The Law & Libraries

2013 New Directors Orientation

February 20 & 27

Presenters

Patricia Tumulty, Executive Director of the New Jersey Library Trustee Association and

the New Jersey Library Association

and

Victoria Rosch, Deputy State Librarian for Library Support Services, New Jersey State

Library

Who needs to know?

Municipal, Joint, County and Association * Libraries

Directors and trustees MUST keep informed and follow all pertinent laws

*Some laws covering other types of public libraries are not mandatory for association libraries, but are considered a best practice. These include

areas such as purchasing, open records and meetings laws.

How to keep informed?• New directors and trustees familiarize themselves

with, and occasionally review, all pertinent Federal and State law

• Directors read New Jersey State Library communications pertaining to changes in the law

• Join member organizations such as the New Jersey Library Association and the New Jersey Library Trustee Association

• Participate in training offered by NJSL, NJLA, NJLTA and ALA

NJSL’s Library Law Webpages

• Full text of laws covering each type of public library (Part 1), State Aid (Part 4), Library Employees (Part 5), Purchasing (Part 6) and more at http://lss.njstatelib.org/library_law

• Printable Statutes and Regulations covering the establishment, operation and funding grouped by type of library at http://lss.njstatelib.org/director_resources

Professional Advice

• The library board should be represented by legal counsel with knowledge of library and employment law

• Best practice: retain your own attorney • Seek help from a certified Qualified

Purchasing Agent, or the appropriate State agency

• Hire the appropriately trained accountant for your type of library

Annual Audit• As part of the general law regarding government units,

all municipal, county and joint libraries are required to have an annual audit performed by a registered municipal accountant

• Municipal and joint municipal libraries should hire an RMA familiar with the Return of Funds requirement

• Association libraries receiving State Aid must have an annual audit performed by a certified public accountant

Ongoing Activities Required

• All trustees in NJ, and the director as appropriate, are required to file an annual financial disclosure form distributed by the municipal clerk

• Newly appointed trustees take the oath of office which may be administered by the board president, mayor, lawyer or municipal clerk

• Member/s of the board/commission receive a minimum of seven total hours of library-related education annually (NJAC 15:21-2.3)

Library Trustee Oath of Office"I, ______ do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of New Jersey, and that I will bear true faith and allegiance to the same and to the Governments established in the United States and in this State, under the authority of the people and I will faithfully, impartially and justly perform all the duties of the office of library trustee of the _____ public library to the best of my ability. So help me God."

NOTE: NJSA 41:1-6. Every person… permitted to make solemn affirmation or declaration in one of the following forms, to wit: "I, , do solemnly, sincerely and truly declare and affirm"…the words "so help me God," at the close of the usual oath, shall be omitted.

Insurance

• Errors and omissions, board liability - no board member shall be liable for damages unless actions show reckless disregard for the duties imposed by the position (NJSA 2A:53A-7.1-7.3)

• Bonding for Board Treasurer (NJSA 40:54-13), director and those handling funds also called “Dishonesty Coverage”

• Liability insurance for the public and meeting rooms, building & grounds (municipality), collections (library)

• Worker’s compensation

Personnel

• Personnel policies should be written, reviewed and updated to assure compliance with the law, including Civil Service regulations

• Have clear policies regarding grievance, discipline, substance abuse, sexual harassment, and other employment issues

• Personnel policies should address nepotism as no State law exists – avoid conflicts of interest

• Newly hired employees must be New Jersey residents unless exempted (Local Finance Notice 2011-30 )

Establishment of Public Libraries

• Municipal and joint municipal libraries are established by referendum (NJSA 40:54-2, municipal; 40:54-29.6, joint municipal)

• County library systems are established by referendum with two exceptions (NJSA 40:33-2, general, 12 county libraries; 40:33-5.1, Cumberland; 40:33-15 Morris)

• Association libraries are established according to the Nonprofit Corporation Act (N.J.S.A. 15A:1-1) and become public by agreeing to accept public funds and serve the public (NJSA 40:54-35)

Establishment of Municipal and Joint Municipal Library Board

• Five to seven members are appointed by the mayor (generally with consent of council)

• The mayor or other chief executive officer of the municipality, and the superintendent of schools are ex officio members and vote

• There may be a total of seven, eight or nine members ( NJSA 40:54-9)• All appointments are for a term of 5 years, except in the case of

appointments to fill vacancies occurring other than by expiration of term, in which case the appointment is for the unexpired term only (40:54-10); the five-year stagger must be maintained so that at least one term expires annually

• At least four of the appointed members must be residents of the municipality; all must be citizens

• No appointees may be employed by the municipality or be part of municipal government – the municipality is represented by only one person and that is either the mayor or the mayor’s alternate

Establishment of Association and County Library Boards

• Association libraries follow the requirements of the Nonprofit Corporation Act

• County library law differs somewhat in composition and commissioner appointment but maintains the five-year term and stagger (NJSA 40:33-7)

• There are five members except the governing body of any county that has a county library commission with fewer than three members who are residents of municipalities supporting the county library system shall increase the size of its commission to seven members; additional members shall be residents of municipalities that support the county library system

• Each county library commission shall have a majority of members who are residents of municipalities which support the county library system.

Board Vacancies

• A board vacancy occurs upon a member’s written resignation; physical or mental incapacitation; death; violation of lawful residency requirement (at least 4 must be residents); failure to attend and participate at meetings for a period of 8 consecutive weeks, or for four consecutive regular meetings, whichever shall be of longer duration (unless due to legitimate illness); removal for cause in accordance with the law. (See NJSA 40A:9-12.1)

• Check to see if your municipality has passed a resolution lowering the requirement to 6 or 7 consecutive weeks and/or 3 consecutive regular meetings.

The Quorum• There are some regulations that define a quorum

as “a majority of the members,” although the regulations are not specific to libraries. A quorum for a nine member board is usually five members; A quorum for a seven member board is usually four members

• An affirmative vote of the majority of all members of the board present at the time shall be necessary to approve any action before the board

• The board may take no action unless in compliance with the Open Public Meetings Act

Powers of the Board

• The board shall hold in trust and manage all property of the library (NJSA 40:54-12)

• It may rent rooms (for the use of the library), construct buildings for the use of the library, purchase books, hire librarians, fix their compensation, make rules and regulations for the government of the library, and do all things necessary for the maintenance of the free public library

• If the municipality participates in the NJ Civil Service system, the library board registers as the appointing authority and appoints someone (usually the director) to act on its behalf

Roles and Responsibilities of the Board or Commission

The board is an autonomous body. Its responsibilities are :

• To hire a competent and qualified library director• To evaluate the director’s performance every year• To set written policies to govern the operation,

use, and programs of the library• Establish a process for planning• Know local, state, and national laws which affect

libraries

Roles and Responsibilities (Continued)

• Establish a cooperative working relationship with officials of the local governing unit

• Fulfill the fiduciary role• Submit an annual report to the

municipality/county, and to the N. J. State Library through the annual NJ Public Library Survey

• Establish, support, and participate in a public relations program to increase community awareness of the library and its services

Support for Intellectual Freedom

• Public library is a public forum for ideas• Support intellectual freedom through up-to-date

policies• Procedure for challenges – form for

reconsideration of materials• Acknowledge complaint and follow through with

a written response of the decision

Useful resources to assist: www.ala.org; www.njla.org

By-laws

• By-laws for the regulation of its own local or internal affairs and its dealings with others or for the governance of its members

• By-laws may not supersede the law• Review by-laws annually and update as necessary• By-laws establish standing committees such as

budget, policies, etc.

Board Committees and Board Officers

• The president serves as ex-officio voting member of all committees

• No committee or officer of the board including the president shall have other than advisory powers unless, by suitable action of the board, it is granted specific power to act

• A committee should consist of less members than a quorum if it is to meet in other than open session

• Best practice - committee reports should be written and conveyed to the secretary for filing

Purchasing Requirements

Excellent information for any purchasing questions may be found at the Department of Community Affairs Division of Local Government Services

webpage on Local Public Contracts Law:

http://www.state.nj.us/dca/lgs/lpclSee also: Part 6: Purchasing at http://lss.njstatelib.org/library_law

Note: Association libraries do not have to comply with the following purchasing requirements, but should as a “best practice” if they accept public funds.

Sound Business Judgment, Quote, Bid or State Contract?

• Local Public Contracts Law governs the award of contracts for services for boards and public entities (NJSA 40A:11-1)

• Thresholds are based on aggregation of goods or services• For this section, the assumption is that the library is not using the

services of a Qualified Purchasing Agent (QPA) and the bid threshold is $17,500

• Get two quotes from 15% of the bid threshold up to the bid threshold ($2,625-$17,499)

• Under 15% use sound business judgment and library board’s policies• Consider using State Contract

http://www.state.nj.us/treasury/purchase/pricelists.shtml

Bidding, Exemptions, Competitive Contracting

• If bidding is required ($17,500 or more based on aggregation of goods or services), work closely with a QPA or lawyer

• Library materials and specialized library services are exempt from the bid and quote process (NJSA 40:54-12.1), but not the Business Registration Program

• Note that the purchase of an Integrated Library System requires the competitive contracting procedure

Business Registration Program& Pay-To-Play

• Purchasing of goods and services from $2,625-$17,499 from any one vendor (vendor’s cumulative contracts) requires that the business must submit (once) a Business Registration Certificate to the library and these are kept in a single alphabetical file; $17,500 or more, a certificate is submitted and kept with each bid and request for proposal

• Pay-To-Play procedure applies to any aggregate amount per vendor of $17,500 or more per year

• Further information see http://ldb.njstatelib.org/Library_Law Part 6 Purchasing

• Library materials are not exempt from BRP or P2P

New Jersey LawsOpen Public Meetings ActOpen Public Records Act

Confidentiality of Library Records

Part 7: Miscellaneous at: http://ldb.njstatelib.org/Library_Law

Note: Association libraries do not have to comply with the following requirements, but should as a “best practice” if they accept public

funds.

Open Public Meetings Law (Sunshine Law)

• Follow guidelines for posting the Annual Notice Schedule of Board meetings

• At least 48-hour notice of meetings of public bodies if there are changes from the Annual Notice

• Limited conditions for emergency meetings• Limited conditions for closed SessionsSee: http://hpcpsdi.rutgers.edu/NJHPG/downloads/Sunshine%20Laws.pdf

Open Public Meetings Law (continued)

• Keep reasonably comprehensive minutes of all its meetings showing the time and place, the members present, the subjects considered, the actions taken, the vote of each member, and any other information required to be shown in the minutes by law (NJSA 10:4-14)

• Minutes must be promptly available to the public

Open Public Records Act-OPRA

• Intent of the law is to provide greater access to public records – library patron records are exempt

• The agency must reply within 7 business days with the requested information, without the information if it will take longer to retrieve it, or with a denial of the request

• Maintain appropriate record retention schedules

NJ Government Records Council: www.nj.gov/grcPart 7: Miscellaneous: http://lss.njstatelib.org/library_law

Confidentiality of Library Records

Library records which contain the names or other personally identifying details regarding the users of libraries are confidential and shall not be disclosed except in the following circumstances: the records are necessary for proper operation of the library, disclosure is requested by the user, or disclosure is required pursuant to a subpoena issued by a court or court order (NJSA 18A:73-43.1)

Theft of Library Materials

• State law prohibits the theft or vandalism of library property (2C:20-12 to 15; 2A:43A-1)

• Post sign to alert patrons

• Appropriate security in place

• Cooperation and good relations with the local police

• Prosecute when necessary

Other New Jersey Laws

• Voter registration forms and instructions are to be displayed and supplied

• Gifts and donations made to the library may be accepted by the trustees, but the trustees may not use library funding to give gifts and donations.

• Is there a municipal/county residency requirement in place?

• Keep apprised of local regulations and customs

For Municipal and Joint Municipal Libraries Only

The next few slides talk about the minimum funding Statute for libraries and the requirement that libraries return to the taxpayers excess unrestricted funding.

1/3 Mill Statute

• Requires minimum 1/3 mill funding for municipal and municipal joint libraries (NJSA 40:54-8)

• Increases from year-to-year are limited to 15% a year unless the State Librarian approves a higher amount (NJSA 40:54-8.1)

1/3 Mill? Audits? Reports?

• NJAC 15:21-12, Municipal Annual Mandatory Library Appropriation for the Maintenance of a Free Public Library (1/3 Mill Regulation)

• Clarifies and regulates issues concerning the minimum appropriation of 1/3 mill including collection of 1/3 mill by municipality and expenditure to library trustees, and eligible and ineligible expenditures

• Clarifies requirements for reports and audits

Income, Expenditures and Audits

• Funding is paid at least quarterly to the treasurer of the library board of trustees

• Libraries handling all of their own funding are required to have an annual audit performed by an RMA

• If all budget appropriations, fines, fees and all other income of the library are retained in the custody of the municipal treasurer, the library’s audit may be part of the municipal audit

• In either case a resolution is required to approve monthly expenditures and adopt the Bills List

Funding in Municipal Budget

• The account is a special reserved account

• Funds are only disbursed by the municipal treasurer after approved by the board of trustees of the free public library (monthly bills list)

• The trustees memorialize this arrangement through an annual resolution

Return of Funds to the Municipality

• N.J.S.A. 40:54-15 Requires transfer of municipal free library unrestricted surplus amounts above 20% of the most recent available audit to municipality for its general purposes, which may include property tax relief

• NJ State Librarian must approve all applications to return funds

Return of Funds(continued)

• Plan ahead - Libraries must have a strategic plan; it is recommended that all libraries have this plan

• Permits libraries to retain funds for capital purposes and grants; prohibits trustees from transferring donated funds to the municipality

State Library provides packet of materials at http://lss.njstatelib.org/library_law

Dedicated Line Legislation

• P.L. 2011, c.38 (S2068/A2679)

• Provides dedicated line item on property tax bill to fund municipal free public libraries and joint free public libraries (paid to the library in at least quarterly payments)

• Any amount above the minimum 1/3 mill remains in the municipal budget

Local Finance Notice to implement the law is NJ Dept of Community Affairs, Div. of Local Gov. Services, Local Finance Notice 2011-14

http://www.nj.gov/dca/lgs/lfns/lfnmenu.shtml

To Sum Up

• Library director keeps informed and reads postings of the njpublibs listserve (closed list for directors only)

• Director keeps trustees informed

• Trustees retain appropriate professionals• For information and updates email

marketing@njstatelib.org

• For analysis: http://www.njla.org/advocacy

Resources for Additional Information

• www.njstatelib.org ; www.njla.org; www.ala.org

• Library law and general law pertaining to libraries - Michele Stricker: mstricker@njstatelib.org; Victoria Rosch: vrosch@njstatelib.org; Pat Tumulty: ptumulty@njla.org

• Per Capita State Aid Law - Bob Keith: rkeith@njstatelib.org

• NJSL staff contacts: http://ldb.njstatelib.org/staff_contacts

• Conferences and workshops presented by NJSL (www.njstatelib.org ), NJLA (www.njla.org) and LibraryLinkNJ (http://librarylinknj.org); ALTAFF (http://www.ala.org/altaff/)