Date:††††††††††††††† September 23, 2005
To:†††††††††††††††††† Winnefox Library System Board
From:†††††††††††††† John Nichols
Re:†††††††††††††††††† Preventing Non-Reciprocal Borrowing Charges Between Libraries
Tom Widener has asked me to add this issue to this monthís agenda for discussion and possible action and also to draft language for possible action by the board.† I think I understand Tomís intent and the following wording would, I think, accomplish it:
Motion: no member library of the Winnefox Library System may in any way charge another member library of Winnefox for borrowing of library materials by its residents unless the authority to do so is specifically granted by state statutes.† This action is not to be construed as preventing charges, authorized by state statute, for use by residents of communities that do not support their own library or by residents of communities that do support their own libraries that are outside of the Winnefox Library System.
I think there are a number of things you want to consider before taking action on a motion:
∑ Whether the Winnefox Board has the legal authority to take an action such as this that would overrule the authority of a municipal library?† Winnefox is a federated public library system and, as such, has only the specific legal authority with respect to our member libraries specifically granted in Chap. 43, Wis. Stats.† Those are normally spelled out as ďcomplianceĒ issues (i.e: is a member library operated in accordance with the provisions of Chap. 43?; has the local government provided financial support above the maintenance of effort requirements; etc.).† To help you with this question, I posed it to DLTCL staff and their answer is attached to this memo.† In essence, they say no.
∑ What posture do you want Winnefox to take as it pertains to disputes between libraries?† Should we take one side over the other?† Or should we strive to facilitate solutions?† While this question certainly depends upon the nature of the dispute, I have historically tried to remain neutral and help to work out solutions between the parties that ideally, create a win-win.† Iíve always felt it was important to avoid, if possible, taking a side that could ultimately damage our future working relationship with a library, a director, a board, etc.† With a new director coming, it is a good time to think about this issue.
∑ Is it a little premature to move forward now with this action?† The Board requested that I coordinate a mediation process to attempt to arrive at some resolution of the specific question of payments between Omro, Winneconne and OPL.† That process has been set in motion and I hope will be completed in time for the November meeting.† I think the information we try to develop for those meetings will be useful to you in your consideration of Tomís or any other options related to this issue.
As a result of all the above, I would suggest leaving Tomís motion ďon the tableĒ until the November meeting.
'DeBacher, John K.† DPI'
I have a question based upon a desire on the part of at least one of my trustees at Winnefox. He introduced, and then tabled, a motion to prohibit any library in Winnefox from either billing or collecting fees from another Winnefox library for non-reciprocal borrowing.
Under current law, I donít think Winnefox would have the authority to do that unless it simply did it as a statement of policy without teeth. I certainly donít believe a system could withhold services for that activity since it is not specified in statute as a compliance issue.† Of course, there is nothing in the law to compel a library to pay (I know that) unless there are signed agreements to that effect.
But, what about the reform bill provision which would permit (permissive) a System Board to incorporate in its plan a provision that would require payment between libraries for non-reciprocal borrowing. Now, we all realize that this isnít likely to happen without substantial support for it from member libraries. But, what I hadnít thought about before when we discussed this is the following: if the System Board would now have the authority to require payment for non-reciprocal borrowing, would they also have the authority to prevent it? Could the Milwaukee County System Board adopt a plan that prohibited payments for non-reciprocal borrowing under the terms of that legislation? I would think soÖ
Your conclusion is correct that a public library system cannot prevent a member library from billing another library/municipality/county for library services provided. You are also correct that absent a contractual obligation, payment of such a bill cannot be compelled (except in the case of county payments required under s. 43.12).
As you note, if the "reform bill" becomes law, a library system could require, as a system membership requirement, that a member library make payments under a reciprocal borrowing plan approved by the library system board. However, even if this bill becomes law, it is our opinion that a library system could not prevent a member library from billing another library/municipality/county for library services provided.
The Division has consistently maintained that the only requirements/prohibitions a library system can place on member libraries are those that are statutorily authorized. The legal principle involved is that, generally, a governmental organization only has authority that is explicitly authorized by statute.
Please contact me if you have any questions.
Director, Public Library Development Team
Division for Libraries, Technology, and Community Learning