Friends Book Sales

Update on new legislation

New legislation includes the following provision about the sale of public library materials:

l. Allow a public library that receives state assistance under section 256.57, or financial support from a city or county pursuant to section 256.69, to dispose of, through sale, conveyance, or exchange, any library materials that may be obsolete or worn out or that may no longer be needed or appropriate to the mission of the public library.  These materials may be sold by the public library directly or the governing body of the public library may sell the materials by consignment to a public agency or to a private agency organized to raise funds solely for support of the public library. Proceeds from the sale of the library materials may be remitted to the public library and may be used by the public library for the purchase of books and other library materials or equipment, or for the provision of library services.

To see the text of the bill, go to the legislative website at http://www.legis.iowa.gov/index.aspx and in the "Bills-Quick Search" box, enter S3379.

Summary

Recently, there have been many questions about the practice of library Friends groups selling weeded library books with the proceeds going to the Friends group. According to information provided by the State Auditor's office and the state attorney assigned to the State Library, you may need to change current practice regarding book sales held by the Friends group. Please contact your city attorney for advice on how to proceed.

The state auditor said "the library cannot give books which are public property and purchased with public funds to a private non-profit organization" such as a library Friends group.  The state attorney is in agreement.

The state auditor forwarded a lengthy Iowa Attorney General's office letter of advice dated April 22, 2008 which provides the background and reasons why the library cannot give or transfer funds or property [books] which are public property and purchased with public funds to a private entity.  The letter is on the Auditor of State's website at http://auditor.iowa.gov/tech_updates/TecAGTransferOfPublicFunds.pdf.

The auditor goes on to say "While the letter of advice addresses a memorial gift given to the City/Library, the substance of these transactions are the same. See page 3 of the Iowa Attorney General's letter of advice section regarding "Public purpose" and specifically, the reference to Article III, Section 31 of the Constitution of the State of Iowa.  This Constitutional criteria states, in part, "no public money or property shall be appropriated for local or private purposes...."  The letter of advice from the assistant Attorney General states clearly that a government body can’t transfer funds or property to a private entity.

"Consistent with Article III, Section 31 of the Constitution of the State of Iowa and the Iowa Attorney General's letter of advice, the library cannot "give" public funds or property to a private organization or relinquish its fiduciary responsibility for control over these funds and/or property.  In addition, the funds raised from the conversion of the public property (sale of books) remain "public funds" subject to these requirements.  If the Library does not have physical custody of these public funds, it would be difficult to demonstrate fiduciary control and statutory compliance with the expenditure of these public funds."

Alternatives

The following alternatives are offered to help libraries be in compliance with the Constitutional criteria: 

• Subject to Board approval (policy or resolution), the library could sell the weeded books to the public and/or Friends at a marketable (nominal) value.  The library would set the value but the books should be offered up to the public first at this value. For example, put all weeded books on the "sale shelf" for a nickel, dime, quarter, etc.  After spending a few days to a week on the shelf, box them up and sell them to the Friends at the same cost offered to the public.  The Friends could then hold a book sale and since the weeded books were sold to the Friends the money collected by the Friends would not be "public funds" and could be retained by the Friends.
• The Friends could have their book sale as usual and at the checkout counter they would keep track of how many library-stamped books, tapes, and dvds are sold.  At the end of the sale, the money from the sale of weeded items from the library would be given to the Library to be put in their City line item for materials (a credit in an expense line item).  The money from the sale of items donated to the Friends would be kept by the Friends.
  

• The Friends could conduct the book sale and turn the proceeds from the sale of weeded library books over to the library.
• The Friends could conduct a book sale using books donated by the community and keep the proceeds.
• The library could conduct the book sale.
• The library could dispose of the books by donating them to another government entity such as a school, Headstart program or other library assuming they would be of value to the government entity and the entity wants them. 
  
• The library could sell the books through Better World Books or a similar vendor.
• The library could adopt a policy such as "The ----- Public Library accepts donations of books, audio-visual materials and current magazines on behalf of the ----- Public Library Friends group.  Any donated items needed for the library collection are routed directly to the library and all other items are sold in-house or on-line for the benefit of the Friends.
• The library could deposit the Friends book sale funds into a City account that the Friends can assign to library uses.  This way, the money is never theirs, but they are still able to determine how it can be used to benefit the library.  The Friends group is still able to fund materials, projects and services at the library.
  

Questions and Answers

Q. If books that are weeded do not sell at the book sale, do we have to recycle or trash them instead of donating them to Goodwill (or another organization) because that would be "giving away" public property?

A. In addition to recycling / disposing of the weeded items, the library could dispose of the books by donating them to another government entity such as a school, Headstart program or other library.

Q. The public often donates new and used books/DVDs to the library for consideration in our collection.  If we accept the material, does it become "public property" at that point?  So, if we decide not to add the material to our collection, we cannot give it to the Friends or another private, non-profit group?

A. "If the Library "accepts" the donated materials, yes, they become public property and subject to the same criteria and requirements identified above.  If the Library declines to accept the donated materials they should be returned to the original donor for the donor's decision whether to give them to the Friends group.  The donor gave them to the Library and intended for the Library to benefit from their use.   The donor's gift should be tax deductible to either the Library or Friends (if legally incorporated) so that shouldn't be an issue.  The issue is to honor/respect the donor's intentions.

Q. If, when the donor is giving the books to the library, we state to them that if the library does not add the books to its collection they will be given to the Friends for their book sale and the donor agrees is there still a need to return the materials to the donor? 

A. If it is acceptable to the donor to donate remaining items to the Friends, no, you would not need to return the materials to the donor.  Again, the important thing is to honor the donor's wishes.  The library could develop a handout stating in writing how the library handles donations.

Q. If the library can have Better World Books or another vendor sell their weeded books, why can't the library have the Friends group sell the books?

A. The difference is that with Better World Books or other vendors, the library is selling the books, not transferring the property.

Disclaimer

Please consider this to be legal information, not legal advice - the application of law to an individual's specific circumstances.  You should consult a lawyer if you want professional assurance that the information, and your interpretation of it, is accurate.