not to deliberately sleep or nap in the library.

If a library user is asleep in the library, staff are instructed to wake them.

In applying this rule, the library will follow the requirements of the ADA; if a library user has a medical condition that can cause uncontrollable sleep, at that library user's discretion, they may alert staff so accommodations can be made (see "ADA" above).

CHOICE 2: USE IF THE LIBRARY DECIDES TO ALLOW PEOPLE TO SLEEP IN THE LIBRARY

If you have a medical condition that can cause uncontrollable sleep, at your discretion, you may alert staff so accommodations can be made (see "ADA" above).

If you simply find that the library is a nice, quiet place for you to take a nap, please alert us that you "Plan to take a nap" so our staff knows that you are asleep by desire, and not experiencing a medical emergency causing loss of consciousness or coherence. We'll give you a nice arrangement of purple flowers[7] to keep near where you're sitting so staff know you're deliberately using the library space to rest and restore yourself.

Users must limit planned napping in the library to no later than one half-hour before close, so you have time to gather your thoughts and energy before it is time for us to close up the building.[8]

If your nap creates loud snoring or other disruption, we may have to wake you! Please be gracious to staff who are responsible for making sure the library is a welcoming and inclusive space for all.

As with any template, before adopting a policy based on this one, review the final version with your lawyer (and, as noted above, your library's insurance carrier).

And a final note: I truly wish I had a better answer to this question.  As I said at the beginning, this is a VERY sensitive issue.  But if a commitment to library access, safety, and mission guide the decision, your library can find the best answer for  YOUR library.

Thank you for this tough question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

As I have written before, a big rule for the "Ask the Lawyer" service is "don't reinvent the wheel!"

So before I answer this, I will reiterate the member's mention of the "Prison Library Support Network", and refer readers to their excellent guide "Reference Letter Writing: A Volunteer Handbook."

The "Volunteer Handbook" reviews a lot of what I would otherwise supply: how to be respectful of an incarcerated person’s needs and personal considerations when responding to a reference request, how to be aware of and work within the larger social dynamics at play, and--critically--the practical considerations of sending mail to incarcerated people (it's also well-written, which is always a plus).

To the "Volunteer Handbook" I would add just a few considerations for a library at a private higher education institution:

First, it is important to recognize that while library services provided in the state of New York by both public libraries and academic libraries are confidential, incarcerated individuals do not have privacy with respect to information they receive via the mail.  Therefore, the normal librarian/library user dynamic is "off."

Here is a sample of the scrutiny mail to a person living in jail or prison will be subject to:

(c) Printed or photocopied materials.

(1) When, in the course of inspection, printed or photocopied materials are found, the entire contents of such correspondence may be delayed through the correspondence unit for up to six days while the materials are subject to media review guidelines (see Part 712 of this Title).

(2) A limit of five pages of printed or photocopied materials (an individual newspaper clipping will be considered one page) may be received within a piece of regular correspondence (except as provided in paragraphs [3] and [4] of this subdivision). In order to facilitate media review, pages or clippings must not be taped, glued, or pasted together or to other papers.

(3) Not to exceed once every four months, an inmate may make a written request to the superintendent to receive in excess of five pages of printed or photocopied legal papers specifically related to the inmate's current legal matter (e.g., legal brief or trial transcript relating to the inmate's active case) within a piece of regular correspondence. The inmate shall make the request in advance...[etc.]

Ugh.  That's a lot of compromised privacy.[1]  So, from the outset, just keep in mind that per 7 CRR-NY 720.4, as well as a facility's customized policies and procedures, the usual rule of confidentiality will not apply.

Aside from that, I add three things:

1.  An academic library should specify via written policy if it offers library privileges to community members within a defined geographic scope (not just students, alumni, and employees).

2.  An academic library should have a policy setting out its capacity and limits for providing hard copy/mailed responses to reference requests.

3.  If a library is going to provide services specifically to incarcerated persons living beyond the geographic scope allowed by their policies (as the member's question says, they get questions "from around the country"), a specific policy should be developed for providing that service, even if the institution doesn't have a fully-developed prison outreach program.

These three policies should be applied evenly, fairly, and with attention to budget and capacity. This means:

With respect to #1, if an academic institution allows residents within 100 miles to have library privileges, and there is a prison within that radius, a person who is incarcerated may have library privileges (although their ability to exercise them may be limited).

With respect to #2, if an academic library provides written, mailed responses to users, there should be time and resource limits on providing that service to users, and those limits should be uniformly applied with respect to both staff hours, and copying/mailing budget.

And with respect to #3, if a private academic institution wants to provide services to persons living in jail or prison beyond the scope of their usual services, but it not able to develop a full prison outreach program, such services should still be done per a specific policy.

Why a specific policy, if there isn't a fully developed outreach program?  A few reasons.  First, it will help set the boundaries for the service, based on the library's capacity.  By establishing those boundaries, the library/institution will be able to show that the resource is being allocated fairly.  And finally, it provides clarity on how such services are provided, who is responsible for providing them, and how much is allocated for the expense associated with them (useful information if your institution ever wants to expand the service through a grant).

Here is a sample policy:[2]

[ABC Library] Policy on Reference Services to Incarcerated Persons

Policy

As part of our mission, the [ABC College Library] provides up to [20 hours per month] of reference services to persons incarcerated anywhere within [the United States].

Procedure

Upon receiving a reference request from a person who is incarcerated, the ABC Library assesses if the inquiry can be answered by the library within [one month (30 days)].[3]

If it can be answered, the question is placed in a queue to be answered in order of receipt, and an answer will be sent via the USPS within 30 days of receipt.

If it cannot be answered, either due to a large queue, or because it is not within the capability of the institution, a reply is sent stating "The ABC Library received your request for reference services, and regrets that answering your question is not within our capability at this time."

The position responsible for reviewing requests, and for assessing and effecting a timely response, is [INSERT]. This responsibility may be delegated, based on capacity.

OPTIONAL: To the greatest extent possible, persons within [NAME Correctional Facility], which is in the Library's area of service, are served per the library's policy on community members, and hours spent serving such users are not counted against the monthly amount allowed under this policy].

I appreciate that for many institutions of higher education, this question is deeply related to mission. Therefore, in adopting even the most informal policy, such as the one above, I also suggest considering a recital of how the work specifically plays into the mission of the institution.

Thank you for a thoughtful question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

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:

• Owner-imposed conditions[1]
• Lease agreements[2]
• Deed and zoning restrictions[3]
• Donor conditions[4]
• Grant agreements[5]
• Collaboration/affiliation terms[6]

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:

• Have a rental policy and use agreement for meeting rooms, with the fee waived for tax-exempt entities, and rental fees channeled back into maintenance of the space[9];
• Based on the assessed needs of the community, allow card-holding members of the library to reserve and "check out" multi-purpose space on an hourly basis;
• Create purpose-specific space (telehealth booth, darkroom, soundproof room, etc.) that are "checked out" like other collection assets.

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.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Thank you very much for your kind words!  And for submitting this question.

For "Ask the Lawyer" readers who don't follow the State's "Open Meetings Law" (the “OML”) with regularity, the new rules that the member is referring to are the revised Section 103(e) of the OML.  The "Ask the Lawyer" that the member refers to is "Availability of Open Meeting Documents".

In that RAQ, we discussed the extent of a library board’s new obligation to ensure that certain materials used during open portions of trustee meetings be made available at least 24 hours in advance...and how, if a library routinely uses its website, those advance copies should be posted on it.

Given the new requirements, Tim's question is a practical one: "Do working documents being shaped and edited at committee meetings need to be posted in advance of the committee meeting?"  In other words, if the document is in flux, and subject to change even during the meeting, must a copy be provided in advance?

In considering the answer, I of course checked the law and the latest commentary from New York's "Committee on Open Government" (the "COOG"), which is the arbiter of all things OML. However, since Tim mentioned checking in with his gut, I also checked in with mine.

To do that, I pictured myself as the attendee at a meeting of my city's[1] common council. I envisioned them discussing a policy on the agenda: the formation of a police advisory committee.[2] I then pictured myself checking the meeting packet that was put on the City's web site 24 hours prior to the public meeting, to see if a copy of the policy is in the packet.

Here are five scenarios of what happens:

Scenario 1: I check the packet: there it is! As the committee members discuss the proposed policy, I am able to meaningfully link their commentary to the written document.

Scenario 2: I check the packet: there it is! But then, the Chair of the meeting says "Before we begin, I would like to add that this morning I received a proposed new version of the policy for us to consider.  The new version adds a paragraph to the version that is in your packet.  That version was emailed to council members this morning." As the committee members begin to discuss the proposed policy, and the new paragraph, I am able to meaningfully link their commentary to the written document--except for the new paragraph.

Scenario 3: I check the packet: there it is! But then, the Chair of the meeting says "Before we begin, I would like to add that this morning I received a proposed new version of the policy for us to consider.  The new version adds a paragraph to the version that is in your packet.  That version was emailed to council members this morning, and I am going to ask the clerk to place a version in the video feed [in a way public attendees can see] as a courtesy." As the committee members begin to discuss the proposed policy, and the new paragraph, I am able to meaningfully link their commentary to the written document--even the new paragraph.

Scenario 4: I check the packet: there it is!  Twice?  Hmmm.  As the agenda item is called, the Chair of the meeting says "Before we begin, I would like to clarify that we have two versions in the meeting packet because two versions have been submitted for review and consideration at this meeting." As the committee members begin to discuss the proposed policy, and the two versions, I am able to meaningfully hear their commentary on the precise wording as they discuss intent, concerns, and possible revisions, although I have to toggle between versions to keep up.

Scenario 5: I check the packet: it's NOT there!  When the committee reaches that agenda item, the Chair of the meeting says "Because this policy is under review in various offices, who may submit changes before our next meeting, and there are a few versions under discussion, we haven't posted any version yet." As the committee members begin to discuss the proposed policy, and the different wording, I am unable to meaningfully connect their commentary to the writing they have based it on.

Checking in with my gut: in either "Scenario 2" or "Scenario 5," I might be irritated to the point where my gut might review the law to see--has the council followed the law?

And when my gut checks with the law, I see this commentary from the COOG[3]:

So with that, I answer the question ""Do working documents being shaped and edited at committee meetings need to be posted in advance of the committee meeting?" as follows:

Even if a policy is in draft form, or if multiple versions are under review, if it is on the agenda of a public meeting for discussion, the version or versions under review should be included in the meeting packet, to allow for meaningful public access to the materials.[4]

That said, recommendations, opinions, or similar materials regarding such policies under development do not have to be shared, and revisions not ready in time for posting (even if discussed at the meeting) do not have to be made available/posted in advance.

Thank you for a subtle and thoughtful question!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This is one of those questions that a thoughtful attorney, wishing to be thorough, could write a book about. However, "Ask the Lawyer" is not a book, so we'll see what I can do in about one thousand words!

To give some useful answers, and also stick within our word limit:

1.  If a library/employer needs to convene a meeting of employees and decides it will use videoconferencing tech to do so, and then states an expectation that all participating employees will turn their cameras on during the meeting, no law in New York bars such a requirement.

2.  If employees of a library/employer that requires, as a matter of policy, that participants in a video conference must turn their cameras on, decide to demand via a collective bargaining agreement, or through policy, that keeping a camera "off" should be an option for an employee, that could become a negotiated or policy-based term of employment.  But an employer could say "no" when this is asked/demanded (and then take the hit on employee morale and/or union relations).

3.  If a solitary employee of an employer who requires participants in a video conference to turn their cameras on decides being on-camera is unacceptable to them, and they request an exception to the rule, that is a reasonable request--but there is no obligation on the part of the employer to honor it (and in fact, special exceptions could cause issues...more on that in a bit).

4.  If an employee has a disability that prevents them from working effectively while on camera, that employee could request keeping the camera "off" as a disability accommodation, and the employer would have to consider the request per their disability accommodations policy (Based on the particular circumstances, this may or may not result in a decision to grant the requested accommodation).

5.  Now, with respect to the use of pictures: if an employer uses an employee's image--taken as either a photograph, a screenshot, or through any other means--for commercial purposes without the employees' permission, that could potentially be a violation of the law.  This is why employers who wish to use their employees' images in catalogs, advertising campaigns, and other publications as part of commercial operations should obtain written permission for such use.[1]

6.  Library/employers who wish to be proactive about protecting employee privacy, while also acknowledging that a library's workforce does often play a public role in their community, should use thoughtfully developed policies to find the balance between public relations and employee safety and privacy. A well thought-out and routinely re-evaluated use of a "Social Networking Policy," a "Media Relations Policy," and a "Branding and Promotions Policy"[2] can achieve this balance.

7.  And now, for some thoughts on how this all fits together.

[Clears throat, steps on soapbox]

There is no one right way to do any of the above-listed items, but because having a solid process that respects the privacy of employees is part of attracting, developing, and retaining a qualified and dedicated workforce--as well as promoting the operations of the library--it is important that a library/employer find the way that works for them.

On the employee side, for library employees who are concerned about their privacy, or about being compelled to turn a camera on, if at all possible, raising the issues gently with management prior to any type of crisis point is a good idea.[3] For libraries that are using name tags, or have specific policies related to employee safety/privacy, or use of cameras on site, any of those policies are good entry points for consideration of these issues.

Law aside, as a business owner, and as the participant in (now) more online meetings than I can count,[4] I have found that it is very important to set the norms for online meetings[5] so that employees know what the expectations are.

How is that done?  When convening a meeting, at least until a group knows what the norms are, it is good to give a few of the ground rules. For instance, a good set of opening ground rules could be:

 "Thanks everyone for gathering today. While we can't be together in person, it is good to be together for this important topic. For this meeting, cameras are optional, but we ask that if your camera is off, you use a picture of your face for ease of communication. This meeting is not being recorded, and we ask that you refrain from taking screenshots unless you ask first. If you have questions during the discussion, feel free to put them in the chat. Our note-taker today is [Person], and if you have items that you want to make sure end up in the notes, please put those in the chat as we meet. The notes for the meeting will go out by tomorrow."

Another example, very different but just as enforceable, would be:

Thanks everyone for gathering today.  While we can't be together in person, it is good to be together for this important topic. For this meeting, we do ask that you keep your camera on, so we are all using the same modes of communication. Also, so we have a good record of the information we'll review and the decisions we'll make, this meeting is being recorded. As a courtesy, please do not take a screenshot unless you ask first. If you need to make a comment, please raise your hand, and I as moderator will get you in the queue. We don't have a note-taker for today, so please make your own notes for any points to follow-up, or ask [Person] for the recording. As with all our meetings, the recording will be considered confidential and not for release to anyone who was not in attendance."

...and the combinations could go on.

By being thoughtful about the nuances of privacy and the norms for meetings, a library/employer can both set the tone for a graceful meeting, and also position themselves to proactively address any employee concerns about the chosen norm for meetings overall. This is particularly important if an employer is insisting that cameras be on at all times; while there may be compelling reasons for this type of rule, if a library/employer is relying on employees who are working from home, there may also be compelling reasons to give employees the option of attending with their camera "off"; a well thought-out and routinely expressed set of norms will help with compliance, will make sure exceptions to "camera-on" rules are not perceived by others as unfair, and will create space for feedback in case employees want to request that the rule or norm be changed.

Thank you very much to the member for a compelling set of questions that are very much of the times. As with all "Recently Asked Questions" posted on "Ask the Lawyer, we invite feedback on this one (sent to info@losapllc.com or through the "Ask the Lawyer" submission page).  This is an evolving topic, and I am sure many library council members out there have thoughts on this!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Some days, I just love my job.  The day I subscribed to "Your Friendly Neighborhood Librarians" (2/4/22) to answer this question was one of those days.

For those of you who haven't checked out the Podcast: it's a forum where hosts (and librarians) Jim and Robyn, based in Rochester, NY, conduct deep and lively interviews with quasi-local authors.  ^[1]

When it comes to running a Podcast, there's a lot of legal to unpack.  I'll use a recent episode of YFNL (Season 2, Episode 4, January 30, 2022), an interview with photographer Quajay Donnell to illustrate.

When the Podcast starts, the first thing you hear is the YFNL's theme song:

[guitar strumming] "Librarians, librarians, when you've got questions, they're the ones, to help you find what you're looking for..." [more].  It sounds vaguely like the theme to "Spiderman" and is clearly a riff; it's super-cute and fun and brings a smile to my face. Then Jim and Robyn introduce the session's guest and launch into the interview.

The rapport is lively and fun, but Jim and Robyn's deeply prepared interview technique gives Quajay Donnell room to make comments, tell stories, and respond to well-informed prompts to talk not only about his work, but the work of others, and his thoughts on public art (I enjoy Mr. Donnell's comment, after a glowing list of his credentials "I sometimes struggle with the title of 'photographer', I sometimes say 'I'm a picture-taker', or 'I capture moments'."  I appreciate when people resist or explore the purpose of labels).  The show then ends with a cut to a recommendation from a circulation desk worker, Sim, who recommends "Field of Blood" by Joanne Friedman, and a tease for the next episode ("banned and challenged books"), some thanks to various show-helpers,^[2] and an instrumental of that great theme song.

So with that background, let's answer the questions:

"[W]hat the ramifications are if a guest does not like the way their interview was edited and whether the library owns the rights to the interview and recording.  Additionally, any advice on whether we should be using some sort of contract or agreement with guests would be helpful. We don't have any sort of agreement in place at present, and are mostly interviewing people who are somewhat library-related."

I wish I could give simple answers to these straightforward questions, but this is "Ask the Lawyer," so I cannot.  But to start, I can say there are three variables that inform the answer to these questions:

Variable "1": Who is creating the Podcast?  Is it "officially" the library, or is it being created through the collaboration of independent individuals?^[3]

Variable "2": What is the identity of the Podcast?   Is it 100% entertainment, or is it meant to be investigative journalism, oral history, or serve another documentary purpose?^[4]

Variable "3": What is the purpose of the Podcast?  In other words, what is it trying to achieve not only now, but 70 years from now, when it is still protected by copyright, and past consideration of such questions will govern what type of access its intended audience should have?

Here’s how these variables impact the member's questions:

If a library is the creator of the Podcast (meaning the library directed its employees to create the Podcast as part of the work they are hired to do), then the library is the entity responsible for addressing (and bearing the liability for) issues of ethics, ownership, and risk (like defamation and image use).  If an individual or individuals are the creator/owner of the podcast,^[5] the responsibility falls on them. 

If the identity of the podcast is light entertainment (that theme song!), then the creator does not have to worry about abiding by, or benefiting from, professional codes of ethics and law pertaining to journalism, academic work, oral history/documentary, or political expression.  But if it aspires to fall into any of those categories (and while it's not my call, I'd say YFNL is at the very least a form of journalism), ethics and certain laws may apply.

If the purpose of the Podcast is to ensure that people listening in 2022, as well as 100 years from now, appreciate home-grown artists in and around Rochester, NY, the creator/owner needs to ensure the work is set up to be controlled in such a way that access for that purpose is ensured.  This is true whether the owner is an entity (like a library), or a person or persons.

So with that as background, let's tackle the member's questions:

For the first question ('"[what] if a guest does not like the way their interview was edited?), the answer is: in a worst-case scenario (say the guest claims the interview was edited to make him sound offensive, and claims it caused him to be "cancelled"), there could be some type of legal claim for damages.  While I won't get too technical, this concern relates to a "tort" claim (like a personal injury) and the member is wise to bring it up, since this is a critical issue.^[6]

An attorney advising an entity or person on this would: 1) confirm who the creator, publisher and owner of the content is; 2) ensure the party (or parties) makes good use of a speaker agreement that secures a waiver of liability for the producer and all people affiliated with the podcast; 3) if appropriate,^[7] advise a step in the production process that gives participants the right to review and approve release of the final version (in writing).

This plays into the second question: "whether the library owns the rights to the interview and recording."

This should not be an ambiguous issue: either the work is "for hire" (meaning the librarians and other credited helpers are doing it as part of the work they are paid to do, or are working per an additional contract) and is owned by the library, OR the work is owned by the individuals creating it.

The leads to the third question (or rather, factor) listed by the member: We only edit for clarity and length.

This plays into the identity of the podcast. If a podcast or other work isn't using a lot of editing to create a specific dramatic or entertaining effect, and is structured to perform a primarily documentary function, it is worth considering using the established ethics of journalism or oral history to guide the project.

Why? 

In the state of New York, journalists' sources are accorded particular protections under the law, while the identity of the speaker and nature of the communications are relevant to claims of defamation. Also under New York law, the further an unauthorized^[8] use of someone's name, likeness, or voice, is from a "commercial use," the less likely a person can sue based on "invasion of privacy." And under federal copyright law, material that incorporates copyright-protected work (perhaps reading part of a poem) for journalistic, academic, or documentary functions will get consideration of that factor if a court needs to determine "fair use."

This next variable I listed is purpose, meaning, what is this work supposed to accomplish, and for how long? Consider that variable in light of the member's statement: "[We] haven't done anything in regards to copyright."

If the purpose of the podcast is to ensure as many people as possible access and appreciate it for as long as possible, what might be more important than registering a copyright is to ensure the work is archived on not only a commercial service such as Apple Podcast (where I found it), but in repositories owned by the public, as part of an institution whose structure ensures some type of longevity.

However, if part of the purpose of the podcast is to ensure for as long as possible that it can never be exploited commercially by anyone, and the owner wants to make sure it will be able to claim damages and attorneys' fees in the event the recording is infringed, registering it is a good idea.

So with that, I get to the last, open-ended question from the member: Additionally, any advice on whether we should be using some sort of contract or agreement with guests would be helpful.

It's important to know at this point that while sometimes I reach out to a member who submits a question to "Ask the Lawyer" (to get a bit more information to enable a more helpful answer), in this case, I did not reach out to Robyn and Jim (although because I really like the podcast, I wanted to!). I thought it would be more important, and in the spirit of their question, to present a generic answer to this part of their question with a generic template that could be of use to other libraries and librarians creating a podcast or other type of audio content.

When creating a podcast, here are the "legal" questions to answer to help you (and your lawyer) address the legal considerations:

Now, with all that said, I am very aware that some of the answers I have put above may cause more anxiety then resolve curiosity. To help out with that, below is a template for a "podcast guest agreement."

As with any template, a library or podcaster should have their lawyer consider all of the factors I list above before finalizing the template. But hopefully this template can provide a good start.

[Template Podcast Guest Agreement]

RE:  Terms of guest appearance on [PODCAST NAME] on [DATE]

Dear [NAME OF GUEST]:

Thank you for agreeing to be a guest on our show, [NAME] ("the Show") on [DATE TIME] to discuss [TOPIC].

Below are the terms between you and [OWNER NAME] ("Show Publisher") for your appearance on the Show.  Please review the terms, and if you agree, please sign below.

If you have any questions before signing, please contact [NAME] at [CONTACT INFO] to discuss them before sending us the signed copy.

Ownership

You agree that the direct recording (audio and visual) and any subsequent product incorporating it, including but not limited to transcription and any adaptive copies made to enable access by those with a disability, shall be the sole property of Show Owner.

Image Use

You agree that for purposes of promoting, publishing, performing, displaying and making the Show accessible to its audience, Show Owner may use your name, image, and likeness in print and electronic media.  This permission is expressly limited to promoting and publishing the episode of the Show featuring you.  This permission is irrevocable once the Show featuring you has been made available to the public in any medium.

Rules

The rules of participating in the Show are:

Show Owner is committed to creating an experience and show that respects the dignity of all participants and listeners.  If you have any concern at any point regarding your experience working on the Show, please alert [NAME] at [CONTACT INFO].

If at any point during recording you need to take a break, please simply state "I need a break" and we'll stop recording.  This includes if a topic is not one on which you wish to speak.

We edit our show for length and clarity.  You will be given an opportunity to review the edited version prior to it being uploaded to [SITE(s)].  We ask that you write to [NAME] and [EMAIL] with any concerns about edits within [#] days of the final cut being made accessible to you.  If we don't hear anything from you within three days (excluding Saturday and Sunday), we will assume you consent to the publication of the content.

Please refrain from any endorsement of any political candidates during recording.

Please do not accuse any person of a crime, having an STD, or of being incompetent at their job, or marital infidelity, unless such fact is generally known, during recording.  We don't anticipate your appearance will warrant a dip into such a topic, but to avoid claims of defamation, or having to edit out such content, we alert guests to this consideration.

[INSERT CUSTOM RULES]

Hold Harmless

You release and hold harmless Show Owner, its employees, volunteers, and agents from any and all liability, claims of injury, lawsuits, and complaints in association with Show.^[9]

Warranties & Representations

You represent and warrant that:

a) No contract or other obligation bars you from appearing on the Show;

b) Any performance on the Show by you will be of your own original work;

c) You are aware that the permission you are granting NAME to use your image, name, and likeness for the limited purposes listed above is irrevocable;

d)  You know the show will be archived by Show Owner and may archived to be available for your lifetime and beyond.

e) You are over the age of 18 and thus able to sign this contract OR your legal guardian has signed below.

Thank you so much for agreeing to be on our show!

Signed on behalf of Show Owner:___________________________

Signed by Guest:______________________________

Guest Date of Birth:_______________________________

Guest preferred pronouns:_____________________________

[if applicable] Signed by Guest's parent or guardian:____________________________

Good wishes for your friendly neighborhood podcasts, true-believers!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

In speaking to different libraries about being prepared for book challenges, I have repeatedly stressed one very important element: have your policies ready.

This question shows the depth of consideration that goes into that simple requirement.

In this case, that "depth" is found in the rocky chasm of the LGS-1, New York's end-all, be-all rules for public document management.  Need to know how long to keep records for a bingo game authorized by a village?^[1]  Or how long to keep a record of exhumation?^[2]  Or how long we hang onto bridge inspection records?^[3] It's all in the LGS-1.

The documents the member references are sections of the LGS-1.

They look like this:

and

Looking at these requirements, the member's question is: "[S]hould the district have kept a list of all books in their libraries in any given year?"

The answer is: MAYBE, but not DEFINITELY.

Here is why:

The first section referenced by the member, at first blush, looks like it requires the retention of "book lists" for six years.  But examining that precise section, you will see the requirement is limited to records submitted prior to the "consolidation of school districts." 

So, outside of a district consolidation, section LGS-1 15, does not require compiling a list of books.

The next sections, LGS-1 598 and 599, refer to a school district maintaining records related to a "Catalog of holdings" and "Individual title purchase requisition," respectively.

We'll tackle 598 first.

598 requires that a "Manuscript or published catalog" of "holdings" must be retained "permanently."  It then requires that a "Continuously updated catalog" be retained until it is "superseded" or "obsolete."

This means that a district library's "catalog of holdings" that exists in a static form (like a print or PDF list) must be retained permanently, but a list of holdings that is ever-changing (like an ILS) is only retained until it changes form--or that form stops being useful.^[4]

In practical terms, this does mean that if the library produces a static list (in print or electronic form), it must be retained forever.  That obligation, however, does not obligate the library to create such a list in the first place.  Meaning, in other words: if the library only uses an ever-changing catalog, it doesn't need to retain any particular copy.

This brings us to 599, which requires that an "[i]ndividual title purchase requisition" (the documentation showing a school library bought a book) must be retained for one year.

Again, in practical terms: while per 598, a school library is not obligated to compile a printed list showing that "Not All Boys are Blue" is in its library's collection, per 599, it does have to retain (and produce, if not otherwise accessible through FOIL) a school’s requisition to purchase "Not All Boys are Blue" if requested.

This gets more interesting as one considers that LGS-1 600 (also seen in the purple-bordered excerpt above), regarding "Records documenting selection of books" sets no minimum retention period.  Meanwhile, LGS-1 601, regarding "Library material censorship and complaint records" mandates such records be retained for at least six years (and encourages considering saving them for much longer, which strikes me as a good idea).

The upshot of these various rules creates a regime where a district is empowered to pick and choose, to some degree, what records it wants to create...but once created, imposes a very particular set of parameters for retaining, purging, and disclosing them.  This is why my answer to the member's question must be so ambiguous.

It is also why it is very important that a district have a well-developed policy on this issue.

Below are some examples of what, depending on the records a district elects to create, a district can say in answer to the question: "I want to make sure I approve of all the books my taxes paid for this year.  Can I have a list of all the books?"

[If the library maintains a published list and wants to be friendly.] "Sure thing.  We compile and publish a list of books in our collection every year as of the first Monday of September.  Do you want the one showing all the books in one particular library, or all the books in the district?"

[If the library doesn't maintain a published list, but has a continuously updated catalog, feels friendly, and allows access to library computers.] "No, we don't publish such a list.  But we do have a continuously updated catalog you can search on this terminal."

[If the library doesn't maintain a published list, has a continuously updated catalog, doesn't allow just anybody access to its computers, but feels somewhat helpful.] "No, we don't publish such a list.  But we do have a continuously updated catalog you can request a copy of."

[If the library doesn't maintain a published list, doesn't allow access to computers, and doesn't feel helpful, but does feel puckish.] "No, but if requested, we can supply you with a copy of every book requisitioned last year."^[5]

[If the library doesn't maintain a published list, and doesn't want to offer alternative ways to share the information.] "No, we don't have that."

[If the library doesn't maintain a published list, and is okay risking a spat.]

"No."

Optional rider to all the above answers: "Here is a copy of our FOIL policy so you know the process for requesting our public records through our FOIL officer, and can be aware of our copying charges and the process for requesting electronic copies."

Now, as any veteran of public relations battles over school district policy knows, there's a time to be helpful, and there's a time to say "no."  I am not endorsing any particular answer, but based on a district's policy, it should know what records it keeps (and doesn't keep), and how people can access them.

From my perspective, if there isn't a need to compile information, it shouldn't be compiled.  Further, FOIL does not create the obligation to compile information if it is not already compiled.  On the other hand, waffling and appearing to dodge the question when concerned citizens are on the hunt for "objectionable material" might not be the best way to fight the battle for intellectual freedom.  "We don't have a list but we have a continuously updated database" strikes me as a glove-slap; it invites a fight...but nevertheless, if accurate, might be a perfectly valid response.

From my high horse over here in law-law land, a district should proceed from the presumption that if a book is in a school library's catalog, it belongs there; this is the stance that supports intellectual freedom, while also setting a good example for the students (but I am not the one who has to deal with angry community members storming a school board meeting).

Regardless of my personal thoughts on the diplomatic aspects of this issue, from the perspective of intellectual freedom, information access, education law, the LGS-1, and the First Amendment, here is what's important: have a sound policy governing 1) how library books are selected; 2) how library books are cataloged;^[6] 3) how library books are challenged; and 4) how library books are removed, and follow that policy.

If, as part of that policy, a district has the desire and capacity to create an annual (or decennial, or whatever time span it wants) list of books in the school library catalog, great, but if such a list is created, it must be kept forever.  And if the district only uses a continuously updated library catalog, it should be clear from the policy who can access it, and how (at the school?  By appointment?  Remotely?).  And all of this turns on the district having a designated FOIL officer and process for timely responding to, assessing, and meeting FOIL requests.

So, there is my answer...and I know it rests on a dangerous triangle of law, practicality, diplomacy.   This stuff isn't easy.

I wish you a clear head, a steady heart, and a ready wit as you face whatever challenges come your way.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

MAKING A COPY ON THIS MACHINE

MAY BE SUBJECT TO THE COPYRIGHT LAW OF THE UNITED STATES[1]

This means 4 important things:

1.  Copying a copyright-protected work here could be a copyright violation.[2]

2.  Copying protected works is sometimes allowed under "fair use."[3]  We can't give you legal advice, but if you want to learn more about "fair use," go to https://www.copyright.gov/circs/circ21.pdf or see the [INSTITUTION NAME] Fair Use policy at [LINK].

3.  Copying a copyrighted work to accommodate a disability under the ADA is allowed.   However, to do that, please see the library staff, since adaptive copies have special rules,[4] and we want to help you (or a person you are assisting) exercise your rights.

4. As a library open to the public, there are special circumstances under which we get to make copies (libraries are special).  However, to qualify for that protection, this notice (which we have, by law, placed over the copier right in front of you), has to say what it says in bold at the very top, and we have to operate by this rule:

Any person or group is forbidden to use this machine to engage in the related or concerted reproduction or distribution of multiple copies of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group.

What does that mean? Entire classes should not come here and copy the whole text book for a course![5]  Please don't do that.[6]

The copy machines are here for your use, and we appreciate your consideration of these laws.

Thanks!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Here we are in January, 2022, and frustratingly, there is no ONE right answer to this question.[1]  Between OSHA, CDC, WHO, and NYSDOH, together with state-wide and local Executive Orders and states of emergency, the answer to this question is a big, tangled web.

That said, there are THREE things I can say for certain, and they do answer this question:

1.  Regardless of what Emergency Order, law, or regulation is in effect, libraries and museums that are operating in any way should be doing so per a written and routinely updated Safety Plan.[2]

2.  Regardless of what Emergency Order, law, or regulation is in effect, libraries and museums operating under a Safety Plan that involves use of PPE and sanitization supplies should provide that equipment.[3]  Libraries relying on social distancing should continue to demarcate areas where it must be maintained.

3.  Regardless of what Emergency Order, law, or regulation is in effect, libraries and museums operating under a written Safety Plan that involves employer-required testing must provide those tests.[4]

Again: while different laws, regulations, and orders create these three obligations, I can say that they remain.

After that, I can only say: when updating Safety Plans (which should either be done, or ruled out, monthly, and ad hoc as guidance changes), libraries should confirm their obligations with either their lawyer or their local health department.

For libraries looking for a model, a good place to start is the HERO Act template found at  https://dol.ny.gov/system/files/documents/2021/09/p765-ny-hero-act-model-airborne-infectious-disease-exposure-prevention-plan-09-21_0.pdf.  For municipal libraries that operate largely in conjunction with their municipal government (sharing HR policies, hazard response plans, etc.), it might be appropriate to look to their municipality's mandated[5] "Public Health Emergency Operations Plan."

I realize this doesn't eliminate the need to swim in the alphabet soup of authorities offering different, and sometimes divergent, guidance.  But by relying on your local health department to confirm obligations, hopefully a library can focus more energy on its mission to serve its community...while also demonstrably living up to its duty to safeguard its workforce.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

There is no one right answer to this question, but there is a formula for any library to come up with its own, unique answer.

Here is the formula:

[Situation] x [Ethics + Law] / [POLICY/Precedent] = YES or NO

Let me break this approach down.  And trust me, I will give a clear reply to the member's question at the end of all this.

The formula starts with the situation.  In the scenario we have here:

"Local police walked through our Library earlier today with no explanation. Later on, we noticed 2 teens on premises, who we assume should have been in school. We thought the police may have been looking for them as truants, but that is not confirmed."

There is a lot that can be said about this description, but one important aspect of it is the library's care to not reach a conclusion about why the teens were at the library instead of school (while the member describes an "assumption," there is no action on that assumption).  And as noted, law enforcement was not called; rather they "walked through...with no explanation."

This situation is then multiplied by the combined factor of ethics and law.  Both the ALA and NYLA Codes of ethics emphasize patron confidentiality.  Meanwhile, New York's Civil Practice Law and Rules ("CPLR") Section 4509,[1] the state law requiring a subpoena or judicial order before a user's library records can be shared without that patron's consent, does not define "library records" other than to state that they include "personally identifying details."  This is why whatever the situation, ethics, and law are, the answer must be assessed under a library's policy governing patron records (while considering past applications of the policy, to ensure consistent application).

It is at this last factor--policy--where things can get complicated.  With the advent of (sorta) new technologies, the definition of "library records" is not just internet searches and checked-out materials.  It could be what a person printed on a 3D printer, or their image on a surveillance camera, or their use of library wi-fi.  None of these things, right now, are listed in CPLR 4509, but many library professionals would consider them to be library records.

The trick is making sure that when a library takes a position about library records (especially with regard to records that, at first glance, are not about library services, but more about security), it is supported by their policy.

Okay, I know I promised a "clear answer".  So let's re-state the question: "if the police were to ask if we saw the teens, are we able to answer or is that considered a violation of patron privacy as it is with patron information and records?"

Based on a fictitious library consulting a fictitious lawyer, here is one possible answer:

To the ABC Library:

You have requested legal advice regarding whether a library may provide a substantive answer in response to law enforcement enquiring about the presence of a patron in the library.

Your concern is that such a disclosure, based on the visual observations of library employees rather than written/recorded records, could still be considered a violation of patron privacy.  You confirmed that at the time of the inquiry, the library had no operational need to release any such information.

I have reviewed the library's policy on patron confidentiality, and based on the below clause, I advise to not release such information unless there is a subpoena or judicial order:

"Consistent with the ALA and NYLA Codes of Ethics, the ABC library considers any record or information that indicates an individual's use of library services and/or facilities to be a library record under CPLR 4509, unless specifically excluded[2] by this policy."

Therefore, I advise not providing such information without a subpoena or judicial order, unless the requestor accurately points out that a specific law requires it.

Thank you for trusting me with this question.

Very truly yours,

A. Hypothetical Lawyer, Esq.

Of course, as the "formula" at the start of this answer points out, the "situation" may vary from time to time.   And CPLR 4509 does leave room for mandatory disclosure "when otherwise required by statute." [3] Those are the times when a library may want to consult a local attorney to obtain quick advice in the moment.

Since this formulaic balancing of facts, ethics, legal obligations, and policy can be difficult to keep in mind,[4] it may be helpful to summarize it to library trustees, employees, and volunteers this way: “A patron's use of the library and our services are confidential.  If anyone asks about a patron using or being at the library, our standard reply is 'Since patron information is confidential, I need to refer you to [the Director].’”[5]

Thanks for a very thought-provoking question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This question is an example of why clear, precise writing is so important.

To make sure no reader is in suspense, first I'll answer the member's question: I intended the guidance to convey the member's interpretation (with the information about accession, cataloging and appeal policy being supplied only after a parent expresses concern).

Re-reading my answer, I can see how the member’s president interpreted this guidance not as a reaction, but as a preemptive strategy to head off parental concerns.[1]  But that is NOT the guidance I intended, and I have since added a footnote[2] to the original posting to clarify that.[3]

While I have your attention on this, I will add: except for factors required by law (like requiring working papers, limiting certain activities in certain industries, and abiding by child labor laws), I don't advise treating minor employees differently than any other employee. If a library wouldn't contact the parents of a 40-year-old worker to alert them to the fact that, from time to time, a library worker may be exposed to content or communications they find objectionable, it shouldn't be done for a 17-year-old either. Except for when it is required by law, employees should not be differentiated by age, just as they should not be differentiated by gender, race, or religion.

Thank you very much to the member for giving me this chance to post a clarification, and this caveat.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Ooh, an ontological question!

I am not sure about the basis of the past legal input mentioned in the question, differentiating a "policy" from a "handbook," but I (mostly) agree with it.

I (mostly) agree with it because, in both state and federal labor law, the term "policy" is generally used to refer to a stand-alone set of rules governing the terms of employment.[1]  Examples of policies required by law include:

• Sexual Harassment Policy[2]
• Prevention of Airborne Disease[3]
• Whistleblower Policy[4]

In both common usage and in the law, when such policies are gathered together, they become a "Handbook."[5]  Many times, at the advice of lawyers,[6] employers then annually distribute a copy of this "Handbook," and (as in the member's question), require employees to acknowledge it.

The tricky thing is that once an employer has taken the step to pull the policies and create a "handbook" (again, with the name not being important...the important part being that there is some collection of policies, distributed to employees), the law may put additional obligations on the employer regarding the content.

For instance, Labor Law Section 203-e (6), which bars discrimination on the basis of an employee or their family member using reproductive services, states: " An employer that provides an employee handbook to its employees must include in the handbook notice of employee rights and remedies under this section" [emphasis added].  In other words: if the company has no handbook, there is no mandatory inclusion of the notice...but if there IS a "handbook," the notice must be part of it.

The term "handbook," used to mean a collection of employee policies, is also part of the recently passed HERO Act.[7]  It takes the same approach as Labor Law 203-e: if a handbook is handed out to employees, the required Airborne Infectious Disease Plan must be distributed with it (or at least, in the same manner as it is distributed).

Now, for the member's precise scenario: What about when a document that really is just one "personnel policy," but has different sections/rules and a section for the employee to acknowledge receipt?

Based on how the various employment laws in New York use "policy" and "handbook," I feel very comfortable saying that any document that aggregates an employer's rules on more than one topic (say, "progressive discipline," "appropriate attire" and "vacation") and is distributed to employees is--no matter what you call it--a "handbook." 

Or as I have put in this illustrative limerick:

One rule to another said: "Look,

Here's something that has me quite shook

We rules stand alone

In a "policy zone"

But together, we are a handbook!"

Thank you for a chance to do this research and to write this dubious verse about it.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

[NOTE: for background to this short answer, please see the much longer "Ask the Lawyer" https://www.wnylrc.org/ask-the-lawyer/raqs/205, that addresses the tightrope walk/legal minefields of employee background checks.]

So, does a school district public library[1] implementing a background check for new employees have to also check their current ones?

The answer is: no; barring an over-ruling requirement (such as a term in a union contract) a library board can implement a background check policy for all hires going forward, without imposing a "retroactive check" requirement for current employees. 

However, I would never advise that approach.  Here are three reasons why:

1.  Possible discrimination

A policy to only check the backgrounds of "new" employees could have a disproportionate impact on candidates on the basis of age, or gender, or race (to name a few).  By not checking everyone, an employer risks the appearance of (or actual occurrence of) illegal discrimination.

2.  Possible liability

Employee background check policies are implemented to reduce risk.  If an employer is using employee background checks to reduce risk, there should be a very good reason for not checking all employees (such as a union contract that bars it[2]), or the employer risks a claim of negligence.

3.  Worker relations

A work environment should be a place of high trust.  By subjecting one class of employees ("new" employees) to heightened scrutiny, in addition to the possible concern mentioned above in "1," it creates an unbalanced environment for trust.  This is bad for morale.

I appreciate that background checks can come with a cost, so minimizing their frequency is helpful.  I encourage any library implementing such a policy to check with their "Directors & Officers Insurance" carrier, since sometimes, carriers offer resources to defray and even pick up the costs of the check.

Thank you for a thoughtful question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

When it comes to the legal considerations of employee name tags, there are quite a few "do's" and just as many "don’ts."  I'll set them out below, with the legal rationale behind the guidance.

DO pick a legible font.

Accessibility matters.  Consult an ADA guide and pick a font that is easy to read.

For this reason, employee name-tags should not be hand-written.

DON'T require employees to wear name tags without a "Name Tag Policy".

As we'll see, some of the details of name tag use can get tricky.  A well-thought-out, board-adopted policy is the best way to ensure the policy covers all the required bases and is enforceable.

DO have a good reason to adopt the policy.

A name tag policy should not stand alone; it should be part of an overall approach to patron service.

DON'T adopt a “Name Tag Policy” solely because of the request of one patron.

Of course, a patron request could kick off a board's consideration of adopting such a policy, but again, employee name tags should be part of the overall approach to library operations.

DO memorialize the reason for the policy in the board minutes.

For example: "WHEREAS the board has found that easily identifying library employees by their first name or nickname promotes a positive experience for patrons, visitors, and vendors, and enhances initiatives to promote confidentiality and security...."[1]

DON'T demand that employees put their full name on the name tag.

This has to do with safety and privacy.  Most definitely, a board can determine that name tags may be part of the patron experience, and request that employees wear a badge that includes their name.  However, unless the policy sets out a reason why a full name is needed, full disclosure should not be required.[2]  Further, if an employee wants to use a nickname,[3] to further avoid identification outside of the workplace, that option should be considered.

DO consider that the format for the name tag include an employee's pronouns

This is just a nice thing to do, but is also a good way to document a practice of honoring the identity of employees in a way that is consistent with state and federal civil rights laws.

DON'T pass such a policy without thinking about your union (if there is one)

If there's a union, before you pass such a policy, get some legal input on the contract.  And even if there isn't a union, think about the requirement from the perspective of the employee experience.

DO require volunteers to wear name tags, if employees in similar situations are so required.

This goes back to documenting the reason for the name tag policy.  If the practice is that every employee working in patron-facing areas wears a name tag, patron-facing volunteers should, too.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This submission stands at the complicated crossroads of First Amendment, employment law, library ethics, and equal protection.[1]

As such, I could write on this topic endlessly.  But "Ask the Lawyer" is not here to provide endless commentary, but rather, helpful guidance inspired by real-world questions. 

So here is some (hopefully) helpful guidance, centered on a real-world example (culled from my summer reading):

I recently read a powerful graphic novel called "I Know What I Am"[2] about the life and times of artist Artemisia Gentileschi.

Gentileschi was a powerhouse painter in the 17th century.  She was also a survivor of sexual assault, a businesswoman, and a mother who, as portrayed in the comic book, channeled her experiences into her painting.

"I Know What I Am" pulls no punches depicting Gentileschi's life.  The artwork--which re-creates many of Gentileschi's own works, including her different versions of "Judith Slaying Holifernes"[3]--is stark, bloody, and riveting.[4]  The portrayals of sex and sexual abuse do not leave much blood in the gutters.[5]

Of course, as a literary work, "I know What I Am" checks all the boxes for not triggering a charge of "obscenity" as defined in New York (including having literary merit).  But that said, select panels from the book could very easily be regarded as inappropriate for some audiences--and not just for "minors."  The content is very raw, and for those sensitive to certain topics, could exacerbate or evoke trauma.

None of that, of course, creates a legal violation caused by the content itself--even if it is in a library being shelved by a 14-year-old--but it does show why there is a need to consider questions such as those raised by the member. 

Which, using "I Know What I Am" as a focal point,[6] I will now do.

First question:  [Is] minors viewing pornography ... flat-out illegal?

Answer:  The word "pornography" does not appear in the New York State Penal (criminal) Law.  Rather, New York uses numerous defined legal terms (such as "harmful to minors,"[7] "obscenity,"[8] "indecent material"[9] and "offensive sexual material"[10]) to describe criminal acts that can lead to a charges based on providing access to certain content under certain circumstances (including to people of a certain age). 

However, because of the defenses very carefully built into these laws, none of these concepts can be accurately applied to a properly cataloged item being accessed by a minor who is doing their defined job per library policy.

That said, both internet porn and content with undisputed literary merit such as "I Know What I am" could be handled or displayed in a way considered harassing (a civil rights violation), damaging (a personal injury claim), or criminal if the access is gained or forced on/by a minor without adherence to collection and library policies, and job descriptions.

Here are some examples as to how that could happen:

• A library employee retrieves books with suggestive titles or sexual content and repeatedly leaves them in another page's locker as a prank, and even when it is reported, the library does nothing to prevent it from recurring (sexual harassment);
• A clerk knowingly and with intent to harm directs a page who is a recent sexual assault survivor to create a book display of "I Know What I Am" [11] (risking a charge of sexual harassment; possible personal injury); worker's comp claim);
• A community member donates a stack of old "adult" books for the annual book sale and the director knowingly assigns a 14-year-old to inventory them (risking a charge of material harmful to minors, which requires a "sale" element to be actionable);
• A patron repeatedly violates the library's policy about viewing sexual content on publicly viewable computers, and no one corrects the serial policy violation (risking a charge of display of sexual material, as well as sexual harassment).

Aside from the legal concerns caused by these types of extreme examples, of course, there is the very real and practical concern that parents of a minor employed by a library could take issue with some of the content their child has to work with...even if it is entirely legal.

In that regard, I can only say that inviting concerned parents to review the library's well-thought-out accession, cataloging, and appeal policies is a pro-active way to ensure parents know that the library takes both its role as an employer of their child, and as a champion of a community's intellectual freedom, seriously.[12]  Parents or guardians of minors working in New York will have already had to sign working papers; no waiver or disclaimer should be further required.[18]

Which brings us back to the point the member raised in the beginning of their question: the importance of having--and enforcing--policies that govern accession, appeal, cataloging, display, and sexual harassment/discrimination (careful adherence to job descriptions and good training on how to enforce policy in the moment are essential, too).[13]

In New York, both the criminal and civil law contain robust protections for libraries working with material some may find inappropriate, offensive, or challenging, but those protections do rest on proof of operating in harmony with the law.  By having clear policies and documenting adherence to them, a library can be ready to weather accusations of illegal conduct. 

Which brings us to the member's last questions:

Assuming a set of library policies structured as you have previously advised, what, if any, liability does a library have for minors inadvertently viewing adult pornography?

If the viewing was truly "inadvertent," and any policy violation that allowed it to occur is quickly corrected, nothing further is needed.[14]

And what, if any, modifications to hiring, training, and workplace procedures do you recommend for minor employees?

Speaking as a former "minor employee" of a public library,[15] a good employee orientation, and regular reinforcement, on the fundamentals of library ethics and the policies that protect employees is a very valuable thing. 

This is already something most libraries are doing, but here are some helpful points to reinforce:

• Prior to hire, a minor employee should review the job description with their supervisor, and have a chance to ask questions;
• All employees must be trained to respect patron confidentiality and be trained on how to deftly demur requests by third parties for patron information;[16]
• All employees are entitled to respectful treatment from patrons and co-workers, and should know to whom they can direct questions and concerns about their employee experience;
• The library has a suite of policies for selecting, challenging, cataloging, and weeding books, and minor employees who might not have direct responsibility under those policies should know they exist, and how to direct questions about them;
• Minor employees, in particular, should be trained on how to immediately report observed or reported policy violations (including those related to pornography and harassment);
• Library employees who are not legal adults (18) should feel free to ask questions, should know to whom those questions and concerns can be directed, and should get meaningful and timely answers so they feel respected.

All of this should be reflected in a hire letter or orientation packet, so parents, if they choose to ask their child to view the terms of their work,[17] can do so.

Not too much to remember in your day-to-day life keeping the library up and running, right???

Thank you for an excellent question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Before I answer, I would like to thank this unnamed trustee for bringing forward this important issue.  Dealing with personal legal matters is rarely easy; remembering to factor in consideration of one's volunteer obligations at the same time is impressive.

On its surface, this question is a fairly simple exercise:^[1] does the status of a library trustee as a plaintiff against the district supporting the library create a "conflict of interest" that would violate the library's bylaws, ethics, or the Not-for-Profit Corporation Law ("NFPCL")?

To address that question, one must first understand what is meant by a "conflict of interest."

The concept “conflict of interest” sounds simple, but often quickly gets, as they say these days, “complicated.”

Why is that?  For a library,^[2]  the concept of a "conflict of interest" could consist of layered elements like the petals of one, single (but complex) rose...or it could be a complex, multi-variety bouquet.

What can comprise this bouquet?

Let's start with the rose.

Section 715-a of the NFPCL requires every charitable corporation in New York (a category that includes most libraries), to adopt and enforce a policy "to ensure that its directors, officers and key persons act in the corporation's best interest and comply with applicable legal requirements, including but not limited to the requirements set forth in section seven hundred fifteen of [the NFPCL]."

Let's peel back the petals on this first thorny flower.  In one sentence, 715-a lists a broad expectation (acting in "the corporation's best interest"), a broad mandate ("comply with legal requirements"), and one very specific law to follow (NPFCL 715, which bars "related party transactions").^[3]

Let's take that last petal first.  What is a "related party transaction?"

According to the NFPCL's "Definitions" section, a "related party transaction" means "any transaction, agreement or any other arrangement in which a related party^[4] has a financial interest and in which the corporation or any affiliate of the corporation^[5] is a participant..."

Based on the information provided, the trustee submitting the question is not in a "related party transaction".  The suit is not against the library, and in this scenario, the district who will be named in the suit is not an "affiliate" of the library.  Since the district is required to put the tax vote on the ballot (the school board has no control over this; it has to put the ballot up as proposed by the library board), the act of using the district to float the vote to the public does not create a relationship that could serve as the basis of a conflict.

Let's take the middle petal: "legal requirements?"  Is there any "legal requirement" that a trustee not bring an unrelated legal action against a school district who facilitates a library budget vote?  No.^[6]

And finally, that first, most fraught petal: "the corporation's best interest?" --We're going to leave that for last.

What other “blooms” could join, and affect, this "conflict of interest" bouquet?

• The library' bylaws
• The library's customized "Conflict of Interest" policy^[7]
• An association library's trustee oath of office^[8]
• A grant or other contractual obligation that creates a temporary definition of a conflict
• The library's strategic plan, or other planning document that would create a conflict as defined by law, bylaw, or policy.^[9]

Fortunately, no matter how many blossoms in the "conflict of interest" bouquet, the law requires that when the possibility of a conflict arises, it is the board--not the individual trustee--who must assess it.

The NFPCL does that by requiring a board to pass a conflict of interest policy that:

 ...include[s], at a minimum, the following provisions:

  (1) a definition of the circumstances that constitute a conflict of interest;

  (2) procedures for disclosing a conflict of interest or possible conflict of interest to the board or to a committee of the board, and procedures for the board or committee to determine whether a conflict exists;

  (3) a requirement that the person with the conflict of interest not be present at or participate in board or committee deliberation or vote on the matter giving rise to such conflict, provided that nothing in this section shall prohibit the board or a committee from requesting that the person with the conflict of interest present information as background or answer questions at a committee or board meeting prior to the commencement of deliberations or voting relating thereto;

  (4) a prohibition against any attempt by the person with the conflict to influence improperly the deliberation or voting on the matter giving rise to such conflict;

  (5) a requirement that the existence and resolution of the conflict be documented in the corporation's records, including in the minutes of any meeting at which the conflict was discussed or voted upon....
  

So, at the end of the day, no matter how large the "conflict of Interest" bouquet, it is the board, as a whole, who has to sniff out a problem.^[10]

In this case, the rub is in that first petal: the requirement that a trustee always act "in the corporation's best interest."

At the surface, there is no conflict whatsoever in this scenario: the school district is not a partner or contractor with the library, and the school board has no discretion about whether or not to put the library's budget on the ballot (they must put it exactly as the library board requests it).^[11] Therefore, even if the contemplated lawsuit by the trustee is not taken kindly by the school district's board, there can be no direct negative impact.

Now, however, for a pragmatic answer: in a world where everything is political, and library budgets all the more so, could an adversarial relationship between an individual library trustee and a school district board be in something other than "in the best interest" of the library?

That consideration--and its answer--is not a legal issue.  In this scenario, there is nothing that violates the law, and I have never seen an oath of office, nor a bylaws provision, that would bar trustee service under such circumstances.  Further, as discussed above, even if the school board takes umbrage, they would be powerless to block the requested ballot item.

However, there is a "soft" consideration here that goes beyond the law.  I categorize these types of concerns not as "legal" issues, but that dreaded concept: "diplomacy."

When it comes to "diplomacy"...could members of a community, including an individual school board member in their individual capacity, decide to take a dim view of a library trustee who is suing their district, and try to punish the library?  They shouldn't, but as individuals, speaking just for themselves, they could...they absolutely could.  And even though their negative actions couldn't block the budget vote, it could influence a vote in non-official ways.

That said, the possibility of such personal vengeance in no way creates a legal conflict of interest.  So, for the reasons set forth above, a board doing an assessment of this situation--unless their policy specifically includes a unique definition or example that bars trustees sowing bad PR, even incidentally--would likely not determine that it constitutes a forbidden conflict.

Of course, a trustee may decide that they have enough on their plate, just being a plaintiff in a stressful lawsuit, and resign to avoid the (real or possible) stress of the situation.  Or the board and trustee may engage in some practical "risk management" and mutually agree that, given a high likelihood it could impact the board-to-board relationship, it is best if the trustee steps down for a time.  But such an option would not be required by law and would be based on pragmatism...and it could only be effected with the consent of the trustee.

And THAT is my answer to this very important question. 

I wish the trustee who posed it both 1) a thoughtful and supportive library board, and 2) a school board with the ability to maturely and completely compartmentalize legal issues from diplomatic ones.

Thank you.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Before I dive into this meaty and spectacular[1] question, here is a necessary disclaimer: this answer does not apply to chartered libraries.

Who does it apply to?  The following:

• New York State Education Department chartered or incorporated museums, archives, historical societies, and other non-public entities;
• Not-for-profit charitable corporations (like a "Friends of the Library");
• Clubs, fraternal organizations, benevolent societies (like a knitting club, a bike club, or athletic league).

Specifically excluded from this answer are municipal, school district, and special district libraries, because their rules of conduct must accord with state and federal requirements of due process.  Indian[2] and association libraries must also be cautious about this issue, since the law and practices that form those libraries may have express and at times unique provisions about access.[3]

So, to be clear: NO PUBLIC LIBRARIES should rely on this answer (unless you are using it to help a private museum answer questions about enforcing its code of conduct). [4]

Okay, with that established, here is the answer:

At the heart of this question is the charter (or certificate of incorporation) and bylaws of an organization. Close to the beating heart are its policies.

In New York, most not-for-profit organizations are made "official" through a filing with the NY Department of State.  However, many cultural not-for-profit organizations (including the New York Archives Conference) are made "official" via "chartering" or "incorporating" through the State Department of Ed. 

Both types of entities--"chartered" organizations, and "not-for-profit corporations"--are "real" entities, created by law. 

It is this act of creation--through charter, or incorporation--that sets the stage for how an organization gathers its participants and conducts its business...which is exactly the member's question.

So, before anything else, to determine "what legal ground we can stand on while enforcing our code of conduct" one must look at those documents, which are the key to the identity of the entity.

In this case, the Conference's certificate of incorporation[5] says nothing about membership criteria, but the Conference's Constitutions and bylaws[6] say:

3.1 Membership. Membership shall be open to all persons interested in the purposes of the Corporation. The Members and Board may establish such other criteria for membership, including a schedule of dues, as they deem appropriate.

Meanwhile the Conference's membership terms on its website[7] state:

The constitution and by-laws reflect as much as possible the traditional informality of NYAC. Traditionally, membership in NYAC has been based on attendance at an annual meeting. A single attendance put a person’s name on NYAC’s mailing list for a long time, resulting in a cumbersome list with many out-of-date addresses.

The membership year will coincide with the fiscal year of NYAC, from July through June. The annual meeting registration fee will include the membership dues (currently $15.00). For people unable to attend the annual meeting, membership dues should be sent to the NYAC treasurer to ensure receipt of the following year’s program. If, by some strange chance, a member pays the annual dues prior to conference registration in a given year, his or her registration will be reduced accordingly.

The authority of the Conference's board to adopt the criterial for membership, including adherence to a "Code of Conduct" that can apply to members (and guests), is found back in the bylaws, which state:

4.2 General Powers. In addition to specific powers delineated in the By-Laws, the Board may adopt such rules and regulations, not inconsistent with the Certificate of Incorporation, the By-Laws, or applicable laws, as it may deem proper for the conduct of its meetings and the management of the Corporation.

The "Code of Conduct" the member's question links to is one of the "rules and regulations" mentioned in Bylaws section 4.2.   

Looking at the Code, you can see that it encourages certain (welcome) behavior, and bars certain (unwelcome) behavior, with the following being used to enforce the requirements:

All participants are expected to observe these guidelines during the conference or any NYAC proceedings, including virtual settings. If you may witness or experience any inappropriate or harassing behavior please report this concern using the form below.

Dial 911 for immediate medical emergencies or to report a crime. All reports to NYAC will be followed up and taken seriously in order to protect our participants from further abuse. 

The policy then sets out multiple options for reporting, including an online form, which states:

We can't follow up on an anonymous report with you directly, but we will fully investigate it and take whatever action is necessary to prevent a recurrence.

...all of which brings us to the member's question: how can this be enforced?

First, it is important to consider just what is being prohibited. Here is the list from the Code (as stated at the bottom of the Code, this policy is inspired by Codes adopted by other archival organizations):

Unacceptable Behavior: 

NYAC does not tolerate harassment of any shape. If any participant engages in any demeaning, abusive, coercive, discriminatory, or harassing behavior, appropriate consequences will be taken against such individuals. This could result in something as minimal as a warning or more serious as being handled by the authorities. Harassers may lose privileges to the conference(s). 

• Threats or acts of violence.
• Intimidation or stalking.
• Disruption of any speakers/panelists or any conference proceedings
• Derogatory or unwelcome comments regarding a person’s race, gender, sexual orientation, religion, disability, lifestyle choices and practices.
• Inappropriate physical contact or unwelcome sexual attention.

Second, it is important to establish: as a not-for-profit corporation operating in New York, the New York Archives Conference already has to follow the below-listed laws:

• Conflict of Interest requirements of the Not-for-Profit Corporation law;
• (If it ever had the right amount of money or employees, or wants to meet some donor criteria) the Whistleblowing requirements of the Not-for-Profit Corporation law;
• The New York Human Rights Law (barring illegal discrimination on an array of characteristics[8]) and other civil rights laws.

So even without such a policy, there is not only authority, but could be an obligation, to receive reports of certain behavior, and deal with them as required by law. 

A good example of this, from the Code, would be derogatory comments based on sexual orientation (which could be a violation of New York's bar of sexual harassment).

Third, it is important to consider that some of the conduct listed in the Code is criminal.  Examples of that include:

• Stalking
• Threats of violence
• Unwelcome physical contact (this is of course highly fact-specific)

For instances involving the alleged commission of a crime, a report and investigation could quickly become complicated by questions such as: will the reporter want to contact law enforcement?  Does the venue have an obligation with regard to the incident?[9]   Does the Conference have evidence that could later become relevant in a criminal proceeding? 

And finally, it is important to see that this Code requires conduct that "rises above" the bare minimum set by various laws.

For instance, the Code bars interruptions, rudeness, and demeaning conduct.  While sometimes such conduct can be a part of illegal "harassment" or even "coercion," barring even one minor instance of such conduct is more about setting the professional atmosphere for the Conference, rather than simply obeying the law.

"Setting the professional atmosphere" for an organization might also be called "setting the norm."  By adopting this Code, the Conference is setting a norm of courtesy and respect, ensuring members are not interrupted or jeered when participating in Conference activities. 

So how does the board enforce this "professional atmosphere"?

I could go on and on about the law,[10] but I have 5 tips:

Tip #1: Model the behavior you require.

The best way to enforce a Code of Conduct is to ensure the leadership within the group visibly complies with it (this will also ensure compliance by directors and officers, which will help avoid legal complications).

Tip #2: Repeat the rules often.

It may leave leadership feeling like a broken record,[11] but when it comes to new norms of behavior, repetition is your friend.  It is great that the Code has its own sub-page on the Conference web site; for an event or meeting invitation, a link should be on all materials.  Conference event leaders and speakers should get at least a 15-minute orientation on how to comply with and benefit from the Code during events, meetings, and online discussion (I am a fan of training through role-play).  The board should revisit the Code at least once a year to discuss specific incidents and assess if the institution's response requires refinement. 

By repeatedly describing and addressing the norms, they will be built into the foundations of the organization.

Tip #3:  Follow through on enforcement.

The Conference's Code says "All reports to NYAC will be followed up and taken seriously in order to protect our participants from further abuse."  What does that mean? That each report must result in a final summary as to how the incident was handled.

Unfortunately, there is no one way to ensure this level of follow-through.  Some instances may be resolved simply by a discrete chat with a person to let them know that their romantic overtures are inappropriate.  Other incidents may warrant an announcement to all attendees at an event ("We received reports of numerous interruptions.  We want to emphasize that this is a violation of our Code of Conduct."), as well as more private action directed to specific individuals (a letter or warning).  Still other incidents (hopefully very rare) could result in ejection from an event and/or a report to law enforcement.

The trick is that for every report received, there be a good summary of the reported conduct, and a thorough "final summary" as to how the incident was investigated and resolved.  Again, there is no one-size-fits-all for this: some instances might be resolved with a paragraph ("The attendee was told that for the remainder of the Conference, no interruptions would be tolerated, and she agreed"), others could result in multiple pages and coordination with other organizations (for instance, if two co-workers get into a screaming match and call each other discriminatory names, be ready for lots of paperwork).

Tip #4: Have an established team, and a back-up team, to handle reports.

A reported incident under a Code of Conduct is not a trip for a part-time volunteer to fly solo.

Even if a report seems straightforward ("I sat down after presenting and PERSON gave me a long hug that made me very uncomfortable"), handling reports under this Code is not a one-person job.  There are too many variables[12] that can trip up even the most diplomatic and well-intentioned individual. 

If you are a designated report recipient, you need calm, steady back-up.  This is why having a pool of at least six people who know the Code, and are ready to respond to a report, is critical, and using no less than two people to respond to each report is also important.

Tip #5: Know when to bring in a pro.

The member has asked:

Are there any considerations for the standards we use in evaluating a complaint? What should we use for the burden of proof? To what extent are we empowered to investigate claims? What happens if someone challenges any resulting board action? Can we be sued for taking action and besmirching someone’s professional reputation?

These are excellent questions fueled by perceptive concerns; even the most professionally handled investigation with maximum due process can lead to distrust, the forming of factions, destabilization, and even (as the last question alludes) claims of liability.

How does an organization avoid that?

For a policy such as this Code of Conduct, at an all-volunteer organization, it is good to have a sense of what things can be handled in-house, and when it is time to call in an expert.

Here are some broad guidelines for when to bring in a ringer:

• If there is an allegation of criminal conduct, especially if there is an allegation of physical abuse or stalking;
• If there is an allegation that-if true-would lead to suspension or permanent ejection from the organization;
• If there is property damage.

Now, when I say "bring in a ringer," I don't mean a person to take over the whole investigation (although they may).  And I don't necessarily mean a lawyer.  I simply mean a person with the professional skills and past experience to help the organization consider issues beyond the Code, but critical to the organization: risk of personal harm, liability, legal compliance, insurance, and (a distant fifth, but still important) public relations.

For issues that are going to result in a "soft" correction ("Hi, we know people hug here on occasion, but please know that unless a person has told you it is okay to hug them, it's a Conference rule that you refrain"), there is no need to consult a pro. 

But for "hard" corrections ("After repeated warnings regarding physical contact, you continue to impose unwelcome physical contact, and we must ask you to leave the Conference immediately") it is good to quickly check in with a pro.

For example, if I was consulted on the above "inappropriate hugging leading to a ban" scenario, I would ask:

• Is/are the complainant/s injured?
• Is/are the complainant/s the recipients of the hugs, or a third party?
• When was the hugger last spoken to about this?
• Who has witnessed the behavior?
• Is the person a paid speaker or ticketed attendee?
• What dynamics are at play?
• What is the venue?

I would then work with the client to craft a swift but thorough response that ensured clear documentation of the occurrences, ruled in or out any allegation of injury or illegality (a very prolonged hug can be a criminal act, or just a very welcome gesture, depending on the details), used a risk analysis to adopt an immediate response, and developed a clear path forward to effect a resolution.

The good thing is, with the power of leadership modeling, repetition, and training, most complaints will be in the "soft consequences" zone ("I was speaking and PERSON interrupted me to tell me our approach was 'junk' and say how much better their database would handle the content; I just want to know that you have let them know that is unacceptable.").[13]

If a serious complaint does come along, there is no "catch-all" due process I can recommend for responding.  However, I can say that for each report, each response should follow this pattern:

• A written statement of the complaint (held in confidence by the Conference; there is no need to share this document with any party, and it should be considered confidential) NOTE: This is the phase where you consult an expert if things are serious;
• An initial assessment as to if the complaint is bona fide (if it isn't, you document that, and things end there, except perhaps to explore if you need to address a confabulated allegation);
• A process for collection of relevant evidence and designation of an appropriate deadline for wrapping up the process;
• A consistently applied means of evaluating the evidence;[14]
• If there is to be action based on a finding of fact, a chance for the accused party to set forth their perspective on the accusation (a private organization has no obligation to share evidence in this type of proceeding, and shouldn't, without very careful planning);
• A final summary as to how the report was resolved (a "soft" resolution simply advising an accused party of the rules, but no penalty, or a "hard" resolution with conditions imposed), and how the resolution can reinforce the norms of the Conference (does there need to be both a "private" and "public" resolution?)

In my experience, where all-volunteer organizations get in trouble is when a serious complaint (such as a complaint with injuries, or extreme rancor, or challenging harmful norms in the organization) is sat on (meaning: no action is taken, because they just don't know what to do).  This, along with early identification of risks and planning to avoid liability, is why I advise bringing in a pro for "serious" matters.

Other than the "serious" matters, having a group of board members or a volunteer committee trained and ready to nimbly and promptly address concerns under the Code will be a tremendous service to your organization.  I applaud the Conference for adopting a Code, and for thinking about the details of enforcing it.

I wish you many challenging-but-polite, innovative-but-patient, and rigorous-but-respectful events. 

Thanks for a great question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This is a very good question, since the use of volunteers to supplement or replace work typically performed by union employees can most definitely be a violation of a collective bargaining agreement.

In one case[1] from 1981, a school district on an "austerity budget" used volunteers to set up (and then clean up) district facilities for student sports--a task typically performed by custodial workers under a collective bargaining agreement ("CBA").  An arbitrator found that the district's use of volunteers to perform the unionized workers' tasks violated the CBA, and the workers were owed pay for the work they should have had the opportunity to perform.[2]

That said, schools, libraries and not-for-profits with unions routinely use volunteers for all sorts of things; clearly, not all use of volunteers risks violation of a CBA.  So, my plain answer to this question is: "yes, if the library is careful."

The rest of this reply sets out what I mean by "careful."

First, any not-for-profit has to exercise caution when using volunteers, because (as the member's question points out) there can be concerns that some use of volunteers violates the labor law.

The NY Department of Labor has really good basic guidance on this at https://dol.ny.gov/system/files/documents/2021/03/p726.pdf

In relevant part, that guidance says:

Unpaid volunteers [at an NFP] may not:

• Replace or augment paid staff to do the work of paid staff

• Do anything but tasks traditionally reserved for volunteers

• Be required to work certain hours

• Be required to perform duties involuntarily

• Be under any contract to hire by any other person or business express or implied

• Be paid for their services (except reimbursement for expenses) 

Considering this guidance, when I work with libraries and other not-for-profit organizations who are considering using volunteers (no matter what the work for the volunteers will be, and whether or not there is a union), I advise that the organization have a volunteer policy. 

The volunteer policy should cover all the concerns raised in the bullets above, as well as address risk factors such as placement letters confirming the terms of volunteer service, safety, insurance, and when a library using volunteers will conduct background checks.

Second, when I work with libraries and other not-for-profit organizations who are considering using volunteers, who also have one or more unions representing their employees, I stress the need to work with the union(s) pro-actively to confirm that an activity performed under the volunteer policy is not regarded as replacing paid/union workers.

There are a number of ways to achieve this confirmation.

The most formal way would be accomplished through a broad exclusion clause in the union contract(s) so every program does not present an ad-hoc task (but that could be a hard thing to fight for at a negotiation).  A sample clause for that could be:

It is understood between the Parties that volunteer service performed per the Library's "Volunteer Policy" to enable events and programs that are not part of the Library's Plan of Service are not regarded as replacing or supplementing union members. 

However, if such a clause is not a part of the standing collective bargaining agreement, a simple exchange of emails, or a more formal signed memorandum addressing only one type of volunteer activity, can be used to confirm this understanding.

The goal in all cases is to have clarity about what service is being performed by the volunteers, and to be able to show an affirmative agreement that it is not negatively impacting the experience of the workers in the union (which risks assertions of breaching the contract).  Since the perception of "negative impact" (and breach) can vary from place to place, this is not an understanding to pursue after-the-fact nor without a solid understanding of the legalities and subtleties of the situation.[3]

Third, even if a union is amendable to it, I would caution a library against using volunteers for any service that is part of a library's Plan of Service, since that can undercut the data needed to support adequate state/local funding.  Volunteers can be invaluable assets, but a library should always be able to function as required by law without them.

Fourth, if all the other cautions and no-no's listed above check out, it is vital to have a very clear agreement with the collaborating organization outlining the nature of the service, and each parties' roles and responsibilities for it.  This ensures the risks and liabilities posed by offering any program to the public are properly balanced, and the library isn't taking risks for the actions of volunteers provided by another organization.  I know it sounds impolite, but when it comes to volunteer services from a third-party, a not-for-profit must look a gift horse in the mouth.[4]

In many ways, it's a new world out there.  For libraries seeking to innovate and work with other organizations to co-produce new programs, the above-listed cautions can set the stage for using volunteers without worrying about violating a union contract.

Thank you for a good question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This...is a big question.  It's only three short paragraphs.  But it's BIG.

It's "BIG" because the risks of getting this topic wrong are immense--from not only the obvious risks involving legal concerns, but risks involving ethics, privacy, and the goal at the heart of the issue: safety.

It's also BIG because the phrase "background check" is not tied to a precise or static definition.  When someone says "background check" in the context of employment, here are just a few of the things it could mean:

• Criminal background check
• Credit check
• Military service separation check (form "DD 214")
• Motor Vehicle Records ("MVR") check
• Transcript and education records check (including student disciplinary records)
• Licensing/professional oversight body (medical board, bar association, etc.) check/confirmation of good standing
• Civil litigation history review
• Reference check
• Previous employment verification
• Social media/publications check

Each of these "checks" comes with a wide array of legal requirements--or typical legal cautions--governing its use.

For instance:

• A criminal background check should only be used by an organization if it has an up-to-date "Criminal Background Check Policy," because in the state of New York, denying employment based on a criminal conviction requires the employer to do a precise analysis (of which the denied applicant can request a copy).[1]
• A credit check should only be used by an organization if it has an up-to-date "Credit Check Policy" to ensure the regulations in the Fair Credit Reporting Act ("FCRA") are being followed.[2]
• A MVR should only be used by an organization if it has an up-to-date "MVR Check Policy" that clearly sets out the types of moving violations and other records that would flag a basis for non-employment.[3]

For all types of checks, the institution using them should have a clear policy governing what jobs require them, and how such records are evaluated, maintained, and disposed of.

And finally: when developing, implementing, and routinely using any type of background check policy, an organization is wise to take care that it is not incorporating factors that can be shown to disproportionately negatively impact (i.e., discriminate against) a particular category of applicant.   

Okay, with all that off my chest, let's answer the actual questions.

First question:

Do background checks, fingerprinting, etc., need to be done for all positions?

The degree to which background checks and documentation of identity must be performed are governed by two things: what is legally required, and what the risk management practices of an institution dictate. 

These two factors mean that practices will vary from place-to-place.  A librarian working within a public school district in the state of New York will be subject to a criminal background check and must be fingerprinted[4] just as any other regular employee within their district. A librarian at a public or association library is not required by law to have a criminal background check, nor to be fingerprinted,[5] but an institution could decide, for risk management purposes, that a position requires that level of scrutiny for safety and security.  

Second question:

Does it need to be posted in the job advertisement that there will be a background check for the successful candidate or all finalist applicants?

There is no requirement in the law that a job advertisement has to disclose a background check in the job advertisement.  However, prior to obtaining and using any information from a third party whose business it is to provide background information, an employer must notify an applicant; this notice must be in writing and in a stand-alone format.  Further, before a negative decision is made based on such information, it must be disclosed to the applicant.  A good resource on this is the Federal Trade Commission,[6] but the third party provider, if they are a true professional, will provide the forms for each of these steps.

Now all that being said, it may be that some local hiring procedures or collective bargaining agreements require the disclosure of background checks in a job notice.  Further, some employers may want to disclose their intent to use a background check to avoid surprising candidates further into the process.  There is no bar to making such an early disclosure, but if given, such notices should be carefully drafted to avoid implying that those with arrests or criminal convictions[7] will not be considered for the position.

Third question:

Can the background check need to include a financial check and a legal check?

Yes, absolutely. A background check can include a credit check, a search for liens and other debt instruments, a review of criminal history, a consideration of driving record, and any combination of the items I listed at the top of this reply.  Just be careful: if your library or system relies on a third party to supply that information, it must follow the guidance from the Federal Trade Commission (see that link in footnote 6).

Okay, at this point, I have to re-emphasize: before using any type of check, a library should have a policy covering that type of check, and that policy should cover all check-specific legal compliance, as well as: when the check is conducted, how it is conducted, how the information is used, and how the documents related to it are disposed of/retained. [8]

When developing such a policy, a good rule of thumb for an institution considering any type of background check is to be able to clearly answer the question: "Why are we doing this check?"  While the reasons will vary, the answer should always relate to the essential functions listed in the job description, and the nature of your library.

For instance: if a position will create opportunities for a person to spend unsupervised time with vulnerable populations, a criminal background check and rigorous prior employer check is wise.  If a position requires a particular credential, verification of that credential makes sense.  And if you are hiring someone who will frequently have to drive the bookmobile, a motor vehicle records check is almost always imperative.

On the flip side: if a person is being hired for a job that doesn't require driving, a "current driver's license" should not be required. If a person will never have access to financial information or fiscal resources, a credit check is likely not necessary. And if a would-be library clerk has a DWI that is 20 years old--and no other criminal history--it is likely the conviction is not a basis to eliminate them from consideration.

Last question (and it's another biggie):

And tangentially, am I correct in my assumption library staff are not considered mandated reporters? Are there guidelines for this as well?

"Mandated reporters" is a legal term under Section 413 of the NY Social Services Law.  Professionals listed in that section are required to make a report when they:

 "...have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child, [OR] when they have reasonable cause to suspect that a child is an abused or maltreated child where the parent, guardian, custodian or other person legally responsible for such child comes before them in their professional or official capacity and states from personal knowledge facts, conditions or circumstances which, if correct, would render the child an abused or maltreated child."[9]

I have placed a list of the "Mandated Reporters" set by Section 413 below this answer. As you can see by reviewing the (long) list, library employees (unless their function also fits into one of the categories listed in 413) are NOT Mandated Reporters.

Of course, a library--or an institution that hosts a library--can decide and enforce via policy that its employees have an affirmative duty to report observed or suspected child abuse (or any abuse) that occurs on their property or in their programs.  Many insurance carriers actually require their insureds to have such a policy.[10]

[NOTE: If an employer has any type of "report abuse" policy, employees should be trained on how to make such reports no less than annually.  The average person can have a trauma response to witnessing abuse, which can impact their ability to report it, as well as negatively affect their well-being.  Routine training on how to recognize and report concerns, and experienced support for reporters, can help with this.]

Thank you for an important series of questions.

List of "Mandated Reporters" under Section 413 of the Social Services Law (also called "human services professionals[11]"):

...any physician; registered physician assistant; surgeon; medical examiner; coroner; dentist; dental hygienist; osteopath; optometrist; chiropractor; podiatrist; resident; intern; psychologist; registered nurse; social worker; emergency medical technician; licensed creative arts therapist; licensed marriage and family therapist; licensed mental health counselor; licensed psychoanalyst; licensed behavior analyst; certified behavior analyst assistant; hospital personnel engaged in the admission, examination, care or treatment of persons; a Christian Science practitioner; school official, which includes but is not limited to school teacher, school guidance counselor, school psychologist, school social worker, school nurse, school administrator or other school personnel required to hold a teaching or administrative license or certificate; full or part-time compensated school employee required to hold a temporary coaching license or professional coaching certificate; social services worker; employee of a publicly-funded emergency shelter for families with children; director of a children’s overnight camp, summer day camp or traveling summer day camp, as such camps are defined in section thirteen hundred ninety-two of the public health law; day care center worker; school-age child care worker; provider of family or group family day care; employee or volunteer in a residential care facility for children that is licensed, certified or operated by the office of children and family services; or any other child care or foster care worker; mental health professional; substance abuse counselor; alcoholism counselor; all persons credentialed by the office of alcoholism and substance abuse services; employees, who are expected to have regular and substantial contact with children, of a health home or health home care management agency contracting with a health home as designated by the department of health and authorized under section three hundred sixty-five-l of this chapter or such employees who provide home and community based services under a demonstration program pursuant to section eleven hundred fifteen of the federal social security act who are expected to have regular and substantial contact with children; peace officer; police officer; district attorney or assistant district attorney; investigator employed in the office of a district attorney; or other law enforcement official.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Over and over again, I am floored by the care, tenacity, and creativity of the libraries determined to provide services in a time of pandemic.  New York's libraries just don't give up.  This question shows the mechanics of that fighting spirit.

So much of what we do in this pandemic comes back to why we are doing things in this pandemic.  For many libraries, the "why" of offering services is making sure their communities have lifelines to professionally curated information.

For this question, the "why" of asking for proof of vaccination is right there in the submission's core:

... so that we can have some sense of how many employees have been vaccinated, if that is to somehow figure into any decisions we might need to make re: staffing and proximity to others, or any considerations for the possible liability of "direct threat" to others by those who either choose not to get vaccinated, or are awaiting vaccination eligibility?

Let's take that "direct threat" part first.

Back on March 19, 2020, we addressed a question about employer (library) liability due to Coronavirus exposure.  Although much has changed since that time (we have vaccines), the basic recipe for liability has not changed: liability happens when a person/entity owes a duty of care to a person, does not perform that duty, and the failure results in damage.

Because if this recipe, it is essential for libraries to always know what "duty of care" they owe their workers, and their community.

In a pandemic, evolving data and resulting best practices can change the "duty of care" rapidly (No masks? One mask? Two?).

While many resources are aggregating and pushing out up-to-the-minute guidance on "best practices," there are only three places libraries in the State of New York should be drawing their duty of care practices directly from: the New York State Department of Health ("NYSDOH"), the Centers for Disease Control ("CDC"), and the Occupational Hazard and Safety Administration ("OSHA").

Right now, as of this writing, OSHA's 1/29/2021 workplace guidance[1] for mitigating the impact of COVID-19 lists 16 "elements" of an effective COVID protection program.  Here is what OSHA recommends about using awareness of vaccination status of employees:

Not distinguishing between workers who are vaccinated and those who are not: Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person. The CDC explains that experts need to understand more about the protection that COVID-19 vaccines provide before deciding to change recommendations on steps everyone should take to slow the spread of the virus that causes COVID-19.

So right now, the "duty of care" set out by OSHA expressly excludes relying on vaccination status to reduce the spread of the virus.  Rather, it focuses on providing and insisting on appropriate PPE.

That said, in the same guidance, OSHA continues to recommend allowing employees who self-identify as medically vulnerable to swap tasks to limit risk:

Offer vulnerable workers duties that minimize their contact with customers and other workers (e.g., restocking shelves rather than working as a cashier), if the worker agrees to this.

This means if a person, relying on their vaccination status, decides to not self-identify as medically vulnerable, the employer is not advised to offer them contact-minimizing duties.

There are other steps on the current OSHA list that the member is already doing.  By enabling the use of PTO for vaccination, they are following the guidance in element "14":

Making a COVID-19 vaccine or vaccination series available at no cost to all eligible employees. Provide information and training on the benefits and safety of vaccinations.

This guidance, I imagine, will evolve.  That evolution should be reflected in revised Safety Plans.

And with that said, let's answer the member's specific questions:

Can or should be asking for proof of vaccination from *all* employees, so that we can have some sense of how many employees have been vaccinated, if that is to somehow figure into any decisions we might need to make re: staffing and proximity to others, or any considerations for the possible liability of "direct threat" to others by those who either choose not to get vaccinated, or are awaiting vaccination eligibility?
 

Based on the current OSHA guidance, along with guidance from the EEOC, the answer to this is "yes," and then "no."  Yes, an employer can ask for proof of vaccination (whether acquired on PTO or off-hours).[2]  No, right now, it should not be used for assignment of duties[3] or with the idea of reducing possible liability.

Here is the member's follow-up question:

If it is desirable or permissible for us to obtain proof of vaccination universally, should compliance by the employee be optional/voluntary or compulsory?

Based on the current OSHA guidance, along with guidance from the EEOC, right now does not seem like the time to rely on vaccination status and data to make determinations about workplace risk management and safety.  So while requiring a notification of vaccination status may be permissible, it does not appear desirable if its purpose is to mitigate concerns about liability.

If, however, the motivation is to verify that the library is effectively encouraging the most employees possible to get vaccinated—simply for the employees' own personal health and safety—then yes, tracking those metrics (and any non-disability factors barring vaccinations) might not only be permissible, but desirable. In that case, the question is: does the information need to be tied directly to a particular employee, or is it just as meaningful if anonymous?

Which brings us to the member's last question:

But how do (or can) I share specifics on who has been vaccinated (versus who has not) with others, such as supervisors and managers?...I would be leery of divulging such information, out of concerns for maintaining employee confidentiality...

This HR manager knows their stuff!

First, yes: no matter what, never create a risk of trampling on employees' privacy.

Second: Right now, it appears that sharing such information is unnecessary.

In a December 18th, 2020 "Ask the Lawyer," I stated that a vaccine requirement should only be implemented if it is part of a well-thought-out, board-approved Safety Plan.  Right now, it appears that no Safety Plan should rely on a vaccine requirement to reduce transmission of the virus.  With that in mind, right now, it appears the safest course of action –both COVID-wise, and legally—is to encourage vaccination, but not require it, and if a library tracks it, only do it for purposes of encouraging more employee vaccinations (or finding out you've hit close to 100%).

Of course, here we are on February 26, 2021.  If you are reading this in March, or April, or that sunny, warmer time in the future, May and beyond[4], this answer might no longer apply.

Keep checking with NYSDOH, with the CDC, and of course, with OSHA.  At some point, requiring vaccination—or allocating duties by vaccination status—could become something expected of an employer.  If that happens, a library's "duty of care" could change, altering the threshold for liability, and the answer to these questions could shift—some subtly, some not-so-subtly. 

But we have had a lot of twists and turns in the Pandemic.  That "shift" may or may not happen.[5]  As I often say at my office, "the only plan we can make is that the plan will change."  And how do you plan for that?  By doing what this member has done: keeping employees' well-being and safety at the forefront, and adapting every time the data and guidance change. 

If your library does that, you'll be as safe as you can be.  And mitigate your liability.

Thank you for a thoughtful question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

I am glad the column is helpful, but this issue really shows the limits of the law!

Before I say what I mean, I need to emphasize three things:

1. State and federal law often protects employees who complain about "working conditions."[1] Since an odor is a "working condition," no matter what position a library takes on "bad" smell (barring it as a disturbance, allowing it as a matter of mission, or a solution somewhere in between), leadership should carefully listen to employees' concerns.

2. While my November 17th answer mused there are several compelling reasons to opt for a more inclusive solution (like use of a "scent free" zone), I want to re-emphasize: that is not what the law requires.  Rather, the law requires that people not be barred from library access on the basis of disability or protected characteristics.  Since that is a slippery slope, not barring people on the basis of smell (or using a "scent free zone") is a good way to stay in a legally safe zone. 

But barring disturbing odors, if done carefully, is still allowed by law.

3.  Although I imagine that the member submitting the question didn't mean "taking sides" literally, because it is so critical, I have to say: library employees should never perceptibly "take sides" with one patron against another patron, even if they privately agree that a patron's odor is off-putting.[2]  This is because if access is going to be limited, the library must be able to show fair and equitable treatment.  An employee with a concern, of course, can take it directly (and discretely) to their supervisor.

So with all that said...

From the legal perspective, the key on the employee side of the "smell" issue is to listen to employees' bona fide concerns about their working conditions.  This is true whether your library decides to bar certain smells as "distractions," or to find creative ways that, ultimately, might expose an employee to an unwelcome smell.  Above all, whatever approach is taken, it should be clearly set out in a written policy, and decisions under that policy should be well-documented.  And to address concerns like the one raised by the member, to the greatest extent possible, the policy should be written with the input of employees, who should also be trained on how to work with it.

But that said...

Does this mean some employees, believing their library should have a more inclusive policy, might have to enforce a restrictive policy?  Yes.

Does this mean some employees, not liking their library's more inclusive policy, may have to work near a person whose smell they do not like?  Yes.

This is what I mean by "the limits of the law."  The law can help libraries foster positive working conditions and employee morale—to a point.  After that, it is down to leadership, well-developed polices, and good employee relations.

This is why people often like their HR director more than their lawyer!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This is an incredibly sensitive, important, and complex set of questions.  I know a lot of people out there in "library land" are waiting on the answer—from many different perspectives.

So we're going to take it slow, break it down, and unpack the components of the answers one step at a time.

Step 1: Considering requiring immunization to COVID-19 as part of a library's evolving Safety Plan

As I have emphasized in numerous pandemic-related answers, any library operating in any capacity right now should have a trustee-approved Safety Plan tailored to its unique operations.  The plan should evolve as new safety-related information emerges, and as library operations change.

As of this writing,^[1] some libraries are open to visit.  Some are doing only curbside.  Some are offering more remote programming.  Some have used their information management and lending capacity to distribute PPE, food, and living supplies.  Because of this diversity of service, they all should have different Safety Plans.

The Safety Plan of a library closed to the public for everything but curbside will be different from the Safety Plan of a library open for socially distant use of computers and lending.  The Safety Plan of a library distributing fresh produce will be different from a library streaming programming from its community room to an audience within its area of service (and beyond).  The Safety Plan of a library operating with ten on-site staff in December should be different from the one they used when there was only one employee on-site in June.

Just like the decision to use a particular mode of sanitization, as a library undertakes and changes its unique services, the decision to require immunization of employees should start with vaccination's role not as a stand-alone solution, but as part of an overall approach to limiting the impact of the pandemic on your library, its employees, and your community.  Do the services your library needs to provide the community warrant immunization of employees?  If so, keep reading.

Step 2:  Wait, so does what you said in "Step 1" mean a public library can go ahead and require employees to be vaccinated?

Yes...and NO.

I say "yes," because under the right conditions, the law does allow employers to impose conditions for safety, and that can include mandatory vaccination.^[2]  However, I also say "NO," because the phrase "the right conditions" carries a lot of complexity for three little words.  To be safe, the default assumption of a library^[3] should always be that it can't require immunization of its employees...and then work to find the way, if well-informed risk management and an updated Safety Plan warrants it, it can require immunizations (and just as critically, if it should).

Step 3: Assessing if a library can require vaccination of employees

Before a library gets too far into an internal debate about if it should amend its Safety Plan to require vaccination of employees, it should assess if it is in a position to do so.  This means having an experienced HR administrator or attorney look at the organization's bylaws, policies, and employment relationships to see if there are any steps or bars to the requirement.

What could such a bar look like?  The most common impediment a library will run into on this is an employment contract—either for individual employees, or with an entire employee union (a "collective bargaining agreement").  The bottom line on this type of impediment: if there is a contract in play, a library must be very tactical, collaborative, and strategic prior to creating—or even considering—immunization as an employment condition.^[4]

Another bar might be language in an employee handbook or a pre-pandemic policy.  Still another might be that "gray area" when library employees are considered employees of a school district, village, or town.

The best overall guidance I can offer on this Step is: assessing if your library is positioned to require immunization is a critical step to using vaccination as a tool in your Safety Plan.  Bring in a ringer to help your library assess the extent of what it can do.

Step 4:  Assessing if a library should require vaccination of employees

Okay, let's say you consulted with the best employment lawyer in your village/town/district, they took a close look at whatever relevant contracts and policies your library has, and they have said: "No problem, you can require this."^[5]

The next important thing to consider is: should your library require this?

Compelled immunization^[6] is an incredibly sensitive area of policy and law.  Since the time Ben Franklin started insisting on smallpox immunizations,^[7] this public health issue has had passionate rhetoric on both sides of the debate. 

I have worked with families whose children have documented contraindications for certain vaccines, and it is not a simple issue.  And right now, a public discussion is happening about why people who are African-American might not trust being offered a first round of vaccination.^[8]  These are life-and-death issues.

That said, those on the front lines of public service, during a time of pandemic, are at higher risk of both getting infected, and spreading disease.  Science shows vaccination will mitigate that risk.  Thus, under the right circumstances, encouraging such employees to be vaccinated is the right thing to do, and in some cases, employers have made the decision that requiring vaccination is the right thing to do.

The consideration of this question is classic risk management.  What critical services is your library providing to the community?  What exposure to possible infection do those services create?  Does social distancing, PPE, and sanitization mitigate those risks within acceptable tolerances, or would requiring vaccination of employees demonstrably make those employees and the community safer?  Are there certain duties that merit requiring immunization, and other duties (jobs performed 100% remotely, for instance) that do not?  And critical: is mass employee immunization in step with the approach of your local health department?^[9]

There is no cookie-cutter answer to these questions, but a responsible decision to require immunization of employees as part of a well-developed and evolving Safety Plan should answer them all.

Step 5:  Developing a robust policy that includes consideration of civil rights, the ADA^[10] and privacy

So, let's say your library has followed Steps "1" through "4" and has decided it can, and should, update its Safety Plan to encourage or require immunization of employees.

The next step is developing a policy that:

• Demonstrably does not discriminate or have an unintentional disparate impact on any protected class of people (race, religion, sex, etc.);
• Has appropriate measures for people to opt-out based on a disability accommodation under the ADA or the New York Human Rights Law;
• Protects the privacy of those who either meet the requirement, are granted an accommodation to not meet the requirement, or who must be terminated due to refusal to meet the requirement.^[11]
• Manages liability through good planning and the transmission of accurate information, not (just) waivers of liability.[12]

I also suggest that the library strongly consider ensuring, well in advance, that: 1) the vaccine is available to employees, and 2) that employees don’t have to pay for it.  This is because 1) once the library has identified that there are risks in its operations that would be best mitigated through immunization, those activities should be limited until the mitigation is in place, and 2) there can be legal complications if the vaccination requires personal expense.  While this advance planning and cost containment is not precisely a legal compliance concern, they are close first cousins, and should be addressed as part of the Safety Plan. 

Step 6: If a library decides to require immunization, develop a PR Plan (optional, but a very good idea)

I don't need to tell a library audience that what a public library does on this topic will be scrutinized, criticized, and eventually, also a model for the rest of your community.^[13]  Since any decision on this point will have its critics, and also (hopefully) its fans, be ready to let your public know, simply and straightforwardly, the basis for your library's decision.

I like the classic "FAQ" approach.  Here are two model FAQ's for two libraries that did the legal analysis and safety assessment, and come to the following decisions:

FAQ: I was told the library board is requiring all the employees to be vaccinated for COVID, is that true?

FAQ ANSWER: Since re-opening on DATE, the NAME Library has had a Safety Plan.  Now our Safety Plan does include supporting voluntary immunization of employees.

FAQ:  Voluntary?  So you are not requiring it?

FAQ ANSWER:  Our risk analysis and still-limited operations showed that we could meet the community's needs by requiring masks, social distancing, and routine sanitization.  We have now added supporting employees in getting vaccinated on a voluntary basis.

FAQ:  Will you ever require it?

FAQ ANSWER:  Only if our operations change and an updated risk analysis shows us that it is best for our employees and for the community.

Another "FAQ" example, for a library that came to a different conclusion, is:

FAQ: I was told the board is requiring all the employees to be vaccinated for COVID, is that true?

FAQ ANSWER: Since re-opening on DATE, the NAME Library has had a Safety Plan.  Now our Safety Plan does include mandatory immunization of employees who are able to be vaccinated.

FAQ:  Why is the library requiring employees to get vaccinated?

FAQ ANSWER:  Feedback shows that the community needs us providing critical services right now.  Our risk analysis showed that in addition to requiring masks, social distancing, and sanitizations, immunization by employees would protect their health, and the community's, while we provide those services.

FAQ:  The vaccine is not 100% available yet.  Did your employees have to do this on their own?

FAQ ANSWER:  Our library worked with [INSTITUTION] to make sure our employees had access to this safety measure, without cost to them.

And that's it.^[14]

The important take-away I want to emphasize here is that for individual libraries, there are no quick answers to these questions.

Libraries of all types will be assessing their unique legal and risk positions, and will need to make carefully documented and executed decisions.  Libraries within larger institutions may need to fight for consideration separate from other operations.  Public libraries will need to consider the heightened transparency and public accountability they operate under.  Library systems will be thinking about how they can protect their employees while also supporting their members.  And for the employee on the ground, they'll be thinking about keeping themselves, their families, and their communities safe.

By taking careful, deliberate, and well-informed steps, the answers to the member's questions can be found.

Thank you for a vital question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

There is a large array of case law,[1] academic articles, industry guidance, and news coverage on the subject of regulating smells in libraries (specifically, the smells of people and/or their belongings in libraries).[2]

Based on those materials—and in particular, the case law—my answer to the question "legally is this allowed?" has to be: YES.  With a carefully considered policy, carefully followed, barring library patrons based on their "disturbing" odor has been ruled to be legal, just like barring other factors that disturb the operations of the library (noise, eating, running) can be.

But just because a library can bar "disturbing odor" doesn't mean I always advise my clients to do it.

Why?  Because this is 2020.

In 2020, we know that the impact of barring people based solely on them being "disturbing" is fraught with risk,[3] both for legal reasons (claims based on the First Amendment, equal protection, due process, disability, etc.) and for reasons related to a library's mission (concerns related to the type of existential considerations raised by the member). [4]

Of course, in 2020, we also know that regardless of where you land on the question of "disturbing odor," this issue poses concerns from the other side, as well; a patron or employee trying to access or work in a library may find a smell (whether caused by another person, or by a condition of the building) to present an actual risk to their health (allergies, chemical sensitivities).  So one person's access to the library may pose a risk to the access of another.

Finally, in 2020, while nothing is a sure bet, it is reasonable to expect that one of these days, one of the legal cases challenging a library's bar to access based on a "disturbing odor" is going to result in a policy or ejection being overturned.  And while that currently-hypothetical case may turn on circumstances unique enough[5] to not bar all such policies, such a ruling could throw the current legal footing into question.

Which is why I offer this: rather than barring people due to "disturbing odor"[6] (which as the member points out, is a conclusion rooted in subjectivity) a library might be wise to consider planning, policies and action to:

• Create "Scent-free zones" in your library where any perceptible odors, mold, dust, and use of substances associated with chemical sensitivities, are as minimized as possible.  This can address the needs of people who are more sensitive to perfumes, chemical cleaners, and air fresheners...reducing the likelihood of complaints and concerns under the ADA.
• When planning capital improvements, invest in an HVAC system that circulates fresh air into library spaces (with all due consideration to humidity control for your collection), reducing the accumulation/proliferation of all odors, and in general creating a healthier breathing environment.
• Place seating near areas with more effective ventilation, and configure spaces to deter concentrations of patrons in less ventilated zones.
• And most critically: Develop policies to address objective, quantifiable health hazards that might be signaled by smell, rather than barring subjective and hard-to-measure "disturbing odors."

It is this last bullet—related to safety—that I would like to dwell on.

Some smells are just that—smells.  They may be perceived negatively, and perhaps even as a disruption, but to most people, they pose no risk. 

Some smells are not just smells, but "tells"—byproducts indicative of conditions that are experienced by the individual carrying them (like it or not, we all have these).  Some may be linked to a medical condition or disability, but in no way do they pose a safety threat to others.    Many people who are perceived as "smelly" have "tells".

And finally, some smells are indicative of a potential health hazard to those in their proximity; for example: sulfur added to otherwise odorless natural gas, the odor of certain paints as they dry...or the smell of a staph infection in an open wound.  These "evidence of danger" smells are the ones that libraries, who are legally obligated[7] to provide their patrons and employees with a safe environment, need to be concerned about, and should develop policies to address.

Need an anecdote to distinguish the smells from the tells from the hazards?  Here's a scenario:

A man walks to the library.  While walking, he treads in dog poop.

Because decades of smoking cigarettes have dulled the man's sense of smell, he does not notice that his shoe is coated in poop.  However, as soon as he enters the library, a page smells the poop, and points out to the patron that not only is his shoe smelly, but it is leaving fecal residue on the floor.[8]

Because there are many health-related reasons why the library doesn't want dog poop on its floor, the man is asked to leave until his shoe is poop-free.  The man leaves the library and visits his buddy across the street,[9] who lets him hose off his shoe in the back yard.

When the man returns to the library, he shows the page the clean shoe, and it is clear that the dog poop has been eliminated.  However, dog poop being what it is, the smell lingers on the shoe.  But insofar as the library is concerned, it no longer poses an active hazard to toddlers crawling on the Children's Room floor.  The man is allowed to walk into the library, selects the latest John Grisham novel, and leaves, the odor of dog poop lingering in the Circulation Desk breeze.

And that is the difference between using a smell to mitigate a health hazard, and tolerating a potentially disturbing odor in a library.  It is also how a library focuses on providing access and a safe environment for patrons and employees—while avoiding judgments rooted in subjectivity.

In posing this question, it is clear that the instructor is thinking about mission, about a library's role in its community, and about optimizing access to resources for all.  But the instructor has also honed in on this "subjectivity" concern, by asking: "Who is to decide what an acceptable/unacceptable level of smell"?

It is that very subjectivity that brings legal peril to the current scheme of things.  Sooner or later, the right combination of circumstances will arise, and a judge will rule that simply barring someone from a library based on nothing more than a bad stink is a legal violation.

Therefore, as we move past 2020, and into an era that will, all signs show, be more in need of information access and authentication than any era previously, I offer this template policy to "flip the script" on how libraries address the issue of odor. 

The ABC library is committed to access for all.  With regard to odors in the library, this means:

• We provide a designated scent-free area for patrons with chemical or scent sensitivities;
• We require any odor that is a sign of a possible health risk (hazardous chemical, fecal matter, rotting food, smoke, communicable infection or any substance that can damage the library or pose a risk to those in it) be addressed, and if a risk is likely to be present, mitigated immediately;
• We work to find people who may be bothered by certain non-harmful odors, such as perfume, cologne, or "body odor" of other patrons, space in our scent-free area, or near windows or well-ventilated areas.

We appreciate that as humans, our patrons bring a wide array of odors into our space, and not everyone appreciates that smell of others. If you need a scent-free area or well-ventilated area, please let us know.  If you notice any odor or other factor that could be indicative of a health hazard, please immediately alert staff so it can be addressed per our policies.

Meanwhile, the library's Code of Conduct should state some version of: Any activity or substance posing a health hazard to patrons and employees is prohibited.

And finally, internally, I suggest this protocol[10] for addressing reports of smells indicative of potential hazards:

Receive the report.  Note the date, time, person reporting it, and what is reported.  Ensure a qualified person immediately assesses the report.  If there is a possible health hazard, involve the appropriate personnel or outside resources to develop an immediate response/mitigation plan, with all due respect for safety, privacy, access, and due process.

And that's it.  From where I see it, while the status quo is legal, the future of "The Great Library Smell Debate" can shift to focus on two things: access, and safety.[11]  Factors that are subjective or based on personal preference ("bad smells" causing "disruption") are currently legally valid, but there is the possibility of a successful legal challenge.  If a library is concerned about the impact of such policies on mission, and wants to avoid subjective value judgments about smell, developing policies that focus on access and safety might be a more appropriate approach.

That said, to reiterate my honest answer to the question: right now, based on case law, "subjective" policies about "disturbing" odor, if narrowly tailored to serve a valid purpose[12], and executed properly, remain enforceable.  But as I have outlined, they can pose a risk. 

Make no mistake—sometimes odor needs to be addressed, and from many perspectives.  But the law provides many options, and using a focus on access and safety is one of them.

Thank you for a thoughtful question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Yes, and yes.

Every library, historical society, archives, or museum, if open to the public, should have accessibility information posted at its premises, in its printed brochures and fliers, and on its website.

While it can (and often should, based on the size and type of the library), this "accessibility statement" does not have to cite the ADA.^[1]  Rather, it can just be a simple statement about your institution's commitment to access, along with some basic information about what common accommodations are on site—and critically, how to get in touch if a person needs more.

Here is some sample language:

The ABC Library is committed to access for all.  We currently [insert all current accessibility features, including ramps, bathrooms, parking, adaptive technology, etc.].  As renovations are planned and new items are purchased, our accessibility grows.

Questions about our resources and any accommodations can be directed to [PERSON] at [PHONE] or [EMAIL].  To ensure timely and thorough assessment of accommodation requests, we will confirm the details of the request with you, assess the request, and let you know the options we can offer as soon as possible.

Requests related to specific events should ideally be received at least two weeks before the event, to allow time for proper assessment and planning.

Some requests might not be within the scope of what we can do, or may be met through alternatives, but the ABC Library board of trustees, director, and employees are committed to making our library the best it can be for everyone in our community.

Further, every library should have an accessibility/universal design section in its purchasing/procurement policy.

Just something simple, like:

When generating Request for Proposals and soliciting quotes, the ABC Library will assess the goods and/or services to be purchased and develop criteria to: 1) assure ADA compliance; 2) incorporate consideration of universal design; and 3) position the library to promote accessibility based on established, current, and properly sourced research.

Why is this important?  Well, aside from being a kind, considerate thing to do^[2], it is a form of legal risk management for facilities required to follow the ADA. 

Pre-emptive outreach on accessibility helps people plan visits and find ways to access services, rather than look to the law for alternatives.  And by building accessibility priorities into the earliest phases of procurement, your institution makes sure it thinks about accessibility before a purchase becomes a problem.

Once a library resolves to do these two things, there are endless resources out there on how to write policy, compose statements, and how to consider the ADA when making purchases, designing signage, and updating websites.  But resolving to make these things a priority is the first step.  So...

Should your library have an accessibility statement?  And should your library consider accessibility when making purchases?

Yes, and yes.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

This question came into "Ask the Lawyer" with a request for a quick turnaround, so we'll keep this brief.

Are we permitted to make our own safety rules?

Yes...and no.[1]  But that doesn't matter for this question, because the member's real objective is...

 "We would like to require that they wear actual cloth (or paper surgical) face masks."

...which a library with a well-developed, uniformly applied Safety Plan can absolutely do.

Why is that?

As of this writing[2], there is documented evidence that the CDC is still weighing the advisability of face shields.  Here is what they have to say:

(For the less cartoon-oriented[3], the CDC says it like this:)

Of course, at the same time, as the member points out, the State of New York now allows face shields to "count" as a face cover:

66-3.2 Face-Coverings....

(i) Face-coverings shall include, but are not limited to, cloth masks (e.g. homemade sewn, quick cut, bandana), surgical masks, N-95 respirators, and face shields.

Meanwhile, the REALMS study has hit the library community with THIS cold cup of coffee[4]:

Libraries should be paying attention to all of these evolving resources[5], and should regard their Safety Plan as a "living document" that evolves with that information.  This will help libraries develop a plan that can help them help patrons adhere to CDC guidelines like this one:

The bottom line?  If your library bases its access and services on current information, is careful to adhere to its obligations under the ADA, and adheres to a Safety Plan that provides—based on the combined input from such reliable sources—that certain areas may only be accessed by those wearing faces masks (and/or gloves, and/or only if they agree to spray down certain surfaces, and/or only by a certain number of people a day), it may do so.

It all comes down to having a Safety Plan based on your library's unique size, design, staffing capacity, and collection materials.  With a plan that is linked to established factors, the best guidance we can get in uncertain times, and reliable enforcement, anything is possible.[6]

Thanks for an insightful question!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Before I answer, let's talk about why a person or business might create an LLC ("limited liability company").

A primary function of an “LLC”^[1] is to do exactly what the member has proposed—to create a separate entity designed to hold the liability associated with a particular venture.

Examples of how an LLC can be used to take on liability (and keep it from flowing to its owner/s) include: ownership of rental properties, operation of restaurants, and yes, collaborative formation of charitable initiatives, like a medical closet operated in affiliation with a library.^[2]

This is because, when set up properly, an LLC allows its "members"^[3] to have an ownership stake in the company, while minimizing the risk of liability associated with the LLC adhering to other parties (like the members).

For this reason, a lot of property owners and participants in risky ventures^[4] use an LLC to contain the liability that could result from the risks of the venture.  This helps with insurance, critical decision-making, and keeping unrelated assets separate from the liabilities of a venture.

Aside from this primary “separation of risk” function, the LLC model also allows creative arrangements for financial operations and tax considerations.  Among many other things that relate to ownership of family businesses, and complex corporate structures, this includes allowing one or multiple 501(c)(3)^[5] not-for-profit charitable entities to form an LLC that will have a similar tax status. 

So the "short answer"^[6] to the member's question is: YES.

That said, I do have a "long answer" composed of several considerations and caveats, which I hope will be helpful.

Consideration 1: Audit.

While the laws governing public libraries^[7] do not forbid--and arguably expressly allow--an education corporation like a public library to own, or partially own, the asset of an LLC^[8], a review of various New York State Comptroller audits^[9] shows that any assets flowing between the two entities will be considered subject to all the requirements that must be followed by the library.

In other words, if the State Comptroller conducts a fiscal audit of the library (as State Comptrollers are randomly wont to do), the Comptroller will not only look at the books of the library, but also the books of the LLC—subjecting them to the same scrutiny as the library. 

So, to the extent money and resources flow from the library to the LLC, the same constraints on procurement, investment, and other use of assets will be imposed on the LLC.  This could bar or limit the activities of the LLC, so should be a primary consideration when it is formed.

Consideration 2: Operations

By "operations," I mean: who is helping the LLC get the work done?

In the scenario submitted by the member, it is the library who will "be responsible for cataloging the items, tracking their circulation, and applying for grants to help with funding."  Meanwhile "local visiting nurses have volunteered to handle the distribution of equipment."  And finally, as described by the member, the storage/pick-up (the "Closet") will be off-site (not on library property).

This means that the LLC would rent/borrow the space for the Closet, volunteer nurses would work there helping to distribute equipment, and the library would use its personnel to track the lending and equipment.

And although the member doesn't specify, let's say the library doesn't use its own circulation system for this, but instead, buys or builds a custom system—maybe even something as simple as an Excel spreadsheet.^[10]

So the library would supply the "time and talent" of its people on an ongoing basis to the LLC, perhaps tracking it as an in-kind support to the charitable venture,^[11] and also separately purchase assets that would be solely owned and used by the LLC.

This "time and talent," is where "risk and liability" for the library—even with an LLC housing the operations—truly enter the picture.  Even with a separate entity designed to take the hit, when an entity supplies its own people to staff a venture, there is always some risk that the direct involvement of a third party can lead to an assertion of liability (when people sue, they often look for not only deep, but multiple pockets).

How do you solve that?  It takes two things:

Consideration 3: The Operating Agreement

By law, every LLC must have an "Operating Agreement" that specifies how the "members" run the company.  For small, simple LLC's, an "OA" can be a fairly short document.  For complex ventures with detailed financial goals and complex management structures, an OA can be hundreds of pages.

In the case of a "Medical Loan Closet" LLC meeting the criteria in the member's scenario, the operating agreement would have to address, head-on:

• The precise responsibilities of each member^[12]; and
• The in-kind services being supplied by each member; and
• The precise terms under which individuals would contribute their services, including volunteers; and
• The precise way assets of the LLC are purchased, loaned, and de-accessioned (this is the part the Comptroller would look at); and
• How the premises of the Closet is managed and insured; and
• Most critically, the way the LLC would hold harmless and indemnify the participating parties for any assertion of liability against them based on LLC operations.

Which brings us back to...

Consideration 4:  Insurance

At the end of the day, this question is about two things: 1) how to do a good thing for a community; and 2) how to make sure the organizations doing that "good thing" properly manage the risks of doing it.

While much of this can be addressed via good planning, rigorous equipment maintenance,^[13] and proper paperwork, as can be seen in "Consideration 3,” and as the member clearly knows, a venture that will be so closely connected to people's physical health must have some form of insurance. The coverage should extend to every person with either a fiduciary, employment, agency, or volunteer relationship with the Closet.

While precise coverage amounts should be determined by the participating parties, my instinct is that there should be at least $1 million of coverage per incident, with no less than $3 million/year aggregate.^[14]  But it will depend on many factors.

So, what to do?

Many times, there is a very solid reason to start an LLC.  If the Closet described by the member was going to own real property, have its own employees, apply for grants, and in general, take care of most of its operations in-house, with the support—but not the direct service—of the members, I'd say that was the right solution for this scenario.

However, if the Closet is to be a collaborative effort that will rely on the direct services and assets of the member organization/s (in this case, services by library employees, on library time), in my experience^[15], a tightly structured plan that properly establishes the responsibilities of the collaborating parties—and ensures there is proper insurance coverage for all involved—might be the most practical way to move forward. 

This will also position the library to do the right type and amount of "volunteer vetting" and to properly confirm the conditions of (and insurance coverage for) the volunteers.

So, on a practical level, what am I saying?  A library can spend thousands to set up a charitable LLC to run a Medical Loan Closet^[16], and then about a thousand or so a year to ensure the proper administration of that LLC--or it can develop the Closet as a program of the library (either stand-alone, or in collaboration with others) and spend the money on additional risk management and insurance. 

After all, we're not talking small engine repair, here.  Lending things—even if it is health-related equipment—is part of any library's core mission.

At the end of the day, many factors will play into the decision to use 1) an LLC, 2) a collaboration agreement^[17], or 3) to simply operate the Closet as a new program of the library (with some volunteer agreements for the nurses). 

To get to the part where the library can make the decision, I advise developing an "Operational Plan"^[18] for the program, and getting quotes from several insurance carriers as to what the coverage would costs for your library and/or for a new entity to conduct the activities in the Operational Plan.

Since there will be a lot of detail to review, a small ad hoc committee^[19] consisting of a board member or two, the library director, any other person whose input will be helpful, and the library's attorney, can then review this information, and come up with a solution to pitch to the board. 

And when that pitch is made, everyone should be confident that there is no "wrong" way to develop a new, life-saving lending initiative—so long as the way selected clearly defines everyone's responsibilities, establishes that clarity in writing, assures legal and fiscal compliance, and ensures everyone helping out is covered by insurance.  With the right attention to detail, this could be an LLC—or another solution.

I wish this venture luck and stout hearts for getting it over the finish line; it sounds like a great asset to any community!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

I remember getting my first library card at the Utica Public Library with my Dad, circa 1985.  It was a right of passage: something "official" before I could drive, or work, or vote; a stepping-stone to adult life.

Of course, back then, we didn't have the Child Online Privacy Protection Act, the SHIELD Act, or the GDPR.  We did have CPLR 4509[1], but if that was part of the application, I probably assumed it was what the library would use to revive me if I had a heart attack in the stacks.

But enough of Memory Lane: this question is rooted in 2020, a time of pandemic, of online ecosystems, and of growing awareness about personal privacy and data security.  During this time, a library putting in place direct access to services for children in the ways listed by the member is a critical service, and as the member points out, introduces a lot of legal factors to think about.

To answer the member's questions, let's dive into them.

Contracts and Kids

Since the relationship of a library to a patron is (among other things) contractual, and in New York a person (generally) cannot be held to a contract until they are 18[2], any terms a library wants to be able to enforce on a minor must require legal consent of a parent or guardian...and in some cases, the contract really is just with the parent or guardian (who I will call "P/G" for the sake of efficiency going forward).

This, by the way, doesn't mean a library can't let minors have a card and borrow books (or have online access, or be in the library) without the signature of a parent or guardian—it just means if you want to enforce any contractual terms against those minors (like the requirement to return borrowed books), it's best to have a P/G's consent along for the ride.

Contracts and the Internet

Most contracts—including those signed by P/Gs binding minors—can be entered into electronically,[3] and a contract signified by a library card is no exception.  So yes, a patron, including a child, can get a library card or access to services through an electronic signature. 

(Just in case you want the nation-wide definition, an "electronic signature" is "an electronic sound,[4] symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record."[5])

What about COPPA?

When a website specifically provides services to children, we often have to consider the Children's Online Privacy Protection Act, or "COPPA."  But not today, since COPPA expressly states that the law applies to "commercial" websites and online services and generally not to nonprofit entities like a library.[6]

Although nonprofit entities are generally not subject to COPPA, the FTC "encourages[7] such entities to post privacy policies online and to provide COPPA’s protections to their child visitors."  Since libraries are sticklers for privacy, this makes sense, but if your library does this when setting up online resources for minors, don't call it "compliance with COPPA," call it "doing it the right thing because we want to."[8]

Should we require a parent?

COPPA, by the way, is one of the laws that uses the age of thirteen as the cut-off age for children being able to sign up for things (commercial or otherwise) on their own.  In my experience, 13 is also the age when insurance carriers decide children transition from "vulnerable" to simply "minors."  For this reason, many content providers and services (including libraries) bar access without a parent to those under 13.

All of which is to say: while there might not be a legal requirement to involve a P/G, in general, I'd say this is a good practice.  Good—but not required.  Remember, to legally enforce any conditions[9] (collect fines), you need a P/G's signature, but if you just want to let a kid borrow a book without consequences enforceable in court, you don't.

Let's see some ID?

Okay: you're set with electronic signatures.  You know you need to get P/G into the mix for patrons under 18.  You're "Doing The Right Thing Because You Want To" when it comes to soliciting information from minors under 13.  Do you need to see identification to make things official?

That depends.

If the privileges the library card or access grants come with conditions you will need to enforce in a court of law (fines, damages), it is ALWAYS better to get some form of identification or proof of address.  I say this, because when lawyers sue, proper ID and proof of address is how they know they are suing the right person.

Similarly, if there is an age or residency requirement, or a financial element (for instance, loading money onto an account), or if a person is to have access to another's account, you might need to require ID. 

Because the need for it will vary, when to require ID is a good question for your local attorney.  From my perspective, if a person is allowed to take out more than $10,000.00 worth of library assets at a time, or a library wants to be able to collect fines, I'd want to know how to enforce a return of those items.  Similarly, if patrons are allowed to access services from third-party vendors through their library card (software programs, audio books, anything governed by a third-party license), and there are consequences for a violation, it is good to have solid information about who your patron really is.

The problem is, if you are going to require ID, you must have a solid policies and procedures that address:

• Requiring ID in a manner that does not disproportionately impact those who live in poverty, or other categories of people[10]
• Requesting ID
• Evaluating ID
• Securely retaining and routinely destroying hard copies of ID
• Securely retaining and routinely purging electronic copies of ID
• Have a plan for data breach impacting retained ID

Basically: the reason a library would require ID—aside from verifying that a person lives in the relevant area of service, or is who they say they are—is to collect damages or to legally enforce conditions the patron has agreed to as a condition of a card.  Since that is an unpleasant business, its best to avoid it whenever you can...but when it's important, it's important to do it right.

I enjoyed writing this answer, because as part of it, I got to poke around and see how different libraries are solving this issue.  I saw some great stuff, including a temporary e-access system that let the technology do all the work (requesting verification of age via click-thru, using location services to confirm location in NY, imposing conditions on digital content via function without the need for legal enforcement mechanisms).

It is good to see when the law inspires, rather than quashes, creativity and information access.  I hope your library and library system finds this helpful as you imagine new ways to connect people to vital services!

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Yes, I can!  But first, a few caveats:

• Any template contract is just a starting point.  Use a lawyer to generate a version of this document customized to your library. 

• For any Organization that wants to use your library for a high-risk event (sports, concert with stage or sound equipment, large event open to the public, routine presence of children), whenever possible, additional review for insurance concerns and premises liability is wise.
• When filling this out, always make sure the nature of the Organization is confirmed (individual, DBA, LLC, NFP, corporation, etc.), and you have confirmed they exist as stated. 
• If the form shows that an activity requiring a professional license is going to happen (haircuts, massage, tax prep, legal clinic) obtain a copy of the insurance coverage for the professional activity and make sure it names your Library.
• No political events should occur unless it is confirmed the arrangements conform to IRS and NYS Charities guidance.
• A copy of the signed contract should be kept for 7 years (because the statute of limitations to sue on a contract is 6 years). 

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

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:________________________
 

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

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.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

First: that is good news about your employee.

Second: a gold star to your library for having a screening system that works, and for following the requirement to restrict an employee who trips a screening factor from on-site work while waiting for test results.

Third: Let's talk about your alternate scenario (the one where you don't get such good news).

As of August 17, 2020, any library[1] that is up and running should have a Safety Plan as required by both the guidance for "Office-based Work", and "Retail Business Activities" (we'll call this the "Guidance").

The Guidance includes the requirement to fill out a New York Forward Business Affirmation Form, which attests to having a Safety Plan.  It also answers the member’s question about what to do if an employee tests positive for COVID-19.

Here is what the Guidance (as of 8/18/2020) requires:

An individual who screens positive for COVID-19 symptoms must not be allowed to enter the office and must be sent home with instructions to contact their healthcare provider for assessment and testing.

Responsible Parties should remotely provide such individuals with information on healthcare and testing resources.

Responsible Parties must immediately notify the state and local health department about the case if test results are positive for COVID-19.

Responsible Parties should refer to DOH’s “Interim Guidance for Public and Private Employees Returning to Work Following COVID-19 Infection or Exposure”[2] regarding protocols and policies for employees seeking to return to work after a suspected or confirmed case of COVID-19 or after the employee had close or proximate contact with a person with COVID-19.

So, the answer to the member's question: "What if the test came back positive?" is: "[I]immediately notify the state and local health department."

After that, the direction from the local health department may vary, but the Guidance requires:

If an employee has had close or proximate contact[3] with a person with COVID-19 for a prolonged period of time AND is experiencing COVID-19 related symptoms, the employee may return to work upon completing at least 10 days of isolation from the onset of symptoms.

...[and]...

If an employee has had close or proximate contact with a person with COVID-19 for a prolonged period of time AND is not experiencing COVID-19 related symptoms, the employee may return to work upon completing 14 days of self-quarantine.

And after that, things can really vary.  But in a scenario where every employee of the library came within six feet[4] of their (now confirmed as) infected co-worker, the library really could be looking at up to two weeks of employees in self-quarantine...along with any other response required by the local health department.

This is not a feel-good scenario.  But the good news is, the same Guidance that requires a library[5] to require employees to isolate also reduces the likelihood of such a remedy being needed.  This is because the Guidance also requires a host of preventative practices to limit exposure in the first place, including:

• Staggering shifts to limit "close or proximate contact," between people;
• Creating and posting clear signage;
• Consistently enforcing masking, cleaning, and social distancing practices

If a library maps these things out for employees, and consistently enforces them, there will be less need for the "isolation/quarantine" sections.  While right now, there is no magic bullet, the simple elements of your library's Safety Plan can reduce the need for quarantine.

And that's it; thanks for a great question.  I hope this answer never has to come in handy for your library.  But just in case it does: here’s a quick checklist for the steps listed in this response [6]:

"CHECKLIST FOR RESPONDING TO NOTICE OF COVID-19 EXPOSURE AT THE LIBRARY; TO BE USED IN CONJUCTION WITH UPDATED SAFETY PLAN"

• However the library was notified of the potential close/proximate contact, obtain a copy of the notice in writing (or send a confirmation e-mail to the source);
• As required by the most recent New York Forward Guidance, notify the library's local public health Department (both in person and in writing), and factor in their response[7];
• As required by the most recent New York Forward Guidance and the library's Safety Plan, determine who (if anyone) else must be restricted from the workplace, for how long; and if any further testing must be required;
• Ensure the library is taking steps to protect the privacy of any employees disclosing screening factors (like a high temperature);
• Ensure the library is taking steps to assess if any employee must be given paid time off or will need assistance to claim short-term disability or Paid Family Leave Act benefits;
• Generate a short statement reviewing the above check listed factors, summarizing what your library has done for each step, and make sure you retain copies of all documentation showing you completed these steps;
• Once these actions are taken and these determinations are made, notify your Board of Trustees of the critical aspects of the situation, but take care to respect the privacy of employees.

Here is a template notice to the board, designed to reflect taking the necessary steps, while also protecting employee privacy: 

On ____________, the library received notification of an [individual/employee] testing positive for COVID-19. As required by current guidance from the State, we notified the Health Department immediately.  At this time, the direction from the local health department is _____________________________________[this may be extensive]. 

We have determined that # employees must self-isolate until they DATE. 

We have determined that # employees must self-quarantine until DATE. 

We have confirmed with the health department that as a result of this notice and response, and consultation with the [Executive Committee of the board/full board/board officer/other] we will [close/reduce operations/operate under the status quo], unless the board determines otherwise. 

Our Safety Plan has been followed and we have retained the documentation showing such compliance.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

As the member writes, it is very difficult to determine if some physical factors—coughing, a flush, seeming malaise—are in fact symptoms of COVID-19.  Confronting a patron with suspected symptoms can also lead to concerns impacting community relations, privacy, and the ADA.

A good Safety Plan addresses this concern, without requiring patrons[1] to be removed mid-visit from the library.

To position libraries to address the impact of patrons with suspected symptoms, New York's "Interim Guidance for Essential and Phase II Retail" (issued July 1, 2020)[2] states:

CDC guidelines on “Cleaning and Disinfecting Your Facility” if someone is suspected or confirmed to have COVID-19 are as follows:

• Close off areas used by the person suspected or confirmed to have COVID-19 (Responsible Parties do not necessarily need to close operations, if they can close off the affected areas).
• Open outside doors and windows to increase air circulation in the area.
• Wait 24 hours before you clean or disinfect.
• If 24 hours is not feasible, wait as long as possible.
• Clean and disinfect all areas used by the person who is suspected or confirmed to have COVID19, such as offices, bathrooms, common areas, and shared equipment.
• Once the area has been appropriately disinfected, it can be opened for use.
• Employees without close or proximate contact with the person who is suspected or confirmed to have COVID-19 can return to the work area immediately after disinfection.  Refer to DOH’s “Interim Guidance for Public and Private Employees Returning to Work Following COVID-19 Infection or Exposure“[3] for information on “close or proximate” contacts.  [4]
• If more than seven days have passed since the person who is suspected or confirmed to have COVID-19 visited or used the retail location, additional cleaning and disinfection is not necessary, but routine cleaning and disinfection should continue.

[emphasis on "suspected" has been added]

In other words: your Safety Plan, as informed by the most recent guidelines, should leave nothing to chance.  By using this procedure, library staff are never put in the position of having to guess, ask, or consider if a patron's coughing, sneezing, or other behaviors are COVID-19...rather, the moment the possibility is "suspected," the Plan kicks into action.

Of course, if a patron is properly masked, some of the risk of exposure is limited, even if they are infected (this is why we wear masks and identify areas with six feet of clearance in the first place).  And if a patron removes their mask mid-visit, refuses to keep appropriate distance, or refuses to spray down equipment after using it,[5] THAT person can be asked to leave, simply as a matter of policy—whether they are exhibiting symptoms, or not.[6]

So to answer the question: no, it is not advisable to ask patrons to leave the public building if they are exhibiting any visible COVID symptoms, for exactly the reasons the member provides.[7]  Rather, it is required that your Safety Plan keep people distant from each other, and that the library be ready to address any real or suspected exposure as quickly and effectively as possible. 

That said, having signage that reads "Safety first!  Patrons who are concerned about transmission of germs can arrange curbside service by [INSERT]" is a great way to remind people that if they are having an "off" day, there are many ways to access the services of your library.

I wish you a strong and steady re-opening.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

There are a lot of little details to address in considering this question, but first, there is one big principle I must emphasize. When it comes to records retention—and especially when it comes to employee-related records—nothing should be discretionary.

In other words, if an employer wants to create a process where every corrective action plan,[1] performance evaluation, employment-related investigation, or incident report is removed after its minimum retention period has elapsed, that is fine. However, unless it is a benefit that has been carefully negotiated and confirmed in a contract,[2] there should be no process for an employee to initiate optional removal of materials, and by no means should that process require the employer to make a “yes” or “no” decision.

The moment personnel records that could be interpreted as “negative” become subject to an employee-initiated, optional procedure, the employer, simply by having such a procedure, has: 1) admitted that possibility that the materials could have a negative impact on the employee; 2) created a system where such material could be retained inadvertently; and 3) set up a scenario where such a request could accidentally or deliberately be denied or perceived as somehow subject for debate, potentially triggering the possibility of a complaint, litigation, or a damage claim.[3]

Unless retention is being considered for historic/archival purposes, record retention or destruction should never be discretionary (and of course, the decision to retain certain records for historic/archival purposes should be based on objective criteria).  The best approach for management of employee performance-related records is simply that they be retained as required, or be purged when no longer needed, based purely on the category (not the substance) of the records’ content.[4]

So, my answer to this question is: there should be no process for an employee to request optional removal of negative materials from a personnel file. Rather, the removal of material from personnel files should only happen per uniformly and routinely applied policy.[5]  If a negative review or incident report has served its purpose and is no longer needed,[6] it may be removed as part of the routine purging policy and process. If it is still needed, it should be retained.  There should be no middle ground; it creates risk.  If your library is part of a collective bargaining agreement or uses contracts that include this approach, employees should all be notified and trained on how to exercise these rights.

Thank you for an insightful question.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

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:

• Promoting violence.
• Harming children.
• Displays of nudity, violence, pornography, sexually explicit material, or criminal activity.
• Human trafficking.
• Supporting or facilitating terrorism or terrorist organizations
• Any activity that is defamatory, harassing, threatening or abusive.^[5]
• Copyright infringement.

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

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:

• The library is hosting the meeting;
• An employee of the library will initiate the videocall;
• An employee of the library will co-facilitate the technical aspects of the meeting;
• An employee of the library will participate in the meeting as set forth above to ensure the applicable rules and the conditions of this Agreement are fulfilled;
• Participants who do not abide by the library’s rules will be muted or removed from the meeting, in the library’s sole discretion;
• The library can cancel or terminate the meeting, in its sole discretion, at any time.

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.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

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:

• The library’s charter
• The library’s bylaws
• The library’s policies
• Any collective bargaining agreement (“CBA”)
• Any employment contracts
• Any judicial orders, settlement terms binding your library[3]
• Any COVID-19-related resolutions
• Current budget
• The 202-series Executive Orders posted at https://www.governor.ny.gov/executiveorders

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:

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:

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. 

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

New York has numerous “types” of libraries, serving a diverse array of locations.  All of them are empowered to take the steps needed to serve their communities safely.

For libraries who want to do just that—knowing it will be a vital part of their community’s response and recovery—here is how to enact and enforce the use of appropriate personal protective equipment (PPE).

Step 1

Assess your library’s status under the current Executive Orders.  Does your library regard itself as exempt from the Orders due to status as a governmental entity (like a school)?[1]  Or has your library been operating under compliance with the 100% workforce reduction…and thus, subject to further such restrictions (or them being eased)?

If your library is subject to the Executive Orders, linking your policy to future Orders is a good idea.  That’s why you’ll see that as a variable in the template, below.  And if your library concluded it didn’t need to follow them, well, that part doesn’t apply to you.  

Step 2

Assess what operations your library will resume.  Will you resume lending books, but restrict reading rooms?  Will you encourage curbside pickup, or perhaps lower your building capacity to ensure social distancing?

This step assumes that the return to full services might be incremental—but with the resumption of services tailored to the needs of your community.  It is where the customization kicks in.

Step 3

Once your library has confirmed which activities will resume, select the appropriate safety protocols for those operations.

This is why this will not be an exercise in one-size fits all.  Some libraries may decide to expand reading rooms or acquire additional electronic devices to loan.  Some will need masks, some may need gloves, and others might adopt different safety measures.  What’s important is that the measures be tailored to the activity.

As a starting place[2] for that selection, I really like this function-centered guidance from OSHA:

https://www.osha.gov/SLTC/covid-19/controlprevention.html#interim

NOTE on this guidance from OSHA: While the common thinking might be that libraries are primarily “customer service” environments (as the term is used by OSHA), many libraries have back end and programming operations that are even more interactive and tactile than retail.  That’s why I like OSHA’s approach for this—it sorts COVID-19-related safety practices by function (of course, ALA and other library-specific resources will further distill and assess these resources for libraries[3]).

Step 4

If the option is available to your library, I strongly recommend confirming your library’s operational choices and related safety practices with your county health department.  Your local health officials may even have some thoughts about unique considerations for your locality (after all, that is their job).  This is also a great way to show the public that your library has thought these measures through thoroughly, that your choices are rationally related to your activities, and that they have credentialed back-up.

Step 5

As the member writes, once you have selected your operations and confirmed your safety measures, add the measures (temporarily) to your library’s Code of Conduct.

Here is a template policy for doing that (variables are in yellow, including whether or not your library must abide by the current Executive Orders):

In developing this guidance, I have considered the long line of federal cases related to the library access (starting with Kreimer v Bur. of Police).[4]

New York has a vivid array of people devoted to civil liberties, and there is a chance a community member could feel that conditioning library access on temporary protective measures adopted in the interest of public health could violate First Amendment or other rights.  This is why careful consideration of what operations your library will resume, and enforcement of only those safety measures related to those operations (steps 1 and 2), are so critical.

The First Amendment tests of such measures will vary based on the circumstances,[5] but the goal of combining a clear policy with well-documented, informed decision-making, good communication, and the backup of health authorities, is to avoid the need for such legal testing in the first place!

As with all things template, the suggested language above should be modified to fit your unique library.  If there is a local attorney versed in First Amendment and municipal law, this is a good time to bring them in to review your final product.[6]  The town attorney for your municipality will have had to address similar First Amendment/safety concerns (and is probably doing a lot of that right now), so they might be a good pick.

And now, with all that as background,[7] to address the members’ specific questions:

Can a library prevent someone from coming into the library if they refuse to wear a mask?

Yes (but follow the steps above).

Are libraries required to provide a mask for the public?

No (but hey, it would be nice, especially if you can get them donated).

And what if a person wears the mask improperly - can they be asked to leave?

Yes (but take care to consider any implications under ADA[8]; some people might need to use alternate PPE).

Thank you for a great question.  I wish you safe operations as you serve your community.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

On the surface, these questions are very simple, since they boil down to: what are the laws impacting the flow of data comprising patron debt records (bills, fines, referral to collections), and who needs to follow those laws?

Of course, underneath that simplicity, the questions are mission-critical.  Libraries and library systems need to follow the relevant laws without error, and to ensure that while doing so, they reinforce the mission of their institutions.[1]

For this question, we’ll assume “patron account debts” as referred to by the member, are the four most typical “cost” records that a library maintains about patrons:

• Late fee records
• Replacement/damage fee records
• Hold fee records, and
• Ancillary costs records (duplication fees, etc.). 

Expressly excluded from this list of “patron account debts,” and from consideration in this answer, is debt related to deliberate property damage, personal injury, or express[2] contractual liability.  

And with those specifications in mind, here we go.

What laws or limits should libraries consider when storing and collecting patron account debts? 

To get to the important details in this question, we have to start with the fundamentals.

The first legal consideration when storing and collecting patron account debts is the nature of your library or library system, which is governed by a combination of the New York State Education Law (“Ed Law”), and the New York Not-For-Profit Corporations Law (“NFPC Law”), your charter, and bylaws.[3]

These laws and documents impact how your library or system 1) owns property; 2) sets the terms for that property to be borrowed; 3) maintains records regarding such activity; and 4) (if relevant) contracts with third parties (such as collection agencies or data repositories) to manage them.

The second legal consideration is the nature of the patron debts: are they set by law or regulation (like a tax or permit fee), or are they the by-product of a policy or agreement (like a service contract)?

The Ed Law and the NYPC Law, and related regulations, do not prescribe late fees, replacement fees, hold fees, or ancillary fees for patrons.  Rather, the Ed Law emphasizes that use of a library should be without costs to its community, as can be seen in this excerpt from Ed Law Section 253:

The term “public” library as used in this chapter shall be construed to mean a library, other than professional, technical or public school library, established for free public purposes by official action of a municipality or district or the legislature, where the whole interests belong to the public; the term “association” library shall be construed to mean a library established and controlled, in whole or in part, by a group of private individuals operating as an association, close corporation or as trustees under the provisions of a will or deed of trust; and the term “free” as applied to a library shall be construed to mean a library maintained for the benefit and free use on equal terms of all the people of the community in which the library is located. [emphasis added]

This “free” access within the area of service is also emphasized in Ed Law Section 262, which states:

Every library established under section two hundred fifty-five of this chapter shall be forever free to the inhabitants of the municipality or district or Indian reservation, which establishes it, subject always to rules of the library trustees who shall have authority to exclude any person who wilfully [sic] violates such rules; and the trustees may, under such conditions as they think expedient, extend the privileges of the library to persons living outside such municipality or district or Indian reservation.

That said, state law does contemplate the need for libraries to incentivize the return of books, and in solving that problem, it does not mess around.  As provided in Ed Law Section 265:

Whoever wilfully [sic] detains any book, newspaper, magazine, pamphlet, manuscript or other property belonging to any public or incorporated library, reading-room, museum or other educational institution, for thirty days after notice in writing to return the same, given after the expiration of the time which by the rules of such institution, such article or other property may be kept, shall be punished by a fine of not less than one nor more than twenty-five dollars, or by imprisonment in jail not exceeding six months, and the said notice shall bear on its face a copy of this section.

Forgive me if you find this boring, but I find it fascinating: New York State law’s only mention of fines in the context of accessing library services is a section that authorizes libraries to work with local law enforcement to impose fines and enforce the return of books through criminal prosecution.  Meanwhile, the law makes NO mention of collection of late fees or penalties per policy or through civil debt collection.[4]

Although Ed Law 265 is the only legislation to prescribe a remedy for failure to timely return library materials, I am not aware of any public or association library that actively uses it, although this ability has been on the books in its current form since 1950.[5]

So if the debt a library patron owes a library isn’t a “fine” under Ed Law Section 265 (or up to six months in jail!), what is it?

Rather than pursue the “265” option, most libraries have elected to use the  authority of their boards under Ed Law 226, and the NFPC Law, to simply condition the acquisition of a library card (and thus, access to core library services) on the patron’s knowing consent to a voluntary system of fines and penalties.   In other words, patrons agree to pay money in return for the ongoing privilege of borrowing books.   

While recent developments under consumer protection laws characterize it otherwise,[6] this voluntary, quid-pro-quo condition of otherwise free library access is viewed by the law as “contractual.”

Library boards, empowered by the law to set policy for the proper functioning of the library, use this contractual system to:

• Incentivize return of assets (late fees);
• Replace items that are not returned (replacement costs), and
• Offset extras that are not part of a library’s core services (access to on-site photocopiers; hold fees for out-of-system interlibrary loans).[7]

This was a long answer to this second consideration, but it is critical.  What is the nature of patron debt?  It’s contractual.  This is what enables library debt to be farmed out for collections, or certain patron debt to be discharged in bankruptcy.  This will become relevant further into our analysis.

The third legal consideration is that every record related to patron debt is subject to the requirements of New York’s CPLR 4509, which means that—other than as needed for the proper functioning of the library—the records must be kept confidential.  They are just as private as circulation records and internet searches.

The fourth legal consideration is the medium of the record: hard copy, or electronic (or both)? In the event the record is electronic, the SHIELD ACT, which went into effect this March, may govern the keeper’s security and data breach requirements.

And finally, the fifth legal consideration is: what are the parameters for enforcing or collecting on the debt, anyway?  A combination of state and federal law, together with the library/system’s policy.  We’ll tackle this factor in-depth in the “diagnostic” section, below.

Which brings us to the member’s next two questions:

Who is responsible for compliance: the library where a patron is registered (they set their own blocking policies), or the system maintaining the records?

Similarly, does the library system (who manages an ILS on behalf of its member libraries) have the authority over library records, including that of purging library patron accounts, according to local policy? 

As you can probably tell by the remaining length of this “Ask the Lawyer”, there is not one, simple answer to either of these questions.  In fact, there are multiple answers, controlled by multiple factors.

Here is a process for sorting those factors out, and ensuring your library or system is enforcing fines and fees within the boundaries of the law.

Does the library or library system avail itself of Ed Law 265?

Are you one of the rare institutions actually using (not just threatening to use) law enforcement to assist with returns?  If “yes,” there should be a written policy for sending out notices and coordinating with local law enforcement. 

Also, if you do this, please write me at adams@stephaniecoleadams.com, because it would be really interesting to hear about your experience, you bibliophilic unicorn.

If the answer is “no” …

What document shows the patron has expressly agreed to pay the debt your library is charging as a condition of having a library card?

This would be the policies or terms the patron consented to follow when they signed up for their card.  It should be a clear statement of fines and fees that patrons expressly agree to, and the patron’s express consent to that agreement (signified by a signature or authenticable electronic signature) should be demonstrable at any later date the library or system needs to enforce the debt.  In some systems, this might even be covered in the member agreement (or a policy).

If the conditions showing a clear consent to fees aren’t clearly set forth in one document, or present at the time they are incurred (in a way that will show the patron knowingly incurred the cost), that should be corrected.

Many boards and staff inherited fee structures from previous administrations.  It is wise to revisit the compliance and function of fine policies and the systems for enforcing them no less than every five years.  This is particularly true since in the last five years, there have been changes to how fines may be collected, and changes to laws regarding maintenance of electronic records. 

Is that “debt agreement” with a single library, or an entire system serving that library? Whoever the agreement is with (the “creditor”) is the entity directly responsible for how the debt is enforced and related legal compliance.

This is important to clarify.  If the debt agreement is with a system, that system is the “creditor” and the system should be the entity maintaining the information, not the patron’s main library.  On the flip side, if the debt agreement is solely with a library (and the system has separate terms, or there is no system involved) that library is the creditor, and is the party responsible for the information’s use and maintenance.  The documentation related to fees, and the enabling policies, should leave no room for ambiguity in this.

This does not mean that any library within a system needs to conform its fine policy to all the others in that system.  Rather, within the bounds of the law, it means that a system enforcing multiple member library policies must ensure that patrons have notice of the different fee structures they might be agreeing to, before the imposition of a fee.

Wait! What about library systems that maintain overdue records and enforce collections on behalf of member libraries?  Or libraries and systems that contract those services out.

This is where terminology becomes important.  In a policy to charge fees for late books and replacements, a patron becomes a “debtor” (an entity who owes money to another entity).  The entity they owe it to (the library or system) is the “creditor.”  Meanwhile, any third party hired to track the information related to the debt on behalf of the creditor is a “contractor.”

It is the creditor—the entity situated to assert a debt in a court of law—who is responsible for the proper management of debt-related information. While they can retain a contractor to manage the database, and even perform related functions (sending out notices, making calls to encourage returns), they remain the party ultimately responsible for use and maintenance of the information.  They are also the sole party empowered to sign over the authority to collect the debt to an agent (a “collection agency”).[8]

In New York, some library systems are the creditors, but some (if its founding documents, the membership agreement, and policies provide for it) are just the contractors for their member libraries. The ability to set this relationship up, and to effect the resulting responsibility and authority, starts with the entity type and its contractual affiliations, which will vary from system to system, and will change based on charter, bylaws, and strategic decisions. 

This is why founding documents are always the “first legal consideration.”

What policy at the entity required to maintain the information (the creditor library or system) clearly sets out how debt-related information is generated, maintained, used, and purged?

It can have any number of names, but this policy should reference the terms the patrons have agreed to, all relevant laws, and be tied into the institution’s policy for data breach.  If the creditor uses a third party to store the data, or a collection agency, baseline criteria for those contracts is also part of this answer.  Further, the policy should specifically address how long fee records are maintained after they are incurred, and under what terms patrons might be forever barred from borrowing privileges based on such fees.

For libraries and systems that use fees, below is a sample policy that covers the different considerations of charging fees.  Variable items are in yellow, critical items (meaning a library/system should have a clear policy and provision regarding this) are in red:

Template language, of course, is only provided so it can be conformed to the unique position, practices, and goals of your library/system.  Within the scope set out above, there is a lot of latitude to do things in a way that reflects the unique needs of your institution. What is important is that there be clarity about the use of fees, and how they are managed.  Further, institutions placing a high priority on collectability of fines should have the full suite of language reviewed by their lawyer annually.

What policy or standard operating procedure at an entity NOT required to maintain the information, but accessing it for customer service, clearly sets out how debt-related information is accessed and not improperly shared?

For collaborating entities with access but not responsibility for fee records (for instance, a member library within a system, or a system who must follow a member’s policy) compliance with a clear policy or SOP should be part of routine training for employees and volunteers.

This template language, is only provided to inspire a standard operating procedure that addresses critical details; any final SOP should be conformed to the unique practices of your library and system.

If a collection agency is used to encourage returns and enforce late fees, who retains the agency and monitors its performance?

This should only be the entity expressly authorized by the patron agreement to collect the debt (the “creditor”).

Is there a written policy for how the library or system accounts for patron debt in its books?  When, if ever, is that debt written off?

Patron debt is a “receivable,” meaning it is on the books as money owed to the library, until the debt is forgiven or written off.[9]

How long is a patron’s debt enforceable?

In New York, a debt owed per a contract is enforceable for six years, unless otherwise provided.[10]  Unless reduced to a judgment, efforts to collect debts that are enforceable run the risk of being considered unfair debt collection practices.[11]  However, a library can continue to condition borrowing privileges on truing up past accounts and returning/replacing lost items, even if they are not collectible in a court of law.

Does the record-keeping policy of the library or system tracking the patron debt continue the consequences for the debt after it is written off?  Or does the policy not write off the debt, ever? 

There is no “right” answer here, but there should be mission-sensitive harmony between policies and how the library is accounting for the debt.  If a 1995 debt was written off the books in 2005, it might not make sense to enforce the debt’s consequences past 2015.  Figuring this out is a great excuse for a library’s treasurer, accountant, and director to go out for lunch.

The final, final answers to the member’s question are therefore:

1) Every library and library system will have a different array of answers to the member’s questions. 

2) The key take-away is that to ensure legal compliance about managing patron debt, an institution must address the above-listed considerations.

Coda

OK. I said I wasn't going to say anything, but I have to.

Anyone who reads the law can see that use of late fees is not a practice baked into the legal roots of public and association libraries.  Rather, libraries in New York State are expressly created as free institutions—institutions assured the collaboration of law enforcement when there is an abuse of their free resources.

I appreciate that viewing the problem of unreturned books as a “criminal” matter can pose some concern for libraries.  However, as a former criminal defense attorney, and now a business attorney, I can tell you that in many ways, a system that caps fines at $25 and holds the threat of jail time for anyone—even those who can easily afford larger library fees than some—is actually comparatively egalitarian. 

That said, the fact that Education Law 265 is not more utilized shows that at some point, critical connections within communities (libraries and municipal prosecuting attorneys) were not forged to empower this approach. Rather, it seems that many libraries resorted to fines and collection operations, monetizing the human tendency to forget to return library books. 

Over time, these fees were regarded as a revenue stream.  In some places, it might even supplement budgets that should be fully supplied by sponsoring municipalities.[12]

I see this failure to use 265 as a failing of the law.  And as someone who has devoted their adult life to the law, that is disappointing to see. 

That said, I take heart that in 2015, 30 states’ Attorneys General took action to ensure library fees could no longer impact people’s credit, limiting the toolbox of collection agencies enforcing library fees.[13]  And I am glad many libraries are taking fresh, critical looks at how to encourage responsible library use and good stewardship of library assets, without resorting to financial fees.  

The plain and repeated language in New York’s Education Law states that public and association libraries are “free” to their communities.  Compliance with that language should be the aim of every public and association library, even as they exercise their authority, also created by law, to protect their assets and serve their unique areas of service.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

A note from the author:

When I was the in-house attorney at Niagara University (2006-2017), I had the privilege to be trained in the National Incident Management System’s Incident Command System (ICS), the nation’s system for organizing crisis response.  At NU, I also co-authored the Pandemic Response Plan, and along with the IT Department, developed a system for not-for-profit “enterprise risk management” (addressing mission-threatening risks). 

Through that work, I gained familiarity with the mechanics of pandemic response and recovery, and managing related issues. 

Now, in collaboration with WNYLRC and other regional library councils, my law firm provides the “Ask the Lawyer” service to libraries.  On a regular basis, I answer questions from libraries about board operations, property issues, and employee issues.  Through that work, which I consider a great privilege, I have gained familiarity with New York’s libraries (although there is always more to learn), and the strong, diverse people who run them.

In addition, on a regular basis, I call upon the excellent resources from New York’s robust community of legal, regulatory, and career professionals, including the invaluable “Handbook for Library Trustees in New York State.”

This “Top Ten” guidance is the distillation of all that experience, combined with what I know about the COVID-19 situation as of April 7, 2020.  I hope it is helpful.  If you identify ways to make it better, or clearer, or easier to implement, please write me at adams@losapllc.com.

During a pandemic, all we can do it our best…on limited time.

I wish you strength as you lead your library through this crisis.

--Cole

So, what are the “Top Ten Actions” a library board can take to foster a library’s mission and ensure its viability during the Covid-19 pandemic crisis?  Here you go:

#1.  Commit for each member to perform board work no less than weekly

Why?  As you will see in the Remaining 9 items, even if your library is closed or operating at less than full capacity, there is a lot you can do.

#2.  Set a “Crisis Response Goal” defining how your library will handle the current emergency and eventual recovery period.

We all know the COVID-19 pandemic, and our communities’ recovery from it, will not be over in April… or May…or June.   It will affect us long beyond 2020.  The impact will be deep and far-ranging. 

Knowing this, we also know that a community library, open to all, will be a critical resource for every member of your community in the times ahead.  With that in mind, defining how to preserve, promote, and connect that resource to its area of service is this critical--even at this time of reduced operations. 

How do you do that?  It starts with a simple statement by your board's leadership, known as a “Crisis Response Goal.”

How does a board develop a Crisis Response Goal?  By envisioning and articulating what it wants to do and be throughout and after the crisis.

What does that look like?  A good Goal articulates and reinforces your library's unique role in the community, and sets forth broad ways it will fill that role during this unprecedented time (the Goal is not where you worry about minutiae).

An example Goal is:

“During and after the COVID-19 pandemic, The Library will serve the community, fulfill its mission, and meet the goals of its plan of service by meeting the public's need for reliable information, providing access to critical resources, and serving as a hub of community organization.”

The key is to focus on what you will do (not how you will do it).

The template to create your library’s Crisis Response Goal is:

During and after the COVID-19 pandemic, The [NAME] Library will serve the community, fulfill its mission, and meet the goals of its plan of service by __________________________, ______________________________, and .______________________________________.”

And that is your Goal…your library’s statement to the world about what it will be and do through this crisis. 

The remaining items on this list are how your Board will rally your resources to make the Goal a reality.

#3.  Use a “Crisis Response Team” approach

At this time, an effective board is concerned about numerous things: The safety of the library and the community it serves, the fiscal impact of the current crisis, the reduced or eliminated operations of the library, its relationship with its community, making appropriate decisions about employees, the stewardship of the library's physical assets, and how to meet its plan of service.

No board can meet as a single body and address all of these things effectively, even if they meet once a week. There would be too many voices at the table (or too many people being seen and not heard).  There would be no room for assessing facts and novel thinking.

How does a board handle this multi-faceted crisis situation? Create teams.  

What will those teams do?  Well, at least one person who can navigate the OSHA website should have primary and consistent responsibility for safety. At the same time, people with the fiscal skills and experience must gather to assess the immediate and long-term impact of the situation on the library's finances. Meanwhile, another group with business and HR skills and experience should focus on mission and plan of service (“operations”). And finally, a person or small group with communications skills should have primary responsibility for thinking about public relations and outreach to the library's primary stakeholders.

Finally, one or two people should play the role of team leader.  The Team Leader’s primary role will be connecting the work of each group, and the professional staff, to enable critical decision-making and developing a response plan.

The Team Leader will also ensure the library director is supported as they continue their duties under a time of duress, that the director is positioned to contribute to the work of the teams as needed, getting them vital information, and collaborating on the formation of the library’s strategic response.

The rest of this guide is about creating teams to use this approach.

#4.  Assess your board’s capacity, and reinforce it where needed

When considering a crisis response team approach, which organizes a board into small sections working towards the same Goal, it is important to be honest about your capacity.  As a group, you need to take stock of your board.

Many of the skills and attributes that make someone a valuable board member in non-pandemic times (fund-raising, deep knowledge of books and culture, ability to rally volunteers) might not be the only things needed during the initial phases of a pandemic response. 

Further, many boards, faced with this crisis, may be feeling overwhelmed. Unless a person has guided a not-for-profit organization through a crisis such as a fire, major PR event, or disaster such as 9/11, the experience of the average board member might be tested by the current situation.

That is OK. We are all feeling tested.

The good news is, if your board does not have the capacity to assemble teams with the experience listed in #3, your board is allowed to add non-board members to non-voting committees, or to invite them to meetings as guest advisors.  Now is the time to bring on a few “ringers.”

How can that be done?

If you don't have anyone on your board who feels up to the task of considering safety first at all times, invite someone on who has experience with OSHA regulations or standards from the New York Department of Labor.

If your fiscal team doesn't have access to a seasoned accountant or CPA who can assess the current budget, run fiscal projections, and help you develop models for your library's financial options, see if you can find one who will donate some time to your library.

If your board does not have someone experienced in business, employee relations or human resources, and you need to take action regarding contracts and employees, bring a new person on.

And if your board doesn't have someone with public outreach skills, perhaps you can find someone with appropriate experience from within your own community networks—or reach out to someone new.

As you assess your board’s capacity and look to shore up any needs during this time of pandemic response, remember this: this is a special time.  Some people may be working more than ever, and not able to help out more, or at all…while others are finding themselves under-occupied.  Small business owners on your board may not be able to help at all.  Others may be on unemployment and able to step into the gap.  ALL OF THAT IS OKAY.

If you identify a gap in your board's experience, it may be that you can fill it just by asking. The important thing is to be honest about what your board can do, and not fudge it.

#5. Form your board’s Safety Team

The COVID-19 pandemic is causing incalculable impact on business operations and the functions of day-to-day society. However, it remains first and foremost a public health crisis. That is why, if you choose to use a crisis response team approach, the first team your board should appoint is the team responsible for safety.

What is the “Safety Team’s” role?

When the full board is considering a team's recommendation, the safety team’s role is to ensure the board fully considers the safety implications of any one course of action.

For instance, if there is a decision to have one library employee check the mail every day, the safety team is asking: Is this safe? Is there a way it could be made safer?

If your Safety Team has the time, they should also be available to your other teams during the later phases of crafting a recommendation, so work is not wasted.  In addition, your library director should at least be a consulting member of this team, since they are in charge of the staff, and will be responsible for putting emergency procedures into effect.

Your Safety Team will spend time on public health resources such as the CDC website, the OSHA website, and will monitor your county health department's recommendations and advisories. In any action related to your library's response, they are only thinking about safety and the health of the community.  This includes the health and safety of employees, volunteers, and the board.

While other members of your board, on other teams, may be worried about fiscal viability, public relations, or operations, your Safety Team is always putting safety first. This includes planning for the safety and well-being of your community when your library is contributing to your community's recovery.

The Safety Team takes on this primary responsibility so the other teams can focus on their roles, while the full board knows it is set up to always put safety front and center.

#6. Form your board’s Fiscal Team

The current crisis is going to hit public libraries in a variety of ways, and for many, the fiscal hit will be especially hard.

While some communities will immediately rally around their library as a critical central resource, others may use the crisis as an opportunity to seek budget cuts and de-funding. Libraries that have relied on fines and hold fees as revenue sources will find those sources diminished. And always, there is the question of how to compensate and retain staff at this unprecedented time.

This is why appointing a Fiscal Team with the skills to assess the current situation, run projections, reach out to fiscal sponsors, and develop plans for the financial stability of your library is key. 

While this group can be small, consisting of perhaps two or three people, it must be mighty. As mentioned in #4, at least one member—who might perhaps be an invited advisor or non-board committee member—should have seen a not-for-profit institution through a fiscal crisis in the past.  You will need this person’s wisdom and perspective.

The immediate tasks of this group will be assessing the impact of the situation and developing a short-term plan for financial viability. That short-term plan shouldn't go much further than the end of April or mid-May. After that, the plans will need to consider various contingencies. For this reason, the group should include, or regularly invite, the library director.

Another immediate task is assessing the stimulus money your library may be able to rely on. For some libraries, this will include the Payroll Protection Plan, and other aid. For others, it may be collaborating with government funders to ensure some portion of government aid will be allotted through your government to your library.  Identifying these options is something that group should focus on throughout mid-April.

It is this last area—identifying options and contingency plans-- where the team approach becomes truly valuable. While your Fiscal Team will be assessing your library's needs and the possible ways to obtain those needs, the Team Leader and/or Outreach team will be forging connections with funders to coordinate identified assistance that is needed.   Between the team leader and the Fiscal Team, it is important to determine who will meet with municipal fiscal authorities on a regular basis (something I encourage, if your library is dependent on a tax levy from a sponsoring municipality). 

It is the job of the Fiscal Team to provide solid, reliable, and situationally-adjusted financial information and options for the other teams (especially Operations) to work with. 

#7. Form your board’s Operations Team

A bit of background on this one…

The state of New York has always encouraged local autonomy for libraries. This is a wonderful thing that means wherever you go in New York, there are unique and special libraries waiting to be discovered.

This also means that every library in our state is facing a slightly different situation when it comes to pandemic response. Rural libraries are facing different challenges than urban libraries. Suburban libraries in one county will face different challenges than suburban libraries in the next county over. And this isn’t just about location—it’s about service.  While one library might be a beloved source of donated food, another may be the community's lifeline to certain key services.   Another library may be a vital source of senior programming, while in another community, it’s the toddlers that will be missing out.

Considering this diversity, there is no one-size-fits-all package for developing a team that considers a library’s operations…you are all just too darn unique. 

So with that background, what is the role of an Operations Team during the crisis response? It considers the critical operations of the library, and develops plans to adopt or carry on those operations during a time of crisis response and—critically--recovery.

This starts with an inventory of operations. 

For instance, it is the responsibility of the Operations Team to consider the impact of the situation on and develop solutions for staff at this time.  And while this work must be informed by both the Safety Team and the Fiscal Team, the Operations Team is the one that should have the human resources or labor law experience to consider how to continue or adjust the employment terms of the staff at this time period. 

Another task will be to review the routine activities of the library, and determine which ones will be suspended and which ones will be adapted and carried forward into the present situation, and how that will be rolled out.

It is important to emphasize that the Operations Team will not make these decisions, but rather, informed by the Goal, and with the input of the director (just as with any operations planning process), will bring forward well-developed recommendations for the consideration of the full board.

Many of the items the Operations Team will consider will have implications for safety. The operations team should do their best to build consideration of safe practices into their recommendations, and only then have things reviewed with a fresh eye by the Safety Team.

Operations, because its span will be large, might be the largest team, and for reasons of efficiency, may wish to divide into sub-teams, and will require the most input from the director, who may also bring in further input from the staff. One way would be for some members to take the lead on operations during the emergency, while the rest develop ideas about how the library can help during recovery.  

#8.  Designate your board’s Crisis Response “Team Leader”

The purpose of breaking the responsibilities for a crisis response into teams is to allow work to happen with deep focus and great frequency. It is also to ensure that quick, decisive and well-informed action is not bogged down in the inefficiencies of a large group.

That said, a library's board must continue to function as a board, and per the bylaws that govern it.

Pulling all of these considerations together—effective use of teams, adherence to bylaws and policies—is the job of the Team Leader.

A natural fit for the Team Leader might be your library's board chair.  However, if your board chair is a CPA and is best suited to doing the work of leading up the fiscal team, or will be spending the bulk of their time coordinating necessary aid with representatives from municipal government, it is appropriate to consider designating another board member as Team Leader.

What does the Team Leader do? The Team Leader pays attention to what is happening with each and every team, and connects and pulls their work together as needed. They also identify when matters are ready to be presented before the full board for discussion and a resolution, and ensure the work of the teams is done in healthy cross-collaboration with the work of the director.

This role does not have to be played by the board chair.  This role should be played by someone who has the capacity to connect regularly and meaningfully with each team, who understands the proper dynamic between a board and paid staff, and who has the skills to identify when a matter is ripe for full board consideration.  They should know the bylaws and library policies, and make sure the use of the team structure does not depart from them.

A good team leader, at this time, also needs to be accessible through phone, e-mail, and video conferencing.  If a person can’t reach out in multiple ways, they might not be the best person to lead the teams.  As with everything else, THIS IS OKAY.  Regardless of the role a person plays, it is all part of your fiduciary duty to support the best interests of the library.

(P.S. on that last part: there is nothing wrong with a Team Leader designating an out-of-school child or grandchild as the “Library Crisis Response Team Leader Tech Support,” something that would look good on a future college or job application!  Just make sure they can take the role of setting up calls and meetings seriously.  My 15-year-old has been pressganged into helping with many a meeting.).

#9. Designate your board’s Public Relations Team

The impact of this crisis on your library will also have a huge impact on your community. The energy of those who support and are supported by your library (the “stakeholders”) need to be channeled to mitigate that impact as much as possible.

How do you harness that energy?  Just like your Operations Team, the role of your PR Team is going to change depending on the unique situation of your library. However, the overall goal of any PR Team is to ensure that the “Goal” of the library, and the things it is doing to achieve that Goal, are articulated to the stakeholders in an accessible, regular and reliable way. 

For example, if your Goal is:

“During and after the COVID-19 pandemic, The Library will serve the community, fulfill its mission, and meet the goals of its plan of service by meeting the public's need for reliable information, providing access to critical resources, and serving as a hub of community organization.”

It is the job of the PR Team to get that message out to stakeholders in a way that will be heard. This doesn't mean just repeating the goal everywhere verbatim (a good Goal never sounds very sexy).   Rather, it means getting the message out in a way that will be actively observed.

For example, a plain-language way to promote the Goal above would be putting a poster on the front of the library that says “Our doors are closed but our librarians are here for you!  Find us at @@@ or call ######!” Things like this are the job of the PR team (unless your library is so vast you have in-house PR, in which case, I doubt your library needs this “Top Ten” list in the first place).

It is also the job of the PR team to harvest all the information about how the library is reaching out to the public at this time.  That way, when the time comes for budget review and fund-raising, your library will have a solid archive of examples about how it is invaluable. For this reason, consider having a staff member as an advisory member of this team—or even have a staffer perform this function as part of their adjusted job duties.

Because it must be nimble in its messaging, the PR Team is the one team that should be empowered to take action without a board vote. The “Crisis Response Team Formation Resolution” presented below takes that into consideration.

#10. Be Just Good Enough—and form a Crisis Response Team

Here are some hard truths:

• There is no perfect way to handle a pandemic response.
• No board will be totally up to this challenge. 
• There are things you will fail at.

But by using a Crisis Response Team-informed model, you will set your board up to succeed more than you fail.

If you choose to use this approach, my advice is to not just recycle the formations of your standing committees of the board. Consider the value of shaking things up, inviting “advisory” members, involving the director as needed, and organizing your teams to spur new and novel thinking.  Consider carefully who is reaching out to your library system, your council, and your elected leaders.

For a small board, there will by necessity be some overlap in teams. That is fine. Just be careful to not overload any one person. This situation will be a marathon, not a sprint.

In the event you determine a crisis response model will be helpful to your library in the coming months and even year ahead, here is a resolution to enact it:

Crisis Response Team Formation Resolution

WHEREAS the current state of emergency due to the COVID-19 pandemic is still in effect as of [DATE OF MEETING]; and

WHEREAS the [NAME] library has already had to consider the impact of the state of emergency on the library; and

WHEREAS the board anticipates the state of emergency and following recovery period will impact library operations for the remainder of 2020; and

WHEREAS the board has determined that the emergency and recovery period will require and enhanced model of leadership to ensure the library emerges from the emergency and recovery period in a manner that best prepares it to serve the needs of the community and fulfill its mission and plan of service;

BE IT RESOLVED, that during and after the COVID-19 pandemic, the Goal of the [NAME] Library will serve the community, fulfill its mission, and meet the goals of its plan of service by __________________________, ______________________________, and .

______________________________________;”and

BE IT FURTHER RESOLVED, that the board shall use a “crisis response team” model until it votes that the period of recovery is concluded and such structure is no longer needed; and

BE IT FURTHER RESOLVED that the board’s Crisis Response Team Leader, responsible for coordinating the work of the different teams and identifying when solutions are ready for board consideration and resolution, shall be NAME, and the designated back-up Team Leader shall be NAME; and

BE IT FURTHER resolved that a Safety Team consisting of NAME and NAME shall be responsible for maintaining awareness and raising the issue of safety in all actions related to the board's response to the pandemic emergency and recovery , including the safety and well-being of the community we serve and those the library employs, and shall comment on each recommendation brought to the full board for implementation per the bylaws, prior to any vote; and 

BE IT FURTHER RESOLVED that a Fiscal Team consisting of NAME, NAME and NAME, responsible for assessing the financial impact of and financial options available to the library during this time of pandemic emergency and recovery such fiscal response team shall bring recommendations to the full board for implementation per the bylaws; and

BE IT FURTHER RESOLVED that an Operations Team consisting of NAME, NAME and NAME, responsible for assessing the impact on operations and options available to the library, including but not limited to operations related to mission, plan of service, employees, and the role of the library in the community's response to the pandemic, shall bring recommendations to the full board for implementation per the bylaws; and

BE IT FURTHER RESOLVED that a Public Relations Team consisting of NAME and NAME, responsible for creating and effecting accessible, regular, and reliable communications of how the library is meeting the Goal is empowered to send out messages as needed, in the medium deemed appropriate by that Team; and

BE IT FURTHER RESOLVED that the [board or other] may add participants to these groups as authorized by the bylaws; and

BE IT FURTHER RESOLVED that no team created by this Resolution may take any action or vote that binds the board, and are purely advisory; and

BE IT FURTHER RESOLVED that in no event is any action of this Crisis Response Team Plan to interfere with the ability of the public to have access to meetings and actions of the board; and

BE IT FURTHER RESOLVED that each team shall meet no less than weekly; that the Team Leader shall ensure the full board is advised to meet as needed to implement team recommendations when they are ready; and that all notifications and conduct of such board meetings shall be consistent with the bylaws and the requirements of any current or modified operations of the Open Meetings Law.

That’s it.  It’s a lot, I know. But your library has probably weathered other storms: depressions, wars, local crises.  Now is your time to add to that history.  In that task, I wish you strength, health, and persistence.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

Can a library sponsor an online class open to the public?  YES.

There are just a few details to attend to:

1.  The financial details

Libraries do not charge for programming, but can pay others to offer library programming for free, so as the member says, this online program should be open “to anyone.”^[1]

The instructor can still be paid, but the payment should come from the library, while the on-line attendees tune into this library program for free. 

The trick in this is to avoid “fiscal hybridization,” (with the library hosting and promoting the event, and the instructor getting some payment from some attendees).

2.  The online content details

Once your library has confirmed the financial details,^[2] there should be complete understanding about the following questions:

Can the library promote the class using the instructor’s name and likeness?

Will the session be recorded?

Who owns the recording?

Will the library be able to use the recording for as long as it wants?

What platforms will the session and recording be hosted on?

Will the recording be put in the collection of the library?

What social media will the session be promoted on?

Will the session use music (that could stop it from being posted some places, like YouTube)?

That’s it, nothing fancy, just have some things to have clarity about.

3.  The participant details

Once you have the details of the way the class will go “out there,” confirm:

Who is our target audience?

Do they have any particular vulnerabilities?

Do we need to consider ADA access such as captioning?

How will we collect feedback on the programs?

4.  The contract details

With all that minutia settled, here is a template agreement to organize the details. 

Of course, as with all template contracts, if you can,^[3] have this template customized for your library by your local lawyer or insurance carrier.

ONLINE INSTRUCTION AGREEMENT

The [LIBRARY] (“Library”)and [NAME] (“Instructor”), with an address of [ADDRESS], to provide critical health programming at a time of state-wide pandemic emergency, agree as follows:

Instructor will offer classes in ____________ (“__________ Classes”) from [PHYSICAL LOCATION] to Library’s patrons and others via:

[INSERT HOSTING METHOD AND STREAMING SITE(S)]

Classes will be live streamed at [INSERT TIMES, DATES].

The ___________ Classes will be a target audience of those who can benefit from online social gatherings to participate in ___________________. 

[in case of activity involving a professional license] Instructor’s professional license was granted by [LICENSING AUTHORITY] and is current; if the license expires or is revoked during the term of this agreement, Instructor will notify Library immediately.

[in case of instruction involving physical activity] To promote safe participation, at the start and end of every class, the screen will read, or the Instructor will say:

[INSERT Instructor’s preferred safety and wellness message; here is a sample that is customized for the times:

[ACTIVITY] is intended as a gentle but serious exercise.  Please consult your physician prior to any physical activity that could impact your health, and only participate within your know abilities.  Please stay safe during this time of social distancing and enjoy our class.]

___________ Classes will be promoted as a free program of the library and Instructor shall not charge individual attendees for these sessions.

Library will pay Instructor _____ per session. 

[OR]

Instructor has agreed to provide this programming on a volunteer basis.

Instructor agrees that no music or other copyrighted work other than content owned or properly licensed to Instructor and Library shall be used during recorded or live-streamed __________ Classes.

Instructor agrees that Library may use their name, likeness, and image when promoting ____________ Classes. Library agrees that Instructor may use its name, likeness, and image when promoting _____________ Classes.

All sessions of __________ will be recorded by [INSERT] and the recording will be jointly owned by Instructor and Library.  This means both parties shall have the right to make copies, distribute in any way, or otherwise use the copyrights to the recordings.

Instructor hereby agrees to hold harmless and indemnify Library for any claim, cause of action, or injury arising from the creation, promotion, and participation in ________ Classes.

Instructor is an independent contractor and no partnership, joint venture, or relationship other than what is in this Agreement is created or implied by this Agreement.

The Parties both understand that this is an agreement during a time of emergency and this contract may be terminated without notice.  Any changes to this contract shall be confirmed via e-mail reflecting clear mutual agreement by the parties.

This agreement is governed by the laws of the State of New York.

Signed for Library on _________:_______________________

                                                                        [NAME]

Signed for Instructor on _________:_______________________

                                                                        [NAME]

5.  The assessment details

As with any library program, a live-streamed event is one for the staff to watch, monitor, and assess on a continual basis.  This will allow you to assess if the promotion, the session, and the recordings comply with the Agreement, and to make enhancements based on participant feedback.  It is also another way to limit the risks inherent in the activity. 

Just as critical, though, will be feedback that the class felt accessible, gave good instruction, and had a positive impact.

I wish you many valuable and rewarding online programs.

MEMBER QUESTION

WNYLRC ATTORNEY'S RESPONSE

When this question landed on my desk, I had recently watched a viral video[1] on YouTube about how some people have no "inner monologue".

The video explained, in plain and accessible terms, that there are people who, rather than internally narrate their world, don't have constant chatter in their heads.  They don't have an "inner voice."  Rather, their brains "map" their reactions to the world, and those reactions are only put into words through vocalization.

The reason the video went viral is because for those of us with a strong inner monologue, the idea of living without one was mind-blowing.

My brain was still wrestling with this concept ("You mean there is no narrator in your head?  None??"), when I read the member's question.

And when the question hit my brain, just like that, I got it.

When I read this question, I didn't hear the words, but I saw the answer.  I couldn't articulate it, but it was there: a Venn Diagram of overlapping legal concerns,[2] "mapped out" in my head, just like the video described: CPLR 4509; FERPA; NYS Image Rights Law.

Only after I had mapped out that diagram in my head could I unpack the details and start to compose.

So, before we delve into the question, I want to thank the member for inspiring a bit of neuro-diverse-empathy in yours truly.  Our brains are endless mysteries; it's good to occasionally see ourselves differently.

And with that, here is my "(Academic) Library Right to Privacy Venn Diagram," unpacked and articulated, and, per the member's request, set out in a "Policy" format, ready to customize for your academic library.

(NOTE: Why are there TWO policy templates?  Because people may have a context-specific first amendment right to film in a public library or the library at a state university, while at a private academic library, only the rules of the institution will apply):