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Frequently Asked Questions (FAQ) on Public Library Administration and Governance

For a complete list of trustee FAQ topics and questions, visit the Wisconsin Library Trustee Frequently Asked Questions page.

For many, many more resources for the Wisconsin public library community, visit the DLT Public Library Development Team Home Page.

Please let me know if you have any suggestions for additional questions.

Shannon Schultz
Public Library Administration Consultant

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Attorney General issues opinion on library director employment contracts

In December 2006 the Office of Attorney General issued an opinion in response to questions about the authority of a public library board to enter into an employment contract with the public library director.

The opinion of the Attorney General was requested by the Sheboygan Common Council, the Mead Public Library (Sheboygan) Board, and others after questions were raised about the legality of an employment contract entered into between the Mead Public Library Board and the library director. That contract provided that the library director be employed for a term of years, provided that the library director may be terminated for cause, and provided that the director will receive a lump sum payout if terminated without cause. By ordinance, the City of Sheboygan provides that certain other department heads are appointed to five-year terms and may be discharged only for cause by a three-fourths vote of the city council.

The opinion of the Office of Attorney General concludes that "a municipal library board is authorized under Wisconsin law to enter into a contract with a library director that may include provisions specifying conditions of employment that may include provisions stating that the director will be employed for a certain number of years, that the director may be terminated for cause and/or that the library director will receive a lump sum payout if terminated without cause."

The Office of Attorney General opinion did not discuss the potential effect of a municipal civil service ordinance on any of these issues because the City of Sheboygan does not have a civil service ordinance. Similarly, the opinion also did not discuss the appropriate source of funds for any lump sum payment made in case of termination without cause, because termination is not being contemplated.

Adapted from "Attorney General issues opinion on library director employment contracts." Channel 42, no. 3 (2007).

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Basic guidelines for compliance with the parental access to library records law

Generally, Wisconsin law prohibits the release of records that identify an individual who uses a publicly funded library (Wisconsin Statutes Section 43.30). Under previous law, this information could be released only with the consent of the individual or by court order or (under certain circumstances) to other libraries for interlibrary loan purposes.

Wisconsin Statutes Section 43.30 was amended to require that a library that is in whole or part supported by public funds must disclose to a custodial parent or guardian of a child under the age of 16 any records relating to that child's use of the library's documents, or other materials, resources or services. Below are answers to questions we have received about this:

1. Which libraries must comply?

All libraries that receive public funds. At a minimum, this includes all public libraries, all public school libraries, and the libraries of all public colleges and universities.

2. What records must be supplied to a custodial parent or guardian of a child under age 16?

Any records relating to that child's use of the library's documents, or other materials, resources or services. This includes any library records of items currently checked out, due dates for those items, overdue items, and any fines owed. This also includes any records of the use of library computers, such as computer signup records.

We believe that records indicating the address, phone number, age, etc. of the child are not records that fall within this definition. In addition, there is no reason a custodial parent or guardian should require these records. From a child safety perspective, it is advisable that these records not be routinely disclosed.

Any record that contains information about any other library users, in addition to the information which must be disclosed, must first be edited to remove any information which could identify those other library patrons, such as a patron's name, address, or phone number.

3. How do we know the requester of records is the custodial parent or guardian of the child?

A "custodial parent" is defined in this law as any parent other than a parent who has been denied periods of physical placement with a child under s. 767.24 (4). In situations involving separation or divorce, the courts will generally order periods of physical placement to both parents. However, in some cases, the courts will issue an order denying periods of physical placement to one or both parents.

The essential issues for the library to determine are: (1) whether the person requesting the records is who they say they are, (2) whether they are indeed a parent or guardian of the particular child, and (3) whether they have been denied periods of physical placement with the child under s. 767.24 (4). Library board approved policy addressing what will be acceptable documentation for determining these issues.

The fact that an individual has possession of a child's library card may be evidence supporting the conclusion that the individual is a custodial parent or guardian of the child. However, to protect against the possibility that the child's library card was improperly obtained, it may be advisable to request additional identification and/or documentation. A photo ID showing that an individual currently lives at the same address as the child may also help support the conclusion that the individual is a custodial parent or guardian of the child. Of course, a parent who has joint custody of a child may or may not have the same address as the child.

For proof of identity, alternative methods or documentation should be allowed. One method of identification may be linked to whether the adult already is registered at the library with his or her own library card. However, the process must provide alternatives for verifying identification even if the person is not a library cardholder. An acceptable example may be any government agency-issued photo ID.

As to whether a person is indeed the custodial parent of the child whose library records are at issue, it is recommended that libraries strike a balance between having requirements that are so lax that they are easily sidestepped, perhaps creating child safety and/ or liability issues, and those that may be so demanding that they defeat of the purposes of the law. Many people will readily have access to such proof as a birth certificate. Others, including some immigrants, may not. A court order of divorce which names the children may assist in this determination, and the court papers should also indicate whether, (at least at the time of divorce) the parent was denied periods of physical custody. You may also be able to locate relevant court orders with the help of the Consolidated Court Automation Programs (CCAP) Case Management system (available at wcca.wicourts.gov).

A library policy may conclude with a type of "catchall" provision that provides that the library will accept "any other set of documents that demonstrates to the library's satisfaction that the requester is the custodial parent or guardian of the child whose records have been requested". It is also recommended that the policy allow for an appeal of library staff decisions to the director and board.

4. How quickly must we respond to parental requests to view their child's library records?

The law does not specify a definite period of time within which a library must respond to requests. We believe a good guideline is the standard for responses to requests for public records, which must be acted upon "as soon as practicable and without delay." The most common requests: requests to obtain records of the items currently checked out and/or overdue, should probably be responded to immediately, as long as the requester has demonstrated to the library's satisfaction that he or she is the custodial parent or guardian of the child whose records have been requested.

5. Are there any penalties for denying a request or taking too long to respond to a request?

The law does not specify penalties, but it is possible that a parent or guardian could bring a court action if a request had been improperly delayed or denied. A court would have the authority to compel disclosure and could fine and impose attorney fees on a library that unreasonably denied or unreasonably delayed responding to a request.

6. Our library has a policy that applicants for a library card who are under the age of 14 must include the signature of a parent or guardian. Does this law require that we change this policy to require a signature of a parent or guardian for card applicants under the age of 16?

No. The decision to require parental sign-off on library card applications is a policy decision for the local library. The law does not require that any particular policy be adopted for the library card application of a child.

Adapted from "Basic guidelines for compliance with new parental access to library records law." Channel 39, no. 5 (2004).

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Being proactive about building needs saves money and prevents headaches

The ounce of prevention that's worth a pound of cure that was prescribed by Ben Franklin applies to library buildings as well. While tight budgets and staff reductions may make it tempting to dispense with regular building checks and maintenance, the outcome is likely to be more expensive. Some routine practices can prevent failure of vital equipment; others help to maintain a safe and efficient operation, and may prevent accidents or possible fines when building or safety codes are overlooked. Facility issues worth a regular review can be roughly split into three categories. The first encompasses the physical plant and its maintenance. The second relates to safety and emergency concerns. And the third area focuses on the public image of the library. The detail and complexity of the periodic reviews of the building depends on the size of the library, the systems installed in the building, and the staff or financial resources available. But in all libraries, periodic building reviews enable issues to be identified and addressed before repairs become more costly. In the case of building safety, early correction of issues can prevent unfortunate accidents or costly lawsuits. And, ultimately, the library building will be more pleasant and serviceable to the community.

The Physical Plant

Library directors, especially new ones, can be surprised and overwhelmed by the complexity of modern library buildings. Even older buildings can have electrical, ventilation or plumbing systems that can challenge even an expert's skills. The director should first locate or compile an inventory of equipment and determine what periodic checks may be required. If the building has recently been built or renovated, documentation for any new fixtures, equipment and systems may have been compiled and provided by the contractor. If you are concerned that some essential maintenance issues may not be apparent, the city engineer or building inspector may be able to help identify issues to be included in the review plan. The library board or employees, past or present, may also be able to provide details or insights. If all else fails, request that the library board approve enlisting an engineering firm to review the building, inventory the equipment, and help develop a maintenance plan. Because the issues and needs of the library building may not differ from other municipal buildings, the library board or director should first check to see if the library can dovetail with the municipality's maintenance plan. Your city, town, or village may have maintenance or public works employees who can conduct routine maintenance such as changing filters, checking boilers, and lubricating air handlers either for no charge, at a reasonable fixed rate, or on a cost recovery basis. The municipal support might even extend to basic plumbing and electrical repairs. In other cases, the public works department may be willing to assist in contracting for necessary service checks and repairs. Be sure that the library board is aware of any resulting agreements and how charges, if any, are to be assessed. In some cases, the costs or availability of direct municipal support may be such that the library is better off contracting with a private firm for maintenance or repairs. Some components of the building that might require periodic checks or maintenance include:

  • Heating Ventilating and Air Conditioning. HVAC systems can be as simple as a boiler and windows that open, or incredibly complex with overlapping systems and controls that may be integrated into a computerized control system. But even a simple boiler may require semi-annual checks and water conditioning. Other systems can require lubrication, belt checking, cleaning, or balancing. Humidity control systems may require periodic checks of drain lines or cleaning to remove deposits. Outside or rooftop condensing units should be checked and cleaned. Ignoring routine maintenance of a component can lead to failure and repairs or physical damage that far exceeds the cost of maintenance, whereas periodic maintenance can improve efficiency and extend the life of the system components.
  • Check the roof to ensure its integrity and utility. Flat roofs may require clearing of scuppers or central drains. Ignoring clogged gutters and downspouts can lead to interior flooding or damage. Be cognizant of the seed activity of trees in the area to protect against clogging of drains or equipment.
  • Elevators and lifts require annual state safety inspections, but periodic (quarterly or monthly) lubrication and inspections by an elevator contractor can prevent failures and lead to a state inspection without incident. Be sure your elevator maintenance firm has adequate access to parts and supplies; you do not need to contract with the original vendor (and can save by obtaining competitive bids), but the technician must be familiar with your equipment and controls.
  • Check other aspects of the building's exterior envelope. Windows and door seals, caulking and weather-stripping should be checked and repaired for energy efficiency and to prevent mold or other moisture damage. Exterior light sensors may require cleaning. Cracked or leaking gas-filled windows should be replaced to maintain their insulation value. Shrubbery or trees may need to be trimmed to prevent interference with the building or roof. While rarely required, brick buildings should be checked periodically for tuck pointing or other mortar repair. Check for erosion or deterioration of the foundation.
  • Computers that centrally control or operate systems, such as surveillance or HVAC systems, may themselves need to be maintained, upgraded or replaced. Internet connections or data lines for fire alarm or security monitoring should be properly maintained. Failing to renew a monitoring contract could expose the library to unnecessary risks.
  • Regular sealing and restriping of the library's parking lot or driveway can extend its life. The municipality may be able to include the library's asphalt surfaces in its street maintenance program. Similarly the sidewalks should be regularly checked for cracks or heaving segments, and repaired as necessary.

Safety Systems and Emergency Procedures

Some building safety issues require periodic walk-throughs to ensure a safe environment; others involve alarm or other systems that may require periodic maintenance.

  • Fire alarm, sprinkler, and security systems may include interrelated components that require periodic safety checks to comply with local or state building codes. Smoke alarms must be tested and certified. Also, fire extinguishers should be checked regularly and periodically recharged. Your city or village may be willing to include the library building in their testing or maintenance contracts. A walk through for fire safety may prevent a citation from the fire marshal. Your fire department may be able to assist identifying issues and review your fire safety and evacuation procedures.
  • Check security and emergency lighting systems, whether outdoors, in areas where safety may be a concern, or inside, where batteries and bulbs on emergency backup lights may require replacement.
  • Exits should be checked regularly to make sure that signs are in place and emergency lights are functioning, that doors are not blocked, and that locks are working properly. Doors equipped with alarms to prevent use except in emergencies may need to be checked. Alarms may have batteries that require replacement.
  • First aid kits should be checked and refreshed periodically, in addition to disaster supplies. The library's emergency plan should be reviewed annually with the board and staff, and copies kept at predetermined places.
  • Evacuation procedures should be reviewed and practiced at least annually. Tornado Awareness and Fire Safety weeks offer good opportunities to coordinate tests with municipal or county agencies. Review operation of fire extinguishers, defibrillators, or other emergency equipment with staff.
  • Be sure that cleaning supplies (chemicals) are stored and labeled properly, with Material Safety Data Sheets available when appropriate.
  • The city or village risk management (insurance) provider may provide training or free safety reviews and ergonomic checks of work areas. By addressing safety issues proactively, the insurer's exposure to claims is thereby reduced.
  • Maintain a registry of keys issued; re-core locks as necessary to ensure building security. Check that file drawers or cabinets with sensitive or protected information are kept locked.

If you contract with a private company or service for periodic maintenance or safety checks, they might urge you to include full parts and labor coverage for repairs in the contract. Be aware that such contracts are a financial benefit to the vendor, and that, as equipment ages, the costs of such all inclusive coverage may become unnecessarily expensive. The library board could instead consider establishing a reserve fund for repairs, replenishing the reserve each year as it is depleted. Or the municipality may agree to provide funding for unanticipated expensive repairs (such as the complete failure of a major air conditioning unit) from a central contingency fund, rather than by annual appropriations to the library's own equipment repair fund. Local circumstances dictate the most prudent action.

The Library's Image

The public does tell a book by its cover, and the public perception of the library is also colored by the initial visual impression. When conducting a walkthrough of the building for new board members, employees, or public officials, solicit their impressions of the library's organization and appeal-their fresh outlook may identify issues in the building that have blended into the background for you. Directional signs that once made perfect sense to the library staff may now be confusing to the newcomer. What is the general appearance of the shelving, displays and bulletin boards? Does the library have the outward appearance of organization and efficiency, with enough eye-appeal mixed in? The library should appear neither harshly institutional nor unnecessarily whimsical.

  • Check periodically that signs are simple, straightforward, and readable from typical vantage points. Review shelf headings and classification indicators to ensure they still correlate to the collection. Consider a peer review to identify areas of the collection that could be more logically or clearly arranged. Conduct cleaning at off-hours or at times of minimal library use. Work out an appropriate schedule with your employee or contractor for light, regular cleaning as well as periodic thorough dusting and cleaning.
  • Regular cleaning of carpets not only improves appearance but can extend the life of the carpet pile.
  • Be sure to review the library for ADA accessibility issues. Watch that furnishings, shelving or carts have not encroached upon required aisle widths, or that the expansion of the collection has not placed materials in unintentionally inaccessible locations.
  • Consider the outside appearance of the library as well. The exterior should appear inviting and welcoming. Make sure signs are clear and library hours readable from the street. Event signs should be simple and clear.
  • Work with your board and municipality to develop a reasonable landscape program to provide an attractive and vital appearance. Local garden clubs, service organizations, or dedicated Friends of the Library members might be willing to help with annual cleanups, installations, or mulching.

By developing and implementing regular, periodic reviews and maintenance of the library facility, the building will operate more economically, efficiently, and continue to serve and delight library users for years to come.

Adapted from "Best Practices: Building Issues." Channel 45, no. 3 (2010).

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Board meetings for new trustees

While appointments to replace resignations may take place at any time during the year, the spring election cycle generates the largest number of new appointments at any one time, when appointments to committees and boards are made by the governing authority. At the first meeting after that election, a significant number of new trustees may be participating in their first library board meeting. How can you make that experience meaningful and quickly establish an effective atmosphere?

Consider conducting that first meeting in "slow motion." That means that the library board president takes time to explain what is going on with each item on the agenda. While the need to approve the minutes of the previous meeting might be obvious, the financial reports, the process (and necessity) of approving the bills, and other seemingly routine actions of the board may be quite confusing to the uninitiated. Explaining that the library director's report is a standing agenda item can help new board members understand how typical board meetings are conducted. The same goes for any regular committee reports, Friends of the Library reports, reports from department heads, or other agenda items that may be common to your meetings. It also may be useful to elaborate on some of the topics or themes covered in those reports that may be unfamiliar to new members.

It is important to keep in mind that new trustees may not be aware of the history or the purpose of the business items under discussion. Even if the board president and the library director have conducted an orientation for the new members and explained the current issues before the board, it will go a long way to furthering workable comprehension if each item is explained as you go through the agenda. Not only the history of what brought the item to the agenda, but what the board hopes to accomplish, how it fits into the library's mission or long-range plan, and what the possible consequences the decision may generate are all pieces of information that will help the new trustees quickly "come up to speed" with the rest of the board.

The library board president may wish to open this "slow motion" meeting with a general overview of meeting protocol-how materials are distributed, how rigorously the board follows parliamentary procedure, how and when socializing may be conducted, whether there are assigned seats (either formally or by habit)-can all help new members feel more welcome and at ease.

Finally, confirm that each new member knows how to locate the DLT's publication, Trustee Essentials: A Handbook for Wisconsin Public Library Trustees, (https://dpi.wi.gov/pld/boards-directors/trustee-essentials-handbook ) along with other orientation materials. Ask if there are questions or concerns-it will help to emphasize that, if the new trustees have not reviewed the materials, they should do so soon! And it is a good practice to keep a copy of Trustee Essentials handy at your board meetings to help address questions and resolve disputes that can too easily derail discussion and impede the progress of board meetings. Trustee Essentials can often provide guidance on tough issues as well as requirements prescribed by state statute. Although recommendations within its pages may not always apply to local circumstances, the topics can often provide a framework for discussion or suggest a course of action.

For more information, consult Trustee Essential 27: "Trustee Orientation and Continuing Education," pld.dpi.wi.gov/pld_te27.

Adapted from Trustee Corner. Channel 41, no. 6 (2006).

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The budget guidelines from the mayor ask that each department establish user fees to supplement the budget. What fees can the library charge?

Although fees-for-service may be a popular approach to stem the rising costs of municipal services, public libraries generally are not permitted to charge fees. For over 130 years, Wisconsin law has required that public library services be free of charges.

Stagnant or reduced municipal appropriations may require library trustees and staff to make difficult decisions about the depth and range of library services. Fees-for-services under these circumstances can be tempting. But service fees contradict the very notion of free library service, so fundamental to public libraries in Wisconsin. In addition, fees can create barriers to service and can reduce the value of the public library to the community. Once started, a spiral of budget reductions and escalating fees may be unavoidable. Public library services promote the public good and therefore deserve adequate and stable public funding.

Can a public library charge an annual or periodic fee for a library card?

Although Wisconsin public libraries may charge a fee to residents of other states, fees for borrowing privileges may be charged to Wisconsin residents only under very specific circumstances. Generally, "membership" fees are not permitted since section 43.52(2) of the Wisconsin Statutes requires that public library services shall be provided free of charge to residents of the community. And, in order to participate in a library system, a library must extend the same privileges to residents of the system area. Libraries must also honor the valid borrowers' cards of a public library in an adjacent public library system, other than the Milwaukee County Federated Library System.

Since public library systems are encouraged to establish service agreements with other systems, user fees for residents of non-contiguous library systems may by precluded. A general service fee for Wisconsin residents can be justified only under very specific circumstances. A public library may be able to "refuse to honor valid borrowers' cards of a public library in an adjacent public library system if the total amount of the reimbursement received…for the preceding year…is less than the adjusted cost incurred for that year by the public library in honoring these cards." [s. 43.17(11)(b)] Please note that "adjusted cost" subtracts 500 circulations from the total used in the cost formula; therefore, that incidental use by residents of other library systems must be absorbed by the library.

Can a public library charge fees for specific services?

The issue of fees for particular services was initially reviewed by the Wisconsin Attorney General in 1984 (73 Op. Att'y Gen. 86). The opinion relied on a test formulated by the California Attorney General (61 Op. Att'y Gen. 512 California 1978) which distinguished between "those services which are reflective of a library's inherent information providing function and those ancillary services which are not unique to libraries and which can be just as effectively provided in non-library settings." The Wisconsin Attorney General concluded that framed pictures, projectors, screens, audio cassette players, AM/FM radios and meeting and lecture rooms could be subject to charges, but that charges for borrowing 16 mm films and for holding materials on reserve are prohibited. Charges for inter-library loan services are similarly prohibited.

The Attorney General did, however, opine that rental collections, under certain conditions, can be established and fees collected for their use, if the library "acquires a reasonable number of copies …and allows these copies to circulate free of charge." In 1989 the Attorney General further clarified and expanded that opinion to establish that public libraries cannot charge fees for lending video cassettes that are part of a reasonable permanent collection, but may charge for additional copies. That opinion also established that municipal libraries cannot charge for online searching of bibliographic or informational databases. (78 Att'y Gen. 163).

Similarly, a public library cannot charge for the use of its computers, since this falls within the inherent information providing function of the library. Furthermore, the Federal e-rate program and the State TEACH program that fund much of the Internet access at Wisconsin libraries prohibit charges for service on these subsidized lines. While fees for particular types of materials may be subject to interpretation based on the earlier Wisconsin Attorney General opinions, the following suggested guidelines may help you better understand the parameters for fees:

Type of Material or Service Okay to charge?
Loan of audio or DVD players Yes
Loan of MP3 or ebook players Yes unless loaded with audio content
Loan of cameras Yes
Loan of computers for home use Yes
Loan of framed artwork Yes
Loan of best-sellers No, except duplicate copies*
Loan of videos, audio books, or DVDs No, except duplicates*
Loan of equipment (radios, TVs, VCRs,
slide projectors, video projectors)
Yes
Loan of computer game systems Yes
Loan of software or video games No, except duplicates*
Computers for in-library use No
Internet connection to a patron's own
computer, either physical or wireless
No
Parking Yes
Inter-Library Loan No
Fee for reserving or holding library items No
Library fines Yes†
Damage charges Yes†
Replacement library cards Yes†
Toys, games, puzzles, puppets Probably not‡
Meeting and lecture rooms Yes

* Only if the library circulates a "reasonable number" of free copies.
† Under 43.52(2) the library may have "such reasonable regulations as the library board prescribes in order to render its use most beneficial to the greatest number. The library board may exclude from the use of the public library all persons who willfully violate such regulations."
‡ These may be interpreted as having education value or otherwise be "reflective of a library's inherent information providing function." 73 Op. Att'y Gen 86

The statutory requirement that public library service be provided free of charge ensures that everyone can have the benefit of access to the information and ideas essential to individual and societal well-being.

Adapted from Trustee Corner. Channel 40, no. 3 (2005).

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Can a public library's meeting room policy deny use for religious groups?

No. By making their meeting room available to local groups, the library has created a "designated public forum" and denial of use by religious groups would constitute a restriction on free speech.

In April, 2000, a U.S. District Judge ruled that the West Allis Public Library violated a man's First Amendment rights when it refused him permission to use the public library's meeting room for a program about creationism.

The West Allis Public Library policy prohibited use of the meeting room for religious services, religious instruction, and partisan political meetings.

Federal District Judge Lynn Adelman ruled that the library's policies and practices permitting the use of the meeting room for various groups had created a "designated public forum." In a designated public forum, government restrictions on speech are permissible only if they are the least restrictive means to a compelling government interest. Adelman ruled that the city failed to show a compelling government interest in excluding the plaintiff from use of the meeting room.

"It may be that the exclusion of partisan political meetings and religious services or instruction is based on the library's desire to avoid controversy," Adelman said. "However, the avoidance of controversy is not a valid ground for restricting speech in a public forum."

Reasonable time, place, and manner regulations are permissible in a designated public forum. For example, Judge Adelman implied that the library's prohibition on the use of the meeting room for regular meetings of clubs and other organizations was probably a constitutional regulation because it was intended to make the room available to a wide variety of organizations. The judge also implied that the policy excluding use of the meeting room for "commercial sales or presentations promoting specific companies or products" also was constitutionally acceptable.

Libraries may wish to review their meeting room policies in light of the West Allis court ruling and the new lawsuit. Sample meeting room policies are available from the Wisconsin Public Library Policy Resources webpage at dpi.wi.gov/pld/boards-directors/policy-resources

Adapted from response to 2004 question

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Can a village board president remove library trustees from office before their terms are up?

Yes. Wisconsin municipal law allows village board presidents and town chairpersons to remove appointees at their pleasure. The removal must be approved by a majority vote of the governing body, Wis. Stat. § 17.13(1), and a copy of the order for removal must be filed with the village or town clerk.

Cities and counties, however, may only remove appointees with cause. Cause is defined as "inefficiency, neglect of duty, official misconduct or malfeasance in offices" § 17.16(2). The removal requires an affirmative vote of three-fourths of all the members in the case of a city council. County boards are required to have an affirmative vote of two-thirds of the supervisors entitled to seats on the county board.

Removals for cause require "written verified charges brought by a resident taxpayer," which must be followed by a speedy public hearing at which the officer (in this case, the library trustee) has the opportunity to present a defense against the charges. To prevent frivolous complaints, the removing power (such as a city council or county board) may require the person bringing the charges to execute and deliver a $1000 bond with approved sureties sufficient to pay costs and expenses incurred by the governmental unit investigating and hearing the charges. If the municipality finds that the complaint is "willful and malicious and without probable cause," the complainant is responsible for the costs of the proceedings, otherwise the municipality bears the cost. § 17.16.

Although villages and towns have more latitude in removing appointed officials, they must still file an order for the removal with the clerk, and the board must take formal action at a public meeting. This may help prevent abuse of appointive power for political purposes. Cities and counties, by having to hold a hearing for cause, are likely to be extremely cautious in removing appointed officers, including library trustees.

Chapter 17 of the Wisconsin Statutes addresses resignations, vacancies, and removals from office: www.legis.state.wi.us/statutes/Stat0017.pdf.

For additional information you can contact your municipal attorney.

Adapted from Trustee Corner. Channel 40, no. 5 (2005).

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Can libraries charge customers for interlibrary loan service?

Public library staff, trustees, and public officials sometimes question whether or not it is legal to charge for interlibrary loan services. It is the position of the Division for Libraries and Technology (Division) that public libraries cannot charge customers for interlibrary loan services and the Division has also advised on the appropriateness of various kinds of related charges. This article attempts to summarize these various responses. The term "interlibrary loan" (ILL) covers activities within public library systems related both to integrated library system activity and to interlibrary loan between public libraries, other types of libraries, and library systems.

Charging library customers

Charging customers fees for access to the information services provided by a public library, including interlibrary loan, violates the legislative policy and specific statutory provisions of the Wisconsin Statutes. This is true whether or not a public library is a member of a public library system. However, if the public library is a member of a public library system, charging fees for ILL also would violate a requirement for participation in the system.

A public library that is a member of a public library system must provide its users access to the interlibrary loan service of the public library system, and it must fill interlibrary loan requests from other system member libraries within the system area. However, it is not required to forward an interlibrary loan request from a library user to any library or library organization that charges a fee for this service. If it does so, the library cannot pass the fee on to the library user.

A public library system may not charge a library user a fee for handling or filling an interlibrary loan request within the system service area, or for referring the interlibrary loan request to a library outside of the system area. Public libraries and public library systems are required to certify each year to the Division that public library service is free to residents of the municipality and the system. A public library that charges fees for information services, including interlibrary loan, cannot make this certification. Failure to do so could result in penalties to the public library and the public library system. The Attorney General has also issued a specific opinion establishing that a library cannot charge a customer for holding materials on reserve to be picked up by the patron. Neither can libraries charge a customer for access to online searching of remote commercial bibliographic and information databases. (73 Atty. Gen. 86)

Libraries have asked if patrons could instead be asked to contribute to a library donation fund and then the library could pay fees charged by other libraries or organizations from that fund. While libraries may receive and expend donation funds, there cannot be any connection between the payment into the fund and the provision of the service. Everyone must be provided the same service. A person who did not contribute to the fund could not be denied receiving the same service as the person who did so contribute.

Libraries also ask if a delivery or processing fee may be charged for an item placed on hold in a library's integrated library system (ILS), or to recover the cost of notifying the customer when the item is available. It is our opinion that such a fee would not be permissible and would violate the provision for free library services. On the other hand, the Division has been asked whether it would be permissible to impose a fine on customers who failed to pick up items that were placed on hold through the ILS. It is the Division's informal opinion that such a charge would be similar to a fine charged to a patron for failing to return a book on time and, as such, could be considered a "reasonable regulation as the library board prescribes in order to render its use most beneficial to the greatest number." s. 43.52(2)

In response to another question, the Division staff has offered the informal opinion that a library could charge for home delivery of an item to a patron as long as the person has the option of picking up the item free of charge. This opinion would not apply to delivery service provided to persons who cannot leave their home, leave only with assistance, or have other special needs that would prevent them from coming to the library.

Charges between libraries

A public library system may not charge a member library a fee for handling or filling an interlibrary loan request with the system area, or for referring the interlibrary loan request to a library outside of the system area.

It would be legal, but not desirable, for a public library system to pass on an interlibrary loan charge from a library or library organization outside of the system service area to a member library. However, that charge could not be passed on to the library user, and the public library would not be under any obligation to pay the charge.

Generally, interlibrary loan among most public libraries on a statewide basis is conducted reciprocally. Public library systems and member public libraries are not required to fill or facilitate the filling of interlibrary loan requests received from other library systems or libraries outside of the system area. This is done on a voluntary, reciprocal basis, or through agreements between systems and libraries. However, without the cooperation involved in this program of reciprocal lending, patrons from all library system areas would be denied access to the information resources they need. It is the intent of the legislature that public libraries and systems work cooperatively to share resources and materials. The declaration of policy in the library statute states that "the most effective use of library resources in this state can occur only through interlibrary cooperation among all types of libraries and the effective use of technology." s. 43.30 (1) (e)

Although the state superintendent is required to contract with library resource providers in and outside of the state for specialized library materials and information not available at Resources for Libraries and Lifelong Learning, the extent of those contracts is determined by the amount of funding made available by the Legislature for this purpose.

The basis for many of the Division's interpretations is the Attorney General's opinion issued in 1984. In that opinion, the Attorney General adapted the following guideline for determining which services provided by a library were required to be free under s. 43.52(2), Wisc. Stats.:

If the transaction involves the satisfaction, with library resources, of a patron's request for information (whether for educational, recreational or entertainment purposes), such a transaction is a "library service." Other transactions, not involving the furnishing of information, though carried out by a library, would not be a "library service"…Perhaps the essential distinction that is operative here is between those services which are reflective of a library's inherent information providing function and those ancillary services which are not unique to libraries and which can be just as effectively provided in non-library settings. 73 Atty. Gen 86

Adapted from Trustee Corner. Channel 43, no. 2 (2007).

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Can our board designate the library director as the individual who signs checks for purchases out of the library-held "gift fund" checking account?

A library board may deposit gifts and donations in a library-held bank account and make purchases out of that account. All library funds, other than gifts and donations, must be deposited with the municipal or county government.

Good financial practice would dictate that at least two signatures be required for any payment or withdrawal out of a library-held account. The library director could be designated as one of the individuals authorized to sign for these accounts, but the signature of at least one board officer (the board president and/or treasurer) also should be required.

The library board must approve all library expenditures, from any source of funding. This is required because, under Wisconsin Statutes Section 43.58(1), the library board has exclusive control of all library expenditures. The library board also should require the board treasurer or the library director to make regular reports to the board showing the status and activities of all library accounts.

In most communities, public library financial records should be audited along with all other records maintained by the municipality or county that serves as the library's fiscal agent. Funds controlled directly by the library board, such as gift funds or endowments, should be audited annually by the municipality, county, or an outside auditor. If your municipality does not audit your library's financial records, you may want to ask that they do so, or you may budget for an outside auditor to conduct an annual audit. The library board should examine audit reports and carefully follow any audit recommendations.

Libraries holding substantial funds should have an investment policy approved by the library board. The League of Wisconsin Municipalities has some guidelines for development of an investment policy at tinyurl.com/aff5cf1.

Adapted from Trustee Corner. Channel 37, no. 2 (2001).

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Can our library board's bylaws establish term limits for library board members?

No. A library board's bylaws are the rules established by the library board to govern itself. By statute, appointments to the library board are made by the appointing authority of the governing municipality, municipalities, or county. Wisconsin statutes determine the number, requirements and qualifications of library board appointments. Library board bylaws have no effect on the legal authority provided in the statutes to make library board appointments.

If your library board believes that limited board terms are desirable, the recommendation can be made to the appointing authority that terms be limited to a certain number of consecutive terms. It is also acceptable for the library board to make recommendations of possible good candidates for appointment to upcoming library board vacancies.

Your library board does have the authority to establish, via its bylaws, term limits for library board officers. Sample bylaw language to establish term limits for library board officers is: "No member shall be eligible to serve more than two consecutive terms in the same office."

Sample public library board bylaws are available at dpi.wi.gov/pld/boards-directors/sample-board-bylaws. These sample bylaws can be customized for use by your library board.

Adapted from Trustee Corner. Channel 36, no. 3 (2001).

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Can our library charge fees to users of our library computers?

No. Wisconsin law requires that almost all public library services be provided free of charge. A public library in Wisconsin cannot pass on the cost of access to information to library users, whether that cost is called a rental charge, insurance charge, postage fee, or anything else. This is required by Wisconsin Statutes Section 43.52(2) and has been required by Wisconsin law since the 1800s.

Since your library is a member of a public library system, the requirement that library service be provided free of charge is extended to all residents of the library system. [Wisconsin Statutes Section 43.15(4)(c)(4)]

The Wisconsin Attorney General has opined that it is legal to charge a rental fee for duplicate copies of book or video titles that are in addition to a "reasonable number" of copies of that title available for free. In addition, the Wisconsin Attorney General is of the opinion that it is allowable to charge for certain services tangential to a library's inherent information-providing function, such as the rental of audiovisual equipment.

The statutory requirement that public library service be provided free of charge ensures that everyone can have the benefit of access to the information and ideas essential to individual and societal well-being.

Adapted from Trustee Corner. Channel 37, no. 4 (2002).

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Can our library put gift funds into a library checking account? Can we do the same thing with library fine and fee income?

Yes, public library boards may deposit gift, bequest, and endowment funds in a savings or checking account held by the library. However, all other library income, including fines and fees, must be deposited with the municipality.

Wisconsin library law provides that library boards have exclusive control of all funds collected, donated or appropriated for the library fund; however, library boards only have the legal authority to maintain custody of gift, bequest, and endowment funds. Expenditures of funds held by the municipality for library purposes are made as approved by the library board, with actual disbursements made by the municipal treasurer.

Wisconsin Statutes s. 43.58 (7) provides five alternatives for the handling of gift, bequest, or endowment funds provided to the library:

  1. The library board may pay or transfer the gift, bequest, or endowment, or its proceeds to the treasurer of the municipality or county in which the library is situated.
  2. The library board may deposit the gift, bequest, or endowment to a public depository under Chapter 34 (a bank, credit union or savings and loan in Wisconsin, or the Local Government Investment Pool).
  3. The library board may transfer the gift, bequest, or endowment to a charitable organization, described in section 501 (c) (3) of the Internal Revenue Code and exempt from federal income tax under section 501 (a) of the Internal Revenue Code.
  4. The library board may instruct the board’s financial secretary to invest the gift funds as permitted under Section 112.10.  A financial secretary must be bonded for at least the value of the funds or property held.  The financial secretary must also make at least annual reports to the library board showing in detail the amount, investment, income and disbursements from any funds held.  This report must also be attached to the annual report provided to the municipality and the Division for Libraries and Technology.
  5. The library board may pay or transfer the gift bequest, or endowment to a charitable organization or to a community foundation only if the library board and the charitable organization or the community foundation agree, in writing and at the time of the payment or transfer of the gift, bequest, or endowment, to the conditions outlined in the Statutes, s. 43.58 (7) (3).

For any funds in library custody, it is important that a library adopt financial practices and controls that meet municipal audit requirements. Libraries holding substantial funds should have an investment policy approved by the library board. The League of Wisconsin Municipalities has some guidelines for development of an investment policy at tinyurl.com/aff5cf1.

It is also important that the library annual report include attachments detailing the status and activity of any and all funds held by the library.

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Can the library board transfer money from its gift fund to our library foundation?

Library boards did not have the authority to transfer library gift funds to another organization until the passage of 2007 Wisconsin Act 61, effective March 19, 2008.  That law allows a library board to transfer donations made to the library to a charitable organization exempt from federal income tax, provided the organization's purpose is to provide support for the public library.

The passage of 2011 Wisconsin Act 163, effective March 29, 2012, made it possible for a library board to transfer gift funds to a community foundation.  These laws also make valid such transfers made by library boards prior to the effective date of the new laws.  Before making such transfers, library boards should be careful to consider any special provisions of the original gifts, bequests, or endowments.  As with other transfers and deposits, the library board retains control of these funds.

Wisconsin Statutes, s. 43.58 (7) specifies five options for handling library gift funds and the types of investments allowable for those funds.  Those options are:

  1. The library board may pay or transfer the gift, bequest, or endowment, or its proceeds to the treasurer of the municipality or county in which the library is situated.
  2. The library board may deposit the gift, bequest, or endowment to a public depository under Chapter 34 (a bank, credit union or savings and loan in Wisconsin, or the Local Government Investment Pool).
  3. The library board may transfer the gift, bequest, or endowment to a charitable organization, described in section 501 (c) (3) of the Internal Revenue Code and exempt from federal income tax under section 501 (a) of the Internal Revenue Code.
  4. The library board may instruct the board’s financial secretary to invest the gift funds as permitted under Section 112.10.  A financial secretary must be bonded for at least the value of the funds or property held.  The financial secretary must also make at least annual reports to the library board showing in detail the amount, investment, income and disbursements from any funds held.  This report must also be attached to the annual report provided to the municipality and the Division for Libraries and Technology.
  5. The library board may pay or transfer the gift bequest, or endowment to a charitable organization or to a community foundation only if the library board and the charitable organization or the community foundation agree, in writing and at the time of the payment or transfer of the gift, bequest, or endowment, to the conditions outlined in the Statutes, s. 43.58 (7) (3).

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Can the municipality negotiate union contracts for library employees?

Below is a Department of Public Instruction response to a WISPUBLIB question about library employees joining a collective bargaining unit which includes other municipal or county (non-library) employees.

In cases in which library employees are already part of a collective bargaining unit designating the county (or municipality) as the employer for collective bargaining purposes, we believe the library board must, at a minimum:

  1. Appoint a representative of the library board to represent the board in negotiation sessions and who will keep the board informed about important issues being discussed in negotiations
  2. Provide that representative with direction for negotiating strategy
  3. Ratify any collective bargaining agreement involving library employees

Based on state statutes, it is DPI's opinion that a library board must insist that it is the "employer" of library employees for collective bargaining purposes. See the section of Trustee Essential #7 reprinted below, as well as the summary of Wisconsin Employment Relations Commission (WERC) decisions on this issue. On a number of occasions the WERC has ruled that a municipal library board is the employer of public library employees for the purposes of collective bargaining.

The Department of Public Instruction and the League of Wisconsin Municipalities (see III C. Control Over Library Employees on tinyurl.com/bfc2jwg) are both in agreement that the library board, not the municipality, has the statutory responsibility to bargain with unions representing library employees. Further, we believe that the mandated statutory powers and duties of a municipal library board cannot legally be delegated or waived. The statutes are very explicit and unambiguous on the extent of relevant library board powers and duties:

43.58 Powers and duties.

(1) The library board shall have exclusive control of the expenditure of all moneys collected, donated or appropriated for the library fund, and of the purchase of a site and the erection of the library building whenever authorized. The library board also shall have exclusive charge, control and custody of all lands, buildings, money or other property devised, bequeathed, given or granted to, or otherwise acquired or leased by, the municipality for library purposes.

(subsections 2 and 3 omitted)

(4) Notwithstanding ss. 59.17 (2) (br) and 59.18 (2) (b), the library board shall supervise the administration of the public library and shall appoint a librarian, who shall appoint such other assistants and employees as the library board deems necessary, and prescribe their duties and compensation.

One of the statutory requirements for a public library's participation in a library system (and thereby qualifying for state-funded services) is establishment and operation according to Wisconsin Statutes Chapter 43. The Division for Libraries and Technology and library systems are responsible for monitoring compliance with the system membership requirements.

It is very difficult for a library board to meet its statutory responsibilities and qualify for library system membership unless it is officially certified as the employer of library employees for collective bargaining purposes.

From Trustee Essential #7:

Library employee unions

The right to bargain collectively is guaranteed by federal and state law. The library board must not take actions that interfere with library employees' legal collective bargaining rights.

In Wisconsin, collective bargaining practices are subject to rulings of the Wisconsin Employment Relations Commission (WERC). The WERC has ruled on a number of occasions that the library board (and not the municipality) is considered the "employer" of library employees for collective bargaining purposes. Therefore, it is the library board (or a designee of the library board acting under library board supervision) that negotiates with any union(s) representing library employees. An individual familiar with Chapter 43, library board concerns, and collective bargaining law should handle all labor negotiations on behalf of the board. Knowledgeable individuals should assist in the development of library board collective bargaining strategy. The library board must ratify any union agreements involving library employees.

The library board may not abrogate or delegate its legal responsibilities for establishing library policies and personnel policies or for determining the duties and compensation of all library staff. In addition, the library board may not take away the library director's legal authority to hire and supervise all other library staff.

Summary of Recent Wisconsin Employment Relations Commission (WERC) Decisions Concerning the Library Board/Union Relationship

Hales Corners (1978)

In 1977, a union was formed with Village of Hales Corners employees and Hales Corners library employees. In 1978, the library board petitioned the WERC to order the exclusion of library employees from the unit of Village employees. The WERC ordered such exclusion because the library board was found to be a "separate employing entity from the Village and that inclusion of the Library Board employees in the Village unit is not proper since it was not authorized by the Library Board."

Cudahy (1984) and (1990)

The 1990 decision is available at: www.wisbar.org/werc/cd/1990/26680.htm

In 1984, the union representing City of Cudahy employees petitioned to include certain library employees in the union. The City objected, saying the library staff were employees of the library board and should not be included in the voting group. In a 1984 decision, the WERC agreed with the City saying:

"That the Cudahy Library Board was established by a City of Cudahy Ordinance in accordance with the Provisions of Chapter 43, Wis. Stats.; that the members of the Library Board are appointed by the City Mayor and confirmed by the City Common Council; that the Library budget is prepared by the Library Board, with the assistance of the Library Director; that the City Common Council approves and funds the Library budget; that once the monies are appropriated by the Common Council, the monies are subject to the control of the Library Board; that Sec. 43.58(4), Stats., provides that the Library Board may appoint employees, and prescribe their duties and compensation; that the Library Board determines the number and kinds of workers to be employed in the Library, as well as their wages, hours and working conditions; that the Library budget includes the salary of the Library Custodian, but that position is treated as within the Union's existing unit of City employees; that the Library Board does not participate in the City's contract negotiations regarding that bargaining unit; that the Library Board utilizes the City Civil Service process when recruiting full-time Library employees; that part-time employees are not subject to the City Civil Service process; that the Library Board has final authority with respect to hiring Library employees; that Library employees are supervised by the Library Director; that during the tenure of the present Library Director, approximately fifteen years, there has been one promotion within the Library; that the promotion involved movement from the Librarian I position to the Librarian II position; that the promotion was made by the Library Board and was based upon the fact that the employee had received her Master's Degree; that the Library does not have a formal grievance procedure; that employee problems are discussed with the Library Director and, if unresolved, the employee has the right to bring the complaint before the Library Board; that during the tenure of the present Library Director, no employee has brought a grievance to the Library Board; that employees have discussed complaints with individual Board members; that the Library Board exercises its autonomous powers to hire, supervise and set forth employee compensation and working conditions; that the Library Board, and not the City, is the employer of Library employes; and that the Library Board was not formally served with notice of hearing in this matter and is not a party hereto."

In 1990, the union challenged the 1984 decision saying that circumstances had changed and the City was now employer of library employees. The WERC disagreed, basing its decision on the following rationale:

"The Union has argued that there have been certain material changes since our decision which require a different result. It cites the change from two separate I.D. numbers to one number for tax purposes, an accounting change from the Library's bookkeeper to the City Clerk's office, the denial of Roepke's $50 increase, the Mayor's approval of the closure of the library during a snowstorm, and the City Council's involvement in a discussion of Library employee salaries as establishing the City as the actual employer.

We do not agree. The change to a common tax I.D. number was merely an administrative change for the convenience of both employers which is unrelated to the factors we evaluate when determining employer status. The accounting change merely reflects that the administration of payroll and fringe benefits has always been handled by the City Clerk's office.

With respect to Roepke's $50 increase which was originally approved by the Library Board but never paid, the record indicates that Mayor Pekar questioned the rationale for this Board decision based on past practice and on the City's policy of not paying replacement employees a higher rate when an employee is absent due to sickness or vacation. The Library Board has historically provided its employees with the same fringe benefits provided by the City to its employees including health insurance, retirement, days off, etc. It appears the Library also followed the City's policies with respect to the administration of these benefits. In this context, the Board's de facto decision to conform with the City policy and practice as to the payment of additional compensation only reflects the historical parallelism of wages, hours and conditions of employment which we have held to be an insufficient basis to conclude that employees are employed by a single employer. Thus, the denial of Roepke's $50 increase based on City policy does not establish control by the City of the wages paid Roepke. Indeed, we note the $50 increase paid to Roepke upon Mollenson's retirement and Roepke's assumption of the position of acting Director apparently did not parallel any City policy and is indicative of the Library Board's control over her wages.

As to the question of obtaining the Mayor's approval for closure of the Library during a storm, the incident is indicative of the close relationship between the City and the Library Board. However, as to the critical matter of control over employee wages, hours and conditions of employment, this incident is not sufficient, when viewed in the context of the entire record, to establish that the City is the employer.

Similarly, the discussion by the City Council on wage levels for Library employees compared to City employees fails to establish that the Library Board does not directly control the wages, hours and conditions of employment of Library employees.

Thus, a review of the record fails to establish a material change in circumstances sufficient to convince us that our decision in City of Cudahy, Dec. No. 21887 (WERC, 8/84) is no longer applicable with respect to employer status. While it is apparent that the Library Board relies heavily upon advice it solicits from the City when making decisions regarding employee wages, hours and conditions of employment, we remain satisfied that the Board still possesses the legal authority and ability to function as an independent municipal employer. We therefore reaffirm our decision that the Library Board, and not the City, is the employer of Library employees. Inasmuch as the Library employees are not employees of the City, it is appropriate to continue to exclude them from the City bargaining unit and the petition for unit clarification is therefore dismissed."

New Berlin PL (1996)

www.wisbar.org/werc/cd/1996/13173-e.htm

Library employees were in an existing union with City of New Berlin employees and with the City designated as "employer". One library employee petitioned the WERC arguing that the library board should be "employer". The City and library board took no official position at the hearing, but after the hearing the library board passed a resolution and sent it to the WERC saying they are not the "employer". The WERC agreed citing the fact that the library board does not participate in union contract negotiations and does not take any action to ratify the collective bargaining agreement with the union. The WERC also noted the following, which seemed to be particularly important to the decision:

"The collective bargaining agreement provides for City-wide transfer rights and seniority, however, and the Director's autonomy to hire is thus circumscribed by the collective bargaining agreement.

The Director/Board has issued verbal and written disciplinary warnings without prior approval of the City. However, under the existing collective bargaining agreement, Library employees have access to a grievance arbitration procedure and both third step grievances and arbitrations are handled by the City. Thus, ultimately, the City has veto power over all Library employee discipline.

The compensation for all Library employees (save the Director and the Assistant) is bargained by the City as part of its negotiations for a City-wide unit that has included Library personnel since 1976. The City Common Council also establishes personnel policies which are followed by the Library Board."

The WERC position was essentially based on the following reasoning: "By waiving or delegating the statutory power to establish compensation and conditions of employment, including the ultimate authority over discipline and discharge, the Board has sufficiently removed itself from such meaningful exercise of employer discretion that it is not the municipal employer."

Columbus (1998)

www.wisbar.org/werc/cd/1998/29492.htm

Library employees were included in a vote to form a union with City of Columbus employees. Later, the library board petitioned the WERC to be declared the "employer" for collective bargaining purposes. The union argued against the library board petition. The WERC agreed with the library board saying:

"Applying the teachings of New Berlin to the facts of this case, we are persuaded that the Board is the employer.

As reflected in New Berlin, the critical questions to answered are whether the Board exercises meaningful control over its budget and, most importantly, whether the Board exercises meaningful control over employee wages, hours and conditions of employment. These questions are answered affirmatively by the record in this case.

As to the matter of budget control, the Board independently determines what its proposed budget will be and independently determines how the budget approved by the City will ultimately be spent. As reflected in New Berlin and contrary to the Teamsters' argument herein, the fact that the City physically pays the Board's bills does not reflect ultimate veto power over all Board expenditures. The bill paying role is ministerial as reflected in Sec. 43.58(2), Stats.

As the question of control over employee wages, hours and conditions of employment, we are also satisfied that the Board has substantial independence from the City. The Board independently recruits and hires library employees. The Board independently determines whether and how to discipline employees. The Board has its own personnel policies which differ in some respects from those of the City. The Board independently determines employee levels of compensation and hours of work.

Unlike New Berlin, the Board is entity bargaining the initial contract with the Teamsters. Unlike, New Berlin, there is no existing City collective bargaining agreement which dictates wages and benefits. Unlike New Berlin, the Board has retained control over all critical matters related to the determination of wages, hours and conditions of employment. Unlike NEW BERLIN, the Board is the municipal employer of the library employees."

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