Libraries 47R
(Reprinted with permission from the Jan. 2001 Municipality.)
Municipal Library Boards
November 30, 2000
Summary - Libraries 47R.
Updates Libraries 47 which reviews the powers and duties of municipal library
boards in relation to the municipal governing body.
This article is a slightly modified version of an article written by Curt Witynski and published in the Municipality in February 1993. Changes reflect 1998 revisions to ch. 43, Stats. Library boards are established by municipalities to administer municipal libraries. Questions often arise concerning a library board's powers in relation to the municipal governing body. This Comment reviews the authority municipal library boards have over such matters as the expenditure of library funds and the hiring and compensation of library employees. It will also explain that while a governing body may be able to adopt a charter ordinance asserting greater control over a municipal library, the enactment of such a charter ordinance probably would lead to a reduction or withdrawal of state aid or expulsion from a public library system. The establishment and operation of public libraries is governed by ch. 43, Stats. The provisions most relevant to municipal library boards are found in secs. 43.52 (municipal libraries), 43.54 (municipal library board composition) and 43.58 (powers and duties of library boards).
I. Library Board Composition
Library boards in cities of the second or third class consist of nine members, although the common council may, by a two-thirds vote, reduce the number of members to seven. Secs. 43.54(l)(a) and (3). Library boards in cities of the fourth class consist of seven members. Village library boards are composed of five members, although two additional members may be appointed so that the board has seven members.
Members of the library board must be residents of the municipality, except that not more than two members may be residents of other municipalities. Sec. 43.54(l)(a). Members of the library board are appointed by the mayor or village president, with the approval of the governing body. Terms are staggered when the board is initially created and board members are first appointed, but subsequent board members are appointed for three-year terms. Sec. 43.54(l)(b). One member of the library board must be a school district administrator or his or her representative. No more than one member of the municipal governing body may serve on the library board at any one time. Sec. 43.54(l)(c). In the absence of an ordinance providing to the contrary, board members' terms begin May 1.1
II. Compensation of Board Members
No compensation may be paid to the members of a library board for their services, but members may be reimbursed for expenses incurred in performing duties outside the municipality if authorized by the library board. Also, members may receive per diem, mileage and other necessary expenses incurred in performing their duties if authorized by the library board and the municipal governing body. Sec. 43.54(l)(d).
III. Library Board Powers
A. Control Over Library Funds
The library board has exclusive control of the expenditure of all moneys appropriated by the governing body or donated to the library fund. Sec. 43.58(l). This power of the library board to control funds has been interpreted by the attorney general to include the authority to contract for necessary goods and services for the public library.2
Although the library board has exclusive control of the moneys appropriated for the library fund, the board does not make actual disbursements from the appropriation. Rather, the board audits and approves vouchers for expenditures and forwards these to the municipal clerk, who follows the ordinary procedure for disbursing municipal funds under sec. 66.042. Sec. 43.58(2).
Thus, under the scheme set out in the statutes, the library board has control over the use of the money appropriated to the fund, but it does not sign the checks or maintain physical control over the actual dollars and cents appropriated to the fund.3
Library boards probably have disbursement authority, however, with respect to donated funds held in trust by the library board under sec. 43.58(7). The library board is authorized to receive, manage and dispose of gifts and donations for library purposes. Sec. 43.58(7).
When a gift or donation is made to a public library, library board members are considered special trustees of such property and the library board "may pay or transfer the gift ... to the treasurer of the municipality or county in which the public library is situated, may entrust any funds therefrom to a public depository under ch. 34 or may pay or transfer that gift ... to any member of the library board to be selected by the library board and thereafter to be known as financial secretary." Sec. 43.58(7).
The League has interpreted the above provisions to mean that if a library board deposits gifts it receives in a public depository, the board may write checks disbursing such funds on its own without involving the municipal clerk.4
In 1998, Wisconsin law governing libraries was revised to require certain counties to make payments to libraries within those counties. The law requires counties with a population of less than 500,000 that do not maintain a consolidated public library for the county and that have residents who are not residents of a municipality that maintains a public library to annually pay each public library in the county a certain amount based on a statutory formula. Sec. 43.12(1). These changes have raised questions relating to control of these new funds. The League has been asked whether the county payment goes to the library or the municipality's general fund. The answer is that the county payment must be made to the library, either directly or to the library system which then pays the library. The check must then be deposited with the municipality in a fund under library board control. Sec. 43.12(2) and (3).
Another question that has been raised is whether a municipality can reduce the amount it appropriates to its library by the amount paid by the county. The answer is no. Municipalities must continue to maintain library funding at a level of at least the average of the previous three years as a statutory requirement of library system membership. County funding cannot be included in calculating a municipality's maintenance of effort funding requirement.
B. Control Over Library Property
The library board has exclusive control and custody of all lands, buildings and other property given or granted to, or otherwise acquired or leased by, the municipality for library purposes. Sec. 43.58(l).
The library board may, if authorized by the governing body, have exclusive control over the purchase of a site and the erection of a library building. Sec. 43.58(l).
Otherwise, the municipal governing body, in the absence of a specific grant of authority to the library board, has the sole right to purchase or acquire sites or erect buildings for library purposes. Sec. 43.52(3).However, in the case of a gift for a library building, the library board has the exclusive right to select and contract for the purchase of a site. Sec. 43.58(7)(e).5
C. Control Over Library Employees
With respect to the library board's authority in the area of library employees, sec. 43.58(4) provides in part as follows:
[T]he library board shall supervise the administration of the public library and shall appoint a librarian, who shall appoint such other assistants and employes as the library board deems necessary, and prescribe their duties and compensation. It is apparent from this that the library board has control over the hiring, firing and fixing of wages of library employees. Thus, we have concluded in the past that it is the library board, not the municipality, which negotiates with a union representing library employees.6 The Wisconsin Employment Relations Commission has concluded similarly.On the other hand, municipal governing bodies retain some control over the number of library employees and compensation paid to such employees by virtue of the fact that they control the purse strings. Chances are good that a municipality's annual appropriation constitutes a substantial portion of the library fund, and probably is the main source for the payment of library salaries.
A municipality's ability to control the number of library employees and their salary by a reduction in funding is limited, however, by the need to fund libraries at a level not lower than the average of the previous three years as required by sec. 43.15(4)(c)5 to retain membership in a public library system and remain eligible for state funding. See sec. 43.24(3).
In addition, while it is clear that the library board has control over the hiring, firing and compensation paid to library employees, we have concluded in the past that library employees are municipal employees and therefore subject to the same terms or conditions of employment that apply to other municipal employees.7
Support for this conclusion exists in a 1939 attorney general opinion which concludes that library employees are "municipal personnel" for purposes of sec. 66.19, the municipal civil service system statute.8 Further support for this proposition can be found in the fact that the legislature amended sec. 66.19 after the attorney general's 1939 opinion to permit municipal governing bodies to exempt any librarians and assistants from a municipal civil service system.
Relying on the above, we have opined that a library board cannot enact a rule for library employees which is inconsistent with the terms and conditions of employment established by the governing body for all municipal employees.9 For example, we have concluded that where a municipal governing body has enacted a residency requirement for municipal employees, it would apply to library employees.10Likewise, we have concluded that library employees are subject to the same rules concerning vacation schedules that apply to other municipal employees.11 The basis for that conclusion was that such regulations relate to the terms and conditions of employment, as opposed to compensation levels, and therefore are outside the purview of the library board.
However, municipalities should be aware that the State of Wisconsin Department of Public Instruction (DPI), Division of Library Services, takes the position that the public library board determines the benefits for its employees and that these benefits can be the same as, greater or less than, benefits received by other municipal employees.12
IV. Governing Body Control Over Public Libraries
Although the governing body controls the purse strings and the terms and conditions of employment for library employees, municipal library boards have nearly autonomous powers with respect to the operation and administration of municipal libraries.
It has been the League's position over the years, however, that a municipal governing body may take greater control of public library administration by adopting a charter ordinance, pursuant to its constitutional home rule powers, altering ch. 43 and limiting the powers of the library board.13
Municipalities should be aware, however, of the risk inherent in proceeding down such a path. First, since there has never been a court decision on this issue, it is not entirely clear whether municipalities may use their home rule powers to assert more control over municipal libraries.
Indeed, the attorney general has concluded, in his most recent opinion on this subject, that the operation of municipal libraries is a matter of statewide concern and thus municipalities may not exercise their constitutional home rule powers to obtain greater control over municipal libraries by altering ch. 43.14
According to Larry Nix, Bureau for Library Development, Department of Public Instruction (DPI), the Division of Library Services within DPI has, since 1989, been actively monitoring whether public libraries comply with public library system membership requirements under sec. 43.15(4)(c).
Under that section, a municipal public library may participate in a public library system only if it, among other things, is established under ch. 43. Sec. 43.15(4)(c)l.
Public library systems may expel, or reduce aids or services to a municipality which fails to meet this and other requirements listed in sec. 43.15(4)(c). Sec. 43.18(2).
Also, since September 1, 1991, the Division of Library Services has been authorized to reduce aid to a public library system if the system or any participant of the system fails to meet the requirements of sec. 43.15(4). Sec. 43.24(3).DPI's position is that if a municipality enacts a charter ordinance taking greater control of its municipal library, the municipal library is no longer "established" under ch. 43 and it is therefore ineligible to participate in a public library system.
According to Mr. Nix, all municipal libraries participate in a public library system and thus risk a reduction of state aid or expulsion from a public library system if they adopt a charter ordinance taking greater control of the local public library.15
Accordingly, municipalities should investigate and seriously consider the ramifications of adopting a charter ordinance asserting greater control over the municipal library before proceeding to enact such legislation.
Endnotes
- See secs. 62.09(5)(a) and 61.23(2), Stats.
- 77 Op. Att'y Gen. 193 (1988).
- See Libraries #44.
- Id.
- For a discussion of the interplay between secs. 43.58(1), 43.54(3) and 43.58(7)(e) in the context of constructing an addition to a library, see Libraries #23.
- See Libraries #43.
- See Libraries #40.
- 28 Op. Att'y Gen. 286 (1939).
- See Libraries ## 30 and 40.
- See Libraries #30
- See Libraries #40.
- DPI opinion dated 12/6/1991 from DPI Assistant Superintendent, Division of Library Services to Menomonie City Attorney Kenneth Schofield.
- See Libraries #45.
- 76 Op. Att'y Gen. 203 (1987).
- Libraries #46.
Supporting public libraries in Outagamie and Waupaca counties