LTA Members:Get Questions Answered
Do You Have a Library Question Which Requires an Answer?
Ask Joe Eisner (click to learn more)

As part of LTA’s expansion of service to aid and assist library trustees and directors, LTA offers members an opportunity to confer with Joe Eisner, free of charge.

Joe can be contacted toll-free at 1 (866) 720-8969 or by email at ltafaqjoe@librarytrustees.org. (Question are handled with discretion.)

For more information about Joe Eisner’s experience and background, please click on the “Ask Joe Eisner” tab under “Resources and Links” on LTA’s website.

The following should not be construed as legal advice, for which the services of counsel should be obtained:

Question . . .

Can a school district public library board distribute a flier asking people to vote ‘Yes’ on a referendum?  

 

Answer  . . .  

No– it would be an improper use of public funds as well as a partisan action to send a mailing or mailings to school district voters urging a “yes” vote. Various court decisions as well as administrative opinions issued by the Commissioner of Education (some of which are quoted or paraphrased below) have indicated that such action or  actions by a public body is an improper use of advocacy.

Permissible actions: the Library Board should be guided by the following- it has the right “To educate, to inform, to advocate or to promote voting on any issue to be undertaken, provided it is not to persuade nor to convey favoritism, partisanship, partiality, approval or disapproval… of any issue, worthy as it may be” (Stern v. Kaminsky, 84 Misc. 2d 447, 375 NYS2d 236 (1975)).

Thus, using public funds, the Library Board may sponsor a mailing or mailings, or distribute materials which “set forth objective facts designed to educate or inform the public….” (Appeal of Tortorello, 1990, Commissioner’s Decision 12,203, 29 Ed Dept 306), indicate the date of the vote, the requirements for a voter to become eligible to vote such as the place and date of registration, the place(s) and date of the vote,  any factual information such as why additional funding is needed, the  probable  increase in the tax levy, whether the tax cap will be exceeded, and the place and date of any hearing(s) or Board meetings at which voters may obtain further information or ask questions.

However, neutrality of language is required: for example, the Commissioner of Education commented on a superintendent of schools’ letter to private and parochial school parents in which the superintendent described the purposes of certain propositions to be voted upon, and concluded with the sentence: “’Unfortunately [emphasis supplied], with a school budget defeat and ‘the adoption of an austerity budget, we are not able to make these purchases to provide the services as stated….’ The use of ‘unfortunately’ in the context of the letter, could be construed as improper advocacy on behalf of these propositions and the use of such term or similar language should be avoided…..” (Appeal of Dorothy Wilcox…., 1999, Commissioner’s Decision 14,102, 38 Ed Dept Rep 599).

Another example: four member of a BOCES board published letters in a newspaper urging a yes vote; the Commissioner of Education indicated that  individual board members may present their views, provided district resources are not used: “While it is improper for a board of education, as a corporate body, to be involved in partisan activity in the conduct of a school district election, individual board members are entitled to express their personal views about issues  concerning the district and engage in partisan activity, provided school district resources are not used…. While board members have the right to express their individual opinions as long as no district resources are used, they would be very well served  to avoid confusion and any hint of impropriety in future publications by clearly distinguishing their personal views from those of the board they represent” (Appeal of Glen W. Johnson…., 2006, Commissioner’s Decision 15,384, 45 Ed Dept Rep 469).

Impermissible actions (selective and illustrative)*:

  1. Use of Library phones by trustees or staff members to call potential voters to encourage them to vote (Appeal of Tortorello, above);
  2. Allowing a Friends of the Library to distribute a flyer presenting the possibility of the defeat of the Library’s proposed budget in a negative light, even though the flyer was not funded by the Library (Appeal of Roy E. Allen II…. 1992, Commissioner’s Decision 12,762, 32 Ed Dept Rep 69), nor can such material be distributed on Library premises (Appeal of Robert and Margaret Turnilowicz…. 1992, Commissioner’s Decision 12,871, 32 Ed Dept Rep 414);
  3. Expressions of opinion, rather than impartial, objective facts, in material distributed by the Library (Appeal of George Hubbard…. 1999, Commissioner’s Decision 14,269, 39 Ed Dept Rep 364-5);
  4. Targeting selective groups of voters who are likely to vote in favor of the Library budget and who receive material(s) or communications different from that distributed to school district inhabitants (Appeal of Mindy Warshaw…., 2005, Commissioner’s Decision 15,198, 44 Ed Dept 360.

 

*Note: in the above four examples of impermissible partisan actions, the citations are to Commissioner of Education Decisions which involved board of education actions relating to school district votes. Since votes on library budgets are school district votes, these and many other similar decisions would be applicable to a school district public library. Therefor, in an effort to indicate the basis for what a school district public library board may not do, in summarizing each Commissioner’s Decision, the words Library, Friends of the Library, etc have been substituted for Board of Education, PTA, etc.

Please note: If you have any additional questions about this topic, please contact Joe Eisner at the e-mail/phone above.