PUBLIC LIBRARY LAW IN NEW YORK STATE by Robert Allan Carter May 1999 Revised July 2006 The University of the State of New York, The State Education Department The New York State Library, Albany, New York 12230 ii PREFACE The updated version of this publication is a collaboration between the New York State Library's Division of Library Development, the New York Library Association and Allan Carter. iii iv INTRODUCTION This publication is a compilation of statues and regulations in New York State which pertain to public libraries. Whenever possible, they are accompanied by court decisions, administrative opinions, and, occasionally, memoranda to aid in their interpretation. While the importance of statutes, regulations and court decisions is understood by most laypersons, the same cannot be said for administrative opinions. "Construction and interpretation by an administrative agency of the law under which it acts provides a practical guide as to how the agency will seek to apply the law. However, despite the fact that the interpretation given to statutes and regulations by administrative regulation does so at his or her own peril and stands the risk of its not being followed by the courts. An erroneous construction of a statute by a state department cannot operate to confer a legal right in accordance with such construction. Also, the fact that an interpretation has been made by regulation or otherwise does not preclude a subsequent different, but correct, interpretation by the agency." (2 American Jurisprudence 2d, "Administration Law", section 81) A New York case which reflects this view of administrative decisions is Armitage v. Board of Education of City of Auburn (122 Misc. Rep. 586, 203 NYS 325, 1924): "Another well-recognized canon of construction that the court may take judicial notice of the practical construction of the provisions of a statute given to it by the administrative officers charged with doubtful, to great, it not controlling, weight… This canon does not mean that the court can hide behind the ruling of the department of education, and blindly follow its lead, and thus escape the duty of interpreting the statue, because, after all is said and done, the court is the final arbiter as to the proper construction to be given to this act and in discharging that function should, if after mature deliberation it concludes that the position of the department is untenable, disregard its interpretation. However, great importance should be attached to the position taken by the department, especially when it has been universally acquiesced in by those interested." This opinion becomes particularly relevant in relation to the discussion of the judicial decisions of the Commissioner of Education below. For a fuller discussion of the role of administrative officers in the construction of statutes, see McKinney's Consolidated Laws of New York, Book 1 (Statutes), section 129. The administrative decisions included in this publication which would carry the most weight would be the judicial decisions of the Commissioner of Education because (1) the Commissioner is charged with the administration of most of the laws which govern public libraries: (2) the Commissioner's office usually has a major role in drafting these laws (see Hotel Association of New York City v. Weaver, 155 NYS 2d 946); and (3) with the minor exception of PERB rulings, these decisions are the only ones in this publication which are established by statute, i.e., section 310 of the Education Law ("Appeals or petitions to the commissioner of education and other proceedings", partially reprinted in Part I of this publication). Interestingly enough, especially in the light of Armitage v. Board of Education quoted above, this section formerly stipulated that such judicial decisions "shall be final and conclusive [originally added by L. 1822 Chap. 266, sec. VII] and not subject to question or review in any place or court whatever" [added by L. 1864 Chap. 555, Title XII]. This phrase was deleted by L. 1976 Chap. 857. The Education Department 's formal opinions of counsel are purely advisory, and have no statutory basis. A brief discussion of the history and legal significance of the Department's judicial decisions and opinions of counsel is contained in 1 Education Department Reports, pp. Iv-ix (1962). v With the exception of the PERB decisions, the limitations of which can be found in section 205 of the Civil Service Law, none of the other administrative decisions included in this volume have any statutory basis, and are to be considered persuasive but not legally controlling. One other caveat should be mentioned. The compiler of this volume has not formal legal training, and thus is not able to tell if a particular opinion has been rendered obsolete by a later opinion, a court decision, or an amendment of the law in question. Before taking any actions based on an administrative opinion, the library's attorney should be consulted. Since only excerpts of opinions are included, it would be a good idea to have the full opinion, which would contain legal precedents and a more detailed explanation of the legal justification. Although the quickest and cheapest method would be the Internet, at present the availability of administrative opinions on the Internet is limited. The State Education has the decisions of the Commissioner of Education from Vol. 31 (#12,545, July,1991)on their website (www.counsel.nysed.gov). The State Comptroller's Office (http://www.osc.state.ny.us/legal/) has opinions from 95-1; the Attorney General (http://www.oag.state.ny.us/lawyers/lawyers.html) has opinions from1995. However, they are only indexed by subject (so far libraries, public libraries, etc. are not subject terms) and statute. Note also that the only difference between formal and informal opinions is that the former are in response to inquiries from state agency officials, and the latter from local officials; there is no difference in the level of importance. The Committee on Local Government (www.dos.state.ny.us/coog/coogwww.html) has the most accessible opinions on the Internet. Opinions on the Freedom of Information Law are available from no. 7495 to present, and on the Open Meetings Law from no. 2173 to present. Both are found by subject, and both have three variations on the term "library" as subject headings. The State Office of Real Property Services (http://www.orps.state.ny.us/legal/opinions/index.cfm), which on January 1, 1995 became the successor to the State Board of Equalization and Assessment, has opinions form v. 10 (Volumes 1-9 are referred to as SBEA Opinions of Counsel No., etc.). They are arranged by subject, but the term library or its variations is not yet a subject. The state’s Public Employment Relations Board’s homepage (www.perb.state.ny.us) does have a very brief summary of all decisions since 2000. However, for the full decisions you must either go to a paid online subscription service or request a paper copy. In regard to judicial decisions only the Court of Appeals decisions from 1990 are available on the Internet via Cornell University's Legal Information Institute (www.law/cornell.edu/ny/ctap/). vi TABLE OF CONTENTS PART I - STATUTES WHICH DIRECTLY RELATE TO PUBLIC LIBRARIES ARTS AND CULTURAL AFFAIRS LAW ARTICLE 20- NEW YORK STATE CULTURAL RESOURCES ACT §20.03 General definitions....................................................................................................... 1 5. Cultural facility ....................................................................................................... 1 §20.07 Creation and purpose of a trust .................................................................................... 1 §35.01 Child performer........................................................................................................... 2 §61.05 Free public libraries .................................................................................................... 2 CIVIL PRACTICE LAWS AND RULES §2307 Books, papers and other things of a library, department or bureau of a municipal corporation or of the state .........................................................................2 §4509 Library records...........................................................................................................3 CIVIL RIGHTS LAW §40 Equal rights in place of public accommodation, resort or amusement .......................4 CIVIL SERVICE LAW §62 Constitutional oath upon appointment........................................................................4 CORRECTIONS LAW §168-e Board of Examiners of sex offenders ........................................................................5 EDUCATION LAW §2 Definitions....................................................................................................................6 19. Expenditures ..........................................................................................................7 §140 Historical documentary heritage grants and aid...........................................................7 2. Definitions .............................................................................................................7 §214 Institutions in the university.........................................................................................8 §216 Charters........................................................................................................................8 §216-a Applicability of not-for-profit corporation law ...........................................................9