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December 15, 2017

Appeal of Richard A. Mikulek regarding the use of library funds, property and staff


Appeal of Richard A. Mikulek regarding the use of library funds, property and staff
Decisions of the Commissioner of Education, Decision No. 17,277

Richard A. Mikulek [Petitioner] appealed certain actions of the Board of Trustees of the Fairport Public Library [Board], alleging the Board had improperly gifted library funds, among other things, to a third party, the "Friends of [the] lFairport Public Library [FFPL].* 

The Commissioner's decision frames the underlying facts as follows: 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.

Petitioner and the Board disagreed 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.

The Commissioner, after setting out an extensive background statement concerning the positions of the parties, said that "[t]he 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, here FFPL, was a necessary party but was not joined as such.

Addressing additional procedural infirmities, the Commissioner said:

1. 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), and such a trustee is not among the officers listed in §306. Therefore, such a trustee is not subject to removal by the Commissioner pursuant to Education Law §306.

2. Petitioner also asked that the Commissioner 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.

3. As to Petitioner's requesting several advisory opinions based on Education Law §226(6) and its impact on the actions of the Board 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, "[i]t is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310." Thus, such requests for advisory opinions must be denied.

That said, the Commissioner addressed Petitioner's claims that the Board 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 FFLP and alleges that in so doing, the Library violates the prohibition in New York State Constitution, Article VIII §1 of the "gift-giving" public monies.

The Commissioner declined  to dismiss the appeal to the extent Petitioner "seeks an order directing [the Board] to cease allowing the use of its resources by the FFPL because it allegedly involves an unconstitutional gift," noting that "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 the petitioner seeks relief. On this record, said the Commissioner, "I find that Petitioner has not met his burden of proving that [the Board] 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 Commissioner cited 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 in the Commissioner's decision.) 

Based on the Legislature’s finding, the Commissioner ruled that 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."

Also noted in the decision was that the record indicated that "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." Further, the Board and FFPL indicate that the proceeds of such book sales "are used to provide funding for library activities, programs and purchases." The Commissioner opined that "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."

Additional findings by the Commissioner include:

a. 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. 

b. Use of the Board'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.  

Finally, although the appeal was dismissed for the reasons stated above, the Commissioner urged the Board to avoid future such appeals by being more transparent about the fund-raising activities of the FFPL.  

As the Board knows that FFPL provides the Library with approximately $15,000-$20,000 each year to support library programs and activities, the Commissioner said that "it should be an easy matter for the Board to document what those programs and services are and to identify to the public upon request where in the Library budget those contributions appear."  In so doing, the Board should be able to persuasively document that the FFPL’s activities are of substantial benefit to the Library rather than responding in generalities as it did with Petitioner’s inquiries.

The decision is posted on the Internet at:


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