Q. If a library wishes to dispose of personal property such as books, materials or equipment, must competitive bidding procedures ne utilized?
Note: the following should not be construed as legal advice for which the service of counsel should be obtained. Association library boards may find that the guidelines offered in the opinions cited, although related to public libraries, school districts and municipal corporations, are also appropriate to circumstances involving disposition of books, materials and personal property regardless of type of library. All library boards would be well advised to adopt by resolution a procedure which authorizes the disposition of surplus, irreparable or obsolete library property.
A. Not necessarily. Library trustees have the power to sell unneeded library property in such manner “…as they shall deem to be in the best interest of the library” (34 Op State Compt 35, 1979).
Books and materials- ….[P]rior to the disposition of used or surplus books or other such reading materials by trustees of a chartered public or free association library which receives over ten thousand dollars in state aid, such trustees shall offer to donate such books or materials to a not-for-profit corporation or political subdivision located within the area of the library system or offer to sell such books or materials to the general public [emphasis supplied]. The trustees shall retain any proceeds received from the sale of such books or materials for the purpose of maintaining and improving library service within the system (Education Law s226(6); Education Law s260(12)).
When asked, “…who is responsible for establishing whether the used or surplus books or other reading material have a ‘market value and, if they do have a ‘market value’ what amount should be charged to the general public when these item items are offered for sale,….”, the Comptroller stated: “[I]t is our opinion that this function may… be delegated by the library trustees to an officer or employee of the library who is qualified to make the necessary determinations. …[T]he library director would seem to be an appropriately qualified individual [who determination will be subject to the trustees’ approval] The library should receive a reasonable amount for the items solo to the general public. Under the language of the statutes, there is no express authorization to sell to any single individual or entity, such as a not-for-profit corporation, books or other materials which might be discarded. If items are determined to have no ‘market value’, they may be donated to such entity for whatever use the corporation desires. However, if the corporation were then to re-sell the books in their existing condition, it would seem to be an indication that the items had a ‘market value’. It would seem that any items remaining unsold after several attempts to sell might then be determined to have “no market value” and could then be donated as provided in the statute (OP State Compt 80-314, 1980 (unreported)).
Personal property– in 31 Op State Compt 161, 1975, the Comptroller stated: “The [library] trustees have the power to sell library property in such manner as they shall deem to be in the best interest of the library”. However, “…personal property must no longer be needed… before such a sale can take place. When such determination is made, there is no monetary limit on the value of personal property which may be sold at a negotiated or private sale. Of course… [there is] an obligation to obtain the best possible for the personal property…. For this reason, some… will conduct an auction sale, whereas others will check around and obtain various quotations so that they can determine what the best possible price would be, so that they may then sell for such price at private sale…. In such case, no formal bidding procedures are required” (34 Op State Compt 35, 1978).
The Comptroller advised a board of education “…that a school district may sell unneeded personal property without advertising for bids (20 Op St Compt 322 (1964); 14 Op St Compt 125 (1958). “….On the other hand, the sale of property by means of advertising for sealed bids is generally thought to be a safer and more preferable method (18 OP St Compt 90, 1962). When the board of education belie4ves that this method would serve the interest of the school district by allowing it to receive the best available price… the use of this method of sales is to be encouraged” (22 Op State Compt 539, 1966).
“Any sale of property of a municipal corporation… must of course be made for fair consideration…. [Any such property may not be conveyed] to private individuals for a nominal consideration or for less than the best possible price obtainable…..’ The question of what constitutes fair and adequate consideration is within the sound discretion of the board of trustees” (OP State Compt 80-125, 1980 (unreported)). However, the Comptroller advised a town that “When an obsolete item of personal property has no appreciable market value, we do not believe a town would be making a gift within the meaning and intent of Article VIII, s1 [of the State Constitution] or committing an act of waste if it discarded or destroyed the item, or donated the item to a private-not-for-profit corporation (28 Opns State Comp , 1972, p. 38). Indeed, donating these items might actually result in savings of town moneys since the town might otherwise have to pay to cart away these obsolete machines. The fact that the property could not be sold at public sale certainly represents some evidence that it has no market value…” (Op State Compt 80-232m 1980 (unreported)).