Frequently Asked Legal Questions for Public Libraries in Washington State

Questions

1. What types of public libraries are allowed in Washington State?
2. What is the function of a library board of trustees?
3. Who appoints the library board of trustees?
4. Can a city or town join a library district?
5. Can two or more cities form a library district (along with its dedicated property tax funding source)?
6. Does an annexation to a library district have to be complete by March 1 in order for the district to levy property taxes in November for the following year?
7. May the city council abolish the city library created by ordinance, or is a vote of the people required?
8. Does the mayor or city manager or the library board have the authority to appoint the librarian for the city library?
9. May members of the library board of trustees serve as the board of the nonprofit foundation [Friends of the Library] that deals with donations to the library or would that create a prohibited conflict of interest?
10. May a city require that its library's public Internet services be filtered?
11. May the city require a driver's license number as identification for a library card?
12. Can a library charge user fees for services provided to non-residents?
13. Are county law libraries considered "public libraries"?
14. What is the state library and what does it do?

1. What types of public libraries are allowed in Washington cities and counties?

   A.) A free public library may be established by each city, town, or county either through legislative action or through a citizen petition/election process [RCW 27.12.030]. City, town, and county town libraries are usually financed through general fund revenues. The Seattle Public Library is an example of a city free public library.

   B.) A rural library district may established throughout one county using an unincorporated county citizen petition/election process. A rural county library district is funded through an additional property tax levy [RCW 27.12.040]. The King County Library System is an example of a rural county library district.

   C.) An intercounty rural library district may be established by two or more counties through the petition election process, or through joint legislative action [RCW 27.12.090]. Existing rural library districts may be expanded into the new intercounty rural library district.[RCW 27.12.110]. An intercounty rural library district is financed through dedicated property taxes. The Mid-Columbia Library District is an example of an intercounty rural library district.

   D.) A regional library is formed by two or more county or city/town libraries contracting together to consolidate and expand services [RCW 27.12.080]. The Yakima Valley Regional Library is an example of a regional library system.

   E.) An island library district is created by the petition/election method to serve the unincorporated inhabitants of a single island only in counties composed entirely of islands and with a population of less than 25,000 at the time the district is created [RCW 27.12.400]. It is financed through dedicated property taxes. The San Juan Island Library is an example of an island library district.

   F.) A rural partial-county library district may be created by the petition/election method in a portion of the unincorporated area of a county provided that a rural county library district, intercounty library district, or island library district has not already been created [RCW 27.12.470]. Cowlitz County has a rural partial-county library district.

   A full listing of public libraries may be found on our Public Libraries by Type in Washington State page.

2. What is the function of a library board of trustees?

   The library board of trustees is responsible for the management and control of the library. According to RCW 27.12.210, the board has the following duties and responsibilities:

   (1) Adopt such bylaws, rules, and regulations for their own guidance and for the government of the library as they deem expedient;

   (2) Have the supervision, care, and custody of all property of the library, including the rooms or buildings constructed, leased, or set apart therefor;

   (3) Employ a librarian, and upon his recommendation employ such other assistants as may be necessary, all in accordance with the provisions of RCW 27.08.010 [now RCW 27.04.055], prescribe their duties, fix their compensation, and remove them for cause;

   (4) Submit annually to the legislative body a budget containing estimates in detail of the amount of money necessary for the library for the ensuing year; except that in a library district the board of library trustees shall prepare its budget, certify the same and deliver it to the board of county commissioners in ample time for it to make the tax levies for the purpose of the district;

   (5) Have exclusive control of the finances of the library;

   (6) Accept such gifts of money or property for library purposes as they deem expedient;

   (7) Lease or purchase land for library buildings;

   (8) Lease, purchase, or erect an appropriate building or buildings for library purposes, and acquire such other property as may be needed therefor;

   (9) Purchase books, periodicals, maps, and supplies for the library; and

   (10) Do all other acts necessary for the orderly and efficient management and control of the library.

   However, in some cities located in library districts or that contract with library districts for library services, the city councils have established a library board of trustees that functions merely in an advisory capacity to the council and to the library district. Such boards, which do not manage libraries, are not governed by RCW 27.12.210.

3. Who appoints the library board of trustees?

   This is governed by RCW 27.12.190, which provides in part:

   The management and control of a library shall be vested in a board of either five or seven trustees as hereinafter in this section provided. In cities and towns five trustees shall be appointed by the mayor with the consent of the legislative body. In counties, rural county library districts, and island library districts, five trustees shall be appointed by the board of county commissioners. In a regional library district a board of either five or seven trustees shall be appointed by the joint action of the legislative bodies concerned. In intercounty rural library districts a board of either five or seven trustees shall be appointed by the joint action of the boards of county commissioners of each of the counties included in a district.

   In council-manager cities, the city manager, rather than the mayor, would have the authority to appoint the library trustees, without those appointments being subject to council confirmation.

   This statute also addresses filling vacancies on the board, salaries and compensation for the trustees (they are to receive nothing, other than necessary expenses), and removal of trustees.

4. Can a city or town join a library district?

   Yes. Under RCW 27.12.360 a city or town with a population of 100,000 or less, may be annexed into an existing rural library district, island library district, or intercounty rural library district providing: 1) the city/town council adopts an ordinance stating its intent to join the library district; 2) the ordinance has before adoption been reviewed by the library board (if there is no existing city/town library board, then the state librarian would be notified); 3) the library district's board of trustees concur; and 3) a majority of the city/town citizens voting approve the annexation at a special election.

5. Can two or more cities form a library district (along with its dedicated property tax funding source)?

   No. But they can form a regional library under RCW 27.12.080. A regional library would not, however, provide them with a dedicated property tax funding source.

6. Does an annexation to a library district have to be complete by March 1 for the district to levy property taxes in November for the following year?

   No, RCW 84.09.030 provides some exceptions to the March 1 date, which applies to annexations of territory by cities (and some other taxing districts also). See the second paragraph in subsection 4, which says, in part:

   "The boundaries of a taxing district shall be established on the first day of June if the territory has been added to, or removed from, the taxing district after the first day of March of that year with boundaries coterminous with the boundaries of another taxing district as they existed on the first day of March of that year."

   Since the annexation of a city or town to a library district involves annexing territory that is "coterminous with the boundaries of another taxing district," in this case the city or town, the June 1 date applies. So, unless the city or town has annexed territory after March 1 and before the library district annexation, a library district annexation can be done any time through June 1 and still have the district collect property taxes in the city the following year.

7. May a city council abolish the city library created by ordinance, or is a vote of the people required?

   Dissolving the city library would require a public vote, even if the library was established pursuant to an action by the legislative body and not a public vote. RCW 27.12.320 seems to be exclusive in the manner by which one abolishes a library, regardless of how that library had been set up. However, the council may decide not to fund the library during the budget process, except to provide for minimum maintenance of building and property, effectively "mothballing" the facility until a later date.

8. Does the mayor or city manager or the library board have the authority to appoint the librarian for the city library?

   This issue arises because of an apparent conflict between RCW 27.12.210(3), which gives authority to the library board of trustees to "employ a librarian," and the various statutes that give the mayor or, in the case of a council-manager city, the city manager the authority to appoint all appointive officers and employees.

   Although this issue has not been addressed by the courts, the attorney general's office has addressed it, at least informally, but for code cities only. In an April 18, 1994 memorandum to the chief of Library Planning and Development, Washington State Library, Jean M. Wilkinson, assistant attorney general concluded that, because of a statute (RCW 35A.21.160) that states that the Optional Municipal Code controls in case of a conflict with laws applicable to cities generally, a code city mayor or city manager has the ultimate authority to hire the city librarian or library director. However, the memo emphasizes that this is not a clear-cut issue and that the courts could reach a different conclusion.

   In the case of first class cities, second class cities, and towns, RCW 27.12.210(3) would control, and the library board of trustees would have the authority to appoint the librarian. With respect to first class cities, RCW 27.12.310 specifically provides that the provisions of chapter 27.12 RCW, which govern public libraries, control over any conflicting city charter provision.

9. May members of the library board of trustees serve as the board of the nonprofit foundation [Friends of the Library] that deals with donations to the library or would that create a prohibited conflict of interest?

   A legal conflict of interest involving a municipal official can arise basically in two contexts. First, the conflict can result from a financial interest that a municipal officer has in a contract with the municipality in violation of RCW 42.23.030. Or, it can result under the common law from a financial interest that a municipal decision-maker has in a matter he or she is deciding upon. See Smith v. Centralia, 55 Wash. 573, 577 (1909). Related to the conflict of interest prohibitions is the doctrine of incompatible offices, which prohibits a municipal official from holding two public offices that are incompatible, such as when the offices involve conflicting duties or loyalties.

   The situation at issue here, where the library board of trustees is also the board for the nonprofit library foundation, presents neither a conflict of interest nor an incompatible office situation. The library trustees have no financial interests in the library or in a relationship between the board and the nonprofit foundation, and they do not hold two public offices so as to implicate the incompatible offices doctrine.

   Indeed, it would seem that the interests of the board of library trustees and the board of the nonprofit organization would be the same - accepting and using gifts to the public library for library purposes. This is one of the statutory purposes of the library board of trustees. In addition to providing that the library board of trustees shall have "exclusive control of the finances of the library," RCW 27.12.210 provides that the trustees shall "[a]ccept such gifts of money or property for library purposes as they deem expedient." Thus, the board of library trustees could itself perform the function that the nonprofit foundation was apparently set up to perform. We see no legal or other reason that the trustees could not serve on the board of the nonprofit foundation to carry out this function.

10. May a city require that its library's public Internet services be filtered?

    This issue has led to a renewed debate around the country about whether libraries should be engaged in limiting access to library materials based on their content. The debate centers on the rights of parents to protect their children from obscene or offensive material, and on the duty of public libraries, under the First Amendment, to provide unlimited, or at least uncensored, library materials.

    The issue of Internet censorship and the use of filtering software has been litigated in other states and the federal courts, and the courts have generally ruled that Internet blocking for adult library users is unconstitutional. Restricting what adults may read to a level appropriate for minors has been found to be a violation of the free speech guaranteed by the First Amendment and the Due Process Clause of the Fourteenth Amendment. In Reno v. ACLU, 117 S. Ct. 2329, 2346 (1997), the U.S. Supreme Court struck down the Communications Decency Act (which was intended to protect minors from harmful material on the Internet) as violating the First Amendment. The Court reasoned that the government's interest in protecting children from indecent materials does not justify an unnecessarily broad suppression of speech addressed to adults.

    In a case from Loudoun County, Virginia, [Mainstream Loudoun v. Bd of Trustees of the Loudoun County Library, United States District Court for the Eastern District of Virginia, at Alexandria, Virginia. Case Number CV 97-2049] a group of library patrons brought a constitutional challenge to the county library board's decision to require filtering software on all library Internet terminals. The court was asked to determine whether a public library may, without violating the First Amendment, enforce content-based restrictions on access to Internet speech. The court determined that the library's filtering policy was overinclusive because it blocked adults from reading protected speech on the grounds that it was unfit for minors. The court relied on the holding in Board of Education v. Pico, 457 U.S. 853 (1982), for the proposition that the First Amendment applies to and limits the discretion of a public library to place content-based restrictions on access to constitutionally protected materials within its collection. Consequently, if a public library chooses to provide Internet access to its patrons, it is restricted by the First Amendment in the limitations it is allowed to place on patron access:

    "Having chosen to provide access . . . the Library Board may not thereafter selectively restrict certain categories of Internet speech because it disfavors their content". (Mainstream Loudoun, et. al. v. Board of Trustees of the Loudoun County Library, E.D. Va., No. 97-2049-A, 11/23/98.)

    Loudon County Library has now adopted a policy that makes using filtered Internet access optional for adults and allows parents to decide whether to require it for their children.

    In a recent California case [Kathleen R. v. City of Livermore, Alameda Superior Court No. V-015266-] a parent challenged the Livermore City Library's policy of allowing unfiltered Internet usage, claiming that her child could be injured by access to sexual or harmful material. The parent sought to compel the library to install censoring software on the library's Internet terminals. The court refused to impose such a requirement and dismissed the lawsuit.

    In light of these cases it is our opinion that mandating filtering software would most likely violate the First Amendment rights of library patrons.

    There are alternatives, however, such as offering the options of filtered and unfiltered access. See our listing of Internet policies for libraries for examples.

11. May the city require a driver's license number as identification for a library card?

    We are not aware of any reason why a library could not require a driver's license number as identification. There is no statute or regulation that protects this number as a matter of privacy as far as we know. There is an exemption in the public disclosure law from disclosure of any library record, the purpose of which is to maintain control of library materials. So the library record of the number would not have to be disclosed in response to a public record disclosure request.

12. Can a library charge user fees for services provided to non-residents?

    Yes. AGO 1992 No. 31 reviews this issue, noting that basic library services must be provided free of charge to residents of the political jurisdiction which supports the library through taxation. The corollary is that public libraries can charge user fees to those who do not live within the jurisdiction which provides the tax revenues to pay for the library. In fact, if a public library provides services to non-residents without charging a fee, an argument can be made that the library is violating the gift of public funds prohibition in the state constitution. Libraries can charge for ancillary services such as copying machines, phones, fax machines, etc. - that issue is also covered in the AGO.

13. Are county law libraries considered "public libraries"?

    No, but law libraries in counties with populations exceeding 300,000 residents may be used freely by the public. RCW 27.24.067. County law libraries are used mainly to serve the professional needs of judges of the state, state and county officials, members of the bar, and any others that the board of trustees allow. County law libraries are governed by statutes found in chapter 27.24 RCW.

14. What is the state library and what does it do?

    The Washington State Library is located on the state capital grounds and is maintained by the state library commission. It was established to do the following: to provide informational and library services to members of the state legislature, state officials, and state employees in connection with their official duties; to acquire publications and informational materials relating to Washington State history; to serve as a depository for newspapers published in Washington state; to collect and distribute state publications; to provide library and information services to state citizens who are blind and/or physically handicapped; to provide library and information services to residents incarcerated in state prisons, hospitals, and other state-supported residential institutions; and to provide advisory services to state agencies regarding their information needs. RCW 27.04.045.

    The Washington State Library also lends support to public libraries in the areas of library planning, establishment and development of library services, and it promotes and facilitates electronic access information and services. In addition, it administers federal Library Services and Technology Act (LSTA) funds; it serves as a primary inter-library loan center; it establishes content-related standards and formats for information publication (such as index terms, subject headings, etc.); and it makes studies and surveys of library related issues.

    The Washington State Library is governed by statutes found in chapter 27.04 RCW.