Ask Joe Eisner: Does a library trustee have the right to examine library records?

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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.

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


Q. Does a library trustee have the right to examine library records?

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

 A. Prior to the enactment of the Freedom of Information Law (FOIL),  the New York State Supreme Court rendered the following decision:

Petitioner, a trustee of the Farmingdale Public Library, seeks in this article 78 proceeding to enjoin the Director of the Library and petitioner’s four co-trustees from denying petitioner direct access to the office files and records of the library and to annul and set aside a purported regulation adopted by the board which sets forth the procedure to be followed in examining such records. The petition is dismissed.

It is axiomatic that a trustee of a municipal corporation, having the ultimate responsibility over the affairs of the corporation (Education Law, § 260), has an absolute right to inspect the records maintained by that corporation. What Mr. Justice Christ stated with respect to a member of a board of education has equal application to a trustee of a public library. In Matter of King v. Ambellan (12 Misc. 2d 333, 334-335), he stated:

 ‘A member of a board of education has broad supervisory responsibility over the expenditure of district funds and the efficiency of the school system. He is elected to act upon behalf of the people and to do this he must have full information concerning the whole operation, in the absence of statute or rule of the Commissioner of Education to the contrary. He is presumed to be as trustworthy with information pertaining to the district and its work * * * as any teacher or district employee. All records, except any specifically restricted by statute or duly adopted rule of the Commissioner of Education, must be made open for inspection by a member of the board of education.

‘The court is of the opinion that the majority members of the board of education may not, by resolution or otherwise, restrict this right of every board member to be fully acquainted with the records and business of the district.’

The foregoing statement of fundamental law is in no way disputed by the respondents. On August 8, 1967, the Board of Trustees of the Farmingdale Library, petitioner being the sole dissenter, adopted a rule which provided that all trustees may see all files of the library. At the same time and by the same vote, the board adopted six other rules which in effect provided that the files were to be seen during the regular business hours of the business office of the library, which hours are from Mondays through Fridays from 9:00 a.m. to 5:00 p.m.; that the interested trustee should indicate with reasonable particularity the file or files he desires to see; that the trustee be furnished with a list of all such files in order to enable him to determine which file or files he chooses to see; that the files are to be withdrawn and replaced by an employee of the library in charge of the files; that the files are to be reviewed and/or copied on the premises of the library and that the procedure is to take place in such a manner as not to unduly interrupt the normal business of the office.

To say that a trustee is entitled to investigate and peruse the records, however, is not to say that the library must remain open 24 hours a day seven days a week to accommodate this worthwhile purpose. Some reasonable regulation is not only proper, but indispensable. This is recognized in the area of stockholders’ rights to inspect the records of a business corporation (Matter of Steinway, 159 N. Y. 250; Matter of Schulman v. De Jonge & Co., 270 App. Div. 147); and also with respect to members of the public reviewing public records of municipal corporations (Matter of Sorley v. Lister, 33 Misc. 2d 471; Matter of Coughlan v. Cowan, 21 Misc. 2d 667). While it may be argued with some force that the status of a trustee of a municipal corporation is superior to that of a stockholder in a business corporation, or a member of the public at large, and that he may therefore have greater rights of inspection than those afforded to others, still some regulation is necessary. Records must be preserved. They should not be allowed off the premises. All trustees should have equal access thereto, and normal business hours should, insofar as possible, be observed.

The difficulty with petitioner’s position in this case is simply that he cites the regulation and views with great alarm its consequences. He states that the resolution is calculated to dilute his effectiveness; that the board has exceeded its jurisdiction; that the resolution makes the servant the master and the master the servant; that it is calculated to harass the petitioner; and that it is arbitrary, capricious, and an abuse of discretion. Significantly, his papers are utterly devoid of any statement to the effect that he has been denied the right to inspect. Nowhere is it stated that he attended the library and requested files or that files were refused him, or that the employees were utilizing the regulation to delay or hinder his investigation. He has thus failed to present a justiciable controversy

It is fundamental that the board of trustees has the right to adopt regulations (Education Law, § 226, subd. 10) and as long as such regulations do not impede, hinder or unduly delay an inspection of records by a trustee, they must be honored. No showing has been made that this regulation has resulted in any such adverse consequence [emphasis supplied]

It is fundamental that the board of trustees has the right to adopt regulations (Education Law, § 226, subd. 10) and as long as such regulations do not impede, hinder or unduly delay an inspection of records by a trustee, they must be honored. No showing has been made that this regulation has resulted in any such adverse consequence [emphasis supplied]” (Matter of Gorton v Dow, 282 N.Y.S.2d 841; 54 Misc. 2d 509  (August 22, 1967)).

While the foregoing involved a public library, it would seem the principle espoused by the Court also applies to trustees of an association library whose institution as a member of the University of the State of New York, is also accorded the same right by Education Law s260(10) to adopt regulations. Prudence would dictate that if the governing board, whether of an association or public library, desires to make library records  and documents available to members of the board either without charge and/or requirement to file a written FOIL request, and/or at hours other than those designated for FOIL requests to be accepted from the public, a policy statement adopted in accordance with Education Law s260(10) should so state.

Further, it should be noted that Education Law s260-a also requires association library boards as well as public library boards to comply with the provisions of the Open Meetings Law in scheduling and convening board meetings. In accordance with opinions by Counsel to the Committee on Open Government (COG), minutes of such board meetings as well as any documents distributed or discussed at such meetings are FOILable by the public.


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

 

Ask Joe Eisner: What are the recent changes in the Open Meetings Law regarding the notice requirements for publicizing a board meeting?

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.

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

Question: What are the changes in the recent amendment to the Open Meetings Law in regard to the notice requirements for publicizing a library board meeting?

Answer: Education Law s260-a requires public and association libraries, and library systems, to convene, provide public notification,  and to conduct board meetings in compliance with the Open Meetings Law. Governor Cuomo signed into law on September 9, 2016, effective immediately, an amendment to Public Officers Law s104 regarding notification to the media of such meetings,  providing electronic transmission as a permissible alternative method of public notification [amendments underlined]:

  1. Public notice of the time and place of a meeting scheduled at least one  week  prior thereto shall be given or electronically transmitted to the news media and shall be conspicuously posted in one or  more  designated public locations at least seventy-two hours before such meeting.
  2. Public notice of the time and place of every other meeting shall be given  or  electronically transmitted, to the extent practicable, to the,news media and shall be conspicuously posted in one or  more  designated,public locations at a reasonable time prior thereto.
  3. If  a  meeting will be streamed live over the internet, the public, notice for the meeting shall inform the public of the  internet  address of the website streaming such meeting.  

§ 2. This act shall take effect immediately.

In an accompanying memorandum, the sponsors of this amendment stated:

Municipal governments are required to publish meeting notices in a designated newspaper of general circulation. The continued and increased availability of web-site publications provides an alternate [emphasis added], reliable and easy method whereby every citizen can download, examine and print from any website or computer from home, local library or Wi-Fi available location.

 

Citizens who do not have computers at home, can access the information at their libraries at no cost. Many citizens prefer acquiring news about their community through websites on the Internet rather than print newspapers. Younger citizens are more familiar with the Internet because of an early and consistent exposure to computers, and feel very comfortable going online to download information rather than reading newspapers.

 

Technology is transforming the way in which government interacts with its citizens. Municipalities should have the option of an electronic means for citizens to access municipal notices.

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

 

Ask Joe: May a library board authorize the use of credit cards by patrons?

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.

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

Question . . .   May a library board authorize the use of credit cards by patrons to pay fines, fees and other charges incurred?

Answer . . .  Yes.

Public libraries- General Municipal Law s10(a) includes public libraries in the definition of local governments subject to the General Municipal Law. As such, these governing boards may, by local law, ordinance or resolution “…determine that it is in the public interest and authorize such local government to enter into agreements with one or more financing agencies or card issuers to provide  for the acceptance…, by such officers of the local government of credit cards as a means of payment of fines, civil penalties…fees, charges,  [and] revenue….owed to the local overnment….” General Municipal Law s5(b).

The statute further provides that  the governing board,  in enacting a local law, ordinance or resolution, “…shall designate which of its officers charged with the duty of collecting or receiving moneys in behalf of local government, shall be authorized to accept credit cards as a means of payment of “…fines, rates, fees, charges, revenue, financial obligations and other amounts, including penalties….” (General Municipal Law s5(g)).

Association libraries- while not subject to the General Municipal , in accordance with the provisions of Education Law s226(10), boards of such libraries have the power to

Make all by-laws and rules necessary  and  proper  for  the   purposes of the institution and not inconsistent with law or any rule of   the  university; but no rule by which more than a majority vote shall be   required for any specified action by  the  trustees  shall  be  amended,,  suspended  or  repealed  by a smaller vote than that required for action,  there under (Education Law s226(10)).

If an association library board determines that it would be in the public interest to accept credit card payments for fines, fees and other library charges, it would be prudent to consult with library counsel for assistance in implementing this goal.

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

Ask Joe: Is the library responsible if on a public access computer a patron displays a picture which is deemed “offensive  sexual material” by others who view it?

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 . . .  Is the library responsible if on a public access computer a patron displays a picture which is deemed “offensive  sexual material” by others who view it?

The following should not be construed as legal advice, for which the service of counsel should be sought.

Answer . . .  No.  Display of such material is a Penal Law offense:

Public display of offensive sexual material.

A  person  is  guilty  of  public display of offensive sexual material when, with knowledge of  its  character  and  content,  he  displays  or permits  to  be  displayed  in  or  on  any window, showcase, newsstand, display rack, wall, door,  billboard,  display  board,  viewing  screen, moving picture screen, marquee or similar place, in such manner that the display  is  easily  visible from or in any:  public street, sidewalk or thoroughfare;  transportation  facility;  or  any  place  accessible  to members  of  the  public  without  fee  or  other  limit or condition of admission such as a  minimum  age  requirement  and  including  but  not limited  to  schools,  places  of  amusement,  parks and playgrounds but excluding  rooms  or  apartments  designed  for  actual  residence;  any pictorial,  three-dimensional or other visual representation of a person or a portion of the human body that predominantly  appeals  to  prurient interest in sex, and that:

(a)   depicts  nudity,  or  actual  or  simulated  sexual  conduct  or sado-masochistic abuse; or

(b) depicts or appears to depict nudity, or actual or simulated sexual  conduct or sado-masochistic abuse, with the area of the male  or  female subject’s  unclothed  or  apparently  unclothed  genitals, pubic area or   buttocks, or of the female subject’s unclothed or  apparently  unclothed   breast,  obscured by a covering or mark placed or printed on or in front   of the material displayed, or obscured or altered in any other manner.  Public display of offensive sexual material is a Class A misdemeanor (Penal Law s245.11).

If a person displays offensive sexual material in a library on a public access computer, the library is not responsible. Monitoring what patrons do or display on a public terminal is a form of censorship. Some libraries display a sign stating that display of such material is a violation of Penal Law s245.11,  which as indicated above, is a Class A misdemeanor for which prosecution can result.

However, a library cannot prosecute violators. If a patron has observed such an incident, the library staff can offer the patron the use of the library’s phone to call the police to respond.  If the violator is still present and still actively displaying such material when the officer responds,  if the person who reported the episode is willing to lodge a complaint, it will be up to the officer to decide how to proceed.

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

Ask Joe: Disposal of Personal Property and Competitive Bidding

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)).

Ask Joe: May a library board pay the cost for a trustee to attend a course relating to library matters?

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 . . .May a library board pay the cost for a trustee to attend a course relating to library matters and for which continuing education credits will be received?

Answer  . . . Yes- but the following should not be construed as legal advice, for which the services of counsel should be obtained.”

Public library boards:

1) general- expenditures by staff members as well as library board members for cost of attendance at meetings, conventions or schools , and travel thereto,  is authorized by the provisions of General Municipal Law s77-b, which requires prior authorization by the library board, which may delegate to the library director or an officer of the board such authority. (Where expenses for a library board member are concerned, it would be prudent for the board to delegate unto itself such authorization.)  In any case, the authorization should be “…duly recorded in the minutes of the board….” (13 Op State Compt 70, 1957). The library board may also authorize cash advances in accordance with the procedures outlined in General Municipal Law s77-b(6)).

General Municipal Law s77-b(3) further states: “All actual and necessary registration fees, all actual and necessary expenses of travel, meals and lodging and all necessary tuition fees incurred in connection with attendance at a conference shall be a charge against the municipality* and the amount thereof shall be audited, allowed and paid in the same manner as other claims….” (General Municipal Law s77-b(3)). Reimbursement  for travel “…by car, owned by any person so authorized…. [shall be in] an amount not to exceed the amount which the governing board allows as mileage” (General Municipal Law s77-b(4)).

 

*Note: “As used in…  {General Municipal Law 77-b, the following terms shall mean: ….(b) Governing Board. …the trustees of a public library…”

 

[General Municipal Law s 77-b(1)(b))); “Municipality. …public library…” [General Municipal Law s77-b(1)(a))]

2) continuing education credits- there is no doubt that that the provisions of General Municipal Law s77-b apply not only to public library employees, but trustees as well: “The governing board of a municipality may, by majority vote, authorize any of its members,  or any officer or employee…. to attend a conference. Such conference travel shall b for official business and shall be made utilizing a cost-effective and reasonable method of travel…” (General Municipal Law s77-b(2)).

Thus, there would be no valid reason why  a public library board could not authorize the expense for a library board member to attend a meeting or conference which included the cost for that board member to receive continuing education credits. When asked  whether a city may pay the cost of tuition incurred by the city’s corporation counsel for attending a municipal law course at a conference for municipal officials,  if the tuition is charged to cover the cost of an “accredited provider” under the continuing legal education requirement for attorneys in New York State, the Comptroller stated: “We have previously concluded that, pursuant to [General Municipal Law] 77-b, a municipality may pay the travel, meal, lodging, registration and tuition expenses of its municipal attorney for attendance at seminars, such as those conducted by professional associations, that are directly related to the attorney’s work as counsel for the municipality and that the municipality believes  are of benefit to the municipality (1979 Opns St Comp No 79-336, p. 59). It is well established that an incidental private benefit will not invalidate an expenditure that has as its primary objective  a proper municipal purpose…. Therefore, the fact that an attorney may coincidentally receive CLE credit for attending such a seminar, in our opinion, would not change the primary purpose of the expense from one that benefits the municipality is the same irrespective of whether CLE credit benefits the municipality, if the cost to the municipality is the same irrespective of whether the CLE credit is obtained…. (Op State Compt 99-9, 1999).

Association library boards:

While the provisions of General Municipal Law s77-b do not apply to association libraries, as a means of insuring prudent, consistent policies in regard to expenditures for travel and  attendance at meetings and conventions, association library boards may wish  to consider adopting the general guidelines outlined in these statutes and various Comptroller’s opinions relating to the subject. One step in considering this objective would be to draft, discuss and adopt a written policy regarding such matters as suggested in the Handbook for Library Trustees of New York State, 2015 ed: “By Education Department Regulations (8NYCRR) s90.2, the Commissioner of Education has established minimum standards for public and association libraries… [which are] required to have:  Written policies for the operation of the library….” (p 11).

Additionally, as trustees of an institution chartered by the Regents, association library boards have the power to  “Make all by-laws and rules necessary  and  proper  for  the purposes of the institution and not inconsistent with law or any rule of the  university; but no rule by which more than a majority vote shall be required for any specified action by  the  trustees  shall  be amended, suspended  or  repealed  by a smaller vote than that required for action thereunder” (Education Law s226(10)).

 

Please visit LTA’s policy database to see some examples of policies regarding Continuing Education for Trustees, including the following:

You can limit results by selecting the “Continuing Education” category from the drop down box.

If you have a continuing education policy for trustees which is not in LTA’s database, please share it by sending it to Tim Gavin, Executive Director at tgavin@librarytrustees.org

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

Ask Joe: Can a school district public library board distribute a flier asking people to vote ‘Yes’?

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.

 

Ask Joe Eisner: Competitive Bidding and Personal Property

LTA Members:Get Questions Answered
Do You Have a Library Question Which Requires an Answer?
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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:

Q. If a library wishes to dispose of personal property such as books, materials or equipment, must competitive bidding procedures be 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)).

Answer  . . .

 

 

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

You are also encouraged to visit the NYS Committee on Open Government website where you can read more about the Open Meetings Law and about the opinions referenced in this article.

Ask Joe: Convening an executive session and attorney-client privilege

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 . . .

What procedures are required for trustees to convene a library or library system board meeting to discuss public business, and to bar attendance by the general public or another board member?

[Note: it would be prudent for trustees to discuss the following with counsel to ensure that the opinions cited are currently representative, if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinions.]

Answer  . . .

Part 1:

Convening an executive session- In response to an inquiry by a member of county legislature who questioned actions taken during an executive session of that body, Counsel to COOG stated: First, it is noted that there are two vehicles that may authorize a public body to discuss public business in private.  One involves entry into an executive session.  Section 102(3) of the Open Meetings Law defines the phrase “executive session” to mean a portion of an open meeting during which the public may be excluded, and the Law requires that a procedure be accomplished, during an open meeting, before a public body may enter into an executive session.  Specifically, §105(1) states in relevant part that:

Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session for the below enumerated purposes only…

“As such, a motion to conduct an executive session must include reference to the subject or subjects to be discussed and the motion must be carried by majority vote of a public body’s membership before such a session may validly be held.  The ensuing provisions of §105(1) specify and limit the subjects that may appropriately be considered during an executive session.  Therefore, a public body may not conduct an executive session to discuss the subject of its choice.

“The other vehicle for excluding the public from a meeting involves ‘exemptions.’ Section 108 of the Open Meetings Law contains three exemptions.  When an exemption applies, the Open Meetings Law does not, and the requirements that would operate with respect to executive sessions are not in effect.  Stated differently, to discuss a matter exempted from the Open Meetings Law, a public body need not follow the procedure imposed by §105(1) that relates to entry into an executive session.  Further, although executive sessions may be held only for particular purposes, there is no such limitation that relates to matters that are exempt from the coverage of the Open Meetings Law.

“It has been advised that members of a public body may meet in private to seek legal advice from their attorney, and that when they do so, their communications fall within the attorney-client privilege [see Part 2 below].  Because the communications are confidential, a gathering of that nature would be exempt from the coverage of the Open Meetings Law pursuant to §108(3) of that statute, which exempts from the Open Meetings Law matters made confidential by state or federal law.  In situations in which a public body has been sued by one of its own members, that member, in my opinion, could be excluded from a gathering of the other members of the body when they are seeking legal advice.  However, the transcript of the June 10 meeting specifies that a motion was made to enter into executive session.  Because the gathering was an executive session rather than a matter exempt from the Open Meetings Law, I believe that you, a member of the Legislature, had the right to be present.  Section 105(2) states that: ‘Attendance at an executive session shall be permitted to any member of the public body and any other persons authorized by the public body.’  In short, although you might have been properly excluded from a gathering held outside the coverage of the Open Meetings Law based on the assertion of the attorney-client privilege, in my view, because of the manner in which the Legislature chose to engage in a private discussion, entry into an executive session, you had the right to attend that session. 

“Second, as indicated earlier, the Legislature took action by reaching a ‘consensus.’  In this regard, in Previdi v. Hirsch [524 NYS 2d 643 (1988)], which involved a board of education, the issue pertained to access to records, i.e., minutes of executive sessions held under the Open Meetings Law.  Although it was assumed by the court that the executive sessions were properly held, it was found that ‘this was no basis for respondents to avoid publication of minutes pertaining to the “final determination” of any action, and “the date and vote thereon”’ (id., 646).  The court stated that:

‘The fact that respondents characterize the vote as taken by “consensus” does not exclude the recording of same as a “formal vote”.  To hold otherwise would invite circumvention of the statute.

 

‘Moreover, respondents’ interpretation of what constitutes the “final determination of such action” is overly restrictive.  The reasonable intendment of the statute is that “final action” refers to the matter voted upon, not final determination of, as in this case, the litigation discussed or finality in terms of exhaustion or remedies’ (id.).

“Whenever action is taken by a public body, I believe that it must be memorialized in minutes, and §106 of the Open Meetings Law provides that:

1.  Minutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon.

 

2.  Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon; provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law as added by article six of this chapter.

 

3.  Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meetings except that minutes taken pursuant to subdivision two hereof shall be available to the public within one week from the date of the executive session.

“In my view, when the Legislature reached a consensus reflective of its decision to appeal, that decision, whether it was made in public or during an executive session, was required to have been memorialized in minutes….” (Op COG OML 4690, September 23, 2008).

   Part 2:

Attorney-client privilege-

“[T]here are two vehicles that may authorize a public body to discuss public business in private…. One involves entry into an executive session…. The other vehicle for excluding the public from a meeting involves “exemptions.”  Section 108 of the Open Meetings Law contains three exemptions.  When an exemption applies, the Open Meetings Law does not, and the requirements that would operate with respect to executive sessions are not in effect.  Stated differently, to discuss a matter exempted from the Open Meetings Law, a public body need not follow the procedure imposed by §105(1) that relates to entry into an executive session.  Further, although executive sessions may be held only for particular purposes, there is no such limitation that relates to matters that are exempt from the coverage of the Open Meetings Law.

Relevant is §108(3), which exempts from the Open Meetings Law:

…any matter made confidential by federal or state law.

“When an attorney-client relationship has been invoked, it is considered confidential under §4503 of the Civil Practice Law and Rules.  Therefore, if an attorney and client establish a privileged relationship, the communications made pursuant to that relationship would in my view be confidential under state law and, therefore, exempt from the Open Meetings Law.

 “In terms of background, it has long been held that a municipal board may establish a privileged relationship with its attorney [People ex rel. Updyke v. Gilon, 9 NYS 243 (1889); Pennock v. Lane, 231 NYS 2d 897, 898 (1962)].

“However, such a relationship is in my opinion operable only when a municipal board or official seeks the legal advice of an attorney acting in his or her capacity as an attorney, and where there is no waiver of the privilege by the client.

 “In a judicial determination that described the parameters of the attorney-client relationship and the conditions precedent to its initiation, it was held that:

‘In general, “the privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services (iii) assistance in some legal proceedings, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client”’ [People v. Belge, 59 AD 2d 307, 399, NYS 2d 539, 540 (1977)].

“Insofar as a public body seeks legal advice from its attorney and the attorney renders legal advice, I believe that the attorney-client privilege may validly be asserted and that communications made within the scope of the privilege would be outside the coverage of the Open Meetings Law.  Therefore, even though there may be no basis for conducting an executive session pursuant to §105 of the Open Meetings Law, a private discussion might validly be held based on the proper assertion of the attorney-client privilege pursuant to §108, and legal advice may be requested even though litigation is not an issue.  In that case, while the litigation exception for entry into executive session would not apply, there may be a proper assertion of the attorney-client privilege.

“There are several decisions in which the assertion of the attorney-client privilege has been recognized as a means of closing a meeting.  In Cioci v. Mondello (Supreme Court, Nassau County, March 18, 1991), the issue involved the ability of a county board of supervisors to seek the legal advice of its attorney in private, and the court stated that ‘Clearly, the Supervisors’ discussions with the County Attorney…are exempt from the provisions of the Open Meetings Law (see POL §108(3), CPLR §4503…)’.  In another decision citing §108(3), it was found that ‘any confidential communications between the board and its counsel, at the time counsel allegedly advised the Board of the legal issues involved in the determination of the variance application, were exempt from the provisions of the Open Meetings Law’ [Young v. Board of Appeals, 194 AD2d 796, 599 NYS2d 632, 634 (1993)].

“Notwithstanding the foregoing, it has been advised by this office and held judicially that the authority to assert the attorney-client privilege as an exemption from the coverage of the Open Meetings Law is narrow.  In a decision that cited an advisory opinion of the Committee, the court in White v. Kimball (Supreme Court, Chautauqua County, January 27, 1997) found that:

‘While there is no question that Executive Sessions can be conducted for proper reasons and that an exception exists under the Open Meetings Law for attorney-client privileged communications, the scope of that privilege is limited [emphasis supplied].  Once the legal advice is offered, discussions with regard to substance (e.g.) the closing date of a bus system, do not fall within the privilege of the exception.  See Exhibit C, April 8, 1996 Open Meetings Law Advisory Opinion #2595, Robert J. Freeman, Executive Director of Committee on Open government at page 4:

‘“I note that the mere presence of an attorney does not signify the existence of an attorney-client relationship; in order to assert the attorney-client privilege, the attorney must in my view be providing services in which the expertise of an attorney is needed and sought.  Further, if at some point in a discussion, the attorney stops giving legal advice and a public body may begin discussing or deliberating independent of the attorney.  When that point is reached, I believe that the attorney-client privilege has ended and that the body should return to an open meeting.”’

“The same kind of analysis would apply in considering rights of access conferred by the Freedom of Information Law. That statute, like the Open Meetings Law, is based upon a presumption of access.  Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (j) of the Law.

“The first exception to rights of access, §87(2)(a), pertains to records that ‘are specifically exempted from disclosure by state or federal statute’.  Therefore, legal advice sought by a client and rendered by the client’s attorney would be exempted from disclosure pursuant to §4503 of the Civil Practice Law and Rules” (Op COOG  OML 4622. May 5, 2008).

 

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

You are also encouraged to visit the NYS Committee on Open Government website where you can read more about the Open Meetings Law and about the opinions referenced in this article.

Ask Joe Eisner: Is a Library Board (association or public) required to grant employees leaves of absence occasioned by medical situations?

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.

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

Question: Is a Library Board (association or public)  required to grant  employees leaves of absence occasioned by medical situations?

Answer:  Yes. Specific statutes require employers, in certain circumstances,  to grant leaves of absence for the following purposes: Blood donationsBone marrow donations; Cancer screenings for breast and prostate cancer.

1)      Blood Donations

 

“An employer must [emphasis supplied] either, at its option, (a) grant three hours leave of absence in any twelve month period to an employee who seeks to donate blood, provided that the leave of absence may not exceed three hours, unless otherwise agreed to by the employer, and must comply with the requirements established by the commissioner [of labor; see Note below] under…. [Labor Law s202-j(5)]…; or (b) allow its employees without use of accumulated leave time to donate blood during work hours at least two times a year at a convenient time and place set by the employer, including allowing an employee to participate in a blood drive at the employee’s place of employment” (Labor Law s202-j(2)(b)).

 

“Employer” means a person or entity  that employs twenty or more employees  at least one site and includes a …corporation, association, nonprofit organization… county, town, school district… or other governmental subdivision of any kind…” (Labor Law s202-j(1)(b))

 

“Employee means a person who performs services for hire for an employer, for an average of twenty or more hours per week, and includes all individuals employed at any site owned or operated by an employer,  but shall not include an independent contractor” (Labor Law s202-j(1)(a)).

 

NOTE: The Department of Labor has established guidelines for leave required to be granted to employees: Guidelines for Implementation of Employee Blood Donor Leave, https://www.labor.ny.gov/formsdocs/wp/LS703.pdf, last viewed August 19, 2016. These Guidelines… contain provisions governing compensation (employer is not required to provide paid leave except for off-premises donations, or for alternatives  outlined in the Guidelines).

 

2)      Bone Marrow Donations

 

“An employer must [emphasis supplied] grant leaves of absence to an employee who seeks to undergo a medical procedure to donate bone marrow. The combined length of the leaves shall be determined by the physician, but may not exceed twenty-four work hours, unless agreed to by the employer. The employer may require verification by a physician for the purpose and length of each leave requested by the employee to donate bone marrow” (Labor Law s202a-(2)).

 

“An employer shall not retaliate against an employee for requesting or obtaining a leave of absence as provided by the section [above] for the purpose of undergoing a medical procedure to donate bone marrow” (Labor Law s202-a(3)).

 

“The provisions of this section shall not prevent an employer from providing leave for bone marrow donations in addition to leave allowed under any other provision of law. The provisions of this section shall not affect an employee’s rights with respect to any other employee benefit otherwise provided by laws” (Labor Law s 202-a(4)).

 

NOTE: Labor Law s202-a(1provides  definitions of “employer” and “employee” similar to those in Labor Law s202-j(1)(a) and (b) (above).

 

3)      Cancer Screenings

 

Breast Cancer

“Every public officer, … employee of any municipality… or any employee of a participating employer in the New York state and local employees’ retirement system [emphasis supplied]… shall be entitled to absent himself or herself and shall be deemed have a paid [emphasis supplied] leave of absence from his or her duties or service as such public officer… employee of any municipality…, or any employee of a participating employer in the New York state and local employees; retirement system… for a sufficient period of time, not to exceed four hours on an annual basis, to undertake a screening for breast cancer (Civil Service Law s159-b(1)).

 

“The entire period of the leave of absence granted pursuant to this section shall be excused leave and shall not be charged against any other leave such public officer, …employee of any municipality… or any employee of a participating employer in the New York state and local employees’ retirement system… is otherwise entitled to” (Civil Service Law s159-b(2)).

 

Prostate Cancer

“Every public officer, …employee of any municipality, …or any employee of a participating employer in the New York state and local employees’ retirement system [emphasis supplied]… shall be entitled to absent himself and be deemed to have a paid[emphasis supplied] leave of absence for a sufficient period of time, not to exceed four hours on annual basis, to undertake a screening for prostate cancer” (Civil Service Law s159-c(2)).

 

“The entire period of the leave of absence pursuant to this section shall be an excused leave and shall not be charged against any other leave such public officer, …employee of any municipality, …or any employee of a participating employer in the New York state and local employees’ retirement system… is otherwise entitled to” (Civil Service Law s159-c(2)).

 

Note: Although employees of association libraries and cooperative library systems are not subject to the provisions of the Civil Service Law, in a publicity release prior to approving the breast and prostate cancer screening enactment (S 8077A/A10035-A), the Governor stated: “This bill would extend the benefit [of up to four hours of paid leave for prostate and breast cancer screening] to employees of…. employers who participate in the state pension system such as public libraries….” (July 21, 2008). (This legislation does not distinguish between full- and part-time employees.)

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