This subject is covered extensively in Libraries 47-R1 which was published as a legal comment in the February 2014 issue of the Municipality.  For legal citations, please request that legal comment. It can also be viewed on our web site for one year after posting.

 Library boards are established by municipalities to administer municipal libraries. Questions often arise concerning a library board’s powers in relation to the municipal governing body.

State statutes give library boards a higher degree of autonomy than most other boards and commissions. This sometimes creates tension in the relationship between the governing body and the library board. Some governing bodies have inquired whether the municipality can assert greater control over the library board by enacting a charter ordinance. While a governing body may be able to adopt a charter ordinance asserting greater control over a municipal library, the enactment of such a charter ordinance probably would lead to a reduction or withdrawal of state aid or expulsion from a public library system.

The establishment and operation of public libraries is governed by ch. 43, Stats. The provisions most relevant to municipal library boards are found in Wis. Stat. secs. 43.52 (municipal libraries), 43.54 (municipal library board composition) and 43.58 (powers and duties of library boards).

Section 43.58 gives the library board exclusive control of the expenditure of all moneys appropriated by the governing body or donated to the library fund.  This power of the library board to control funds has been interpreted by the attorney general to include the authority to contract for necessary goods and services for the public library. 

Although the library board has exclusive control of the moneys appropriated for the library fund, the board does not make actual disbursements from the appropriation. Rather, the board audits and approves vouchers for expenditures and forwards these to the municipal clerk, who follows the ordinary procedure for disbursing municipal funds under sec. 66.0607 or 66.0609 if adopted. 

Thus, under the scheme set out in the statutes, the library board has control over the use of the money appropriated to the fund, but it does not sign the checks or maintain physical control over the actual dollars and cents appropriated to the fund. 

Library boards probably have disbursement authority, however, with respect to donated funds held in trust by the library board under sec. 43.58(7). The library board is authorized to receive, manage and dispose of gifts and donations for library purposes.  When a gift or donation is made to a public library, library board members are considered special trustees of such property.  The library board may pay or transfer the gift to the treasurer of the municipality or county in which the public library is situated, may entrust any funds therefrom to a public depository under ch. 34 or may pay or transfer that gift ... to the library board’s financial secretary or, if certain conditions are met, to a charitable 501(c)(3) organization whose purpose is providing financial or material support to the public library.   The financial secretary may invest the funds as provided in Wis. Stat. sec. 66.0603.

The League has interpreted the above provisions to mean that if a library board deposits gifts it receives in a public depository, the board may write checks disbursing such funds on its own without involving the municipal clerk. 

Section 43.58 also grants the library board exclusive control and custody of all lands, buildings and other property given or granted to, or otherwise acquired or leased by, the municipality for library purposes. 

The library board may, if authorized by the governing body, have exclusive control over the purchase of a site and the erection of a library building.  Otherwise, the municipal governing body, in the absence of a specific grant of authority to the library board, has the sole right to purchase or acquire sites or erect buildings for library purposes.  However, in the case of a gift for a library building, the library board has the exclusive right to select and contract for the purchase of a site. 

With respect to the library board's authority in the area of library employees, sec. 43.58(4) provides in part as follows:

[T]he library board shall supervise the administration of the public library and shall appoint a librarian, who shall appoint such other assistants and employes as the library board deems necessary, and prescribe their duties and compensation.

It is apparent from this that the library board has control over the hiring, firing and fixing of wages of library employees. Thus, we have concluded in the past that it is the library board, not the municipality, which negotiates with a union representing library employees.  The Wisconsin Employment Relations Commission has concluded similarly.

On the other hand, municipal governing bodies retain some control over the number of library employees and compensation paid to such employees by virtue of the fact that they control the purse strings. Chances are good that a municipality's annual appropriation constitutes a substantial portion of the library fund, and probably is the main source for the payment of library salaries.

In years past, a municipality's ability to control the number of library employees and their salary by a reduction in funding was limited by a requirement in sec. 43.15(4)(c)5  to fund libraries at a level not lower than the average of the previous three years in order to retain membership in a public library system and remain eligible for state funding. See sec. 43.24(3). The “maintenance of effort” requirement was repealed by 2011 Wis. Act 32, sec. 1173.

In addition, while it is clear that the library board has control over the hiring, firing and compensation paid to library employees, we have concluded in the past that library employees are municipal employees and therefore subject to the same terms or conditions of employment that apply to other municipal employees. 

Support for this conclusion exists in a 1939 attorney general opinion which concludes that library employees are "municipal personnel" for purposes of  the municipal civil service system statute (then 66.019 but since renumbered to 66.0509).  Further support for this proposition can be found in the fact that the legislature amended the statute after the attorney general's 1939 opinion to permit municipal governing bodies to exempt any librarians and assistants from a municipal civil service system. 

Relying on the above, we have opined that a library board cannot enact a rule for library employees which is inconsistent with the terms and conditions of employment established by the governing body for all municipal employees.  For example, in an opinion written before the legislature limited municipal residency requirements,  we concluded that a municipal governing body’s enactment of  a residency requirement for municipal employees would apply to library employees. 

Likewise, we have concluded that library employees are subject to the same rules concerning vacation schedules that apply to other municipal employees.  The basis for that conclusion was that such regulations relate to the terms and conditions of employment, as opposed to compensation levels, and therefore are outside the purview of the library board. However, municipalities should be aware that the State of Wisconsin Department of Public Instruction (DPI), Division of Libraries and Technology, takes the position that the public library board determines the benefits for its employees and that these benefits can be the same as, greater or less than, benefits received by other municipal employees.