Liability of Governing Board of Trustees
Governing boards are legally responsible for their decisions and for following applicable state and federal laws as well as their own bylaws. A board can be sued even if the board, its members, or the library staff are non-liable and have conducted themselves in an appropriate manner. Even if a suit is without merit, the library will still incur costs to defend itself against the charges. The library board should consider a continuing education session addressing liability issues. Legal counsel should be consulted for advice as needed.
The following RCW defines liability for boards and library staff. In summary, it sets out that boards are liable for “tortious conduct” which is defined as “…a wrongful act other than a breach of contract for which relief may be obtained in the form of damages or an injunction.”
All local governmental entities, whether acting in a governmental or proprietary capacity, shall be liable for damages arising out of their tortuous conduct, or the tortious conduct of their past or present officers, employees, or volunteers while performing or in good faith purporting to perform their official duties, to the same extent as if they were a private person or corporation. Filing a claim for damages within the time allowed by law shall be a condition precedent to the commencement of any action claiming damages. The laws specifying the content for such claims shall be liberally construed so that substantial compliance therewith will be deemed satisfactory. Revised Code of Washington 4.96.010(1)
Limitations on Individual Trustee Liability
A general principle is that board members do not have power as individuals. The power of a trustee is derived from the board. If an individual board member is acting in a capacity that has been officially authorized by the board they will normally be protected from personal liability. If, however, such authority was not granted during an official board meeting and the board member takes some unauthorized action, that member may be held legally responsible for the action.
RCW 4.24.264 states that an individual is not liable for making a decision, or failing to make a decision in their official capacity, unless the decision or lack of decision constitutes gross negligence.
Violation of Open Public Meeting Laws
Any trustee who knowingly attends a meeting that is in violation of the open public meetings laws may be subject to personal liability in the form of a civil penalty of one hundred dollars.
Protection Against Liability
Every library board must determine with their legal counsel how they will protect against liability. In municipalities, the city insurance usually covers the board members. In an effort to emphasize the importance of liability insurance and the importance of legal policy, the American Library Trustees Association-Public Library Association Common Concerns Committee adopted a statement on insurance coverage.
In summary, the statement establishes the responsibility of every library to have insurance coverage and establishes the principle that if a trustee, staff member or volunteer while acting in good faith and within the scope of their duties is involved in a claim that is not covered by insurance, the institution will defend, pay for court costs, or settlement as approved by the board of trustees. The text of statement follows:
It should be considered mandatory that every library have an adequate level of insurance coverage. If any claim or action not covered by insurance of State Statute is instituted against a trustee, officer, employee, or volunteer of the Library System arising out of an act or omission by a trustee, officer, employee, or volunteer acting in good faith for a purpose considered to be in the best interest of the System; or if any claim or action not covered by insurance of state Statute is instituted against a trustee, officer, employee, or volunteer allegedly arising out of an act or omission occurring within the scope of his/her duties as such a trustee, officer, employee, or volunteer; the System should at the request of the trustee, officer, employee, or volunteer:
Decision as to whether the System shall retain its own attorney or reimburse the trustee, officer, employee, or volunteer expenses for their own legal counsel shall rest with the Board of Trustees and shall be determined by the nature of the claim or action. For the purpose of this article, the term trustee, officer, employee, or volunteer shall include any former trustee, officer, employee, or volunteer of the System.