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HomeMy WebLinkAbout1979-10-16; City Council; N/A; Library Authority to Levy Fees for Servicee 0 VINCENT F. BIONDO, JR. CITY ATTORNEY CITY OF CARLSBAD 1200 ELM AVENUE CARLSBAD, CALIFORNIA 92008 (714) 729.1181 October 15, 1979 TO THE HONORABLE MAYOR AND CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA QUESTION PRESENTED: Does the City Council have the authority to levy fees for library service provided by the Carlsbad Library? CONCLUSION: The Education Code provides that certain libraries must be free, however, a charge may be imposed for ancillary services such as renting audiovisual equipment or providing meeting rooms. Although it is open to question, in our opinion Carlsbad has a Government Code library which is not subject to the Education Code and, therefore, may charge a reasonable fee for basic library service. There is no doubt that a Government Code library may charge for ancillary services. The Council may charge all patrons of the library, charge only nonresidents, or nonresidents may be charged more than residents as the City Council may determine. Before deciding to impose a fee for other than ancillary services the Council should consider the matters discussed in this opinion, in particular: 1. The strong public policy favoring free public . . libraries in California. .2. The value of continued participation in the Library Services Act which is limited to free libraries. .3. Our obligations under the Serra joint powers agreement which may preclude library fees. 4. The Proposition. 13 considerations involved in charging for services which have previously been supported by the property tar.. ANALYSIS: There presently exists in the state statutory scheme two different provisions authorizing the establishment of a library by a munici- pality. One source of authority stems from the Government Code (Section 39732) and the other stems from the Education Code (Sedtions 18900-18965). Whether a municipal library is established pursuant to the Government Code or pursuant to the Education Code, significantly affects the ability of the City Council to levy fees for services. Section 18960 of the Education Code specifically states in part that, "Every library established pursuant to this chapter shall be forever free to the inhabitants and non- resident taxpayers of the municipality". [Emphasis added.] Section 18960 contains a severe limitation on a City Council's ability to charge library fees and it is useful to understand those limits. The question arises if there are any services or benefits provided by an Education Code Library which are outside the scope of the section. The Attorney General has addressed this question in a recent opinion (No. CV 78/96, November 21, 1978). In answering the ,question, he first delineates the nature of those transactions that are ordinarily understood to be comprehended by the term "library service" as follows: "If the transaction involves the satisfaction, with library resources, of a patron"s request for F information (whether for educational, recreational or entertainment purposes), such transaction is ,a 'library service'. Other transactions, not .'involving the furnishing of information, though carried out by a library, would not be a 'library • service' within the context -of the statutes under consideration. Perhaps the essential distinction that is operative here, is between those services which are reflective of a library's inherent infor- mation providing function and those ancillary services which are not unique to libraries and which can be just as effectively provided in nonlibrary settings. Examples of such nonlibrary services might "be the furnishing of meeting rooms, allowing the use of typewriters and copying machines, rental of audio- visual equipment, etc." The opinion then concludes that an Education Code Library may not charge for any type of service that can be properly characterized .as a 'library service'. However, a fee may be charged for any of those services which cannot be so characterized. It is the opinion of this office that the Attorney General is correct in concluding that despite Section 18960 an Education Code library may charge for a wide range of ancillary services. It is clear that, at a minimum, a Government Code library may also impose such charges. -2- i ._x General law cities have only those powers expressly conferred upon them by the Legislature or by the state constitution. Section 39732(a) of the Government Code expressly confers upon the 'legislative body of a city the power to, "Acquire, own, construct, maintain and operate...public•libraries...:" A library operated pursuant to the Government Code would not be established under the previously referenced chapter of the Education Code and would, therefore, not be subject to the limitations of Section 18960. This office has previously concluded that Carlsbad has a Govern- ment Code library. This opinion will briefly review the history of our library and the other considerations which led to that conclusion. In 1952, when the City was incorporated, it had the power as a 6th class city to establish a public library. However, at that time an agreement was reached between the County and the City for a branch of the County free library to be located in Carlsbad. This .agreement,continued until 1956 when it was decided that the City of Carlsbad would establish a library of its own. During that time a library commission was established, which acted in an advisory capacity to the City Council. The provisions for the commission did not follow the language of the Education Code. In late 1960 and early 1961 some members'of the community argued that the library commission would function better if it were a library board of trustees. However, giving full power to run the library to the board of trustees was a matter of controversy. The minutes of the January 17, 1961 meeting of the City Council indicate that the Mayor had attended a conference with various other mayors of San Diego County at which independent library boards of trustees, under the Education Code, were discussed. It was determined that boards of trustees were not beneficial for the city. A draft of an, ordinance which would have created'an independent library board of trustees pursuant to the Education,Code was rejected. In 1963 an ordinance was adopted aading the substance of the presently existing Chapter 2.16 to the Carlsbad Municipal Code. That ordinance, while structured in a manner similar to some of the provisions of the Education Code;',daried in some substantial respects. A significant difference is that Chapter 2.16 requires the library board to make recommendations to the City Council regarding many matters concerning the operation of the library which would be within the independent authority of the board under the Education Code. Control of the library was not vested in the library board of trustees as contemplated by the Education Code but was retained by the City Council. Only limited powers over internal library operations were delegated. Finally, while Chapter 2.16 states that any library created pursuant thereto shall be forever free (a similar provision is contained in the Education Code), there is no indication in Chapter 2.16 that any library was ever created pursuant to that chapter or pursuant to the provisions of the Education Code. Rather, the public library was already in existence at the time Chapter 2.16 was enacted. The matter is clouded by the fact that the City did collect a library tax pursuant to the Education Code. However, the -3- proceeds from that tax did not go into the library trust fund andwere budgeted and spent like the other components of the general fund by the City Council. In any case, the Legislature eliminated separate tax rates several years ago and provided for one general purpose fund to be allocated by the City Council. From the history of the Library in Carlsbad, it appears that the City established the library pursuant to the authority granted by the Government Code rather than pursuant to the Education Code - provisions. The previously referenced opinion of the Attorney General concluded that the Government Code did not constitute a grant of authority for a city to operate a public library and that all municipal libraries must be Education Code libraries. The Attorney General in reaching his conclusion decided, through application of fundamental rules of statutory construction, that the detailed provisions of the Education Code prevailed over the general grant of municipal powers in the Government Code. This view would subject the Council to the Section 18900 limits on library fees. For the reasons set forth in this opinion, we have concluded that the Attorney General is not correct. The ,two sources of authority for establishing city libraries have coexisted in this state for almost one hundred years. The present Government Code sections regulating general law cities are a modern restatement of the Municipal Corporation Act of 1883 which included authority for a city library. At the time Carlsbad was incorporated in 1952, provisions similar to those enacted as part of the Municipal Corporation Act were in effect and the powers granted by the Act were carried forward in those provisions. At the time Carlsbad was incorporated in 1952, cities were divided -into various classes. Carlsbad was a city of the 6th class. Each class was empowered by specific sections of the Government Code to performa wide variety of activities. A city of the 6th class was empowered to establish a public library. Subsequently, additional changes were made,to the Government Code and Carlsbad was reclassi- fied, as were all noncharter cities, as a general law city under ,Governient Code Section 34102. The power to establish a library was continued under provisions similar to current Section 39732(a). Complementary to that section, the City is empowered by Section 37112 to perform all acts necessary or proper to carry out the provisions of the title conferring general powers on cities. That includes Section 39732. Both Sections 39732 and 37112 are con- tained in Title 4 of the Government Code which deal with the government of cities. Section 37112 is contained in that portion of Title 4 which governs the general power of cities. Section 39732 is contained in the specific chapter on municipal and public. utilities. The interrelationship of Section 37112 and Section 39732 is an important factor establishing the general power of the City to maintain and 'operate a public library pursuant to the Government Code. This interrelationship was not discussed in the Attorney General's opinion. -4- i The Attorney General, as he musk, recognizes the existence of Government Code Section 39732(a) but concludes that it cannot be viewed as an independent alternative source of authority for a city but must be viewed "...merely as a collateral confirmation of the grant of authority... in the Education Code." (CV 78/96 p.81, The Statutes ofCalifornia are replete with alternative procedures for doing things such as the provision of public parking, the various assessment districts, or weed abatement. [e.g. See Government Code Section 39501 et seq. for a general grant of authority and Section,39560 et seq. for a detailed alternative.) It, has never been suggested that the existence of one alternative grant of authority precludes the use of another. The Attorney General does not and cannot cite any authority for his concept of "collateral confirmation". Government Code Section 39732 is the basic grant of authority for a general law city to provide a whole range of traditional public utility and municipal services, in addition to a library, including owning and operating bus lines, street railroads, steam railways spur tracks, telephone and telegraph lines, gas and other works for light, power, and heat, museums, gymnasiums, parks, and baths. If the Attorney General is correct, a city would have to find some other -statutory authority before providing any of those services. In some cases there is no other authority. His view writes Section 39732 out of the law and would leave a number of presently oper- ating municipal utilities in limbo. That is simply not the law. The courts of'California have on a number of occasions upheld a city's power to operate facilities based on Section 39732. The Attorney General does not and cannot cite any authority to the contrary. The present Education Code sections regarding city libraries are derived from some 1880 legislation known as an Act to Establish Free Public Libraries and Reading Rooms (the Act). In 1901 proponents of "Carnegie" free public libraries secured some substantial amendments to the Act to provide a procedure in the Education Code, which could be triggered by an initiative petition, to require a city council to estab"'lish a free public library administered by an independent citizen board of trustees. These changes were one manifestation of the progressive reform movement of the late 19th and early 20th centuries which brought the initiative, referendum and recall to California. The amendments to the Act were an attempt to circumvent corrupt local govern- ments, particularly in major metropolitan areas around San Francisco which were not responsive to the needs of their citizens for library services. [See generally, Held, "The Rise of the Public Library in California" (1973)]. At the same general time that the provisions for independent public.libraries were being enacted, the State Legislature was taking significant steps to reform local govern- ments through abolishment of the practice of special legislation and through the adoption of such Acts as the Municipal Corporatio•.s Act. Despite the efforts that were underway to create independent -5- .moo libraries, the Legislature continued the alternative authority for cities to establish libraries independent of the Act. This dual authority has continued since that time and is a part of the law today.. It is significant to note that the Education Code itself recognizes that a city has independent and alternative authority to establish a•city library. Section 18900 provides that the, "...legislative body of any city in the state may, and upon being requested to by one -forth of the electors of the municipal corporation..., shall, by ordinance, establish in and,for the municipality a public library if there is none already established therein." (Emphasis added.) The fact that the city does not have to establish an Education Code Library if the city already has a library must mean that there is some other authority for establishing a public library in the city. In our view the historical context indicates that the Legislature was willing to accommodate the Carnegie activists by giving them a way, through a typical progressive tool, the initiative, to force a city to provide a library, but not if the city already provided library services. The Attorney General ignores the historical context of the legislation and the clear meaning of Section 18900. The courts of California, in two cases, have expressly recognized the authority of a city to operate a library independent of the Education Code. Interestingly, the Attorney General did not discuss or even cite these cases which are central to an analysis of this problem. The first case is People V. Howard, 94 Cal.73, 29 P. 485 (1892). In that case the California Supreme Court recognized that separate authority existed for the establishment of a municipal library by virtue of both the Act and by virtue of the city charter. The court held that the particular library in question did not come under the 1880 Act, but rather was governed by the City Council as stated in the City Charter. While the powers of charter cities are different from those of general law cities, the important point from this case is that the court recognized two separate and distinct inethods of establishing and maintaining public libraries and declined to limit a city to the predecessor of the Education Code. The second and most important case is Library Trustees of Hanford v. Trustees of Hanford, 2 Cal. App. 2d 760, 8 p.227 (1906). This case developed as do so many out of a dispute over money. The Carnegie Foundation decided to grant enough money to the people of the City of Hanford to build a new building to house a library. The city had already established a library pursuant to the Act which was administered by a board of trustees. The library board A•+. Of trustees contended that only they were authorized to receive the money and that the city did not have authority to establish a library. The Court of Appeal held that the trustees (city council) of a 6th class city werQ authorized by the Municipal Corporations Act of 1883 to purchase, lease or receive realty and -personalty for municipal purposes and to control, dispose and convey the same for the city's benefit, including establishing and maintaining Public buildings for municipal purposes and acquiring, owning, constructing, maintaining and operating public libraries. The City Council could also do anything necessary to carry out that power, including accepting and spending the Carnegie money. The r' court concluded that this authority existed independent of the fact that the City had already established a public library pursuant to the Free Libraries and Reading Rooms Act of 1880. The court in Hanford expressly recognized the dual statutory authorization for formation of a public library and clearly held that a city of the 6th class had independent power pursuant to the Municipal Corporation Act of 1883 to establish and operate a public library. As mentioned previously, the substance of the Municipal Corporation Act of 1883 which empowered cities to engage in a wide variety of governmental and propriety municipal functions, including establishment of a library, has been codified in the modern Government Code and Section 39732. The essence of the Act has been codified in the present Education Code. Because of the similarities between the former and modern provisions, this case is clear authority for the proposition that a city can maintain a public.library independent of the Education Code. Based on the above discussed authorities., it is the opinion of thii office that the City of Carlsbad has independent authority Pursuant to Government Code Section 39732(a) to establish and maintain a public library. Inherent in that authority is the authority to collect a reasonable charge for the services provided. If the City Council determines to impose a charge :for library services we recommend that the Council first adopt an ordinance amending Section 2.16.105 of the Carlsbad Municipal Code. That section provides that a library "...established pursuant to this chapter... 11 shall be free. While, for the reasons previously discussed, it is doubtful that there is or ever was such a library. However, for reasons of clarity, we recommend amending this section to provide that users of the library shall pay such fees for services as the Council may by resolution establish. There can be no doubt that the decision of whether or not to charge fees for library services is one for the City Council. ;`he case of City of Ukiah v. Board of Trustees of Municipal LibrarY of the City of Ukiah, 195 Cal.App.2d 349, 15 Ca1.Rptr. 811 1961 makes clear that even an Education Code library with a board of trustees is subject to the policy direction of the City Council and a decision to, charge fees for library service is certainly a basic Policy decision. Although it is not required by state law -or -7- PIA Aft. Chapter 2.16 of the Carlsbad Municipal Code, which provides for an advisory board of trustees, the Council may wish, as a matter of policy, to ask for a recommendation from the board before making a decision on this matter. A related question is whether of not it is permissible for the city to charge nonresidents of Carlsbad for using the,library. It is clear that if a fee is charged to residents, a similar gee may be charged to nonresidents. While the courts of California have approved charging nonresidents for a service which is free to residents, a city cannot unreasonably discriminate against non- residents either in imposing a fee or in establishing regulation of or exclusions from use. [McClain v. City of South Pasadena, 155 Cal,App.2d 613, 318 P2d 199, hearing denied (1958).] The United States Supreme Court has recently upheld a state law which imposed a substantially higher charge for a hunting license on nonresidents. [Baldwin v. Montana Fish and Game Commission, 486 U.S. 371, 56 L.Ed. 2d 354, 98 S.Ct. 1852 (1978)]. The case is authority for the proposition that it is permissible for a city to charge higher fees to nonresident users of city services if the city has a rational reason for imposing the fee. In our view one rational basis for charging a fee to nonresident users of city services would be that the local residents have already paid for the service through taxes while nonresidents have not. Before determining to impose a fee on nonresidents the Council may wish to ask the City Manager for a report since, as a result of our research for this opinion, we have received indications from some other cities with such a charge that they may not be cost effective. The balance of this opinion will discuss five potential legal problems that could result from a decision to impose a charge for library service. Keep in mind, as previously discussed, we use the term "library service" as a term of art to mean loar�ng books as opposed to more peripheral services such as providing meeting rooms or audiovisual equipment. Limiting fees to the latter type of services should avoid most of these problems. First, Government Code Section 39732(a) provides authority for a city public library. However, what constitutes a "public" library is not completely clear. The Government Code contains no defi- nition of public library. The Education Code provisions providing for the establishment of municipal libraries are also silent on the matter. However, it is possible to argue the word "public" modifies library and means they must be free. The California Library Services Act, Education Code Sections 18700 et seq., which governs cooperative and single library systems throughout the state, does contain the following definition of a public library: "A library or two or more libraries, which is opei.ated by a single publ5 r- jurisdiction which serves its residents free charge." (Education Code Section 18710(l).j rA If iAd'eed this definition is applicable to a Government Code library, the Attorney General may be correct in his conclusion that public libraries throughout the state are to be free to 'resident taxpayers of the jurisdiction operates. in which the library Legalities aside, the Council should recognize that any decision to charge for basic library services would be considered by many Public as violative of a tradition in California that should be free. While we do not agree with the Attorney bGencral's ? legal conclusions, his opinion accurately reflects some strong Policy considerations which bear against such charges. Second, the imposition of user fees would remove a :municipal .Library from the definition of public library for the purposes of the California Library Services Act. [Title 1, Division Chapter 9 C , of California Education Code, commencing with Section 181700.1 This Act was adopted in 1977 as a rechaptering of similar provisions adopted in 1963. Basically the California Library Services Act provides for statewide sharing and participation in library services of other libraries and allows libraries to be reimbursed for universal borrowing. We t��ust the Librarian can speak to the value*of participation in this Act and* the effect withdrawal would 'have on her operation. It appears, however, that a condition of participation with the state is that the city not charge for library services. r. Third, the levy of fees would be in violation of our agreement with the County of San Diego and the other cities in the county who participate with us in the joint exercise of powers agreement for regional library services known as "Serra". Pursuant to the Serra Agreement, the City of,Carlsbad receives certain sums of money for participation in the library -service program and for interlibrary loans. Section 3(c) of the Joint Powers Agreement provides, "Member libraries shall permit any borrower in good sf.anding at one member library, to borrow books and other library materials circulated by any other member library accord- ing to its rules without discrimination because of his place of residence and without the payment of a nonresident fee. The materials so borrowed frcim one member library may be returned to another member library without penalty." This 'section clearly precludes a nonresident's fee. It is unclear whether or not the agreement would preclude charging a fee to -residents and nonresidents alike. The matter would have to be explored further with the other parties to the aar_Anmm"4- v......._� a PM :y r 1 y we are.informed the intent of the agreement was to have each party's library resources available to all the other parties free of charge. If that interpretation prevails, the Council would be required to withdraw Carlsbad from the Serra System in order to impose a charge for basic library services. Fourth, the imposition of the charge for the traditional library service's of lending books and other tangible materials might be in violation of certain sections of the Copyright Act of 1976. [Public Law 94-55 3 (90 Stat. 2451), Copyright Act of 1976, 17 USC.] Section 106 of the Copyright Act states that the owner of a copyright has the exclusive right to distribute copies of the copyrighted work to the public by sale or other transfer of owner- ship or by rental, lease or lending. Section 107 places a limitation on this exclusive right known as "fair use". In determining whether or not a particular use of a copyrighted work is a fair use, numerous factors must be considered, including: the purpose and character of the use; whether it is a commercial or a nonprofit educational nature; the nature of the copyrighted work; the amount of substantiality of the portion used;,and the affect of the use upon the potential market for the value of the copyrighted work. .Traditionally libraries have been considered to be a fair use of a copyrighted work. If the fees charged by the library were limited in amount to those necessary to run the library and to provide the services of the library, it is arguable that despite the fact that such imposition of a fee may be considered to be a renta- of a copyrighted work, such rental would nevertheless be a fair use when done by a public library. We don't consider this to be a significant problem but it should be mentioned in any compre- hensive analysis of this question. Finally, the possible effect of Proposition 13 must be considered. The Council should have reference to the paper we presented to the League of California Cities on the special tax provisions of Article XIIIA. While our general view is that reasonable service charges are not special taxes, a fee for basic library services may be an exception. As we outlined in the paper,- new fees not previously imposed by a city and not traditionally imposed by cities in general, may be suspect, particularly if they are used to support a service previously supported by property tax revenues. As the Council knows, there are a number of cases pending in the courts involving the interpretation of Proposition 13 and it will be difficult to offer much authoritative guidance until those decisions are rendered. V CM 4L. 0 D0, City Attorney VFB/mia -10- i