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-7.17.3)
• 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/lpcl
See 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 Laws
Open Public Meetings Act
Open 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 Sessions
See: 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/grc
Part 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/)