Flying Blind: Fontana library board navigates turbulent times without legal counsel
Former FRL board Vice Chair Tony Monnat and newly elected Chair Bill McGaha share a look while debating the diversity statement in the library card application.
Kyle Perrotti photo
As tension develops among Fontana Regional Library trustees and a seismic shift lies ahead in about nine months, the board is plugging ahead without an attorney.
The July FRL meeting was the last for former board attorney Rady Large, who had offered his services pro bono for about the last two years but had to resign upon taking a job with Western Carolina University.
Just prior to that meeting, Jackson County commissioners had voted to withdraw from the library system it had belonged to for the last 80 years, likely leaving Macon and Swain counties as the only two remaining members.
Large recommended the board retain legal services from a multi-partner firm.
“You guys, as a board, have a lot of issues that normally an attorney that would be representing a library board would not address,” Large said. “There’s a lot of municipal law and constitutional law that you guys are going to be advised on, and so my biggest piece of advice is, it would be in your best interest to get on retaining legal counsel ASAP.”
Along with needing an attorney during the process to establish a new agreement with Macon and Swain counties, the withdrawal could bring about a whole of issues related to personnel, finances and more that would necessitate a legal review. Also, while a recent press release from the FRL board notes that “No library materials have been removed from any FRL library due to objectionable content,” there were no promises made that, moving forward, that would continue to be the case. Censoring content has brought libraries across the nation lawsuits. All this is in addition to typical legal pitfalls like public records requests.
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During the Sept. 9 meeting, there were a few topics brought up that board member Cynthia Womble mentioned could need legal review. Her logic in these comments was that board members don’t know what they don’t know, and to assume that something is simple enough to not warrant legal review is the kind of faulty logic that could lead a lawsuit.
During a discussion of changes to the circulation policy, trustees discussed the language on the application for a library card. Board member Lori Richards moved to approve a new circulation policy, which included new language on the application for library cards.
Board member Tony Monnat delayed the vote, noting that previously, the application stated that the library system doesn’t discriminate on the basis of “race, color, religion, national, ethnic origin, gender, sexual orientation, gender identify or gender expression, age, disability or other gender information.” He was curious why that was replaced by a statement that simply said the library “does not discriminate in provision of administration of library services.”
Bill McGaha, the newly minted board chair, answered Monnat’s question.
“It’s redundant. We don’t discriminate against anyone based on anything, period,” McGaha said.
Monnat said he still had issues, considering he’d always seen such a statement on the “untold numbers” of forms he’s signed in his years, adding that he’d seen the same statement on Smoky Mountain High School’s and Jackson County government’s websites. Trustee Deborah Smith mentioned that there are some questions not mentioned in that statement — such as immigration status and whether someone is unhoused. To try to include all will always end in the exclusion of some, she argued.
“You could go on and on and on. You could continually be revising it,” she said.
However, it’s not that simple. The groups mentioned in the standard federal nondiscrimination statement like the one FRL used before are included for a reason. They are protected classes under the likes of The Civil Rights Act of 1964, the Age Discrimination in Employment Act and the Americans with Disabilities Act.
Either way, Monnat’s objection was for naught; the board voted 6-1 in favor of the changes.
Prior to that vote, Womble asked whether an attorney had reviewed the changes to the circulation policy.
“We’re changing the language; I would be concerned in making sure that an attorney reviewed it again,” she said.
The board also discussed adopting its first ever public comment policy. Before, public comments had been guided by procedures. The public comment committee, which met twice between the July and September meetings, decided to adopt a full policy. Notably, the policy states that trustees aren’t required to hear oral public comments when not in a board meeting. Basically, the board members were worried about harassment in public places. While such harassment can quickly rise to the level of a misdemeanor, some board members wanted to see it in the policy.
Womble also asked about obtaining a legal opinion on this, since it was codifying something that could be met with allegations of First Amendment violations, perhaps in ways the board couldn’t imagine.
In a move likely not to be met with legal scrutiny, the board also decided to get rid of its ethics statement. First adopted about two years ago, the statement has been a point of contention over the last several months. The ethics statement had been amended by a committee and was brought back before the board Sept. 9. Womble said that during the first ethics committee meeting in July, she expressed concern that the last line of the statement, which said the board would support the efforts of the librarians to “combat censorship,” was going to be removed.
This was debated at the Sept. 9 meeting. Womble’s concern is that if there is no commitment against censorship, beyond it being antithetical to the library system’s ethos, it could lead to lawsuits, as it has in other states over the last couple of years.
Richards pointed out that the development policy already addresses censorship, implying that including in the ethics statement is redundant. Womble elaborated on her concern, adding that without such a line in the ethics statement, it would be easy to simply change the development policy to allow for censorship without any pushback.
“My concern, is that the next revision of the collection development policy will, in fact, have censorship in it, and it'll be ethical because it won't be against our ethics statement,” Womble said.
Ultimately, in a sort of damned-if-you-do, damned-if-you-don’t moment, Womble moved to get rid of the ethics statement altogether. At the mention of getting rid of the statement, McGaha perked up.
“I wish I’d talked to you about this before because I feel the same way,” he said to Womble, adding that an ethics statement isn’t required by law anyway, so it’s just another item that can get in the way of the board’s ability to conduct business. The board voted 6-1 in favor of getting rid of the statement with only Monnat voting against Womble’s motion.
Finding counsel
At one point, the board talked about hiring an attorney or firm. In the past, Director Tracy Fitzmaurice would handle such a task. She provided a brief update on her efforts, saying that on Large’s recommendation, she reached out to Asheville powerhouse Van Winkle Law Firm but hadn’t heard back. Some other leads were dead ends, but Fitzmaurice said there are still a few more to reach out to.
Trustee Kathy Smith moved to form a committee to conduct a search for legal counsel and provide a nominee to the board for a vote.
“I find no authority for the director to unilaterally hire an attorney,” Smith said.
This was challenged by Womble and Monnat, who said that those kinds of tasks had always been handled by the director and that just because it isn’t stated in the bylaws that the director has to make the choice doesn’t mean the board needs to step in.
“I think that what I see happening with this board is a move toward micromanagement and wanting to have personal individual oversight of every decision that is made, which tells me that you don’t trust our regional director and are not supporting them in day-to-day operations,” Womble said. “It also tells me that you are assuming that anything that’s not spelled out in the bylaws as belonging to the regional director somehow belongs to the board instead as an authority.”
Trustee Marva Jennings framed things a bit differently. With all the work Fitzmaurice had put into getting a new finance director over the last two months, the board would be doing her a favor by relieving her of the task, Jennings said.
“I see this more as helping Tracy find an attorney rather than taking over from Tracy,” she added.
The board voted a 3-3 split with McGaha abstaining, meaning the motion failed. Fitzmaurice said she would continue reaching out to attorneys and law firms.
More allegations of micromanagement
Only days prior to the meeting on Sept. 9, Womble and Monnat announced their resignations from their chair and vice chair positions, respectively. While they didn’t leave the board entirely, those positions were vacant heading into the Sept. 9 meeting, so McGaha led the meeting as an interim chair before being elected to the position at the end of the meeting. In addition, Cheryl Taylor, a new board member from Swain County, became the vice chair and Kathy Smith of Macon County became the new secretary, filling the seat McGaha vacated to become chair.
Womble was voted in as chair during the July meeting. At that time, she was the only one who seemed willing to serve. However, she told The Smoky Mountain News that she feels she didn’t have the confidence and trust of board members. She also felt like she felt so strongly on certain issues that she struggled maintaining neutrality, something the board chair is supposed to do in an effort to foster constructive debate and free discourse during meetings.
The board typically conducted business in an uneventful matter until just a couple of years ago, when a movement swept the nation in which conservative cultural influencers and pundits began calling for people to scrutinize local libraries over the inclusion of LGBTQ content on their shelves and events on their calendars.
Since then, a faction that espouses that ideology has gained a majority on the FRL board, and Jackson County commissioners voted to pull out of the library system, which both costs county taxpayers more money and weakens the overall FRL system that still includes Swain and Macon counties.
“I tried to be collaborative and congenial and professional in running meetings and setting up agendas and committees, and I was pretty much thwarted at every turn when I tried to rein board members in,” she said.
“I can be of more use being able to defend and advocate for library staff and headquarters staff and for freedoms and rights I believe in by not being constrained by being the chair anymore,” she added.
Womble took that mindset into the Sept. 9 meeting during the discussion about seeking legal counsel and on other topics.
About three hours into the meeting, as things seemed to be winding toward a conclusion, Richards floated one more idea. Curious about programming, she asked Fitzmaurice if she could compile basic data about the last year’s programming — names and dates of programming, the nature of events, how much they cost and how many people attended.
Fitzmaurice said that she could feasibly do that going forward, but to go back and try to fill in data from the over 1,000 programs would take “an inordinate amount of time.”
Womble voiced her frustration with the idea.
“So you want them to go back and recreate a document that they didn’t collect data in this way for the last year so that you can then go and micromanage the programs they run in the future?” Womble said to Richards.
Richards said she wouldn’t micromanage, but when asked, she also struggled to state why such data was needed and what decisions it may inform. In recent years, programming at libraries has been at the heart of that larger debate about libraries’ independence and whether their books and programming are appropriate for families. This wasn’t discussed during the debate over the data collection, but the undertones were heavy.
Defending Richards’ request, Kathy Smith said she’d be interested in learning more about programming, saying right now it feels like a “big black box.”
“If you’re signed up in the newsletters,” Fitzmaurice said, “you can see every event in those newsletters.”
