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Decision No. 17,277

Appeal of RICHARD A. MIKULEC from action of the Board Trustees of the Fairport Public Library regarding the use of library funds.

        Decision No. 17,277

        (December 7, 2017)

Nixon Peabody LLP, attorneys for respondent, Erik A. Goergen, Esq., of counsel.

ELIA, Commissioner.--Petitioner appeals actions of the Board of Trustees of the Fairport Public Library (“respondent”) regarding an alleged improper gifting of library funds to a third party, known as the “Friends of [the] Fairport Public Library” (“FFPL”).  The appeal must be dismissed.

I take judicial notice from the records of the State Education Department that the Fairport Public Library (“Library”) is a school district public library, which is an education corporation chartered by the New York State Board of Regents (“Regents”).  I also take judicial notice that a domestic not-for-profit corporation known as FFPL was incorporated by the New York State Department of State. 

The FFPL is an entity whose main purpose is to provide support to the Library in various ways.  At issue in the instant appeal are book sales the FFPL conducts.  The proceeds from these book sales provide a source of funding for various Library activities, programs, and purchases.  The Library apparently maintains bins for its patrons to donate their used books.  These used books are then donated by the Library to the FFPL to be sold at a book sale.  During normal Library business hours, the sale of these books, still located at the Library, are handled by Library staff.

Both petitioner and respondent cite to Education Law §226(6)(b)[1], which relates to the donation of used or surplus library books and states:

Notwithstanding any other provision of law, prior to the discarding of used or surplus books or other such reading materials by trustees of a chartered public or free association library which receives over ten thousand dollars in state aid, such trustees shall offer to donate such books or materials to a not-for-profit corporation or political subdivision located within the area of the library system or offer to sell such books or materials to the general public. The trustees shall retain any proceeds received from the sale of such books and materials for the purpose of maintaining and improving library service within the system.  

  However, petitioner and respondent disagree over the extent to which the Library may make such donations to FFPL and the bounds of a permissible relationship between the Library and FFPL.

Petitioner notes that the Library’s website includes a discussion of the role of the FFPL in which an employee of the Library is designated as the contact person for the FFPL.  The website also mentions the annual book sale conducted by the FFPL during Canal days in June.  Petitioner also complains that there is no prohibition of trustees of the Library also being trustees of the FFPL.  He also asserts that the minutes for respondent’s meetings in May 2011 and June 2012 indicate that the Board of Trustees discussed the FFPL and ongoing efforts to raise money for the Library or amounts contributed to the Library.  He further asserts that the book sale in May 2011 was promoted through the library’s communication facilities.

Petitioner submitted a Freedom of Information Law (“FOIL”) request to the Library relating to the purchase of books by the library.  Based on the response to that FOIL request, petitioner states that the Library added 18,780 books during the period from July 2010 to September 2012, but has not increased its floor space.  Therefore, petitioner apparently alleges there must have been gifted funds and resources totaling in excess of $20,000 to a “Third Party” by the Library but the Library only received $500 in donations back, though he acknowledges that a Library trustee told him that the funds raised came back to the Library.  However, petitioner alleges that he was unable to find any financial reports.  Petitioner argues that this is an illegal gift of public funds pursuant to the New York State Constitution, Article VIII §1.  He further asserts that the Library Director told him that the Library does not maintain data on discarded library books.    

Apparently, at respondent’s September 11, 2012 meeting, petitioner addressed the board and expressed his view that it appeared that the Library was inappropriately gifting library resources to promote the FFPL’s book sales at taxpayer expense.  Nevertheless, after that, the Library continued to solicit, by email dated September 17, 2012, donations to and promotion of a book sale for the FFPL scheduled to occur on October 13, 2012.  This appeal ensued.

Petitioner seeks an order requiring respondent’s trustees to resign immediately.  Petitioner further seeks an order that respondent cease and desist promoting and conducting any sales where the proceeds from the sales are not reported as income to the Library and to cease and desist from all future association with the FFPL.  Petitioner requests that I order a “full audit” of the Library’s financial records by an independent auditor who will make a presentation to the community on his/her findings in a public forum prior to next year’s budget.

Furthermore, based on the relationship of the Library and FFPL, petitioner requests advisory opinions based on Education Law §226(6). Specifically, petitioner asks whether “a donation by [the] Library of used or surplus books to a not-for-profit sharing the same Library web site does not meet the criteria for an independent not-for-profit as required [by law]?”  Next, petitioner asks if “any books donated as result of solicitations received from Library communication facilities should be considered the property of the Library?”  Finally, petitioner seeks an advisory opinion that, if respondent discusses FFPL business at Library board meetings, “[FFPL] should be considered to be associated with the Library and not a[n] independent non-for-profit [corporation].”

Respondent asserts that its actions have been proper in all respects.  Respondent argues the instant appeal should be dismissed because it seeks merely advisory opinions. 

I must first address a number of procedural issues.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed petitioner’s reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.  Similarly, a memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  I therefore decline to consider additional factual assertions or claims included in respondent’s memorandum of law.

Subsequent to his reply, petitioner submitted two documents, a “verified Response” to respondent’s memorandum of law and a second “verified Reply” to that memorandum of law, both dated December 12, 2012.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  Here, petitioner contends, in essence, that I should accept these submissions because, he is not represented by an attorney.  In a December 21, 2012 letter, respondent’s attorney objects to my consideration of petitioner’s December 12, 2012 submissions.     

The “verified Reply” submitted by petitioner consists of a series of explanations of statements made in petitioner’s memorandum of law, and as such should have been included in his memorandum of law.  Some of the documentation referenced by the “verified Response” is merely supportive and duplicative of exhibits attached to the petition and the earlier memoranda of law.  However, the “verified Response” contains new materials and exhibits and makes new claims that attempt to rebut respondent’s answer and should have been included in the petition or a timely reply.  Therefore, I decline to accept petitioner’s submissions pursuant to §276.5(a), and I have not considered them in determining this appeal.

The appeal must be dismissed for failure to join a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  As relief, petitioner seeks to have respondent cease and desist from all future association with the FFPL, including the promoting or conducting of book sales with the FFPL, and an “advisory opinion” on whether the FFPL should be an independent non-for-profit corporation or should be considered part of the Library.  Were petitioner to prevail, the FFPL would be adversely affected by no longer being able to continue as an independent corporation and to further its corporate mission of supporting the Library. Therefore, the FFPL is a necessary party and petitioner’s failure to join it as a respondent warrants dismissal of the appeal. 

To the extent petitioner requests the removal of trustees through an order requiring their resignation, such a claim must be dismissed for lack of subject matter jurisdiction.  Education Law §306 authorizes the Commissioner of Education to remove members of a board of education, superintendents and other school officers for willful violations of law or neglect of duty.  A public library trustee is not a “school officer” as defined in Education Law §2(13),[2] and such trustee is not among the officers listed in §306.  Therefore, such trustee is not subject to removal by the Commissioner pursuant to Education Law §306[3] (see Appeal of R.T., 56 Ed Dept Rep, Decision No. 17,060). 

Petitioner also asks that I order a “full audit” of the Library’s financial records by an independent auditor who will make a presentation to the community on the his/her findings in a public forum prior to next year’s budget.  However, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857). 

As stated above, petitioner further requests several advisory opinions based on Education Law §226(6) and its impact on the actions of respondent and the FFPL, including the Library donations of surplus books to a not-for-profit which shares the Library’s website; the ownership of donations that are received from the Library; and whether discussion of FFPL business at Library board meetings causes it to become “associated” with the Library and no longer an independent non-for-profit corporation.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Such requests for advisory opinions must therefore be denied.

Nevertheless, however, when a petition goes beyond a mere request for an advisory opinion concerning the propriety of a district's, or in this case a school district public library’s, actions and raises a justiciable claim, such as where a petitioner requests that I order a board to cease a certain activity and the improper use of funds in the future, I have not dismissed the appeal as seeking merely an advisory opinion (Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Appeal of Doro, 40 id. 281, Decision No. 14,480; Appeal of Goldin, 39 id. 323, Decision No. 14,250).  In this appeal, petitioner claims, inter alia, that respondent continues to allow the FFPL to use Library resources, including its facilities and books received from the Library, and continues to allow the use of its communications facilities and employees to further the book sales conducted by the FFPL.  He alleges that in so doing, the Library violates the prohibition in New York State Constitution, Article VIII §1 on gift-giving and requests that I order respondent to cease these allegedly improper gift-giving activities.  Therefore, I decline to dismiss the appeal to the extent petitioner seeks an order directing respondent to cease allowing the use of its resources by the FFPL because it allegedly involves an unconstitutional gift.

Even if the appeal were not dismissed for non-joinder of the FFPL as a necessary party, it would be dismissed on the merits. In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  On this record, I find that petitioner has not met his burden of proving that respondent has violated Article VIII, §1 of the New York State Constitution or any other provision of law with respect to the book sales by the FFPL.

The New York State Comptroller has determined that public library moneys may be expended only for a proper library purpose and a library may not accept a donation to be expended in a manner that is not a specific legislatively authorized proper library purpose (see e.g. 1985 Opns. St. Compt. No. 85-40).  In that sense, such libraries are indistinguishable from boards of education with respect to the appropriate use of public funds.  I have previously found that public libraries, in particular, school district libraries, are subject to Article VIII, §1 of the New York State Constitution, and that the principles of Phillips v. Maurer, et al., (67 NY2d 672) apply equally to such entities, in the area of electioneering (see Appeal of Koehler, 52 Ed Dept Rep, Decision No. 16,373).  I note that Article VIII, §1 of the New York State Constitution provides in pertinent part, "No ... school district shall give or loan any money or property to or in aid of any individual, or private corporation or association, or private undertaking...."  This section generally prohibits the expenditure of school district moneys for the benefit of private parties unless it is in furtherance of a proper public purpose and is undertaken pursuant to a statutory obligation or properly authorized contract under which the school district receives fair and adequate consideration (see Antonopoulou v. Beame, 32 NY2d 126; 1989 Opns. St. Compt. No. 89-50).  However, where the expenditure primarily furthers a proper public purpose and only incidentally benefits a private individual or entity, the incidental private benefit will not invalidate the action (Waldo’s v. Village of Johnson City, 74 NY2d 718; Murphy v. Erie County, 28 id. 80; 1992 Opns. St. Compt. No. 92-5).

Chapter 96 of the Laws of 1987, which, among other things, amended Education Law §226(6)(b) by removing a requirement that donations of books by a public library to a not-for-profit must have no market value, contained a “Legislative findings” that stated in part:

The legislature recognizes that as the repository of the art and knowledge of our civilization, library books are capable of continuing to provide a benefit to the community even after a library determines that they are surplus or of such condition that they are no longer suitable for library use.  The legislature hereby finds that the donation of such used or surplus books to not-for-profit corporations or political subdivisions is a public purpose and that such continued use of used or surplus books will provide an important benefit to the general public. (emphasis added) 

Accordingly, I find, based on the Legislature’s finding, that a public library’s donation of used or surplus books, pursuant to Education Law §§226(6)(b) and 260 to a not-for-profit corporation such as the FFPL is a public purpose.  Moreover, it appears from the record that the FFPL is taking used books donated to the Library and a small percentage of books originally purchased by the Library and subsequently discarded by the Library as surplus books and conducting book sales to the public.  The parties agree that the Library Director stated publicly that the FFPL contributes $15,000 - $20,000 per year toward library programming.  Both respondent’s website and an email from a representative of the FFPL indicate that the proceeds of such book sales are used to provide funding for library activities, programs and purchases.  Such an arrangement is entirely consistent with Education Law §§226(6) and 260 in that the FFPL is conducting the sale of used or surplus books for the benefit of the Library.  I find that the donation of books to the FFPL under such circumstances clearly serves a proper library and public purpose by raising funds to support library programs and activities.  Similarly, the use of respondent’s library resources to promote book sales by the FFPL for the benefit of the Library, including its facility, communications facilities and employees, also serves a proper library and public purpose.  

In this appeal, petitioner has made a series of conclusory allegations, but has not proven that the FFPL is using the proceeds from the book sales for purposes other than support of library programs and activities.  He provides mere speculation, based on little documentary evidence, that the Library has purchased books in the past two years in an amount far in excess of the number of books the Library can accommodate, and he provides no support for his assertions that respondent conducted a board meeting in a capacity other than as the board of trustees for the Library at the times in question. 

He also asserts that in projecting income for the 2012-2013 fiscal year, respondent only identified $500 in gifts.  Based on these allegations, he apparently infers that the FFPL must not be using the proceeds from the book sales to support library programs and services.  However, such inferences are highly speculative, and petitioner has not provided sufficient evidence to support a finding of any impropriety by respondent in allowing the use of its property or resources by the FFPL to conduct book sales. 

Similarly, petitioner has not proven that any benefit to the FFPL from the book sales and the related use of Library property is more than an incidental benefit necessary to achieve the legitimate library purpose of raising funds to support library programs and activities. 

Petitioner has also failed to establish that the role of a Library employee as contact person for the FFPL is in violation of law.  It is a common practice for closely related not-for-profit organizations formed for the purpose of providing support to a library, museum or school district to have officers and employees who are also officers or employees of the public entity the not-for-profit corporation serves.  A prime example is parent-teacher organizations in school districts across the State, in which public school teachers partner with parents.  Petitioner has not identified any basis for finding such an arrangement to be unlawful and indeed I find none.

Finally, although the appeal must be dismissed for the reasons stated above, I urge respondent to avoid future appeals by being more transparent about the fund-raising activities of the FFPL.  Since it is known to respondent that the FFPL provides the Library with approximately $15,000-$20,000 each year to support library programs and activities, it should be an easy matter for respondent to document what those programs and services are and to identify to the public upon request where in the Library budget those contributions appear.  By so doing, rather than responding in generalities as it did with petitioner’s inquiries, respondent should be able to persuasively document that the FFPL’s activities are of substantial benefit to the Library.

In light of this disposition, I need not address the parties’ remaining contentions.




[1] I note that nearly identical language is contained in an unnumbered paragraph after subdivision (12) of Education Law §260, which deals specifically with the powers of library trustees.


[2] “The term ‘school officer’ means a clerk, collector, or treasurer of any school district; a trustee; a member of a board of education or other body in control of the schools by whatever name known in a union free school district, central school district, central high school district, or in a city school district; a superintendent of schools; a district superintendent; a supervisor of attendance or attendance officer; or other elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system” (Education Law §2[13]).


[3] Library trustees, as the trustees of an education corporation, may be removed for misconduct or neglect of duty by the Board of Regents through a proceeding properly commenced pursuant to Education Law §226(4) and §3.31 of the Rules of the Board of Regents.