Could we use any of our budgetary funds as collected through our tax levy and/or funds received from donations (restricted and unrestricted) to pay for food (dry goods, fresh produce and/or fruit) and PPE's which would be given freely to the public/patrons some of which may not be from our community (we would not ask them for a library card or ID)?
If so, could it be considered a program or if not what other budgetary designation would you suggest it be given?
Before I answer this, I am going to share a story. Trust me, it’s relevant.
When the workforce restrictions and ban on large gatherings due to COVID-19 started impacting libraries, the first wave of questions to “Ask the Lawyer” were about continuity of operations. Specifically, they were about continuing payroll and still offering programs, even though staff would need to work from home.
Because Executive Orders and public health restrictions were happening at a rapid pace, answers needed to be developed quickly.
If there is one thing the lawyers hate, it is quick decision-making. We like precedent, we like time for research, and we like ample time to reflect on the implications of our client’s decisions. In a world moving ever-faster, this is one of the things I cherish about my profession: it demands reflection.
But with libraries waiting for input, I didn’t have the luxury of time. My research indicated that—barring a union contract provision or other express intervening factor—job expectations could be temporarily altered and library programs could continue, re-tooled to meet social distancing requirements (a/k/a “online”) while ensuring legal compliance and limiting liability. But I couldn’t take a week or two to decide.
So I did what lawyers do when we don’t have time to let advice ferment—I turned to another lawyer.
I called an attorney I knew would appreciate the nuances of a question involving municipal law, Education law, taxpayer money, and the all-seeing eye of the NYS Comptroller. I laid out the thinking that would eventually form my answers, and asked him to poke any holes he could see (I think I said “Pretend you’re the attorney for an angry taxpayer”).
He asked a few well-informed, testing questions, and when my legal analysis held up, I felt good.
But then he asked:
“Cole, do you actually think when this thing is all over, the Comptroller is going to organize a posse and hunt down libraries for trying to help their communities? I mean come on…people are in real need here. Who would do that?”
I laughed, and it felt good. I thanked him and said I owed him one (in my world that means he gets to ask me a similar favor, any time, night or day, and I have to deliver).
Here’s the truth, though: although I laughed, my secret answer to his question was: Yes. Yes, I do think that when this is all over, the Comptroller could audit and expose fiscal mis-steps by well-meaning libraries. And I am also concerned that frightened tax payers and municipalities, searching for a way to “solve” fiscal panic, could use any small lapses in compliance or transparency to try and reduce budgets next fiscal year (just when they’ll be needing their libraries to assist with ongoing community recovery). That is why the member’s question is so important.
That said, I got into this business because I believe that law, when well-developed and thoughtfully applied, can ensure justice and create the conditions for a happy society. And I think the law—even as construed by the Comptroller—will allow for the actions proposed by the member, without the concern that a prohibited gift or shady transaction was engaged in.
I’ll give you three solutions.
Some Necessary Background
As a primer to each solution, just in case you haven’t checked in on fiscal controls for public libraries, every reader should visit NYLA’s excellent “Handbook for Library Trustees” (2018 edition), pages 50-58. This section sets forth all the routine requirements for properly accepting, retaining, spending, and accounting for both public and privately sourced funding.
The solutions below, and the steps to set them in motion, build off the assumption that a library is following the fiscal practices laid out in those pages.
And just one more thing…
Okay. Let’s say your board is ready to assess and approve budget adjustments to initiate the acquisition and distribution of food and PPE. Your staff and some volunteers are rarin’ to go. All you need to do is sort out the legal stuff.
But before worrying about how to fund it, or how to characterize the initiative in the budget, the first thing to consider is safety.
No matter what situation the library is in, a written safety plan, informed by OSHA and CDC guidelines, and ideally, confirmed with the local County Health Department, is the first priority for any such initiative. Before approving funds, a board should review the plan for safety, and be assured that it is as well-developed as it can be (and again, if at all possible, confirmed by experts).
So with that “safety first” caveat, here are the three solutions:
Solution 1: Acquisition and Distribution Only (No programming)
Objective: The library will acquire and distribute food and PPE, without any educational programming component or further conditions for participation (people can just stop by and pick up what they need).
Step 1: Organizers (who could be board members, or staff, or volunteers…any combination is fine) develop and, with a county health official, affirm a safety plan for the distribution of the resources. This plan should include how the items will be acquired, transported, and picked up, and what staff and volunteer resources will be used.
NOTE: to ensure the safety of employees and protect the library from any liability, changes to routine job duties should be confirmed in a short letter referencing the safety plan.
Step 2: Considering the need they hope to fill, and safety parameters, organizers develop a procurement plan, consistent with library policy and pages 50-58 of the Trustee Handbook, for the supplies to be acquired. This plan should consider the appropriate sourcing and selection of supplies (PPE meeting CDC guidelines, food suited to re-distribution), and the need to follow relevant procurement laws.
NOTE: On March 27, the Governor issued Executive Order 202.11, which suspends the public bid opening requirements of General Municipal Law Section 103(2) (of course, 103 only applies to purchases exceeding $20k…that would be a lot of PPE!).
Step 3: The Treasurer develops a budget recommendation for a budget change that will fund the procurement plan, and confirms to the board that any private funds to be used are not barred by donor terms (if all of the steps in this solution are followed, it will be a legal use of tax levy funds).
Step 4: The board looks through its mission and plan of service and selects the language in those guiding resources consistent with a distribution for the goods to promote the health or general well-being of the community.
Step 5: The board verifies the above steps, verifies consistency with bylaws and library policies, and sets a meeting under the modified procedures of the Open Meetings Law to adopt a customized version of the following resolution:
WHEREAS it is the mission of the [NAME] Library to [insert] and the plan of service for the library includes [insert];and
WHEREAS the state is currently in a state of emergency as a result of the ongoing COVID-19 pandemic; and
WHEREAS owing to the pandemic and state of emergency, the library’s area of service is in an unprecedented state of need with regard to fundamentals and supplies for personal safety; and
WHEREAS, owing to travel restrictions and the need of essential workers to serve our community, some people within our area of service may not be card-holding members of the community, but still be in need of supplies that will protect the their well-being, as therefore the general health of our area of service; and
WHEREAS the board finds it consistent with the mission and plan of service to adjust the current budget of the library to allocate resources to assist those within our community by supplying fundamental resources to enable the promotion of health and safety during a time of emergency; and
WHEREAS because the library is uniquely situated and widely regarded as a trustworthy and centrally located institution whose resources are freely accessible to all, and regards it as mission-critical to continue that role at this time; and
WHEREAS the library staff has identified a written plan for the safe allocation of such fundamental resources, and such plan has been reviewed by appropriate health officials; and
WHEREAS the library staff has identified and the board has duly reviewed a proposed plan for the responsible and compliant procurement of such resources, which is attached to this resolution and included in the minutes of this meeting; and
WHEREAS the Treasurer has verified that any private sources of funding do not bar the proposed procurement;
BE IT RESOLVED that the current budget be amended to direct [$amount] from [insert] to the acquisition and free distribution of food and personal protective equipment during the state of emergency, and during any period of recovery (the “Community Health Initiative Plan”); and
BE IT FURTHER RESOLVED that the acquisition of such resources listed in the Procurement Plan shall be conducted and accounted for per all the required provisions for procurement; and
BE IT FURTHER RESOLVED that the library shall effect the distribution of the resources only as set forth in the attached Safety Plan.
Solution 2: A Public Health Program
Objective: the library develops a program, consistent with its plan of service, to educate participants on PPE and the importance of good nutrition during a pandemic, and after a short educational program, makes supplies available. This could even include innovative and fun ideas, like a recipe from a local chef, or instructions for canning food.
Step 1: Organizers develop and, with a county health official, affirm the content of a short educational program, as well as the safety plan for distribution of the resources.
Step 2: Follow all the steps in “Solution 1,” but add this “whereas” clause to your resolution:
WHEREAS the library staff has [developed/identified] a short informational program on personal protective equipment and the important of good nutrition, and such program has been [reviewed by/endorsed by] appropriate health officials;
And add this further action to the resolution:
BE IT FURTHER RESOLVED that in conjunction with the distribution of fundamental resources the library shall promote the short informational program identified in the Safety Plan.
Solution 3: The Partnered Program
Objective: together with another entity, and per a written agreement, the library allocates financial, and perhaps other, resources to a joint public health initiative to acquire and distribute supplies.
This one I can’t provide a template for: the permutations are just too diverse. I can only say, when working with another entity, the library will need to consider every element listed in the above solutions: safety (first, always), mission alignment, employee needs, budget, and proper vetting of the plan by appropriate health officials.
Because of the risks related to compliance, a collaborative approach (unless it is just a donation to one of the above efforts…with that, take the money and get it done!) should be only through a written agreement that has been reviewed by the library's lawyer. For this reason, it could be more cumbersome than other approaches, but in the event of a worst-case scenario, confirming all those details will be worth it.
For All Solutions
For any of the solutions I have outlined above, a critical contributor may be the library's insurance carrier. Right after the organizers start developing the plan for safety, someone should give your carrier a call, just to make sure there are no “exclusions” from the policy or conditions for your library to consider.
How do you check in with a carrier on this? Just tell them: “Some lawyer who writes about library legal issues said we should check in with you before we do this.”
While your insurance carrier is probably used to the library developing innovative programming and serving a wide swathe of the population, the distribution of food and PPE during a pandemic is something they might want to weigh in on. That said, in my experience, most carriers will encourage your initiative. They might ask questions about where the distribution will take place, who is offering the programming, and how you are sourcing the supplies.
Since the answers might impact your planning, it is better to call them early in the process, rather than just before the board meets (telephonically, as allowed by Executive Order 202.6) to vote.
And who knows? They might even have some helpful hints for you as you undertake to support your community. This whole thing is keeping agents and adjusters awake at night, just like the rest of us.
Okay, once I start waxing on about insurance, it’s time to pack it in. I hope this was helpful, and I hope it can contribute to your library meeting the needs of your community.
Thank you for a great question, for your determination, and your dauntless innovation.
 This image his rhetoric inspired in my head--an army of GAGAS-wielding accountants, riding horses across libraryland, handing out fiscal frontier justice—makes me laugh now, too (but also cringe).
 In violation of Article VIII, Section 8 of the NY Constitution.
 One cardinal rule at “Ask the Lawyer” is “don’t reinvent the wheel.” If library resources have already been used to develop solid guidance on a topic, we simply refer the member to that answer. Lucky for me, librarians are innovators, so there are always new topics to address.
 Some libraries and library systems may have determined that, because they are regarded as a subdivision of government, the current workforce reduction orders do not apply to them. Others will be organizing a program with the restriction that employees must (as of April 28, 2020) 100% work from home. Still others will be coordinating terms of employment with a union. This answer presumes your library is working within its own, unique parameters.
 By stressing this, I don’t mean to imply that the member is not thinking about safety (in fact, the care the member is taking about legal compliance suggests to me that they place a high priority on safety). I just want to make sure that in any initiative to assist during this time of emergency, safety is the first consideration on the table. At all times.