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Please note: The following should not be construed as legal advice, for which the services of counsel should be obtained:
The following should not be construed as legal advice, for which the services of counsel should be obtained.
Q. May a library board meet less often than specified in its by-laws, and vote by e mail or telephone to deal with contingencies or “urgent matters” which might arise in the interval between such meetings?
A. Yes, a library board may meet less often than specified in its by-laws, but not less often than once a quarter. However, both association and public library boards may not transact business by taking votes by e mail or telephone as a substitute for actually convening a public meeting in compliance with the requirements of the Open Meetings Law (OML).
1) General- A library board needs to carefully consider the pitfalls which might be encountered if the number of board meetings is reduced. If the board’s current by-laws specify a number of meetings which is different than the reduced number a majority of the board proposes, the by-laws need not necessarily be changed at that point. At a board meeting legally convened in accordance with the requirements of the OML, the board could by resolution set up a schedule of the dates of such proposed public meetings for the next 12 months, reserving to itself the option of reviewing the matter at a future date to determine whether such a schedule has met the need for the board to responsibly transact routine library business, including payment of bills (see 2 below). This resolution should also indicate who and under what circumstances and for what purposes a meeting of the Board would be convened if a situation arose which required a meeting in addition to those scheduled as listed in the resolution.
A board must bear in mind that it cannot abrogate its responsibility as the policy making body. It can delegate authority, but notresponsibility. In order to accomplish a valid delegation of authority, prudence would dictate that the board consult with counsel and the library director to define those situations constituting an “urgency” which would require a meeting in order for the board to make a decision which the board for whatever reason would not wish as a matter of policy to entrust to the library director, a designated board member, or a committee of two or more board members. There is a difference between an “emergency” and an “urgency”. The latter could best be dealt with as suggested by the following:
For example, as an alternative, perhaps greater latitude could be accorded the library director to allow him/her to make decisions regarding expenditure of funds or to take action on matters which customarily have been reserved to the board. In any event, the board should adopt a policy statement which contains definitions of those situations which would encompass matters not foreseen or not covered by previous experience, and which either allow the library director latitude in coping with them, or would require that the board to convene to handle such matters or matter. An “urgency” should not be confused with an “emergency”.
For example, if as a matter of recorded policy the board agrees that in between required board meetings as set forth in the previously referred to schedule, the library director may make expenditures not to exceed a certain limit, such action would be subject to a post audit by the board. Similarly, an action taken by the library director in accordance with the suggested adopted policy allowing him/her the latitude to make certain decisions without the necessity of the board convening a meeting could also be reviewed by the Board in order to strengthen, modify or amend that policy in light of the experience gained from the event which caused such a review by the Board to be considered.
2) Payment of bills- note that holding meetings less often than is the current practice should take into account the necessity for making provision for routine business to be conducted, such as timely payment of bills or other matters of consequence which involve unforeseen circumstances requiring board action to resolve.
A public library board should be aware that a public library is subject to audit by the New York State Comptroller. In various published results of such audits, the Comptroller has stressed that a governing body is responsible for approving payments for expenses incurred, and that the board’s responsibility for auditing such proposed payments cannot be dispensed with. But if a majority of the board approves a change to the current meeting schedule, by resolution it can delegate to the director or the treasurer or one or two Board members, subject to a post-audit by a majority of the board at the next regularly scheduled or special meeting, the authority to approve payments in such categories as salaries, taxes withheld from employee salaries, utilities, and payments of those bills which, if delayed, would subject the library to a late payment penalty or cancellation of a service.
In regard to association libraries, while the Comptroller does not audit them, as governing bodies, their boards have similar responsibilities in regard to exercise of due diligence when authorizing expenditure of library funds.
A post audit by either type of board requires the same exercise of due diligence which the board is expected to perform before approving payment of bills- it must assure itself that the requested payments have been validly incurred, and that the payees actually exist. If a board should determine that is not the case, then it must seek to remedy the situation by attempting to recover such improperly disbursed monies.
Treasurer’s duties- prudence would suggest that if a board decides to implement a reduced meeting schedule, it seek the guidance of both its auditor and treasurer to make certain that proper procedures are in effect which will guard against defalcations, embezzlement or fraud occasioned by lack of or weak controls in this area. If not already in effect, a faithful performance bond for the treasurer should be considered. As opined by the Comptroller, a board member of a public library should not be the treasurer, nor should a staff member who is responsible for ordering materials or equipment, or certifying that such items have been received.
While there is no such prohibition applying to an association library treasurer, association library boards may wish to consider whether it would be prudent to implement the above described procedures applicable to treasurers of public library boards. The treasurer should be the custodian of library funds, which he/she is authorized to release upon receipt of notice from the board that specified payments as listed on a warrant are in order. With the implementation of proper procedures, such as the listing of bills approved for payment by the board at a legally convened meeting, a single signature check bearing the treasurer’s signature, would obviate the need for multiple signature checks requiring the signature of either the director or a board member.
Please note: If you have any additional questions about this topic, please contact Joe Eisner at the e-mail/phone above.