This page is a collection of answers to questions from library trustees that have not been published in issues of Channel, the bimonthly newsletter of the Wisconsin Division for Libraries and Technology (DLT).
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.
John DeBacher, Public Library Administration Consultant
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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/policies.html
Adapted from response to 2004 question
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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, devise, 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, devise, 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 four alternatives for the handling of gift, bequest, devise, or endowment funds provided to the library:
- The library board may transfer the funds to the treasurer of the municipality or county that established the library.
- The library board may deposit the funds with a public depository (a bank, credit union or savings and loan in Wisconsin, or the Local Government Investment Pool). A library board resolution must designate one or more public depositories to be used for these funds.
- The library board may transfer the gift to a charitable organization exempt from federal income tax under the Internal Revenue Code, provided the organization's purpose is to provide support for the public library.
- The library board may entrust the funds to a financial secretary (a library board member elected annually by the library board to serve in this capacity) who may invest the 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.
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 http://www.lwm-info.org/legal/faq/faq107.html.
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 funds to another organization until the passage of 2007 Wisconsin Act 61, effective March 19, 2008. The new law allows a library board to transfer donations made to the library to a charitable organization exempt from federal income tax under the Internal Revenue Code, provided the organization's purpose is to provide support for the public library. The law also makes valid such transfers made by library boards prior to the effective date of the new law. Before making such transfers, library boards should be careful to consider any special provisions of the original gifts or bequests.
Wisconsin law specifies several other options for handling library gift funds and the types of investments allowable for those funds. Those options are as follows:
- The library board may transfer the funds to the treasurer of the municipality or county that established the library.
- The library board may deposit the funds with a public depository (a bank, credit union or savings and loan in Wisconsin, or the Local Government Investment Pool). A library board resolution must designate one or more public depositories to be used for these funds.
- The library board may entrust the funds to a financial secretary (a library board member elected annually by the library board to serve in this capacity) who may invest the 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.
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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:
- 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
- Provide that representative with direction for negotiating strategy
- 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 http://www.lwm-info.org/legal/faq/faq8.html) 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 employes 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: http://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 employes, 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 employes; 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 employes; that part-time employes are not subject to the City Civil Service process; that the Library Board has final authority with respect to hiring Library employes; that Library employes 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 employe had received her Master's Degree; that the Library does not have a formal grievance procedure; that employe problems are discussed with the Library Director and, if unresolved, the employe has the right to bring the complaint before the Library Board; that during the tenure of the present Library Director, no employe has brought a grievance to the Library Board; that employes have discussed complaints with individual Board members; that the Library Board exercises its autonomous powers to hire, supervise and set forth employe 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 employe 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 employes a higher rate when an employe is absent due to sickness or vacation. The Library Board has historically provided its employes with the same fringe benefits provided by the City to its employes 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 employes 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 employe 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 employes compared to City employes fails to establish that the Library Board does not directly control the wages, hours and conditions of employment of Library employes.
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 employe 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 employes. Inasmuch as the Library employes are not employes 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)
http://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 employes 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 employe discipline.
The compensation for all Library employes (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)
http://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 employe 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 employe 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 employes. The Board independently determines whether and how to discipline employes. The Board has its own personnel policies which differ in some respects from those of the City. The Board independently determines employe 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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Do employee records have to be disclosed to the public?
In 2004, Governor Doyle signed into law major changes in the open records law as it applies to employee records. The new law was developed by a Legislative Council study committee established primarily in response to recent Wisconsin Supreme Court cases that had created some confusion about the release of records about public employees.
Under the new law, records relating to employees of a public "authority" (any state or local government organization-which includes public schools, public libraries and public library systems) can be placed in the following 3 categories:
- Employee-related records that may be released under the general balancing test without providing a right of notice or judicial review to the employee. Essentially, the balancing test requires that the records custodian determine whether permitting inspection of the record would result in harm to the public interest outweighing the legislative policy recognizing the public interest in public record inspection. Generally, records that may be released under the general balancing test without providing a right of notice or judicial review to the employee are employee-related records that do not fall under categories 2 or 3, below.
- Employee-related records that may be released under the balancing test only after a notice of impending release and the right of judicial review have been provided to the employee. Persons holding a "state or local public office" (see below) do not have the right of judicial review, but they must be given the required notice and informed of the right to augment the records to be released with written documents and comments.
- A record containing information relating to an employee that is created or kept by the authority and that is the result of a completed investigation into a disciplinary matter involving the employee or possible employment-related violation by the employee of a statute, ordinance, rule, regulation, or policy of the employee's employer.
- A record obtained by the authority through a subpoena or search warrant.
- Certain records of private employees working under government contract.
- Employee-related records that are closed to public access under the open records law:
- Home address, home electronic mail address, home telephone number and social security number, unless the person has authorized release of such information.
NOTE: An employee's home address, home electronic mail address, home telephone number and social security number must be redacted from all documents, unless the person has authorized release of such information. The home address of a person holding a "state or local public office" is not protected if, as a condition of employment, an individual must reside in a specified location.
- Information relating to current uncompleted investigations of employees for criminal offense or employment related misconduct prior to completion of the investigation.
- Information pertaining to an employee's employment exam, except an exam score if access to that score is not otherwise prohibited.
- Information relating to specific employees used by an employer for staff management planning, including performance evaluations, recommendations concerning future salary adjustments, promotions, job assignments, letters of reference or other comments or ratings relating to employees.
The law provides that individuals that hold certain higher level positions, termed "state or local public offices", do not have the right of judicial review in order to prevent the release of records that name that individual. For a public library, the library director and department heads with supervisory authority would fall under the definition of a "local public office".
Under current law, all governmental organizations must approve and prominently display a notice identifying the legal records custodian(s), establishing the time, place, and method for requesting records, and indicating any copying costs. Under the new law this notice must also list the particular "local public office" positions within the organization that do not have the right of judicial review.
It is important to be aware that an exception to the public records law for libraries is the statutory prohibition on release of records that identify an individual who uses a publicly funded library. This information can be released only with the consent of the individual or by court order or (under certain circumstances) to other libraries for interlibrary loan purposes. Any record produced in response to a public records request that contains patron information in addition to information which must be disclosed must first be edited to remove any information which could identify an individual library patron, such as a patron's name, address, or phone number.
The text of the new law is available at http://www.legis.state.wi.us/2003/data/acts/03Act47.pdf. It is strongly recommended that you consult with your municipal (or county) attorney or library counsel if you receive a request for records pertaining to library employees or any other record that contains personally identifiable information.
Basic information about Wisconsin's current open records law as it applies to public libraries is available in Trustee Essential #15 (available on the Web at http://dpi.wi.gov/pld/te15.html). Trustee Essential #15 will be updated to reflect the new changes in the open records law.
Information about Wisconsin's Public Records Law as it applies to libraries can be found at http://dpi.wi.gov/pld/publicrec.html
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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 following sites:
http://www.cafelaw.com/pbankruptcy.html#q3
and
http://www.moranlaw.net/7discharge.htm
list "criminal fine or restitution" and "penalties payable to the government other than tax penalties," as exempt from discharge, so it may be safe to assume that borrowers who have library fines and lost materials are not exempt from responsibility solely because their debts have been discharged through bankruptcy.
Of course, libraries should check with their local attorney or with the trustee for the specific bankruptcy action for their legal opinion, particularly since the sites listed above are not specific to Wisconsin and are provided as general information in preparation for consultation with an attorney.
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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).
It is important to note that Wisconsin Statutes s. 43.15 (5), prohibits the inclusion of capital expenditures in calculation of the maintenance of effort requirement for library system membership. Please also note that capital expenditures may not be reported to the county for reimbursement under s. 43.12.
A municipality may support its library at any level it chooses, but for the library to be a member of a public library system, and receive the benefits of library system membership, it is necessary that the library meet all of the statutory membership requirements, including the maintenance of effort requirement. These requirements are listed in Section XIV (page 10) of the Annual Report (http://dpi.wi.gov/forms/pdf/pod2401.pdf), and the library board must certify compliance with all of those requirements.
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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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Libraries May Not Charge Patrons Fees for Interlibrary Loan Service
Questions have arisen recently regarding fees for interlibrary loan by individual public libraries and by public library systems. This article is intended to clarify the relevant statutory requirements.
Charging individuals 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 such fees 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, it cannot pass the fee on to the library user.
A public library system may not charge a member library or a library user 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. 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. 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.
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 the Reference and Loan Library, the extent of those contracts is determined by the amount of funding made available by the Legislature for this purpose.
Public libraries and public library systems are required to certify each year to the Division for Libraries and Technology (DLT) 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.
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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.
The League of Wisconsin Municipalities has very detailed discussions of Wisconsin's open meetings law available at www.lwm-info.org/legal/faq.html#openmtg
Questions about the open meetings law can be directed to your municipal attorney, the Wisconsin Attorney's General office, or John DeBacher, DLT, at (608) 266-7270 (john.debacher@dpi.wi.gov).
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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 (http://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.
For questions about this information, contact John K. DeBacher (608) 266-7270
Last updated on 4/13/2012 1:38:12 PM
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