May 20, 2011

FACTS:

A City Councilor has served in the past, and wishes to serve in the future, as a Trustee of a Library located in the City. He requests guidance as to whether, as a City Councilor, he may vote on the City's budget, which appropriates funds for the Library.

A Library Association was incorporated in 1884 by ten private citizens of the City "for the purpose of establishing and maintaining a public library with reading rooms connected therewith." [1] In 1887, members of several families, including some of the original incorporators of the Library, agreed to donate a library building to the Library Association "for the purpose of maintaining therein a Free Public Library," provided that they were given the privilege of naming the Library. Funds to maintain the Library and purchase books, works of art, "and other things necessary for the promotion of the best interests of said Library" were donated at the same time. The Library Association was given authority by statute to hold real and other property, including books, in 1887.

The Library Association adopted bylaws in 1911, and amended those bylaws in 1979. Pursuant to those bylaws, the Library Association is required to have at least seven, and no more than fifteen, Trustees. The Mayor, City Council President, and Superintendent of Schools are all ex officio Trustees of the Library. The other Trustees are elected by the Association's corporate members (80% of whom must be residents of the City). The bylaws provide that the Trustees "shall be responsible for the management" of the Library. The bylaws do not contain any reference to payment of any salaries or stipends to Trustees.

The Library has a link on the City's website. According to the Library's website, it has a staff of five: a Director; Heads of Adult and Children's Services; a Local History librarian; and a Reference Librarian. The Library has a circulating collection and hosts visits by school classes. The Library's website indicates that it currently has fifteen Trustees, including the Mayor, City Council President, and Superintendent of Schools.

The Library receives at least some public funding. City Council minutes reference a construction bond payment for the Library by the City, indicating that the City bears some of the Library's capital construction costs. In addition, City Council minutes reference City payments for librarian salaries, Library construction projects, Library energy and utility costs, Library office expenses, and Library books and periodicals. The City's Public Works Department helps maintain the Library parking lot during the winter.

QUESTION:

May a City Councilor who is also a Trustee of a Library vote on the City's budget, which appropriates funds for the Library?

ANSWER:

Yes. Section 19 of the conflict of interest law prohibits a municipal employee from participating, in his municipal role, in any particular matter in which a "business organization" of which he is a trustee has a financial interest. The City Councilor would only be prohibited from participating as a Councilor in matters in which the Library has a financial interest if the Library is considered a "business organization" for purposes of the conflict of interest law. For the reasons explained below, the Library is a municipal agency for purposes of the conflict of interest law, and not a "business organization." Accordingly, a City Councilor who is also a Library Trustee may vote on the Library's budget without violating Section 19. Before acting on the budget or any other Library-related matters, however, the City Councilor should make a public disclosure of his Library affiliation in compliance with Section 23(b)(3).

ANALYSIS:

In determining whether an entity, including a nonprofit corporation, should be considered a municipal agency for purposes of the conflict of interest law, the Commission has traditionally looked at five factors: (1) the means by which the entity was created (e.g., legislative, administrative or other governmental action); (2) the entity's performance of some essentially governmental function; (3) whether the entity receives or expends public funds; and (4) the extent of control and supervision of the entity exercised by governmental officials or agencies. See EC-COI-00-3; 95-10; 94-7; 89-24. In addition, the Commission considers the extent to which there are significant private interests involved in the entity or whether the state or its political subdivisions have the powers and interests of an owner. MBTA Retirement Board v. State Ethics Commission, 414 Mass. 582 (1993). No one factor is dispositive; the Commission balances all of the factors based on the totality of the circumstances.

We now apply these factors and considerations to the Library.

1. No statute, rule, regulation, ordinance, or other law required the creation of the Library. Instead, the Library was created by private citizens, who incorporated it in 1884 and provided the building and initial funds to buy books and other necessities.

2. The Library provides public library services in the City. To determine whether an entity serves an essential governmental function, the Commission considers whether its functions are "contemplated by state or federal legislation," whether its roles are "traditional or exclusive roles of government," and whether the tasks it performs are "uniquely within the bailiwick of government." EC-COI-06-5; 00-3; 00-2; 95-10 n.10; 88-19. Among the "classic essential governmental services" are responsibility for police and fire services, municipal infrastructure (water, sewer, drainage, streets) and public school education. EC-COI 06-5 n. 21; 00-3; 95-10 n. 10. The chapter of the General Laws that governs libraries, G.L. c. 78, is classified as part of Title XII, "Education."

Courts generally hold that operation of public libraries is a governmental function. [2] As one court commented,

At the present time it is generally recognized and conceded by all thoughtful people that such institutions form an integral part of a system of free public education and are among its most efficient and valuable adjuncts .... It is also true that education of the people ought not to and does not stop upon their leaving school, but must be kept abreast of the time by almost constant reading and study. It would therefore seem that no more important duty or higher purpose is incumbent upon a state or municipality than to provide free public libraries for the benefit of its inhabitants. [3]

Another case notes that "[p]ublic libraries were recognized as governmental responsibilities as early as 1810." [4]

The Commission previously has found that non-profit corporations that carry out a public entity's statutory obligations serve an essentially governmental function. [5] The Library, by providing public library services in the City, is serving an essentially governmental function.

3. The Library receives at least some public funding, for capital construction costs, librarian salaries, Library energy and utility costs, Library office expenses, Library books and periodicals, and snow plowing.

4. City employees exercise some control over the Library, in that, pursuant to the Library Association's bylaws, the Mayor, City Council President, and Superintendent of Schools are all ex officio trustees of the Library. This does not give City employees a majority on the Board, but does give them a degree of influence.

5. The original donation of the Library building and the money to purchase books and other necessities was made on the condition that the building would always be used for the purpose of maintaining a free public library for the citizens of the City. This is some indication that if the Library were to dissolve, its assets would not belong to private interests, but that there would be some public claim to them.

After weighing these factors, and considering the totality of the circumstances, we find that the Library serves an essentially governmental function, expends some public funds to do so, is subject to the influence if not control of City employees, and could not revert to purely private ownership consistent with the intention of the donors. We therefore conclude that the Library is a municipal agency for purposes of the conflict of interest law. A municipality is not a "business organization" for purposes of the conflict of interest law. EC-COI-06-3. While we have left open the possibility that an entity created by a level of government (federal, state, county, or municipal) could be a business organization, EC-COI-06-3 n. 62, the Library has none of the attributes of a business organization. EC-COI-07-2. We therefore do not consider the Library to be a "business organization" for purposes of the conflict of interest law.

It remains to answer the requestor's specific question. As pertinent to that question, Section 19 of the conflict of interest law prohibits the requestor, as a City Councilor, from participating in any particular matter if he is a Trustee of a "business organization" and that business organization has a financial interest in the matter. In light of our conclusion that the Library is not a business organization, a City Councilor who is also a Library Trustee would not violate Section 19 of the conflict of interest law by voting on the City's budget, which appropriates funds for the Library. [6]

Section 23(b)(3) of the conflict of interest law prohibits every public employee from acting in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that any person can improperly influence him or unduly enjoy his favor in the performance of his official duties, or that he is likely to act or fail to act as a result of kinship, rank, position, or undue influence of any person or party. It further provides that it shall be unreasonable to so conclude if the public employee publicly discloses the facts that would otherwise lead to such a conclusion. A City Councilor who is also a Library Trustee should publicly disclose his affiliation with the Library prior to acting on Library-related matters in his Councilor role, to satisfy Section 23(b)(3).

DATE AUTHORIZED: May 20, 2011



[1] A "library association" is a distinct legal entity, G.L. c. 71, § 1 ("Library corporations and associations which have been legally established shall continue to have all the powers and privileges and be subject to all the duties and restrictions attaching thereto.")

[2] See Chalfant v. Wilmington Institute, 574 F.2d 739 (3d Cir. 1978) ("It is not surprising that in a constitutional democracy such as ours one of the functions which was first recognized as the responsibility of government was that of assuring an informed citizenry through the maintenance of public libraries."), City of Wichita, Kan. v. U.S. Gypsum Co., 828 F. Supp. 851, 862 (D. Kan. 1993) ("Public libraries are an established resource for the education of the public, which is an important governmental function not limited to children."); Seibold v. Kinston-Lenoir County Public Library, 141 S.E.2d 519 (N.C. 1965) ("The operation of a public library meets the test of 'governmental function'"); Alvey v. Brigham, 286 Ky. 610, 617 (Ky. 1941) ("operation of such a free public library ... is manifestly a governmental function").

[3] Kerr v. Enoch Pratt Free Library, 149 F.2d 212, 217 (4 th Cir. 1945), cert. denied, 326 U.S. 721, 66 S.Ct. 26, 90 L.Ed. 427 (1945), quoting Johnson v. Baltimore, 158 Md. 93, 103, 104, 148 A. 209, 213.

[4] Chalfant, supra, at 740 n.2.

[5] See EC-COI-94-7 (non-profit corporation carrying out Executive Office of Elder Affairs' statutory obligation to operate home care programs for the elderly performed governmental function); EC-COI-84-7 (non-profit corporation performing a portion of public entity's statutory duties performed governmental function); EC-COI-89-24 (non-profit corporation which furthered state college's legislatively mandated function of education and research performed governmental function).

[6] If Library Trustees are paid, then a City Councilor who is also a Library Trustee would be required to abstain as a Councilor from participation in any matter related to such payment, because he would have a personal financial interest in such payments. For instance, if the City's appropriation for the Library includes stipends for Library Trustees, then the Councilor would have to abstain from voting on those stipends. Having done so, he could then vote on the budget as a whole.