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AGO 1992 No. 31 - December 30, 1992
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

LIBRARY--FEES--Ability of a Library to Charge for Library Services

1.  RCW 27.12.010(3) defines library as a free public library supported in whole or in part with money derived from taxation.  RCW 27.12.270 provides that a library shall be free for the use of the inhabitants of the governmental unit in which it is located.

2.  With certain specific statutory exceptions a library cannot charge residents a fee for library services.  However, the library can charge a fee to nonresidents.  The library can also charge for nonlibrary services that are provided at the library as a convenience for the public.

                                                                 * * * * * * * * * *

                                                               December 30, 1992

The Honorable Dick Nelson
State Representative, District 32
307 John L. O'Brien Building
Post Office Box 40664
Olympia, WA  98504-0664
                                                                        Cite as:     AGO 1992 No. 31

Dear Representative Nelson:

            By letter previously acknowledged you requested the opinion of this office on the following paraphrased question:

            May public libraries operated by a city, town, or library district impose fees on residents for the use of various services or facilities provided by the library?

            We answer your question in the qualified negative as set forth in the analysis below.

                                                                    ANALYSIS

            A.       General Authority Regarding the Charging of Fees by Public Libraries

            RCW 27.12.025 provides that "[a]ny governmental unit has power to establish and maintain a library, either by itself or in cooperation with one or more other governmental units."  RCW 27.12.010(1) defines "governmental unit" to include "any county, city, town, rural county library district, intercounty rural library district, or island library district".  RCW 27.12.010(3) in turn defines "library" as "a free public library supported in whole or in part with money derived from taxation". (Emphasis added.)

            Thus, regardless of how a public library is established, it is to be essentially a free public library.  There are but a few specific exceptions to this principle.  RCW 27.12.270 provides:

                        Every library established or maintained under this act[1]shall be free for the use of the inhabitants of the governmental unit in which it is located, subject to such reasonable rules and regulations as the trustees find necessary to assure the greatest benefit to the greatest number, except that the trustees may charge a reasonable fee for the use of certain duplicate copies of popular books.

The exception allowing libraries to "charge a reasonable fee for the use of popular books" was inserted by the Legislature following an opinion of this office which held that absent such authority, residents could not be charged for the use of books.  See Ops. Att'y. Gen. (August 2, 1932); Laws of 1935,  ch. 119, § 13, p. 343 (amending Laws of 1909, ch. 116, § 9, p. 399).

            RCW 27.12.305 gives libraries the authority to sell certain materials, but it contains a strict limiting provision:

                        Any public library . . . shall have the authority to provide for the sale of library materials developed by the library staff for its use but which are of value to others such as book catalogs, books published by the library, indexes, films, slides, book lists, and similar materials.

             . . . .

                        Nothing in this section shall be construed to authorize any library to charge any resident for a library service[.]

(Emphasis added.)

            RCW 27.12.210(1)-(10) sets forth the powers and duties of library trustees.  Although this statute gives the trustees the authority to fix the library budget, control the library finances, accept gifts, lease and purchase land, and purchase books and supplies, nothing in this statute grants the trustees any specific authority to impose fees or charges on residents for services.  We note that subsection (10) contains a general grant of power to "[d]o all other acts necessary for the orderly and efficient management and control of the library".  However, such general grants must be construed as conferring additional powers only to the extent that they are consistent with the particular powers granted and are not otherwise limited by statute.  AGO 1978 No. 5, at 6, citing Century Brewing Co. v. Seattle, 177 Wash. 579, 585, 32 P.2d 1009 (1934).  Given that the Legislature has expressly denominated a public library as a "free public library", and has carefully limited the circumstances in which charges may be made, it would be inconsistent to read the above general language as granting broad authority to impose fees for library services on residents using such services.[2]

            The Legislature has provided specific sources of income for public libraries.  A library is defined as being "supported in whole or in part with money derived from taxation".  RCW 27.12.010(3).  In addition to the power of taxation vested in cities and counties, the Legislature has expressly granted this power to all library districts.  RCW 27.12.050, .150, .420.  The Legislature has also granted library districts the power to contract indebtedness, issue general obligation bonds, and make excess tax levies to finance their operations.  RCW 27.12.222.  The grant of authority does not include the authority to impose fees on residents for library services.

            Where the Legislature has intended to authorize the imposition of fees for library services, it has done so directly.  Your opinion request makes reference to the Western Library Network established by chapter 27.26 RCW.  This network and its method of funding is quite different from that established for public libraries.  The Western Library Network was developed by the State of Washington and includes computer systems, telecommunications systems, interlibrary systems, and reference and referral systems.  RCW 27.26.020.  The Legislature specifically provided that:

                        The state library commissionshall develop a schedule of user fees for users of the western library network computer system and a schedule of charges for the network's products and licenses for the purpose of distributing and apportioning to such users, buyers, and licensees the full cost of operation and continued development of data processing and data communication services related to the network.

RCW 27.26.040 (emphasis added).

            Thus, the Legislature clearly intended that the network be reimbursed for its costs connected with the system.  It furthermore expressly provided that the network be authorized to charge user fees to "users" of the system.  Such "users" include those libraries which choose to participate in and make use of the system.  See RCW 27.26.010(2).  The Legislature did not, however, authorize the participating public libraries to charge residents for the use of library services provided by the system, or to pass on to residents, in the form of additional fees, charges imposed by the network or its successor organization[3]on libraries.[4]        

            B.        Fees for Specific Services

            With the above general principles in mind, we now turn to the particular types of services referred to in your opinion request.  Specifically, you have asked whether a fee may be charged to residents for (a) the use of public telephones, photocopying machines, and "fax" (facsimile) machines; (b) postage fees for sending library materials to residents and returning the materials to the library; (c) "on line" searching on remote databases; (d) having librarians provide research and reference services; and (e) using services provided by the Western Library Network or its successor organization.

            Whether fees may be charged in any particular case depends on whether the service in question may properly be characterized as a library service.  While RCW 27.12.270 states generally that libraries shall be "free for the use of the inhabitants of the governmental unit in which it is located", other statutes refer more specifically to the provision of free "library service" by the public libraries.  See RCW 27.12.090, .305.  The term "library service" is not defined in the statutes.  We therefore give the term its ordinary meaning.  Davis v. Department of Employment Sec., 108 Wn.2d 272, 277, 737 P.2d 1262 (1987).  We interpret it to mean a service associated with the public library--that is, one which the public library was established to provide, as opposed to one which may be available merely as a convenience or one which may be equally provided by institutions other than the library.

            We conclude that fees may be charged for the use of public telephones, photocopying machines and "fax" machines.  These are not "library services" but rather simply services provided as a convenience that are equally available elsewhere.  Likewise, postage fees for mailing library materials to and from residents are incurred in providing a convenience to those residents who choose not to obtain such materials from the library in person.  We believe the general authority of the library trustees to enact "reasonable rules and regulations" provides sufficient authority to impose a reasonable fee for such conveniences, and that this does not conflict with the general directive to provide free library service.

            However, we conclude that a public library may not impose fees on residents for "on line" searching on remote databases, for research and reference services provided by librarians, or for services provided by the Western Library Network or its successor organization.  These are quintessential library services--they are uniquely associated with the library and fall within the ambit of services which a library must provide free to residents, in light of the absence of statutory authority granting libraries the power to impose fees.

            Finally, we emphasize that fees for library services may not be imposed onresidents of a library district, or of a city, town, or county providing a public library.  This does not mean that such a prohibition applies to nonresidents.  A library may choose to furnish library services to nonresidents by contracting with other governmental entities pursuant to RCW 27.12.180.  In the alternative, we believe a library may charge a reasonable fee to nonresidents for library services.  Indeed, this authority is implicit in RCW 27.12.270, which states that a library "shall be free for the use of the inhabitants of the governmental unit in which it is located", and RCW 27.12.020(3), which defines a public library as one "supported in whole or in part with money derived from taxation".  (Emphasis added.)  See also RCW 27.12.280 (a library has express authority to allow nonresidents to use library books "under such rules and regulations as [the board of trustees] may deem necessary and upon such terms and conditions as may be agreed upon");  Clarkston v. Asotin Cy. Rural Library Bd., 18 Wn. App. 869, 573 P.2d 382 (1977) (a library district may limit the right to check out library books to residents of the district, since they support the library with their taxes while nonresidents do not).

            We trust the foregoing will be of assistance to you.

                                    Very truly yours,

                                    KENNETH O. EIKENBERRY
                                    Attorney General

                                    GREGORY J. TRAUTMAN
                                    Assistant Attorney General

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    [1]In your opinion request, you question whether RCW 27.12.270 applies only to city, town, or county libraries, since this particular statute was enacted in 1935, prior to the Legislature's authorization to establish various types of library districts.  See Laws of 1941, ch. 65, § 4, p. 159 (authorizing rural county library districts); Laws of 1947, ch. 75, § 1, p. 172 (authorizing intercounty rural library districts); Laws of 1982, ch. 123 (authorizing island library districts).

      We believe the basic requirement of a "free public library" applies equally to all public libraries, however established.  The statutory definition of "library" cited above specifically includes this term, and RCW 27.12.090 additionally provides, regarding library districts:

          Intercounty rural library districts may be established to provide throughout the several counties free public library service similar to that provided within a single county by a rural county library district.

(Emphasis added.)  There is no indication in the statutes, nor any apparent policy reason, to support the contention that library districts are not generally required to provide free public libraries.

    [2]For the same reason, we conclude that the language of RCW27.12.270, granting trustees the authority to enact "suchreasonable rules and regulations as the trustees find necessaryto assure the greatest benefit to the greatest number", likewisedoes not confer broad authority to impose charges for libraryservices on residents of the governmental unit.  To so interpretthe statute would defeat the very intent of the precedingstatutory language making the library "free for the use of theinhabitants of the governmental unit in which it is located".

    [3]The Legislature in 1989 permitted the State Library Commission to transfer the functions of the Western Library Network to a successor organization.  Laws of 1989, ch. 96 (codified at RCW 27.26.070-.090).

    [4]RCW 27.26.020 states that "nothing in this chapter shall abrogate the authority of a participating library, institution, or organization to establish its own policies for collection development and use of its library resources".  For the reasons previously stated in this opinion, we do not believe this general reservation of power can be construed as granting public libraries the authority to impose charges on residents for library services in light of the directive that a library be "free for the use of the inhabitants of the governmental unit in which it is located", with limited express exceptions.  RCW 27.12.270.  See AGO 1978 No. 5, at 6.

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