Library Laws You Need to Know

Library LawsYou Need to Know Patricia Tumulty Executive Director of the New Jersey Library Association &New Jersey Library Trustee Association and Victoria Rosch Deputy State Librarian for Library Support Services New Jersey State Library

Who needs to know? • Directors and trustees/commissioners of municipal, joint and county libraries MUST keep informed and follow all pertinent laws • Directors and trustees of association libraries should know and follow laws such as open public records, open public meeting and purchasing/disposing law as much as practicable as a best practice

Establishment of Public Libraries • Municipal and joint municipal libraries are established by referendum (NJSA 40:54-2, municipal; NJSA 40:54-29.6, joint municipal) • County library systems are established by referendum with two exceptions (NJSA 40:33-2, general, 12 county libraries; NJSA 40:33-5.1, Cumberland; NJSA 40:33-15 Morris) • Association libraries are established according to the Nonprofit Corporation Act (NJSA 15A:1-1) and become public by agreeing to accept public funds and serve the public (NJSA 40:54-35)

Municipal and Joint Municipal Library Board Membership • The mayor or other chief executive officer of the municipality, and the superintendent of schools are ex officio members and vote • 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 (NJSA 40:54-10)

Municipal and Joint Municipal Library Board Restrictions • All appointed trustees 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

Municipal and Joint Municipal Library Board Differences • Five to seven citizens (municipal), or three (joint) are appointed by the mayor (generally with consent of council) • There may be a total of seven, eight or nine members (municipal), or limited only by the number of municipalities participating (joint) • At least one term expires annually (municipal), or one in year three, four and five (joint) • At least four of the appointed members must be residents of the municipality (municipal), or two (joint)

Association Library Boards • Association libraries follow the requirements of the Nonprofit Corporation Act • At least three directors/board members are required and at least one of these must be an officer authorized to sign for the library’s incorporation papers • Bylaws determine term and number of board members (above the minimum), type of officers etc.

County Library Commission • County library law differs somewhat in composition and commissioner appointment but maintains the five-year term and stagger (NJSA 40:33-7) • Each county library commission shall have a majority of members who are residents of municipalities which support the county library system • Two county libraries are county departments (no commission) as they were formed in counties with the executive form of government

County Library Commission(continued) • There are generally five members • There may be up to seven members if there is (or was) a circumstance such that fewer than three of the five members are/were residents of municipalities supporting the county library system • At least 3 members of a five-member board and 4 members of a seven-member board must be residents of municipalities supporting the county library system (citizenship does not appear to be a requirement)

Board Vacancies (Municipal, Joint and County Libraries) • 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(Municipal, Joint and County Libraries) • 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 Municipal and Joint Library Boards • 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 staff, 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

Powers of the County Library Commission • The county library commission shall organize by the election of a chairman, and shall adopt rules and regulations for the establishment and maintenance of the county library • It may hire staff, purchase such supplies and equipment and incur such expenses as it may deem necessary, accept gifts, devises, legacies and bequests of property, real and personal, and hold and use the property and income of the same in any manner, which is lawful and consistent with the purpose for which the commission is created • If the county 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 New Jersey 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.njla.org; www.ala.org

Confidentiality of Library Records NJSA 18A:73-43.2. Confidentiality of library users' 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: (a) The records are necessary for the proper operation of the library; (b) Disclosure is requested by the user; or (c) Disclosure is required pursuant to a subpoena issued by a court or court order. NJSA 18A:73-43.1. Definitions (a) "Library" means a library maintained by any State or local governmental agency, school, college, or industrial, commercial or other special group, association or agency, whether public or private. (b) "Library record" means any document or record, however maintained, the primary purpose of which is to provide for control of the circulation or other public use of library materials.L.1985, c. 172,§1

Theft of Library Materials • State law prohibits the theft or vandalism of library property (NJSA 2C:20-12 to 15; NJSA 2A:43A-1) • Post sign to alert patrons • Appropriate security in place • Cooperation and good relations with the local police • Prosecute when necessary

By-laws • Regulate internal affairs, dealings with others and the governance of members • May not supersede the law • Should be reviewed annually and updated as necessary • 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

Trustee Education Requirement • In order to receive any State library aid, all public libraries must annually certify thata member or members of the board or commission has or have received a minimum of seven total hours of library-related education annually • Relevancy of the education is certified by the library director and member of the board (usually the president) • NJSL trustee training resources http://lss.njstatelib.org/trustees

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)

Annual Reporting Requirementsfor Libraries • The board must submit an annual report to the NJ State Library (the annual NJ Public Library Survey fulfills this requirement) • The board must submit an annual report to the municipality/county. The report shall detail all public revenues, all State aid received, all expenditures and the balance of funds available. For municipal and joint libraries only, any excess funds must be identified.

General LawsApplicable to Government Units • Annual financial disclosure • Oath of office for new trustees/commissioners • Annual audit • Spending funds and disposal of public property • Government transparency

Disclosure and Oath of Office • All trustees in NJ, and the director as appropriate, are required to file (online) an annual financial disclosure form by April 30th of each year, or within 30 days of taking office • Newly appointed trustees take the oath of office which may be administered by the board president, mayor, lawyer or municipal clerk

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.

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

General Local Government AgencyRequirements • Funding may only be raised as permitted by law • Any funding, including gifts, must be spent according to the law • Anything purchased with government funds or received as a donation is government property and may only be disposed of according to law • Record retention, including electronic records, must be maintained according to law

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/divisions/dlgs/programs/lpcl.html See also: Part 6: Purchasing at http://lss.njstatelib.org/library_law Note: Association libraries do not have to comply with purchasing requirements, but should as a “best practice” if they accept public funds.

Purchasing Essentials • Local Public Contracts Law governs the award of contracts for materials and services for boards and public entities (NJSA 40A:11-1) • Know the legal thresholds for when to use the sound business judgment, quote, or bid procedure • Be aware that the municipality/county may have a cooperative agreement in which the library may participate and/or that there may be a state contract available for the particular goods you seek -http://www.state.nj.us/treasury/purchase/pricelists.shtml • 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

Purchasing Basics for Municipal, Joint and County Public Libraries Presented by: Gordon Ball Procurement Specialist Division of Local Government Services State Department of Community Affairs February 26, 2014

DEBIT CARDS • Municipal, county and joint municipal libraries may accept credit cards as a form of payment, but may not use a credit card to pay vendors • “Procurement cards" or “P-cards” may be used instead of credit cards (see Local Finance Notice AU-2003-1 at http://www.nj.gov/dca/divisions/dlgs/lfns/03/au-2003-1.pdf) • A service such as PayPal may be tied to a P-card • Using a P-card does not change how vendors are selected pursuant to the Local Public Contracts Law • Controls must be in place to protect against abuse and assure conformance with the law

Government Transparency Open Public Meetings Act (Sunshine Act) http://hpcpsdi.rutgers.edu/NJHPG/downloads/Sunshine%20Laws.pdf Open Public Records Act (OPRA) http://www.nj.gov/grc Note: Association libraries do not have to comply with the requirements, but should as a “best practice” if they accept public funds.

Open Public Meetings Act • Annual notice 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 • Post meeting schedule on webpage and in the library (recommended) http://hpcpsdi.rutgers.edu/NJHPG/downloads/Sunshine%20Laws.pdf

Government Transparency and Minutes • Keep reasonably comprehensive minutes of 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 (even if only in draft form) • Minutes must be maintained and available forever

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 • Keep reasonably comprehensive minutes (NJSA 10:4-14) and make them promptly available to the public • OPRA requires the agency to provide those agency documents not restricted by law as confidential to the petitioner NJ Government Records Council: www.nj.gov/grc Part 7: Miscellaneous: http://lss.njstatelib.org/library_law

Other New Jersey Laws • Maintain appropriate documents (electronic included) according to government record retention schedules • 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. • Keep apprised of local regulations and customs

Professional Advice • Legal counsel - the library board should be represented by an attorney with knowledge of library and employment law; best practice is to retain your own attorney • Purchasing – seek help from a certified Qualified Purchasing Agent, or the appropriate State agency • Annual audit - hire the appropriately trained accountant for your type of library (RMA)

For Municipal and Joint Municipal Libraries Only • 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

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)

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 • NJSA 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://nj.gov/dca/divisions/dlgs/hottopics/lfns/11/2011-14.pdf

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 (njpublibs listserv); keep trustees informed • 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, LLNJ and ALA • Hire appropriate professionals

NJSL’s Online Resources • 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 • Library Director Resources at http://lss.njstatelib.org/director_resources • Library Trustee Resources at http://lss.njstatelib.org/trustees

Resources • Library director - NJPUBLIBS listserv (closed list for directors only); NJLA • Trustees – director’s report; retain appropriate professionals; NJLTA • Library staff and general public - NJSL Direct (information and updates) email marketing@njstatelib.org (open to all) • For legislative analysis: http://njla.org/legislative-updates

Library Laws You Need to Know