Ask Joe Eisner: Is a library board required to permit public participation at its open meetings?

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:


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

Q. Is a library board required to permit public participation at its open meetings?

A. Both association and public libraries boards are required by Education Law s260-a to conduct their meetings in accordance with the provisions of the Open Meetings Law (OML). However, “…although the Open Meetings Law provides the public with the right ‘to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy’ (see Open Meetings Law s100), the Law is silent with respect to public participation. Consequently, by means of example, if a public body… does not want to answer questions or permit the public to speak or otherwise participate at its meetings, we do not believe that it would be obliged to do so.  On the other hand, a public body may choose to answer questions and permit public participation, and many do so. When a public body does permit the public to speak, we believe that it should do so based upon reasonable rules that treat the members of the public equally…. [T]he presiding officer has the authority to limit remarks from the public that are ‘repetitive’ and ‘offensive’…. [W]e note federal court decisions indicating that if commentary is permitted within a certain subject area,, negative commentary in the same area cannot be prohibited…. [A]ssuming that the Board of Trustees…  [or] the presiding officer permit those who wish to speak to do so for a particular period of time, each person who wishes to do so must, in our opinion, be given an equal opportunity to do so Similarly, if the Board…  permit[s  positive comments concerning the operation… we believe that they must offer an equal opportunity to enable those in attendance to offer negative or critical comments.  It would not be unreasonable, in our opinion, to limit repetitive comments in support of opinions expressed previously, as well as those that would be offensive to reasonable people  of ordinary sensibilities….” (Op COG OML 5296, June 12, 2015).  “In the context of a meeting of a public body or a public hearing, we believe that a court would determine that a public body may limit the amount of time allotted to person who wishes to speak, so long as the limitation is reasonable” Op COG OML 4141, February 24, 2006).

Q. May a library board require that a members of the public who wish to speak during public participation at an open meeting of the board be limited to residents of the political jurisdiction served by the library?

A. Bearing in mind that the purpose of the Open Meetings Law is to encourage transparency in government,  depending if the meeting is an open meeting of the library board, to impose such a limitation might be politically imprudent as well as ill-advised. In the following Committee on Open Government opinion, counsel distinguished between a “community forum meeting”, a meeting of a public body, stating that both are different from a public hearing:

“From our perspective, a ‘community forum meeting’ is different from a meeting of a public body, and both are different from a public hearing. A meeting is generally a gathering of a quorum of a public body for the purpose of discussion, deliberation, and potentially taking action within the scope of its powers and duties. A hearing is generally held pursuant to law to provide members of the public with an opportunity to express their views concerning a particular subject, such as a proposed budget, a local law or a matter involving land use. It is likely that a ‘community forum meeting’ is similar to a public hearing, due to its purpose, but unlike a public hearing, is not prescribed by law. Public hearings are often required to be preceded by the publication of a legal notice. In contrast, §104(3) of the Open Meetings Law specifies that notice of a meeting must merely be ‘given’ to the news media and posted. We note, too, that a meeting of a public body held in accordance with the Open Meetings Law can only occur with the presence of a quorum. A hearing or a community forum, on the other hand, can be conducted without a quorum present.

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

Q. Is a library board required to permit public participation at its open meetings?

A. Both association and public libraries boards are required by Education Law s260-a to conduct their meetings in accordance with the provisions of the Open Meetings Law (OML). However, “…although the Open Meetings Law provides the public with the right ‘to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy’ (see Open Meetings Law s100), the Law is silent with respect to public participation. Consequently, by means of example, if a public body… does not want to answer questions or permit the public to speak or otherwise participate at its meetings, we do not believe that it would be obliged to do so.  On the other hand, a public body may choose to answer questions and permit public participation, and many do so. When a public body does permit the public to speak, we believe that it should do so based upon reasonable rules that treat the members of the public equally…. [T]he presiding officer has the authority to limit remarks from the public that are ‘repetitive’ and ‘offensive’…. [W]e note federal court decisions indicating that if commentary is permitted within a certain subject area,, negative commentary in the same area cannot be prohibited…. [A]ssuming that the Board of Trustees…  [or] the presiding officer permit those who wish to speak to do so for a particular period of time, each person who wishes to do so must, in our opinion, be given an equal opportunity to do so Similarly, if the Board…  permit[s  positive comments concerning the operation… we believe that they must offer an equal opportunity to enable those in attendance to offer negative or critical comments.  It would not be unreasonable, in our opinion, to limit repetitive comments in support of opinions expressed previously, as well as those that would be offensive to reasonable people  of ordinary sensibilities….” (Op COG OML 5296, June 12, 2015).  “In the context of a meeting of a public body or a public hearing, we believe that a court would determine that a public body may limit the amount of time allotted to person who wishes to speak, so long as the limitation is reasonable” Op COG OML 4141, February 24, 2006).

Q. May a library board require that a members of the public who wish to speak during public participation at an open meeting of the board be limited to residents of the political jurisdiction served by the library?

A. Bearing in mind that the purpose of the Open Meetings Law is to encourage transparency in government,  depending if the meeting is an open meeting of the library board, to impose such a limitation might be politically imprudent as well as ill-advised. In the following Committee on Open Government opinion, counsel distinguished between a “community forum meeting”, a meeting of a public body, stating that both are different from a public hearing:

“From our perspective, a ‘community forum meeting’ is different from a meeting of a public body, and both are different from a public hearing. A meeting is generally a gathering of a quorum of a public body for the purpose of discussion, deliberation, and potentially taking action within the scope of its powers and duties. A hearing is generally held pursuant to law to provide members of the public with an opportunity to express their views concerning a particular subject, such as a proposed budget, a local law or a matter involving land use. It is likely that a ‘community forum meeting’ is similar to a public hearing, due to its purpose, but unlike a public hearing, is not prescribed by law. Public hearings are often required to be preceded by the publication of a legal notice. In contrast, §104(3) of the Open Meetings Law specifies that notice of a meeting must merely be ‘given’ to the news media and posted. We note, too, that a meeting of a public body held in accordance with the Open Meetings Law can only occur with the presence of a quorum. A hearing or a community forum, on the other hand, can be conducted without a quorum present.

“While we know of no judicial decisions concerning the ability of those to speak at either meetings or hearings, when a public body does permit the public to speak, we believe that it should do so based upon reasonable rules that treat members of the public equally.

“Legal notices for public hearings normally include the following indication: “at such hearing any person may be heard.” Neither the notice nor the statute requiring that the hearing be held distinguishes among those who might want to express their views. That being so, we do not believe that a public body could validly require that those who attend or seek to attend a hearing identify themselves by name, residence or interest. In short, it is our view that any member of the public has an equal opportunity to partake in a public hearing, and that an effort to distinguish among attendees by residence or any other qualifier would be inconsistent with the law and, therefore, unreasonable.

“Moreover, people other than residents, particularly those who own property or operate businesses in a community, may have a substantial interest in attending and expressing their views at hearings held by school boards and other public bodies. Prohibiting those people from speaking, even though they may have a significant tax burden, while permitting residents to do so, would, in our view, be unjustifiable. Further, it may be that a non-resident serves, in essence, as a resident’s representative, and that precluding the non-resident from speaking would be equivalent to prohibiting a resident from speaking. In short, it is unlikely that a public body could validly prohibit a non-resident from speaking at a public forum based upon residency” (Op COG OML 4141, February 24, 2006).

Thus, prudence would dictate that a library board should seek advice from counsel regarding the appropriate procedure to follow in regard to receiving questions from members of the public who attend library board meetings at which only routine business is discussed, or as in the case of school district public library or an association library which receive voter approved tax support, a meeting held in advance of that vote at which either a quorum of the board will be present to vote on presenting the budget for voter approval, or at which a quorum will not be present.

“Legal notices for public hearings normally include the following indication: “at such hearing any person may be heard.” Neither the notice nor the statute requiring that the hearing be held distinguishes among those who might want to express their views. That being so, we do not believe that a public body could validly require that those who attend or seek to attend a hearing identify themselves by name, residence or interest. In short, it is our view that any member of the public has an equal opportunity to partake in a public hearing, and that an effort to distinguish among attendees by residence or any other qualifier would be inconsistent with the law and, therefore, unreasonable.

“Moreover, people other than residents, particularly those who own property or operate businesses in a community, may have a substantial interest in attending and expressing their views at hearings held by school boards and other public bodies. Prohibiting those people from speaking, even though they may have a significant tax burden, while permitting residents to do so, would, in our view, be unjustifiable. Further, it may be that a non-resident serves, in essence, as a resident’s representative, and that precluding the non-resident from speaking would be equivalent to prohibiting a resident from speaking. In short, it is unlikely that a public body could validly prohibit a non-resident from speaking at a public forum based upon residency” (Op COG OML 4141, February 24, 2006).

Thus, prudence would dictate that a library board should seek advice from counsel regarding the appropriate procedure to follow in regard to receiving questions from members of the public who attend library board meetings at which only routine business is discussed, or as in the case of school district public library or an association library which receive voter approved tax support, a meeting held in advance of that vote at which either a quorum of the board will be present to vote on presenting the budget for voter approval, or at which a quorum will not be present.


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

 

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

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:


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: Is a library board required to permit public participation at its open meetings?

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:


Q. Is a library board required to permit public participation at its open meetings?

 A. Both association and public libraries boards are required by Education Law s260-a to conduct their meetings in accordance with the provisions of the Open Meetings Law (OML). However, “…although the Open Meetings Law provides the public with the right ‘to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy’ (see Open Meetings Law s100), the Law is silent with respect to public participation. Consequently, by means of example, if a public body… does not want to answer questions or permit the public to speak or otherwise participate at its meetings, we do not believe that it would be obliged to do so.  On the other hand, a public body may choose to answer questions and permit public participation, and many do so. When a public body does permit the public to speak, we believe that it should do so based upon reasonable rules that treat the members of the public equally…. [T]he presiding officer has the authority to limit remarks from the public that are ‘repetitive’ and ‘offensive’…. [W]e note federal court decisions indicating that if commentary is permitted within a certain subject area,, negative commentary in the same area cannot be prohibited…. [A]ssuming that the Board of Trustees…  [or] the presiding officer permit those who wish to speak to do so for a particular period of time, each person who wishes to do so must, in our opinion, be given an equal opportunity to do so. Similarly, if the Board…  permits  positive comments concerning the operation… we believe that they must offer an equal opportunity to enable those in attendance to offer negative or critical comments.  It would not be unreasonable, in our opinion, to limit repetitive comments in support of opinions expressed previously, as well as those that would be offensive to reasonable people  of ordinary sensibilities….” (Op COG OML 5296, June 12, 2015).  “In the context of a meeting of a public body or a public hearing, we believe that a court would determine that a public body may limit the amount of time allotted to person who wishes to speak, so long as the limitation is reasonable” (Op COG OML 4141, February 24, 2006).

Q. May a library board require that a members of the public who wish to speak during public participation at an open meeting of the board be limited to residents of the political jurisdiction served by the library?

 A. Bearing in mind that the purpose of the Open Meetings Law is to encourage transparency in government,  and depending if the meeting is an open meeting of the library board, to impose such a limitation might be politically imprudent as well as ill-advised. In the following Committee on Open Government opinion, counsel distinguished between a “community forum meeting” and a meeting of a public body, stating that both are different from a public hearing:

“From our perspective, a ‘community forum meeting’ is different from a meeting of a public body, and both are different from a public hearing. A meeting is generally a gathering of a quorum of a public body for the purpose of discussion, deliberation, and potentially taking action within the scope of its powers and duties. A hearing is generally held pursuant to law to provide members of the public with an opportunity to express their views concerning a particular subject, such as a proposed budget, a local law or a matter involving land use. It is likely that a ‘community forum meeting’ is similar to a public hearing, due to its purpose, but unlike a public hearing, is not prescribed by law. Public hearings are often required to be preceded by the publication of a legal notice. In contrast, §104(3) of the Open Meetings Law specifies that notice of a meeting must merely be ‘given’ to the news media and posted. We note, too, that a meeting of a public body held in accordance with the Open Meetings Law can only occur with the presence of a quorum. A hearing or a community forum, on the other hand, can be conducted without a quorum present.

 “While we know of no judicial decisions concerning the ability of those to speak at either meetings or hearings, when a public body does permit the public to speak, we believe that it should do so based upon reasonable rules that treat members of the public equally.

“Legal notices for public hearings normally include the following indication: “at such hearing any person may be heard.” Neither the notice nor the statute requiring that the hearing be held distinguishes among those who might want to express their views. That being so, we do not believe that a public body could validly require that those who attend or seek to attend a hearing identify themselves by name, residence or interest. In short, it is our view that any member of the public has an equal opportunity to partake in a public hearing, and that an effort to distinguish among attendees by residence or any other qualifier would be inconsistent with the law and, therefore, unreasonable.

“Moreover, people other than residents, particularly those who own property or operate businesses in a community, may have a substantial interest in attending and expressing their views at hearings held by school boards and other public bodies. Prohibiting those people from speaking, even though they may have a significant tax burden, while permitting residents to do so, would, in our view, be unjustifiable. Further, it may be that a non-resident serves, in essence, as a resident’s representative, and that precluding the non-resident from speaking would be equivalent to prohibiting a resident from speaking. In short, it is unlikely that a public body could validly prohibit a non-resident from speaking at a public forum based upon residency” (Op COG OML 4141, February 24, 2006).

Thus, prudence would dictate that a library board should seek advice from counsel regarding the appropriate procedure to follow in regard to receiving questions from members of the public who attend library board meetings at which only routine business is discussed, or as in the case of a school district public library or an association library which request voter approved tax support, hold a meeting held in advance of that vote to answer questions regarding the proposed appropriation request, and at which either a quorum of the board will be present to vote to formally approve  presentation of  the appropriation request to voters, or at which a less than a quorum will be present but those board members present will be available to answer questions from the public, but not to transact board business nor to vote on other library matters:

 “Legal notices for public hearings normally include the following indication: “at such hearing any person may be heard.” Neither the notice nor the statute requiring that the hearing be held distinguishes among those who might want to express their views. That being so, we do not believe that a public body could validly require that those who attend or seek to attend a hearing identify themselves by name, residence or interest. In short, it is our view that any member of the public has an equal opportunity to partake in a public hearing, and that an effort to distinguish among attendees by residence or any other qualifier would be inconsistent with the law and, therefore, unreasonable.

“Moreover, people other than residents, particularly those who own property or operate businesses in a community, may have a substantial interest in attending and expressing their views at hearings held by school boards and other public bodies. Prohibiting those people from speaking, even though they may have a significant tax burden, while permitting residents to do so, would, in our view, be unjustifiable. Further, it may be that a non-resident serves, in essence, as a resident’s representative, and that precluding the non-resident from speaking would be equivalent to prohibiting a resident from speaking. In short, it is unlikely that a public body could validly prohibit a non-resident from speaking at a public forum based upon residency” (Op COG OML 4141, February 24, 2006).


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

 

Ask Joe Eisner: Are municipal or school district public library boards solely responsible for arranging for insurance coverage on the library facility and its contents?

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:


 

Q. Are municipal or school district public library boards solely responsible for arranging for insurance coverage on the library facility and its contents?

 A.  No. Regardless of type of  library, public library boards of trustees have a corporate entity entirely separate from  that of the municipality or, in the case of a school district public library, from the board of education.  Library trustees are public officers:

Public officers having by law the care and custody of the  public buildings and the other property of a municipal corporation, may insure the same at the expense of such corporation (General Municipal Law s79).

As such, they have the responsibility of exercising due diligence, particularly since it is well settled that they are independent entities.

The Comptroller has stated that General Municipal Law s79 is permissive: “It is simply authorization to contract for such insurance (59 St Dept Rep 363 (1938)… The Department believes that failure to obtain adequate fire insurance coverage… may be imprudent” (15 Op State Compt 49, 1969).Thus, public library trustees  have the responsibility of exercising due diligence.

In the case of a municipal public library, the library board should discuss with the municipal governing authority whether the municipality’s property and contents insurance cover the library. If not it would be incumbent on the library board to reach an agreement with the governing board as to whether the library should independently arrange for such coverage, at least on contents,  and whether the premium will be reflected in the library’s budget. The strategy outlined below in the Education Department’s Law Division’s and the Comptroller’s  opinions may have some application when  municipal public library boards discuss the issue of property and liability insurance coverage with the municipal governing authority.

Similarly, a school district public library (SDPL) board should consult with the board of education to determine whether the district’s property and contents insurance cover the library, and in what amounts. Where the SDPL is occupying a building whose construction or acquisition was funded by a school district bond issue, the Education Department’s Law Division has stated that where title to a library building lies with the school district, insurance should run to the school district as owner: “If the insurance in the building and contents is to be carried in one policy it would appear that noting… the board of education and the library  ‘as interest may appear’ would be proper to protect the interest of both parties” (ltr, June 30, 1954). “The cost of the insurance on the building would not technically be part of the library’s budget” (ltr, September 9, 1955).

Where a school district board of education and the public library trustees contemplated entering into an agreement to allow the public library use of a district-owned building, the Comptroller stated: “…[A]s a practical matter, since the school district would stand to lose if the library building were destroyed, it would be in the best interest of the school district to pay the property insurance premiums out of the school district budget. However, if the school district were that its interests would be properly protected if the premiums were paid by the library, we found no legal barrier to such an arrangement. It is our opinion that the same conclusion would apply to the manner in which liability insurance premiums were handled. Therefore, an agreement which places responsibility for liability and property insurance upon the library would be proper if the school district felt its interests would be properly protected….” (Op State Compt 77-823, 1977 (unreported)).

Despite the independence  of both types of public libraries, there appears to be a joint responsibility on the part of both the municipal governing body, the school district board of education, and the applicable type of library to determine that each board is acting in a manner which, in case of a loss,  will protect the interest of the taxpayers who support each type of library. It would also be prudent to come to an agreement whereby at regular intervals (perhaps every two years) a mechanism exists where the coverages are reviewed by both boards and necessary adjustments are made in the then existing coverage amounts.


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.