Trustee Support Resources

Is the evaluation of the library director subject to the Open Public Meetings Act (OPMA)?

The OPMA authorized closed meetings for specified reasons. RCW 42.30.110(1)(g) authorizes a closed executive session to “review the performance of a public employee.” An annual personnel evaluation for the library director would meet the requirement for a closed meeting because it is to “review the performance of a public employee.” However, if the board wants to set or modify the salary of the library director or discipline or fire the director, then that action must be done in an open public meeting.

Is Washington an “at will” state?

Washington is an “at will” state. This means that employees who are not covered by an individual contract with the library or by a union contract may be dismissed “at will.” Most library directors have an employment contract with their boards and, as such, may not be dismissed “at will,” but only according to the terms laid out in the contract. Additional information concerning at will employment may be found in the following sources:

• Lisa Guerin, J.D., “Employment At Will: What Does It Mean?”;
• Charles J. Muhl, “The employment-at-will doctrine: three major exceptions”;
• Municipal Research and Services Center of Washington. Employee Terminations;
• National Conference of State Legislatures (NCSL). The At-Will Presumption and Exceptions to the Rule;
• George K. Pitchford, Esq., “An Examination of the At-Will Employment Doctrine”;
• Rachel Arnow-Richman, “Just Notice: Re-Reforming Employment At Will”;
• Karen Sutherland, “Washington is an At-Will State Isn’t It?”;
• Richard Wall, “At Will Employment in Washington: A Review of Thompson v. St. Regis Paper Co. and Its Progeny”;
• Washington State Department of Labor & Industries. Termination.

What is the legal authority for recovering funds from a public library employee who was overpaid by mistake?

In response to this question, legal counsel at MRSC responded:

“In my opinion, RCW 49.48.200(1) applies. According to RCW 49.48.210(11) the definition of ‘employer’ as used in RCW 49.48.210 49.48.200 and 49.48.220, ‘means the state of Washington or a county or city, and any of its agencies, institutions, boards, or commissions…’ A library district is a creation of a city or county (or combinations thereof) pursuant to ch. 27.12 RCW.

“Consequently, I believe the process laid out in ch. 49.48 RCW is the applicable authority since it applies to ‘government employees’ and provides for the recovery of overpayments’ by the employer by deductions from subsequent wage payments as provided in RCW 49.48.210 or by civil action.

“For public employers, such as a regional library district, the 90-day limitation on recovery does not apply. See WAC 296-126-030. Adjustments for overpayments:

“(10) This regulation does not apply to public employers. See chapter 49.48 RCW Wages - Payment - Collection.

“For local governments, the underlying principle is that a government entity cannot constitutionally make a gift of funds (unless for the support of the poor and infirm). See Washington State Constitution Art. VIII, section 7. If an overpayment has been made, that is, a payment in excess of the amount owed an employee, the district must take steps to recover the overpayment, or else there would be a gift involved, which is forbidden.”

Is it legal for library management to tell an employee not to speak out?

As long as the employee’s advocacy is on his or her own time away from the workplace and using his or her own resources, they may speak out.

The Public Disclosure Commission (PDC) has adopted two rules interpreting RCW 42.17A.555 in the Washington Administrative Code - WAC 390-05-271 (general applications of RCW 42.17A.555) and WAC 390-05-273 (definition of normal and regular conduct). Those rules are discussed in the PDC Guidelines. They read as follows:

(1) RCW 42.17A.555 does not restrict the right of any individual to express his or her own personal views concerning, supporting, or opposing any candidate or ballot proposition, if such expression does not involve a use of the facilities of a public office or agency.

What constitutes procedural due process to terminate employees?

An MRSC Legal Consultant provided the following process to ensure due process rights are protected:

1. The termination notice to the employee should include the following:
   • Reasons and evidence for poor performance.
   • Final performance appraisal.
   • Termination recommendation.
2. There is an acknowledgement by the employee of receipt of previous appraisals that documented problems with work performance.
3. An opportunity has been provided for the employee to meet with the employer, discuss the notice of termination, and refute the evidence.

What types of checks are required and/or allowed to run on new hires and volunteers? Are additional checks required for individuals who work with children and vulnerable adults?

A legal consultant from MRSC responded as follows:

Although each agency has latitude in establishing volunteer policies, including new hiring and background checks, there is one primary legal requirement. Under RCW 43.43.832, an employer is required to have criminal background checks done only for those potential employees and volunteers who would have "unsupervised access to children, vulnerable adults or persons who are developmentally disabled." So, each agency will need to look at the particular volunteer position to determine whether a person hired to fill that position will be subject to a criminal background check. "Unsupervised" is defined in RCW 43.43.830(13) to mean:

not in the presence of:

1. Another employee or volunteer from the same business or organization as the applicant; or
2. Any relative or guardian of any of the children or developmentally disabled persons or vulnerable adults to which the applicant has access during the course of his or her employment or involvement with the business or organization.

According to the Washington State Patrol guide, "access" means being left alone in the presence of a child, vulnerable adult or person who is developmentally disabled for any period of time. So, for example, in some libraries a volunteer who works "in the back" sorting books will likely not have such unsupervised access, and so a prospective or new hire for that position would not be subject to the background check. But I suspect that in most libraries, volunteers are moved around to different jobs such as shelving books, helping at the desk, answering questions. In a situation like that, all volunteers should have a background check.

Employers must inquire about an applicant's criminal history and certain civil adjudications for jobs having unsupervised access to children or developmentally disabled adults. Nursing homes, hospitals and other licensed health care facilities also are required to obtain written disclosures, check such applicant's conviction records through the Washington State Patrol, and may not employ individuals convicted of certain "crimes against persons."

There is no mandate in state law that libraries adopt a policy for volunteers, but there should be and it is highly recommended by insurance carriers. Here is a good sample policy from the Washington Cities Insurance Authority:

A. Selection and Screening

Individuals volunteering their time to the Member should be properly screened for acceptance by the Member. All individuals should complete a volunteer application form. The application form should contain the following:

• A criminal history disclosure including a statement that a WSP background check may be performed
• At least three personal references that are not family members
• Waiver of liability related to obtaining personal history information
• Emergency contact information
• A section for the applicant to disclose any physical limitations that the Member should be made aware of

Selected applicants should then be requested to sign a Volunteer Agreement. The Volunteer Agreement should include:

• A waiver of liability and hold harmless agreement
• Rules of conduct and pertinent policies and procedures
• The scope of the volunteer's duties
• A release for a WSP criminal background check

Background checks should be performed in accordance with RCW 43.43.830-839 for all volunteers who have regularly scheduled unsupervised access with children, the elderly or the developmentally disabled. Volunteer applicants should be provided a copy of their background check if one is performed.

Washington State law (RCW 43.43.832) requires organizations that provide services to children, developmentally disabled persons and vulnerable adults submit a Request for Criminal History Information form to the Washington State Patrol for a background check.

Also, see our web page on Volunteers - it has a section on background checks.

As to your second question, about "how often" background checks should be conducted, the background check provision in the statute, RCW 43.43.834 is only to be used in making the initial employment/hiring decision:

(5) The business or organization shall use this record only in making the initial employment or engagement decision. Further dissemination or use of the record is prohibited, except as provided in RCW 28A.320.155. A business or organization violating this subsection is subject to a civil action for damages.

There is, however, an exception when an employer knows of employee misconduct where the misconduct may also constitute a criminal offense. RCW 43.43.815 provides that, upon written or electronic request, employers may obtain conviction records from the Washington State Patrol in order to conduct post-employment evaluations where the employee or prospective employee "may have access to information affecting national security, trade secrets, confidential or proprietary business information, money or items of value" or to assist in an investigation of employee misconduct where the misconduct may also constitute a criminal offense.

Once again, state law doesn't give much guidance about when postemployment background checks can be done, and I cannot find any guidance in case law. In my opinion the only specific authority is preemployment hiring and postemployment misconduct (of a criminal nature). You can advise your libraries that they can and should run background checks for new volunteers but should not run them later unless they know of specific criminal misconduct.

Are there any restrictions regarding the use of volunteers in libraries?

In response, a legal consultant from MRSC states:

The federal Fair Labor Standards Act (the “FLSA”) requires employers, including public agencies such as library systems, local libraries and library districts, to pay their employees time and a half for all hours worked over 40 in a given week if the employees in question are not exempt from the overtime provisions of the FLSA. The regulations are concerned with overtime that gets triggered if an employee is volunteering in a similar area of work. The basic rule under the FLSA is that a true volunteer is not subject to the FLSA and does not trigger overtime concerns. However, an individual may not be a volunteer for a public agency when the volunteer hours involve the same type of service which the individual is employed to perform for the same agency.

When Congress amended the FLSA in 1985, it made clear that people are allowed to volunteer their services to public agencies and their community, with one exception—public sector employers may not allow their employees to volunteer without compensation. Public sector employees may volunteer to do different kinds of work for the public agency by which they are employed, or volunteer to do similar work for a different public agency. For example, police officers can volunteer different work (non-law enforcement related) in city parks and schools or can volunteer to perform law enforcement for a different jurisdiction than where they are employed. The United States Department of Labor's regulations define "same type of services" to mean similar or identical services. Equally important is whether the volunteer service is closely related to the actual duties performed by or responsibilities assigned to the public agency employee who are "volunteers."

The classic example of this is when a full-time firefighter wants to also be in the volunteer fire department - the FLSA indicates that all hours must be counted as compensable work time for someone in this situation. The issue is whether these hours count as regular compensable time under the Fair Labor Standards Act. The 1985 Amendments to the FLSA provide that when local government employees, at their option, work occasionally or sporadically on a part-time basis for the same agency in a different capacity from their regular employment, the hours worked in the different job do not have to be combined with the regular hours for the purpose of determining overtime liability. The decision to work must be made freely and without coercion.

Washington State municipalities must also comply with the state Minimum Wage Act, which is codified in Ch. 49.46 RCW.  Many of the provisions of the state law and the federal FLSA are identical but there are some differences. When there is a difference, the municipality must comply with the most liberal law when viewed from the perspective of the employee. If the state law provides greater benefits than the FLSA, then the city must comply with state law. If the FLSA is more generous for the employee, then the city must comply with the FLSA.

Are local governments obligated to provide medical benefits coverage for volunteers?

A legal consultant from MRSC responds as follows:

Any coverage is entirely optional UNLESS it is required by city ordinance.

From the statutes it appears that a local government can “elect” to cover their volunteers (for “medical benefits” only). If a local government decides to provide medical benefits coverage to volunteers, then they are obligated to pay for it.

Here’s what RCW 51.12.035 provides in pertinent part:

2) Except as provided in RCW 51.12.050, volunteers may be deemed employees and/or workers, as the case may be, for all purposes relating to medical aid benefits under chapter 51.36 RCW at the option of any city, county, town, special district, municipal corporation, or political subdivision of any type, or any private nonprofit charitable organization, when any such unit of local government or any such nonprofit organization has given notice of covering all of its volunteers to the director prior to the occurrence of the injury or contraction of an occupational disease.

A "volunteer" shall mean a person who performs any assigned or authorized duties for any such unit of local government, or any such organization, except emergency services workers as described by chapter 38.52 RCW, or firefighters covered by chapter 41.24 RCW, brought about by one's own free choice, receives no wages, and is registered and accepted as a volunteer by any such unit of local government, or any such organization which has given such notice, for the purpose of engaging in authorized volunteer services: PROVIDED, That such person shall be deemed to be a volunteer although he or she may be granted maintenance and reimbursement for actual expenses necessarily incurred in performing his or her assigned or authorized duties: PROVIDED FURTHER, That juveniles performing community restitution under chapter 13.40 RCW may not be granted coverage as volunteers under this section.

Any and all premiums or assessments due under this title on account of such volunteer service for any such unit of local government, or any such organization shall be the obligation of and be paid by such organization which has registered and accepted the services of volunteers and exercised its option to secure the medical aid benefits under chapter 51.36 RCW for such volunteers.

In our public library, circulation is soaring, and frankly, we need more staff. Is there an ALA standard for how many staff are needed?

From ALA Public Library Staffing Measures:

Neither the ALA nor our public library division, the Public Library Association (PLA), sets prescriptive standards for public libraries, including a number of staff needed per capita. Instead, we advocate an outcomes-based assessment process set forth in a series of books on Planning and Assessment—the PLA "Results" books. The reason for this is that each library serves a different community with different needs. For example, a library serving a community with many young families wants and needs a library with different facilities and services than a library serving a similar size population with a high percentage of empty-nesters and retirees.

For additional information, see Budgeting and Finance, Collection Development, and Human Resources on the ALA wiki.

However, individual states may have standards, which should be reviewed and observed as appropriate. These, where they exist, may be found at the sites listed on these directory pages:

• State library associations

Additional information may be found at Public Library Standards, including a Sample benchmarking process.

Which small towns operate under RCW 35.27 RCW which provide for a mayor-council and which are optional Municipal Code cities (RCW 35A)?

Mayor-Council

Cathlamet Public Library

Odessa Public Library

Reardan Public Library

Wilbur (Hesseltine) Public library

Optional Municipal Code Cities 

Castle Rock Public Library

Kalama Public Library

Sprague Public Library

Territorial Charter (only city remaining in Washington to use this authorization)

Waitsburg (Weller)