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If someone files for bankruptcy, is their "debt" to the library for fines and lost materials erased?
Although the Division has not taken a formal stance on this issue, and while bankruptcy is outside of the scope of Chapter 43 of the Statutes, libraries might consider the following approach on the issue of personal bankruptcy and recovering library materials.
Generally speaking, a library can prevent someone who is delinquent in returning materials to the library from further borrowing, despite the fact that s/he has filed for bankruptcy and presented the library with bankruptcy discharge papers.
43.52(2) states: "Every public library shall be free for the use of the inhabitants of the municipality by which it is established and maintained, subject to 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."
So long as the library has a circulation policy that denies use of the library to borrowers with materials not returned after reasonable notices from the library, the library can legitimately deny borrowing privileges to patrons, even if they have filed for bankruptcy since the materials were borrowed.
Furthermore, 943.61 (2) of the criminal code states: "Whoever intentionally takes and carries away, transfers, conceals or retains possession of any library material without the consent of a library official, agent or employee and with intent to deprive the library of possession of the material may be penalized as provided in sub. (5)." The theft is considered a class A misdemeanor if the value of the library materials is under $2500 and a Class H Felony if over that amount.
The Wisconsin State Law Library has many helpful links to bankruptcy resources on their website. However, libraries should check with their municipal attorney for a legal opinion on bankruptcy questions.
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Is it improper for library trustees to be exempt from paying overdue fines?
Wisconsin's Code of Ethics for Local Government Officials (Wisconsin Statutes s. 19.59) prohibits public officials from receiving any financial gain because of their public position. The Code of Ethics for Local Government Officials applies to local elected officials, and local government officials who are either appointed to serve for a specified term of office or who serve at the pleasure of the appointing authority. According to the Wisconsin Government Accountability Board, this generally means that members of local government boards (who serve for specified terms of office) and top managers of local government agencies and departments (who either serve at the pleasure of the appointing authority or who serve pursuant to a contract for a specified number of years) are local public officials covered by the law.
Therefore, it is probably improper for library trustees to be exempt from paying overdue fines. It may also be improper for library directors to be exempt from paying overdue fines. While the DLT does not endorse the practice, it may be allowable for a library board to approve an exemption from library fines for library employees other than the director.
Adapted from Trustee Corner. Channel 45, no. 2 (2010).
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Is it legal for our library board to publicly post an agenda that lists a general subject matter item such as "miscellaneous business," or "such other matters as are authorized by law"? Can our library board legally discuss subjects that are not on the agenda but are raised by the public during a period of "public comment" listed on the agenda?
Concerning the first question, the Wisconsin Attorney General has advised that general subject matter designations in meeting notices should be avoided. The general law is that every public notice of a meeting must include "the subject matter of the meeting, including that intended for consideration at any contemplated closed session, in such form as is reasonably likely to apprise members of the public and the news media thereof." Wisconsin Statutes s. 19.84(2)
The Attorney General has advised that a governmental body should not conduct business under a general subject matter designation (1) where a member of the governmental body was aware, prior to the time public notice was given, that the matter might come before the body or (2) where the matter is of importance or great public concern. In either case, any discussion of or action on the matter should be held over to another meeting for which more specific notice can be given. (66 Op. Att'y Gen. 93, 96 (1977)) In no case may a governmental body use a general subject matter designation to try to avoid the requirements of the open meetings law.
Wisconsin's open meetings law was amended in 1998 to allow governmental bodies to receive information from members of the public if the public notice of the meeting designates a period of public comment. The law now also allows a governmental body to discuss, but not to act on, any matter raised by the public during a public comment period. Although discussion of an issue raised by a member of the public during a "public comment" period is permissible, the Attorney General recommends that extensive discussion of such an item be held over to another meeting for which more specific notice can be given.
More information about Wisconsin's open meeting law is in Trustee Essential 14.
Adapted from Trustee Corner. Channel 38, no. 6 (2003).
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Is it OK for our library to donate withdrawn books to the local "Friends of the Library" organization? In what other ways can we handle withdrawn books?
It is probably acceptable for your library to donate withdrawn books to the local "Friends of the Library" organization, provided that funds from the sale of the books are used to support your library.
Public libraries, like all local government organizations, only have the legal authority that is expressly authorized by the statutes or can be fairly implied. The statutes do not expressly authorize a library board to donate or sell library property, but they do grant library boards broad authority to supervise the administration of the library, and control library property. It is certainly reasonable to argue that the library board's exclusive grant of authority to "control" library property implies the authority to dispose of library property no longer needed because of condition, library space limitations, or other reasons.
However, it may not be permissible for the library to give property away without some assurance that doing so would result in benefit to your library and the community served by the library. Wisconsin's constitutional "public purpose doctrine" prohibits the use of public funds, public equipment, or public supplies to provide a benefit that is primarily private, rather than public, in nature.
In addition, library trustees have a responsibility, in all matters, to exercise sound discretion based on the best interests of the library and the individuals served by the library. Keep in mind also that the taxpayers supporting your library have a reasonable expectation that library resources will be used wisely in support of the library's mission.
A decision to donate withdrawn books to, say, a needy library in a foreign country, may serve a very worthwhile cause, but is probably suspect under Wisconsin's public purpose doctrine.
If your library board would like to donate withdrawn books to the local "Friends" organization, we would recommend that you enter into a written agreement with the Friends that makes clear that all proceeds from sale of the books (and any other materials) be used to support the programs and services of the library.
One alternative is for the library itself to sell the books. Some libraries have even sold valuable books on e-bay. These alternatives, however, require staff time and might not be as cost-effective (at least for less valuable books) as sales by the Friends. Library income from book sales should be deposited with the municipality and must be reported on the library's annual report form.
Sales by either the library or the Friends may be subject to the state, and any county and stadium sales tax. All libraries should have a library board approved policy for the handling of withdrawn books and other materials. For examples, see the Wisconsin Public Library Policy Resources Page at dpi.wi.gov/pld/boards-directors/policy-resources.
Adapted from Trustee Corner. Channel 36, no. 6 (2001).
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Is the library allowed to search bags? If not, could they have a policy that requires all bags to be left at the front desk?
The provisions in s 43.52(1): "The municipality may enact and enforce police regulations to govern the use, management and preservation of the public library," and 43.52(2): "...subject to such reasonable regulations as the library board prescribes in order to render its use most beneficial to the greatest number," should enable the library to establish policies to address the issue. Consider, though, that any policy requiring bags to be left at the desk must be applied consistently and uniformly. Also consider the impact the policy would have on operations and on patron use of the library--many patrons may require their book bags, briefcases, or backpacks to conduct work in the library and the policy might be difficult to draft so as to exclude large purses. A large number of library visitors may require substantial space to securely store all their bags.
Chapter 943 of the State Statutes, s. 943.61 is "Theft of library material." It may provide the protection the library requires. It reads, in part:
943.61(2) Whoever intentionally takes and carries away, transfers, conceals or retains possession of any library material without the consent of a library official, agent or employee and with intent to deprive the library of possession of the material may be penalized as provided in sub. (5).
943.61(3) The concealment of library material beyond the last station for borrowing library material in a library is evidence of intent to deprive the library of possession of the material. The discovery of library material which has not been borrowed in accordance with the library's procedures or taken with consent of a library official, agent or employee and which is concealed upon the person or among the belongings of the person or concealed by a person upon the person or among the belongings of another is evidence of intentional concealment on the part of the person so concealing the material.
943.61(4) An official or adult employee or agent of a library who has probable cause for believing that a person has violated this section in his or her presence may detain the person in a reasonable manner for a reasonable length of time to deliver the person to a peace officer, or to the person's parent or guardian in the case of a minor. The detained person shall be promptly informed of the purpose for the detention and be permitted to make phone calls, but shall not be interrogated or searched against his or her will before the arrival of a peace officer who may conduct a lawful interrogation of the accused person. Compliance with this subsection entitles the official, agent or employee effecting the detention to the same defense in any action as is available to a peace officer making an arrest in the line of duty.
The library could establish a policy that required patrons to open their bags and display their contents to library staff upon exiting the facility. Again, uniform application of the policy must be considered. In application of such a policy, be sure to have the patron open and handle materials in their possession (instead of library staff pawing through private bags); and, if a patron refuses to allow their bag to be searched, the library staff should refer to their policy, follow the statute, and contact the police to take further action if theft is suspected. If the patron leaves, note whatever information that might help the police locate the person and other details. The policy should be reviewed by the municipal attorney and the local police should be aware that it is being initiated.
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The library board wants to meet in closed session to discuss the library director's performance. The director says that he and his attorney should be included in the meeting. Do we have to allow them to be present in the closed session?
No. While library boards may choose to include library staff, consultants, or others in legally conducted closed sessions, there are no provisions in the open meetings law that would compel the board to include either the director or the attorney. However, if the library board is meeting in closed session under s. 19.85(1)(b) to consider the dismissal, demotion, or discipline of a library employee and to take final action on the matter, or to investigate charges against the employee, then the library board is required to give actual notice of the hearing or meeting to the employee. The notice must also "contain a statement that the person has the right to demand that the evidentiary hearing or meeting be held in open session." Consequently, while the employee has the right to demand that the board meet in open session to consider the charges or to take action on a dismissal, demotion, or discipline, the employee does not have the right to be included in a closed session.
Under s. 19.85(1)(c) of the open meetings law, the library board may meet in closed session to consider "employment, promotion, compensation or performance evaluation data of any public employee over which the [library board] has jurisdiction or exercises responsibility." In such situations as hiring decisions, performance evaluations, wages or salary considerations for specific employees, the board is obligated neither to include the employee, nor provide specific notice to the individual. Keep in mind, however, that the open meetings law does not permit the board to meet in closed session to discuss employment matters in general, such as across-the-board wage changes, general reductions in the workforce, personnel policy manual changes, or qualifications for candidates for positions of employment.
The Open Government webpage of the Department of Justice's Division of Legal Services has a link to the Wisconsin Public Records Law Compliance Outline at www.doj.state.wi.us/dls/open-government as well as contact information for the unit if you should have questions about the public records or open meetings laws that are not addressed by their online resources. If you have questions regarding Wisconsin's Open Meetings or Public Records law, contact SPAR or your municipal attorney
Adapted from Trustee Corner. Channel 42, no. 1 (2006).
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The library director was told by the village administrator that next year's appropriation for the library will have to be reduced by 20 percent. Can they cut the budget this much?
Yes, but such a drastic reduction may have undesirable consequences. While the municipal governing body (the city council, village or town board, tribal council, or county board) is not required to grant the amount requested by the library board, there are funding levels that must be met for the municipality to apply for exemption from the county library tax.
If the library's municipality has in the past applied to the county for exemption from the county library tax under Wis. Stats. 43.64 (2) (b), the municipal governing body should ensure that its appropriation for library operations is sufficient to exceed the equivalent county tax levy. If not, then the property owners within the municipality will be taxed for both local and county library services and experience an increase in the county portion of their property tax bill.
Adapted from Trustee Corner. Channel 43, no. 6 (2008).
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Make Privacy a Priority
As a result of the Patriot Act at the federal level and the Parental Access to Library Records legislation at the state level, library directors and trustees have been prompted to think about patron privacy in Wisconsin libraries. Since both laws affect the rights and protections our library users receive, public library officials need to make sure privacy protection requirements are relayed to all library staff and others whose roles may bring them into contact with library records that require protection for patron privacy.
History: The specific provision for privacy of library records in the Wisconsin Statutes (s. 43.30) dates to 1981. The language was included in a larger bill (Act. 335) that established Wisconsin's public records law. But the concept of privacy for library borrowers goes back further. As a result of incidents in 1970, the American Library Association urged libraries to adopt policies that establish the confidentiality of library records. Milwaukee Public Library figured prominently in a May, 1970 incident when Treasury Agents requested the call slips for reference requests and searches made in the stacks for books and materials on explosives. The library initially refused, but the agents returned the next day with an opinion from the city attorney that the records were public, so the librarian supplied the records.
The Watergate scandal firmly established a movement to ensure that government operates in the open, and that the public has access to government records. But open records were in conflict with the concept of personal privacy. So, when Wisconsin public records legislation was passed in 1981 it included the creation of s. 43.30, which at that time simply read: "Records of any library which is in whole or in part supported by public funds, including the records of a public library system, indicating which of its documents or other materials have been loaned to or used by an identifiable individual may not be disclosed except to persons acting within the scope of their duties in the administration of the library or library system or persons authorized by the individual to inspect such records, or by order of a court of law."
The Patriot Act made it easier for law enforcement officials to obtain a search warrant for library records, and prevents library officials from notifying a patron whose records are the subject of a search. But a court order is still required to obtain a "Patriot Act" search warrant.
In 2003, Wisconsin Act 207 established that library records must be disclosed to "custodial parents or guardians of children under the age of 16."
What does all this mean for Wisconsin libraries?
The right to privacy of library records is an extension of protections guaranteed in the Bill of Rights and the Fourteenth Amendment. The American Library Association suggests that "the right to privacy is the right to open inquiry without having the subject of one's interest examined or scrutinized by others. Confidentiality exists when a library is in possession of personally identifiable information about users and keeps that information private on their behalf."
Personally identifiable information includes not only paper and electronic records that link a particular user to library resources or requests for information, but also information that is provided by an individual, even verbally, so that the library staff can answer a specific question or provide information on a subject. Sections 19.62 to 19.80 of the Wisconsin public records law requires government organizations, including libraries, to develop procedures to protect the privacy of personal information kept by the organization. Libraries and library systems (and other governmental organizations) are required to "develop rules of conduct for employees involved in collecting, maintaining, using, and providing access to personally identifiable information," and ensure that those employees "know their duties and responsibilities relating to protecting personal privacy, including applicable state and federal laws." (s. 19.65)
Although s. 43.30 authorizes the library to "disclose an individual's identity to another library for the purpose of borrowing materials for the individual," it does not authorize library staff to discuss the reading habits or movie tastes of particular patrons. Such discussions should be discouraged among employees. They may not be illegal by the letter of the law, but they are unethical by the spirit of the law. Also, library directors and staff should not reveal whether public officials, candidates for office, or others have been issued library cards.
In addition to regular library staff, libraries should be sure that custodial and maintenance staff, contracted workers, and volunteers who may come in contact with library records containing personally identifiable information are aware that confidentiality is required. Libraries may wish to stipulate in vendor contracts that employees must observe and respect confidentiality.
On April 24, 2004, Act 207 amended Wisconsin Statutes Section 43.30 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 age 16 any records relating to that child's use of the library's materials, resources or services. Libraries should update their privacy policies to reflect changes in the law and should establish procedures so that front-line circulation desk staff can know when it is appropriate to release children's borrowing records and when a request should be referred to a person of authority.
The following links provide additional information and resources to help libraries develop policies and procedures to protect patron privacy and comply with public records laws. Questions about the application of these laws may be directed to your municipal or county attorney, your district attorney, or the Wisconsin Attorney General.
Frequently Asked Questions about compliance with the Parental Access to Library Records law: dpi.wi.gov/pld/boards-directors/administration/faq-pt2#parent-access
Frequently Asked Questions about Libraries and Wisconsin's Public Records Law: dpi.wi.gov/pld/boards-directors/administration/faq-pt3#WI-law-FAQ
Privacy resource page: dpi.wi.gov/pld/boards-directors/policy-resources
Adapted from "Best Practices for Public Libraries — Prioritizing Privacy." Channel 40, no. 4 (2005).
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One of our library board members has moved to another county about 50 miles away from the village, but wants to continue to serve on the board to complete the long-range planning. Does she have to resign because she's no longer a resident?
Not necessarily. There is no absolute statutory prohibition against a non-resident serving on a library board. However, the library statute for municipal library board composition, Wis. Stats. 43.54 (1) (a) states that "members shall be residents of the municipality, except that not more than 2 members may be residents of other municipalities." Consequently, if your board previously had no more than one board member residing outside the municipality, then the residency of the board member in question is not a problem. But if your board already had two representatives who reside outside the municipality, then this new change in residency status would exceed the limit and creates a problem since the library board would no longer comply with state statutes.
The easiest way to resolve the problem would be for the board member to voluntarily resign from the appointment to the board so that a resident could be appointed to fill the unexpired portion of the term. If necessary, the village or town board president can remove a library board member, with village board approval. However, under Wisconsin law, removal from office for an appointment in a city may only be done with cause.
More information on the public library board appointments can be obtained from Trustee Essential 18.
Adapted from Trustee Corner. Channel 43, no. 3-4 (2008).
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Open records requests do not require 'magic words'
The Wisconsin Court of Appeals recently ruled that a municipality must respond to requests for public records even if the request does not make reference to Wisconsin's open records law. The case involved requests by a company for various records held by the City of Elkhorn. The first two request letters said the requests were being made pursuant to the Freedom of Information Act. The court ruled that the City violated the Wisconsin open records law by failing to properly respond to those letters. The court said that a request for public records is sufficient if it "reasonably describes the requested record or the information requested." The court also ruled that the requester was entitled to court costs, legal fees, and damages. A discussion of Wisconsin's open records law as it applies to public libraries is available in Trustee Essential 15.
Adapted from "Open records requests do not require ‘magic words’." Channel 38, no. 4 (2003).
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Our city administrator would like to evaluate the library director. Is this acceptable?
Generally, it is not desirable for the city administrator, mayor, or any other city official to conduct an evaluation of the library director. Under Wisconsin law, the library board hires and supervises the library director. As part of the library board's supervisory responsibilities, it is recommended that the library board conduct an evaluation of the performance of the library director at least once a year. For the city administrator (or any other municipal official) to conduct an evaluation of the library director would signify that the city administrator also has authority over the library director. Essentially, this would place the library director in the difficult position of having two bosses and could undermine the authority and responsibility of the library board. For this reason, your library board may decide to discourage the librarian from participating in a formal performance evaluation conducted by the city administrator or other municipal official.
Certainly, the library board would not want to discourage one-on-one communication between the library director and the city administrator (or any other municipal officials). Open communications and a good working relationship between the municipality and the library are important for the success of both organizations.
Your library board may decide to solicit outside input as part of the library board's process of evaluating the library director. This could include seeking the opinions of the city administrator, library staff, and/or other individuals who have regular work interactions with the library director. Outside opinions may be helpful in allowing the board to conduct a full evaluation of the library director's performance, but they should not substitute for, or erode, the responsibility of the library board to exercise supervisory authority over the library director. See Trustee Essential 6 for more information.
Adapted from Trustee Corner. Channel 39, no. 2 (2003).
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Our city is saying that library employees need to be trained in safety according to state law. They would like all, even part-time employees, to be trained in material safety, blood borne pathogens, and CPR. Is this really required by law?
Yes, although library administration should have input in determining what training is appropriate for library staff. Wisconsin Statutes section 101.055 requires that the Wisconsin Department of Commerce adopt and enforce safety and health standards to protect public employees. The standards must provide protection at least equal to that provided to private sector employees under Federal Occupational Safety and Health Administration (OSHA) standards. Chapter Comm 32 (Public Employee Safety and Health) is the regulation that applies to all public employees, including library staff. While there is no safety training mandated specifically for librarians in this regulation, there are rules and provisions that apply to library staff as public employees. The focus of the safety regulations is to provide a safe and healthy work environment for all employees.
The specific training required for library staff is determined by the hazards they are exposed to in the workplace. Generally speaking, library staff should have a basic awareness about blood borne pathogens, and all employees should be trained in hazardous chemical awareness. Public employees have the right, under the Wisconsin public employees' right-to-know law, to be informed about hazardous chemicals and substances in the workplace. The employees must be familiar with hazard recognition and know how to read and interpret product labels and Material Safety Data Sheets (MSDS).
Many municipalities have implemented risk management or loss control programs, often in conjunction with their insurance carriers. Safety training is typically incorporated into the program and, in addition to meeting statutory requirements, can help reduce insurance and disability claims, thereby lowering insurance costs to the municipality. Since most library buildings are covered by insurance carried by the local government, libraries are required to participate in the risk management and safety training programs.
Some library staff participate in first aid or CPR training and fire extinguisher training. Many others go through ergonomic training, or have ergonomic surveys conducted in the workplace. All should be trained in building safety and procedures to be followed in the event of fire, tornado, or other emergency. The training conducted depends on the work environment and the job descriptions and responsibilities of the individual employees.
Adapted from Trustee Corner. Channel 40, no. 4 (2005).
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Our Friends of the Library organization is planning a fund-raising effort and has requested use of names and addresses from our library patron database for a mailing? Can our library provide that information to the Friends?
No. Releasing library patron records to the Friends organization (or any other outside group or individual) generally is prohibited by state law.
Wisconsin Statutes Section 43.30 provides that library records "indicating the identity of any individual who borrows or uses the library's documents or other materials, resources, or services may not be disclosed except by court order or to persons acting within the scope of their duties in the administration of the library or library system, to persons authorized by the individual to inspect such records or to [other] libraries" [under certain circumstances for interlibrary loan purposes].
In addition, the Wisconsin public records law requires state and local government organizations (including libraries) to develop procedures to protect the privacy of personal information kept by the organization. Libraries (and all other government organizations) are required to develop rules of conduct for employees involved in collecting, maintaining, using, and providing access to personally identifiable information. You also are required to ensure that employees handling such records "know their duties and responsibilities relating to protecting personal privacy, including applicable state and federal laws."
Apparently, nothing in state law prohibits library staff from using the library's patron database as part of a library fund-raising effort. Wisconsin Statutes Section 43.30 allows the use of patron records to persons acting within the scope of their duties in the administration of the library or library system. Therefore, use of patron library records may be allowable by library staff who have been authorized by the library board to conduct fund-raising for the library. However, we would recommend that fund-raising use of patron records occur only after explicit library board approval of a policy allowing that type of use.
Adapted from Trustee Corner. Channel 38, no. 2 (2002).
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Our library board has a tradition of "rotating" the position of library board president. This practice ensures that almost everyone on the board gets an opportunity to be board president. Is this an advisable practice?
Generally, this practice is not advisable. The position of library board president is a position that requires special skills that not everyone will possess. While there are certain benefits to rotating the office of president, it is more important that you select a president who has the skills needed to succeed in that office. Following is a list of the attributes of a highly effective library board president:
- The ability to run a meeting fairly, efficiently, and effectively. This includes the ability to keep the board on task, prevent domination of the board by a minority
- of members, and encourage participation by all board members
- A good understanding of library services, the library budget, and library issues and problems.
- The ability to develop and maintain a good working relationship with the other library board members, as well as a close partnership with the library director.
- The ability to be an effective spokesperson for the library and the library board.
- The ability to lead the board in problem-solving and lead the library toward better service to the community.
- The ability and willingness to counsel other board members when there are issues or problems with one or more board members.
- The ability and willingness to develop political relationships with key municipal and county government officials.
The successful functioning of a library board and the success of a library depends, to a significant extent, on the knowledge and the abilities of the board president. For this reason, it is important to select the best person for the job, rather than to arbitrarily rotate board members into the office.
Adapted from Trustee Corner. Channel 39, no. 5 (2004).
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Our library board has approved a salary increase for library employees. Does this action also need to be approved by the municipality's personnel committee before it takes affect?
No. A library board decision on library employee compensation needs no further action by any municipal committee, board, or council. Wisconsin Statutes Section 43.58(4) gives library boards the exclusive authority to establish library employee compensation levels.
That said, a library board must operate within the total annual budget, which includes the local funding appropriation that has been approved by its municipal or county governing authority. A library board would normally raise the issue of library employee compensation levels in its annual budget request. A library board should try to establish library employee compensation at comparable levels to other municipal and community positions that require similar training and responsibilities. Compensation for library staff also should be competitive with compensation provided by similar sized libraries in Wisconsin and nationwide.
The principle that no additional municipal action is required for library board compensation decisions is supported by the Wisconsin Supreme Court case of Schroeder v. City of Clintonville (1979). In that case the city's utility commission approved a wage increase for utility employees. The city council reduced the wage increase and adjusted paychecks to reflect the city council decision. Utility employees ultimately sued the city or damages and won at trial. The city appealed and lost again before the Wisconsin Supreme Court. The court ruled that the statute's specific grant of authority to the utility commission to "employ and fix the compensation of such subordinates as shall be necessary" prevailed over the statute granting general powers to the city council, including the authority to set wages for municipal employees.
The statutory grant of authority to a utility commission is significantly weaker than the statutory grant of authority to a library board, so clearly the principle of the Schroeder case also would apply to library board decisions.
Adapted from Trustee Corner. Channel 37, no. 3 (2002).
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Our library board meets regularly at the same time on a set day each month. Can we put a general notice on the library webpage instead of posting individual agendas on the bulletin board?
No. There are several requirements for a public meeting to be properly noticed. According to Wisconsin's Open Meetings Law, notice of the meeting must
- be made by the library board president or designee
- be posted at least 24 hours in advance of the meeting (only in an emergency may shorter notice be provided, but never less than two hours)
- be provided to the official newspaper of the community or, lacking one, to the "news medium most likely to give notice in the area" as well as to any news media that have requested in writing to receive notice
- specify the time, date, location and subject matter of business to be conducted as well as discussed at the meeting, included any intended closed session.
Wisconsin's Open Meetings Law, enacted in 1976, states in its declaration of policy that "the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business." Consequently, public bodies must ensure that meetings are conducted in properly noticed sessions that are open to the public. The notice of the meetings must be specific so that a member of the public can reasonably understand the business to be conducted. The notice of the meeting must list not only items to be formally acted upon, but also any other items subject to discussion by the board. The law was amended in 1998 to permit governmental bodies to discuss items raised by the public during any public comment periods included on the agenda. However, the library board may not act upon such items and any substantial debate should take place at a subsequent meeting where the topic is properly noticed.
The notice must be given by the library board president "or such person's designee to the public, to those news media who have filed a written request for such notice, and to the official newspaper designated … or, if none exists, to a news medium likely to give notice in the area." While a listing of the meetings on the municipal or library Web page certainly facilitates providing such notice, the Attorney General advises that such methods must not substitute for more traditional methods. The notice should be physically posted in one or more places likely to be seen by the general public, such as the library bulletin board as well as at other municipal buildings. While the library board president, as the "chief presiding officer," is responsible for noticing the meeting, another may be assigned the duty.
The notice must be given at least 24 hours in advance of the meeting. Only in an emergency, when "for good cause such notice is impossible or impractical" may shorter notice be given, but in no case less than two hours in advance of the meeting. No Wisconsin court decision or opinion of the Attorney General establishes what "good cause" would be for shorter notice; however, the Attorney General's office suggests that the law "must be construed in favor of providing the public with the fullest and most complete information" and therefore should be used sparingly, if at all. If there is any doubt, then at least 24-hour notice should be provided.
Both court cases and Attorney General opinions have established that such general statements as "new business" or "such other business as may come before the board" are too broad to meet the requirement of informing the public about the subject matter of the meeting. Not only are library boards subject to the law, but also committees established by the board, including, in most cases, advisory committees and hiring committees, especially if they are comprised primarily by board members. Those meetings also must be properly noticed.
Adapted from Trustee Corner. Channel 43, no. 5 (2008).
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Our library board needs legal advice; who can we turn to for help, and who will pay the legal bills?
For matters involving Wisconsin's public library law (Chapter 43) you should first contact your library system staff. Every library system has staff that is quite familiar with Wisconsin library law. If your library system staff has questions, they can contact appropriate DLT staff. Often, library system staff can also help with common questions about Wisconsin's open meetings and public records laws, and other matters. The basics of many common legal issues that concern library boards are covered in the Trustee Essentials (available online at dpi.wi.gov/pld/boards-directors/trustee-essentials-handbook).
For complex legal issues, such as those involving state or federal employment laws, your municipal attorney (or county corporation council for a county library) is probably the best person to turn to for help. Wisconsin Statutes provide that if a claim is brought against the library board because of an act or omission of the library board, and the claim is disallowed by the library board, the claimant may bring action against the municipality or county [Section 43.58(3)]. Because the municipality or county is ultimately liable for any legal missteps by the library board, municipal and county attorneys are very willing to assist the library board with any legal questions.
Under most circumstances, municipalities have a legal responsibility to provide legal counsel to officers and employees (including library officers and employees) in proceedings brought because of actions taken while carrying out the duties of the office or position. Generally, under these circumstances, the municipality must also indemnify or pay for judgments for damages as well as other costs and legal fees. [See Wisconsin Statutes Section 895.46(1) for the details, including the limitations, of this law.]
In situations involving a legal dispute between the library board and other municipal or county officials, it would be a conflict for the municipal attorney (or county corporation council for a county library) to represent both parties. In such a dispute, the municipality or county should provide qualified outside council to represent the library board.
Adapted from Trustee Corner. Channel 39, no. 6 (2004).
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Our library board will be requesting bids for a remodeling project at the library. One of our library board members is a building contractor. May that library board member submit a bid on the remodeling project?
Not if the bid exceeds $15,000. In addition, the board member should not participate in any board discussion, deliberation, or vote on the issue even if the bid will be for less than $15,000.
Wisconsin's code of ethics for local officials(Wis. Statutes Section 19.59) prohibits, among other things, a local official from taking any official action that produces a substantial financial benefit to the official, the official's family, or an organization with which the official has a significant financial interest. (This law does not apply to the lawful reimbursement of actual and necessary expenses incurred in performance of board duties.) In addition, it is a felony [under Section 946.13(1)(b)] for a public official to participate in the making of a contract exceeding $15,000, in his or her official capacity if the official has a direct or indirect financial interest in the contract.
Because both of the statutory prohibitions referred to above apply only to official actions, your board member may be able to avoid running afoul of these parts of the law by withdrawing from participation in any board discussion, deliberation, or vote on the issue. However, if the bid exceeds $15,000, your board member may be committing a felony even if he or she withdraws from participation in any board discussion, deliberation or vote on the issue. Wisconsin Statutes Section 946.13(1)(a) provides that a public official may not, in his or her private capacity, negotiate or bid for or enter into a contract in which the public official has a direct or indirect financial interest, if the official is "authorized or required by law to participate in his capacity as such officer or employee in the making of that contract." Because this section of the law applies to private actions, liability cannot be avoided merely by withdrawing from board involvement with the issue.
Wisconsin's law prohibiting public officials from having a private interest in public contracts (Section 946.13) includes certain exemptions, including an exemption for contracts involving receipts and disbursements of under $15,000 per year.
Any person who violates Wisconsin's code of ethics for public officials may be required to forfeit up to $1,000. Violations of the "private interests in public contracts" law can result in fines of up to $10,000 and imprisonment of not more than two years, or both.
It is important that library board members avoid all potential conflicts of interest. Wisconsin's ethics and conflict of interest statutes are complex, and local governments also may have local ethics ordinances, so it is recommended that any questions about these issues be discussed with your municipal attorney.
Note: This answer provides only a general outline of the law and should not be construed as legal advice in individual or specific cases where additional facts might support a different or more qualified answer.
Adapted from Trustee Corner. Channel 36, no. 4 (2001).
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Our library board will soon be considering a personnel-related issue. Can we go into closed session for this purpose, and, if so, how do we do this?
Closed sessions are allowed for certain purposes, but the following steps are all required for a library board (or any other government body) to legally conduct a closed session:
- The meeting notice must indicate any contemplated closed session, the subject matter of the closed session discussion, and the specific statutory provision allowing a closed session. For most personnel-related issues, the relevant exemption is provided in Wisconsin Statutes s. 19.85(1)(c) which allows closed sessions when the employment, promotion, compensation, or performance evaluation data of any public employee under the jurisdiction of the particular government body is being considered.
Boards should be aware that if they will be considering the dismissal, demotion, or discipline of an employee, a closed session is possible under Section 19.85(1)(b), but the board must give the employee notice of any evidentiary hearing held prior to final action and to any meeting at which final action might be taken. The notice to the employee must include a statement that the employee can demand that the evidentiary hearing or meeting be held in open session.
- The board must first convene in open session.
- The chief presiding officer must announce to all present at the meeting the intention of going into closed session and the purpose of the closed session.
- The chief presiding officer must state the specific section of the law, by statute number (e.g. Section 19.85(1)(c) for a director evaluation session), which allows for the closed meeting. This announcement should be recorded in the minutes. It is good practice for library staff to prepare in advance the exact wording of the announcement to be used.
- A motion, second, and roll call vote, with the vote of each board member recorded in the minutes. A majority vote is required to convene in closed session. 6. Attendance at the closed session is limited to the board, necessary staff, and any other persons whose presence is needed for the business at hand.
- Closed session discussions must be limited to the subject announced in the meeting notice and the chief presiding officer's announcement.
- Certain votes may possibly be legally taken in closed session. But it is a better practice and safer legally to take votes after reconvening into open session. At any rate, all board actions, whether taken in open or closed session, must be recorded in the minutes and be open to public inspection. Secret ballots are only allowed for the election of board officers.
- The board may legally reconvene in open session as long as that intent was noted in the public notice of the meeting. If there was no notice given that the board intended to reconvene in open session, the board is required to wait at least 12 hours after the completion of the closed session before reconvening in open session.
Library trustees should be aware that Wisconsin's open meetings law is designed to support the principle that "the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of government business." To this end, all meetings of all state and local government bodies must be publicly held in places reasonably accessible to members of the public unless otherwise expressly provided by law. The specific statutory exemptions that may allow for a closed session are in Section 19.85. Wisconsin Statutes Chapter 19 is available in PDF format at www.legis.state.wi.us/statutes/Stat0019.pdf.
Any library board member who knowingly attends a meeting in violation of the open meetings law will be required to forfeit, without reimbursement from the library or municipality, not less than $25 and as much as $300 per violation. In addition, a court may void board actions taken in an illegal closed session. A board member is not legally liable if he or she voted against those actions that the board took which caused the violation. Therefore, it is recommended that a board member who believes the purpose stated for the motion to close a meeting is not legally sufficient should vote against the motion. In addition, board members should confirm that proper notice has been given for each board meeting.
Adapted from Trustee Corner. Channel 36, no. 2 (2000).
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Our library director is retiring. Could the library trust funds be used to pay for a sick leave settlement? Could those funds be used to pay for a farewell gift?
While it may be appropriate for the library board to approve the use of donation funds to pay for regular personnel costs including continued health insurance, it is not appropriate to use those funds to purchase a gift for the director.
The library board has the authority to receive, manage, and expend gifts and donations. So long as the funds being used had no special terms regarding their use, the board may use the proceeds for library purposes as determined by the board. Personnel expense, including benefits, is part of the operation of the library. The use of gift funds to pay health insurance premiums for accrued sick leave, or a merit increase in salary may be appropriate if the use conforms with the library's personnel policy. Typically, however, such personnel costs are budgeted for and expended from the library's regular operating budget.
To use library funds, even from donations or gifts, as a bonus or gift for a departing employee might be subject to challenge as inappropriate use of public funds. Wisconsin has a constitutional principal known as the "public purpose doctrine" that, simply stated, requires public funds to be expended only for public purposes. Although donations or endowment funds held by the library board may have originated from private donations, once the board accepts donations, they become public funds and must be used for library purposes. The League of Wisconsin Municipalities published an article, "Understanding the Public Purpose Doctrine", as Legal Caption 890 in May, 2003 that provides further explanation of the doctrine.
The courts have established the following test for determining whether a particular appropriation is for a public purpose:
For the public purpose requirement to be met, the subject matter of the appropriation must be a public necessity, convenience or welfare. Each case must be decided with reference to the object sought to be accomplished and to the degree and manner in which that object affects the public welfare. Factors which may be considered include the course or usage of the government, the objects for which the taxes have been customarily levied, the objects which have been considered necessary for the support and proper use of government, the extent to which the expenditure results in competition with private enterprise, the presence or absence of a general economic benefit, the number of citizens benefited, and the necessity and infeasibility of private performance. Hopper v. City of Madison, 79 Wis.2d 120, 256 N.W.2d 143 (1977).
Another issue to consider is whether such use, if publicized, might negatively affect future donations or the public perception of the library and its operations. If the expenditure is unprecedented or not in keeping with general practice and policy it may be perceived as frivolous or inappropriate use of public funds since the payments will not directly improve library service to the public.
It is the library board's responsibility to determine whether the payment fits existing policy and serves the public purpose. Ultimately, the courts could be involved in a final determination. When approving expenditures, board members should be confident that the use will withstand scrutiny and possible challenge. If there is any doubt, the board may wish to consult the municipal attorney.
Adapted from Trustee Corner. Channel 41, no. 3 (2006).
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Our library has a video security system. Can the police department request and receive footage from that system without a court order?
In certain circumstances, yes. Senate Bill 214 has been passed by the legislature late in 2006 and signed by Governor Doyle, and was published as 2007 Act 34 (www.legis.state.wi.us/2007/data/acts/07Act34.pdf). The bill was introduced by Senator Ellis and Representative Kaufert after a library patron was viewed committing a lewd act in the Neenah Public Library. The library, based on earlier advice from the Wisconsin Attorney General's office, declined to disclose surveillance video recordings showing the patron until a court order authorized the disclosure.
The new law creates two new exceptions to the general requirement that a court order be obtained before library records are disclosed that may indicate the identity of library users. The first new exception reads:
"Upon the request of a law enforcement officer who is investigating criminal conduct alleged to have occurred at a library supported in whole or in part by public funds, the library shall disclose to the law enforcement officer all records pertinent to the alleged criminal conduct that were produced by a surveillance device under the control of the library."
This exception pertains to requests for surveillance recordings initiated by law enforcement officials. This exception requires disclosure only of surveillance video recordings pertinent to criminal conduct alleged to have occurred at the library.
The second new exception reads:
"If a library requests the assistance of a law enforcement officer, and the director of the library determines that records produced by a surveillance device under the control of the library may assist the law enforcement officer to render the requested assistance, the library may disclose the records to the law enforcement officer."
This section makes it permissible, after the appropriate determination by the library director, for a library to disclose library video surveillance recordings to law enforcement officials in situations in which illegal activity or other dangerous or disruptive behavior may have been committed and recorded on a library video surveillance system.
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Our village would like to charge us rent for our village-owned building, which we share with the fire department. Can they do this?
In recent years DLT staff have received questions about the issue of municipalities charging their own library rent for use of the public library building.
While the DLT is not involved in determining a municipality's internal accounting practices, we continue to expect Wisconsin public libraries to accurately report the library's financial data to the DLT on the required public library annual report form (PI-2401). As indicated in the instructions to the annual report, in-kind contributions by the municipality are not to be reported as operating income or operating expenditures. However, we continue to encourage libraries to report as operating costs all actual and documented costs for the library building, such as heat, electricity, janitorial services and maintenance costs.
If a public library board decides to pay rent to the municipality for use of its library building, the amount of the payments may be reported on the public library annual report form under Section VII (Library Capital Revenue, Capital Expenditures, Debt Retirement and Rent).
Please note that capital expenditures may not be reported to the county for reimbursement under s. 43.12.
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Place copyright notice on library equipment (including computers) that can be used for making copies
Copyright law governs the making of all types of copies—whether those copies are made using a photocopier, a fax machine, a VCR, an audio recorder, a computer, a scanner, a printer, or any other device that can be used to make copies. However, under U. S. copyright law [U. S. Code, Title 17, Section 108 (f)( 1)] a library and library employees are not liable for copyright infringement for a patron's unsupervised use of library equipment, provided that the library equipment that can be used for copying displays the notice below. This notice should be placed on all library equipment that can be used by patrons for unsupervised copying. This includes any public access computer connected to the Internet, any public access computer connected to a printer, and any public access computer with recordable media that can be removed by the patron.
The copyright law of the United States (Title 17 U. S. Code) governs the making of photocopies or other reproductions of copyrighted material. The person using this equipment is liable for any infringement.
Adapted from "Reminder: Place copyright notice on library equipment (including computers) that can be used for making copies." Channel 38, no. 4 (2003).
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Planning can seem like a daunting task to take on. Library trustees may be uncomfortable charting a direction for the service they do not operate on a day-today basis. Library directors may worry that goals will be adopted for which there will be no funding. Staff may have concerns that their duties will shift markedly or that their position will be eliminated. The governing body might have concerns that the library will chart off into unsustainable waters. And the public may worry that the library will abandon services they have come to expect. But if all parties are involved in the process, the results should be satisfying to all.
Planning provides a number of benefits to the library and its community, including
- Confirmation and articulation of the library's purpose
- Analysis of use, needs, and resources
- Establishing a framework for priorities and decision-making
- Identification of opportunities and problems
- Consideration of the community's needs in the development of the library's program
- Tangible evidence that the library is managed effectively
- Qualification for additional outside funding sources
Each library board needs to determine the appropriate level of complexity for the library's planning process. Such factors as the size of the community, the local planning resources available, the length of time since the last planning process, and other identified needs may affect the process. This brief article cannot substitute for planning resources, literature or consultants to lead you to effective results, but directors and board members can determine what is needed and then take appropriate action to get there. A good planning process is analogous to a successful banquet recipe: the necessary resources, tools, and ingredients must be assembled; the appropriate cook selected; sufficient time allocated for mixing and cooking; then assemble the community to enjoy the results.
If your library has a strategic plan that is regularly reviewed, adapted, and implemented, then the process may be fairly simple and straight-forward. You might collect input from the community to determine if the library's mission and vision is still appropriate, and adapt the plan to newly perceived needs. If the library has not developed a plan in some time, then a more comprehensive process may be in store.
PLA's New Planning for Results
In 2001, the Public Library Association published The New Planning for Results: A Streamlined Approach, by Sandra Nelson (Chicago: ALA, 2001). The book presents a comprehensive planning process for public libraries, with appropriate steps, time frames, and necessary work-forms to achieve results. The method encourages the use of a committee and facilitator and outlines a five-month process that involves assembling participants and information, determining the library's service responses, establishing goals and objectives, developing the final plan, informing the community, and putting it all into action.
The selection of an appropriate facilitator is an important consideration, and the right choice will depend on local circumstances. While it is tempting to hire a library planning professional to conduct the process, the cost can be prohibitive. Sometimes a community leader or local official has the skills to conduct the process, but if they do not, the outcome may be misdirected or poorly developed. While a library professional can bring certain knowledge of the field to the discussion, sometimes a facilitator who is not from the field can ask clarifying questions that help to provoke thought, challenge assumptions, or direct the flow of discussion. If you do not have budget to hire a professional, you may be able to recruit an experienced facilitator for little or no expense from your local businesses or schools. Your regional technical college may offer a quality assurance program or specialists to assist businesses and non-profits in the area.
However you decide to go about your strategic planning, make it happen! Be sure to make the process inclusive of library staff, local officials, community members, and the business community. Be prepared to provide the necessary resources and information. Plan your planning so that the participants know how much involvement and responsibilities they will have. Once the plan is completed, promote it, execute it, re-allocate resources as necessary, measure and review results, and make appropriate adjustments, but not unilaterally. A good planning process includes a plan for evaluation and review.
Adapted from "Best Practices for Public Libraries — Plan to Plan." Channel 43, no. 2 (2007).
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