Director Briefing - June 12, 2023

June All System Meeting from Suzanne

The next All System Meeting is this, Friday, June 16, at 10am. Following announcements, Christina Fecio will join us to present Optimism 101. Click here to learn more and register.

Library Card Order from Kelly

I will be placing a library card order at the end of June. Please check your supply and plan accordingly, as we only place orders twice a year (I will not be ordering again until January 2024). There are three products to choose from: cards, key tags, and card/key tag combo. The vendor requests a minimum quantity of 250 per product per library. Please complete the order form using the link below and submit your order no later than Friday, June 23, 2023.

https://docs.owwl.org/Members/LibraryCardPurchase

CANS Updates

Email Reminder from Bob

All @pls-net.org email aliases will be deactivated at the end of this year. After the aliases are deactivated, you will no longer receive emails sent to your @pls-net.org address. You will continue to receive emails sent to your @owwl.org address. Click here to view a checklist of actions you may want to take before this deactivation occurs, such as notifying your email contacts, updating your email signature, changing online account login information, and more. If you have any questions, please email support@owwl.org.

Phishing Email Targeting Directors from Kelsy

There's a new phishing email that seems to be targeting director email addresses. Below is a screenshot of what it looks like.

If you receive a similar message, please mark it spam/junk. And remember that you can always forward emails to support@owwl.org if you're ever unsure about them.

Updated Computer Purchasing Form from Bob

The computer purchasing form has been updated with new pricing.

https://docs.owwl.org/Members/MediatedComputerPurchasing

Desktop computers went up $20. This would have been higher, but the cost was offset by removing CD-ROM drives. Gaming computers saw a significant increase due to the cost of video cards.

Trustee Workshop Follow-Up

On Thursday, we visited the Newark Public Library for a Trustee Q&A. Here are a few of the topics we discussed:

For a complete list of upcoming workshops, visit https://docs.owwl.org/Community/TrusteeEducation.

Trustee Education Reminder

We're halfway through 2023, and all Trustees must have completed two hours of continuing education in financial oversight, accountability, fiduciary responsibilities, or the general powers and duties of a library trustee by year-end. This is a requirement set by New York Education Law Section 260-D.

Legislative Updates

As the final day of session came to an end, we saw a few of our bills pass the Senate and Assembly:

• 414 Petition Reduction (S3594/A5266)
• Library Materials Definition – Digital Expansion (S5986/A6807)
• Research Library Grant Schedule (S6938/A7246)

Some have passed the Senate, but not the Assembly:

• LCA 50% Cap Elimination (S7093)
• Book Fair Tax Exemption(S5955A/A5538B)
  • In Assembly Rules Committee. As of 6/8, the sponsor and Minority Conference Staff are “very confident” this will pass “by the end of the week.”
• Freedom to Read Act (S6350B/!A6873B)
• Library Capital Funding Study (S1418)

Others are on the Senate Floor Calendar, but not the Active List:

• Checkout NY (S5956A/!A4112A)
  • Assembly version not brought out of committee.
• Sen. Chu EBooks Bill (S6868)
  • Expected advancement in Senate, but pressure from publishers may be holding it back for now.

These bills will Remain in Committee Without Advance in Either Chamber:

• Association Library Retirement Options (S4245/A4885)
• Access to Publicly Funded Research (S6562)

New York Privacy Act (A7423)

Going along with the privacy work our System has been taking on, the New York Privacy Act (A7423) passed the Senate, was delivered to the Assembly, and referred to Assembly Consumer Affairs and Protection. It may be picked up by the Assembly Rules Committee vote and put up for a full chamber vote. This bill “Enacts the New York privacy act to require companies to disclose their methods of de-identifying personal information, to place special safeguards around data sharing and to allow consumers to obtain the names of all entities with whom their information is shared.” The New York Privacy Act would be an expansive consumer privacy protection act that delineates consumer rights around the sharing, processing, and sale of their data, as well as the responsibilities/obligations that those who control/process the data have around how they handle and safeguard consumer’s data. Luckily for us, the Systems Access Policy covers many of the privacy laws that are being considered.

Reruns

Updates to Sexual Harassment Prevention Model Policy and Training

The Department of Labor released the final version of its updated model policy on sexual harassment. HR Works updated our Harassment and Discrimination Prevention Policy which is attached below. These updates will be worked into our Employee Handbook. It is recommended that libraries do the same at their next board meeting so they remain in compliance with this law.

Harassment and Discrimination Prevention Policy

Also, click here for an article from Proskauer detailing the updates to the DOL's policy.

Here are some highlights from the article:

• Clearly explaining that, in New York State, sexual harassment does not need to be severe or pervasive to be illegal.
• Defining sexual harassment as a form of “gender-based” discrimination, and providing an explanation of gender diversity (including definitions of cisgender, transgender and non-binary persons).
• Including a provision explaining that intent is not a defense under the law, and that impact is what matters in assessing whether the law has been violated. The provision also refers to the New York State Human Rights Law to explain that whether harassing conduct is considered “petty” or “trivial” is from the perspective of a “reasonable victim of discrimination with the same protected characteristics.”
• Adding provisions making clear that harassing behavior can happen in the remote workplace.
• Providing an updated, non-exhaustive list of examples of sexual harassment and retaliation across many kinds of careers and industries. Some of the new examples include “Intentional misuse of an individual’s preferred pronouns” and “Creating different expectations for individuals based on their perceived identities.”
• Including a provision in the section on Supervisory Responsibilities informing supervisors and managers that they should be mindful of the impact investigations into sexual harassment can have on victims, and stating that management must “accommodate the needs of individuals who have experienced harassment to ensure the workplace is safe, supportive and free from retaliation for them during and after any investigation.”
• Adding a new section on bystander intervention, including an explanation of five standard methods of intervention that can be used if employees witness harassment or discrimination.
• In the section on Legal Protections and External Remedies, making reference to the state’s confidential hotline for complaints of workplace sexual harassment which, as we previously reported, launched in July 2022.
• In a new Conclusion section, clarifying that while the focus of the policy is on sexual harassment and gender discrimination, the New York State Human Rights Law protects against discrimination in other protected classes and the policy “should be considered applicable to all protected classes.”

Legal Opinions on Library Meeting Rooms

A few libraries have encountered issues with community groups and meeting room policies. To help, I reached out to our attorney and she responded with the information below. She also created a Template Public Library Meeting Room Policy that you can use to update/replace your current policy or for your board to approve if you do not currently have a meeting room use policy.

Question: If a public library in New York allows groups and individuals to reserve and use rooms for meetings, can that library deny access if the use is for a group advocating removing books from libraries or another goal antithetical to the core values or existence of the library?

Attorney Response: The short answer is no: libraries cannot restrict the use of library facilities based on the viewpoint of the group. Whether it be groups seeking to ban books, white supremacists, or anarchists, controlling access based on viewpoint or content is not permitted by the First Amendment.

When evaluating what restrictions on speech or expressive activity are permissible, a threshold question is “what type of ‘forum’ does the restriction affect?” There are three types: public forums, limited public forums, and nonpublic forums. Think of it as a spectrum, with sidewalks and parks being the most public forums and private offices being the least public forums. The way the law works, as the forum becomes more public, the government must meet higher and higher standards in order to justify regulation.

Of the three types of the forums, the only relevant one for our purposes is the “limited public forum.” That is because courts uniformly sit libraries within this category. For limited public forums, there is a two part test to determine whether the restriction is permissible: any restriction must be (1) “viewpoint neutral” and (2) “reasonable in light of the purpose served by the forum.” “Viewpoint neutral” means that restrictions on expression must be based on the category of the expression, rather than the content of that expression. This is the reason why, in our introduction, we noted that the library must provide meeting rooms to book clubs and book banning organizations on equal footing – since the type of activity they’re engaging in is similar.

The Second Circuit Court of Appeals (the highest authority in New York below the Supreme Court of the United States) phrased the viewpoint neutrality requirement as follows: “in a limited public forum, government is free to impose a blanket exclusion on certain types of speech, but once it allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre.”

This raises the question, what is a category of speech that a library may restrict? One such restriction, upheld by the Ninth Circuit Court of Appeals, was a rule that no religious worship services were permitted in meeting rooms. Forums such as libraries and schools also frequently ban “political activity” and these restrictions have also been upheld. These restrictions are upheld because they apply to entire categories of activities (rather than prohibiting specific religions or specific school courses), but also because of the second requirement: reasonableness in light of the purpose served by the forum.

What does it mean for a restriction to be reasonable in light of the purpose? Well, taking the above example of prohibiting religious worship, the “purpose” of libraries is not to serve as houses of worship. According to the Supreme Court, a library is “a place dedicated to quiet, to knowledge, and to beauty.” Courts have also upheld hygiene policies for libraries because unkempt personal hygiene interferes with the library’s mission of providing the maximum benefit to the community.

Let’s now apply this standard to the question at hand. What type of restriction prohibiting anti-library groups to meeting would pass the reasonableness test? We know that, because of the viewpoint-neutrality requirement, any rule that applies differently based on the content being discussed would not be allowed. So what about a rule that prohibited all groups from meeting in the library? Well, that might be upheld. In Kreimer, the Court upheld a rule that provided: “Patrons shall be engaged in activities associated with the use of a public library while in the building. Patrons not engaged in reading, studying, or using library materials shall be required to leave the building.” The Court reasoned that “The Library need not be used as a lounge or a shelter.” As such, perhaps a ban on every type of meeting would be permissible – but such a ban would also go against many libraries’ core values. Therefore, as much as one may disagree with the viewpoints of certain groups and/or patrons, restricting services because of those views is just not allowed under the First Amendment.

On a practical level, evaluating these various tests and circumstances can be difficult for a library to untangle. As such, members are well-advised to adopt library room rental and room use policies. One of the best ways to minimize exposure is to require that meeting rooms be checked out as resources to individuals who have library privileges, rather than rented or provided as a gratuity. This is because, if rooms are available for free to anyone, there are concerns about the use being an “inurement.” Though addressing that question goes outside the scope of our discussion here, we previously addressed the problem of inurement in an "Ask the Lawyer” RAQ. In order to assist OWWL member libraries in obtaining thoughtful, goal-oriented compliance, accompanying this answer is a flexible room usage template and policy.

In summary, (1) avoid restricting room usage based on viewpoint, (2) consider the library’s meeting room usage policy, and (3) be careful with free room usage so as not to run afoul of the inurement problem. As always, consult your attorney with specific questions!

• Meeting Room Response with Footnotes
• Template Public Library Meeting Room Policy