HomeMy WebLinkAboutAgenda Packet - LB - 2001.03.20 URLINGAME PUBLIC LIBRARY ',[Board of Trustees Agenda
March 20, 2001 — 4:30pm 480 Primrose Road — Board Room
SUGGESTED ACTION
1. CALL TO ORDER
2. ROLL CALL
3. WARRANTS & SPECIAL FUND ✓ Approval
4. MINUTES Approval
5. CORRESPONDENCE AND INFORMATION Information
a. Letter: Historical Society ✓
b. Statistics - December ✓
c. Kathleen R. et al v. City of Livermore ✓
d. Library Board Meetings
6. FROM THE FLOOR (Public Comments)
-7. REPORTS Information
a. City Librarian Report -Escoffier ✓
b. Foundation Report—Dunbar/Herman ✓
8. UNFINISHED BUSINESS (None)
a. Easton Report—Escoffier ✓ Information
9. NEW BUSINESS
a. Change of 2 Board Meeting Dates ✓ Approval
10. ADJOURNMENT Adjourn
• r B(1RLINGAME
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1
9 U R L I N G A M E
P U B L I C
LIBRARY
Burlingame Public Library
Board of Trustees
Minutes
February 20, 2001
I. Call to Order
The meeting of February 20, 2001 was called to order by President
Cecile Coar at 4:30 pm.
II. Roll Call
Trustees Present: Jeff Berger, Cecile Coar, Jane Dunbar,
Andrew Gurthet' Mary Herman
Staff Present: Alfred Escoffier, City Librarian
Sidney Poland, Recorder
III Warrants & Special Fund
The Trustees unanimously agreed to approve the warrants as
presented. M/S/C (Berger/Gurthet)
IV. Minutes
The Trustees unanimously agreed to approve the minutes of the
January 16, 2001 meeting. M/S/C (Herman/Berger)
V. Correspondence
Correspondence mailed in the packets was reviewed.
A. Duncan Trust Statement - Trustee Coar advised that the
comment made on the December, 2000 statement regarding
".... adjustment to the investment income earned on your fund ..."
does not pertain to the Duncan Trust.
4 8 0 P r i m r o s e R o a d • B u r l i n g a m e • C A 9 4 0 1 0 4 0 8 3
Phone ( 650 ) 342 - 1038 • Fax ( 650 ) 342 - 1 948 • www . pls . lib . ca . us / pls / pls . html
B. Library Accounts Reports
1. Marshall Trust - The City of Burlingame posts
interest on the Marshall Trust once a year which is why the
�-- statement provided to the Trustees shows the same balance
from July through December of 2000. The trust is earning
approximately 6% annually.
2. Revolving Account- Funds are placed in this account
until various invoices need to be paid.
3. Trustees Account - Xerox Fund - The Xerox receipts
have not been as high as in the past. Cost for copies is $ .15
which the Trustees felt should not be raised. Copies printed
off the Internet are $ .15 after 10 pages; payment is based on
the honor system. The Trustees discussed possible ways to
monitor patron printing costs and collections for the Internet
by means of a computerized program.
VI. From the Floor (Public Comments) None
VII. Reports
A. City Librarian's Report
The City Librarian reviewed his report highlighting the following
issues.
1. Easton Upgrade Project - The Branch task force has
reviewed Kathy Page's findings. On March 2nd, Wayne
Gehrke of Group 4, will meet with the Branch task force to
begin the cost estimate process.
2. Donor Wall - Andrew Bradford of Napa is working on
the mock up of the donor wall vine and will try to send it to
us by the March 20th meeting.
3. Merger of Friends and Foundation - The Friends met
this month to review their organizational status, discuss
procedures of disbanding the Friends and implementation of
operating as an entity of the Foundation. This merger is not
likely to be completed until the early part of 2002.
Library Board of Trustee Minutes 2
February 20, 2001
• 4. Energy Conversation - Staff has investigated possible
ways to reduce energy consumption in the library. Energy
needs were different when the building was designed 7 years
ago.
a. HVAC - Last year a complete readjustment of the
control (VAV) boxes was implemented by ComAir and
Automatic Controls which resulted in a more energy
efficient system.
b. Lighting: A portion of the lighting is computerized;
the other portion is a combination integrated battery
back up and emergency lighting system which remains
on 24 hours and is wired to a breaker panel. Staff will
investigate cost savings of making changes.
S. Personnel - Mary Beth James-Thibodeaux joined the
staff to fill the vacant 30 hours reference librarian position.
Previously, Mary Beth was an on-call reference librarian.
B. Foundation Report - No Report
VIII. Unfinished Business - None
IX. New Business -
A. Staff Recognition Request - The Trustees agreed to provide
funding from the Trustees Fund in the amount of$1,000 for the
annual staff meeting programs. M/S/C (Herman/Dunbar)
X. Adjournment The meeting was adjourned at 5:30pm. M/S/C
(Herman,Guerthet)
Respectfully Submitted
Alfred H. Escoffier
City Librarian
Library Board of Trustee Minutes 3
February 20, 2001
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THE BURLINGAME HISTORICAL SOCIETY P.O. BOX 144 • BURLINGAME, CA 94011
February 21, 2001
Alfred Escoffier, Librarian
Burlingame Public Library
480 Primrose Road
Burlingame, CA 94010
Dear Al,
For 25 years, The Burlingame Historical Society has been actively researching local history
primarily through the recollections of old timers and by reading microfilm of the Burlingame
Advance newspapers in the Library.
So, it is with much pleasure and gratitude to the Burlingame Library that we accept the microfilm
_ reader/printer. We thank you for this generous gift, and also thank Pat Harding, Sue Reiterman
and others who facilitated the move of the machine to our archives.
Also, thanks to the Burlingame Library, we already have a small collection of films of the Advance
and The Independent that will help our researchers get started right away.
Again, we are delighted to receive this great researching tool and are looking forward to
continuing our long, helpful and close relationship with the Burlingame Library.
Sincerely,
Mary Faber, Secretary
BURLINGAME PUBLIC LIBRARY STATISTICS FOR THE MONTH OF DECEMBER 2000
REGISTERED BORROWERS Previous month's total #Added Total Registered
Burlingame Adults 12,185 74 12,259
Burlingame Children 3,198 17 3,215
Hillsborough Adults 1,981 12 1,993
Hillsborough Children 1,014 5 1,019
Non-San Mateo Co. Borrowers 776 8 784
Totals 19,154 116 19,270
CIRCULATION ACTIVITY MAIN BRANCH
Adult Print Materials 15,785 693
Children's Print Materials 6,934 896
Audio/visual Materials 5,532 103
CIRCULATION TOTALS
This month total Main 29,886 This month previous year 27,555 8.5%1
This month total Branch 1,923 This month previous year 1,976 -2.76%D
This month Grand Total 31,809 This month previous year 29,531 8%1
REFERENCE ACTIVITY INTER-LIBRARY LOANS
Questions Directions Lent 2,406
Reference 2,151 241 Borrowed 1,443
Children's 872 962 TOTAL 3,849
Lower Level 906 1,869
Branch 109 61
TOTAL 4,038 3,133
Collections Main Titles Added Main Volumes Added Branch Volumes Added
Adult Non Fiction 234 285 8
Children's Non Fiction 99 116 12
YA Non Fiction 0 0
Adult Fiction 102 143 11
Children's Fiction 100 133 21
YA Fiction 7 11 4
Cassettes 55 265 19
Compact Discs 16 27 0
Videos 32 80 0
Children's Audio 0 19 0
Children's Video 0 3 0
Totals 645 1,082 75
BURLINGAME PUBLIC LIBRARY STATISTICS FOR THE MONTH OF DECEMBER, 2000 PAGE 2
OTHER MATERIAL Volumes added Total
Adult un-cataloged books 108 2,926
Children's un-cataloged 75 1,340
books
Foreign Language un- 0 314
cataloged
Deposited with the City Treasurer Main $6,756.34
Branch 373.50
Total $7,129.84
Other Deposits Rental $ 98.00
PLS Video $ 34.00
Photocopies* $838.70
*This figure is also included in the "total main deposit".
ESTIMATED USER TRAFFIC' 22,960 DAILY AVERAGE 820
*Community Room Adult
TOTAL MEETINGS HELD 3 FATTENDANCE 59
CHILDREN'S/YOUNG ADULT ATTENDANCE
Pre-school programs 14 561
School A e 1 36
Book rou ies 1 7
Total 16 604
Internet Use
One Hour Express Children's Total
1,107 2,153 87 3,347
Tucrsday,March 8,2001 Daily Appettate Report 2383
CIVIL RIGHTS Internet at their own risk:... [U ... [q] Individuals must
accept responsibility for determining what is appropriate.
The library, ...-upholds and affirms the right of each
individual:m .have access.:to constitutionally protected
Ci zs not sub est to suit or damage's or injunctton materials and also affirms,the right and responsibility of
,. f
for o�j`tring unrestricted access to the Intern parts,to.determine and.monitor their children's.use of-
library materials and resources. Parents and guardians are:
through computers atpublu Izbrar�c� r enconraged;to work closely wrth.their children Parents are
Y • �Y: ��
�,,� ptpected L� monitor and supervise childna's.use of the
N. Internet selectin material that is consistent with
g
Cite as 2001 DJDAR 2383 , ` h �,� 4O°�`Fod-family_values. ;TbaLivermore Public-Library '
��,k°t does not provide this monitorings or supervision." The
,YS ; � F �' . policy liiw�xamples.of-unacceptable use."-of computers,
.. �- including use"for other than educational,informational and
PlaintiffT��s and ��� y`� �� reical
creatioonal purposes;' ar..for "unauthorized, illegal or
CTfY`OF UVERMORE, y� ' Respondent:is wasting.puher' state, law
v.
blic-funds on�comput�ers(which
Defendant and Respondent. K mur access to obscenity and matter harmful to.minors;it
No.A086344 ' R `} f ,`t � Js a public nuisance for respondent to knowingly allow its.
ti k'.k s 14 'OMP11t= to be used to-access.'obscenity. and matter
(Alameda County r x ; � y harmful to mmats; and the library, is unsafe for minors
� ' Super.Ct No:Y-01524 fixans..... pu$ s provide them with access to harmful
sus t � t
Cahfonua Courtof A y� 4 mintier 1983 claim alleges that: Minors are
3~uxt Appellate Distn t '°tor$ to the library complete:public school
i .
a Division Four i �� j,a �ti iters-° a ges,minors to use its
� ��.t �.� as
si � en
; l�h 6.200�� �„ 1pa policy of allowing minors to
a obscenit and:pornography on the
t� nk 4' �tCWt y Porn SZdP Y
m�.Y 14 4 u t to d�tNx
A In this case we hold"that a city is not nub to stat ot= boncpdters ptposed to obscenity and pornography
damages a an injunction far oflenng anrestncbeata= s to saffea and psychological damage and damage to
x`aRftb 1
the In through computers at aj1112
ner respondent knows its actions and
pp��tryy1� a ptcu8 uric plaarig`minors at grave risk Of harm and
S i � RECO `t t.�i.? '
; � �g tespQni3ent tries to keep parents ignorant of that risk.
This case was filed against City ,of Altappegant's causes of actionseek'injunctive relief:
Livermore by appellant Kathleen R.indivilaims seek to enjoin respondent: 'from acquiring
capacities as a taxpayer and as guardian ad iztem fon computers which
or a aint ining allow people to access
Brandon P� her minor son. The amended complaint obscenity or minors to access hanmfuk sertual matter,from
includes causes of action for waste of publicfunds. marntaining any premises where miioit;�ave that ability,
nuisance..Prem ses liability,and denial of substantcve dueR an4r1omexpending.-public funds on-such computers. The
process (42 Us.C. .'>] '1983 (hereafter 'I983): se�xion 1983,claim ienjoin respondent from"knowingly
Respondent's demurrer was:sustained without:leave:to and intenhonauy allowing its computers to display obscene
amend on the ground that the complaint did not state facts and<'pocnogaphic images where [Brandon] and other
sufficient to eonstitute.a cause of action,and the case`was children can view:them."' The nuisance and.premises `
dismissed. liability claims also regaesr declarations that respondent is
Respondent's library has computers halted to the liable for all:future damages appellant's children suffer
., Internet which patrons of any age are fire to
use. Twelve- from "sexual and other-material harmful to minors" they
tors ' : year-old Brandon went to the computers without appellant's access at library computers connected to the Internet.
knowledge and downloaded sexually explicit photos from
the Internet onto a floppy disk that he brought to the library. II. DISCUSSION
� Without any adult's knowledge or permission Brandon A public library,is in a "damned if you do, damned if
printed the photos at relagve's computer. He engaged in you don't"actuation in deciding whether to restrict access to
rats T' this activity an about'10 occasions.'A s
tY 'Appellant alleges that the Internet computers to prevent harm to minors-,
tes the photos Brandon obtained are harmful to minors and that A case in Virginia shows that the library can be sued if it
1 some of them are obscene: One of the photos is reproduced limits:'Internet access'(Mainstream Loudoun v. Bel of
towla tons in cola on the first page of the complaint and others art 7Yustees ie Lbudoun (E.D.Va. 1998) 24 F.Supp.2d 552
attached as exhibits. In one of the exhibits a middle school (Loudowrt In [use :of filtering software violated Fast
schedule is superimposed over the image of a scantily clad Amendment]);this case shows that the library can be sued
woman Brandon showed the photos to.otherminors. "` if it.does not:. This case,',unl___ the Virginia one, is
A copy of the Internet access polity adopted ,by untenable_ .The state laws claims in this case are preempted
'a respondent's library board of trustees is attached to the by,Weral law, and there is'110 entitlement to relief under
complaint. This policy states in part: `"Tbe Board of, section 1983.
'A ''rustees 'supports the idea that all ,nxnbeisof,_the:
community,have free and equal'aeoess to the entire range of A*
State Law Causes of Action-
s library nesourcxs,regardless of oonten4 approach,format or The state causes.of action. are precluded by title 47
. amount of detail. These rights extend to all users of the United States Code section 230 0 230).,Section 230(cxl)
public library including minors. .'.: [q] (v The states that: "No provider or user of an interactive computer
Internet and its available resources may contain materials of service shall be treated as the'publisher or speaker of any
"a controversial nature. The Livermore Public abrary does
not monitor and has`no control over the information t "m coomast to d broad clamu for injunctive reiiet: app
accessed. through the Internet and cannot be held sayses in ba briefs Qat she would be satisfied if respondent
responsible for its content. ... Library patrons use,the. T t minors have'verified wry puenuc part issoo"to use
2384 Daily Appellate Report Thursday,March 8,2001 TTr
information provided by another information content governmental entitiesof immunity under section 230(cXl) Proprovider." 'Ibis provision prohibits "hold[ingl interactive Section 230(cXl)immunity serves rather than undermines ` ass
computer services liable for their failure to edit,withhold or the purpose of minimizing state regulation of Internet -s acs
restrict access to offensive material disseminated through speech insofar as it precludes claims based on public Par
their medium." (Blumenthal v.Drudge(D.D.C. 1998)992 entities' failure to undertake that regulation. Thus, the toe
F.Supp.44,49.) This prohibition was enacted"to promote rationale for the denial of immunity in Loudoun I has m '.' i>m
the continued development of the Internet and other application in this case.' Moreover,the court noted that its an
interactive computer services and other interactive media," holding in Loudoun I would have been the same"[elven if c9V
and "to preserve the vibrant and competitive free market § 230 were construed to apply to public libraries." SM
that presently exists for the Internet and other interactive (Loudoun 1, supra, 2 FSupp.2d at p. 790.) Thus. any :* fret
computer services, unfettered by Federal or State suggestion in Loudoun I that section 230 could never be ~ infi
regulation." (§230(bXl), (2); see Blumenthal v. Drudge, applied to public libraries would have been dicta. In any rest
supra, 992 FSupp. 'at_p. 49.)' Thus, "(b)y its plain event.there can be no doubt that the Loudoun court thought >nu
language, § 230[(cXl)l creates a federal immunity to any that public libraries could claim immunity under section dist
cause of action that would make service providers liable for 230(cXl)because the court ventured in Loudoun li that this the
information originating with a third-party user of the immunity should alleviate any concern the library might the
service." (Zeran v. America Online, Inc. (4th Cir. 1997) have had with potential criminal liability.. (Loudoun Il, Lid
obs
129 F.3d 327,330;see also Ben Firm Weinstein, h Co. v: supra,24 FSupp.2d at p.565,fie. 15.) We therefore reject
America Online Inc. (10th Cir. 2000) 206 Fad 980,984 appellant's to
985.) - � 1 argument based entirely on Loudoun l that incl
defendant has no immunity because it is a governmental
Respondent is entitled 'to that immunity here. An entity. ;
"interactive computer service"is"any information,service, Appellant contends that section 230 cannot beam
system,or access software provider that provides or flu
enables interpreted to confer immunity in this case because her feta
computer access by multiple users to a computer server, claims are consistent with the aims of Congress in passing
Cal
including specifically 'a service or system that provides that law.,Appellant notes that title 47 United States Code alk
access to the Internet and such systems operated or services section 223(§223)was enacted along with section 230 as
offered by libraries or educational institutions." `(§ part of the Communications Decency Act of 1996, and ` wh
230(fX2), italics added.). Respondent provides an submits that certain of section 223's provisions addressed obs
"interactive computer service" in this case because its the same concerns as her lawsuit. `Appellant refers to req
computers enable multiple users to access the section 223(dX1XB),which made it a crime to"use[] any bar
Internet. Respondent is not an "information content interactive computer service to display in a manner
provider" in this-case because it is not "responsible, in available to a person under.18 years of age, ['§Jcor
soy not
whole or in part,for the creation or development"of any of comment, request, suggestion, proposal, image, or other �
the harmful matter accessible through its computers: (§ communication that, in context, depicts or describes, in .
230(0(3)•) terms patently offensive as measured by contemporaryrea
Appellant contends that section 230(cXl) immunity community standards, sexual or excretory.activities 'or. ' in t
_ does not extend to governmental entities. Nothing in the organs, regardless of whether the user of such service pd
text or stated purposes of that provision supports this placed the call or initiated the communication,"and section
argument. The argument rests on Mainstream Loudoun v. 223(dX2), which made it a crime to "knowingly permit[] pre(
Se
Board of Trustees of Loudoun(E.D.Va.1998)2 F.Supp.2d any telecommunications facility under(one's]control to be _ hat
783 (Loudoun 1). In that case,a public library's board of used for[such]activity..'.with the intent that it be used for sea
trustees was alleged to have violated the Fust Amendment such activity."
, _ • , ,, _ lob
rights of adult patrons by installing filtering software on Appellant acknowledges that these criminal laws were, the
library computers to block Internet sites-which contained struck down on Fust Amendment grounds in Reno.'v da
matter harmful to minors. The board claimed immunity American Civil Liberties `Union.(1997) 521. U.S. 844. lit
under section 230(cX2), a different immunity than the one However, she argues that these laws show what Congress ins
asserted here:-Unlike the immunity here. the immunity, meant when it"stipulated that"[n]othing id[section 2301. 54
claimed in Loudoun I conflicted with section 230's stated shall be construed to prevent any State from enforcing any tat
purposes. Also,appellant's reading of Loudoun I is.belied State law that is consistent-with- this. section." G oth
by the court's subsequent opinion in Loudoun U. For all of 230(ex3).) Appellant reasons that. because section
these reasons appellant's reliance on Loudoun I is 230(eXl) likewise directs that "Nothing in this section car
misplaced. shall be construed to impair the enfi6oni t of section 223 fac
The immunity provision at issue in Loudoun I reads as or any other Federal criminal statute,"and because her
follows: "No provider or`user of an interactive computer lawsuit like section 223 seeks "to prevent the distribution the
service-shall be held liable on account of- [q], (A) any and display of obscene pornography to minas,"section 230
action voluntarily taken in good faith to restrict access to or cannot properly be interpreted to preclude her state law act
availability of material that the provider or user considers to claims.
be obscene, lewd; lascivious, filthy, excessively violent, , The problem with this line of argument is that this is not —
harassing.or.otherwise objectionable,"whether or net"such a criminal case. At most,the statutes appellant cites raise '
material is constitutionally protected." (§230(cX2).) This the issue of whether section 230 prevents enforcementof m1
immunity has nothing to do with this case, where the state laws pertaining to criminal eonduM an issue tot,
claims are that respondent unlawfully ailed to restrict cgs
. 1� Y f � presented by the allegations.of the coatplaint.in this civil
access to obscene and harmful matter. 'Loudoun I held that case. 'Appellant attempts to raisethis issue in her briefs ", coos
this immunity did not extend to the'plaintiffs' First with 'charges .and hypotluiicals involving intentional pa
r . Amendment claim because"§230 was enacted to minimize on
state regulation of Internet speech ...; § 230 was not : lea
enacted to insulate government regulation of Internet Entirely apart from the discussion m Lard°""1 it is as apparent re
s fivm judicial review." (Loudoun 1, supra, 2 that a federal statute could ever grant immunity 6om a. federal
speech 1 P constitutional claim tike the one in Loudoun,as opposed to state law the
car
F.Supp.2d at p.790.) claims like those here. (Ser Aguilar v.Avis Rant A Car Systant,Inc. us
This sentence in Loudoun fs discussion of section (1999)21 CalAlh 121,150-151(coot.opn.of Werdegar,L.)("Congress hx
2WcX2)(A) immunity cannot be`stretched to deprive cannot, hY k;g4datkm. change the scope of one's Fust Amendment lab
rights"].)
ulf
ly,Match 8,2COl Tlrilr'sday,Match 8.2001 Daly AppeIlate Report 2385 -
r cion'230(cxl). provision of obscene pornograPhY to minors. Appellant atxxss it, merely because of-the ease with which such.,
al an undermines asserts that"it is not the providing of unrestricted Internet images can be obtained from the Internet: In Reno v.
arlation of Internet access which is the Problem;it Is the provision of oosome American Civil L3erties Union,'supra,.521_U S. at page
s based on public pornography to children. , Appellant likens the library's 853,the court recognized that [s]exually,explicit material ..
ulation..''Thus, the conduct to"sedting]up a display'of obscene images and on the Internet includes text,pictures,and chat and`extends
L Loudoun I has,m inviting minors to view them. Appellant asks us to imagine from the modestly titillating to the hardest-core.' .. [It] -
court noted that its an adult enticing minas.to view obscene images he had may be accessed either deliberately or_unintentionally
the same"[elven if called,upon a library computer screen,and suggests that to during the course of an imprecise search." However, the
Public libraries.« t the library immunity here would insulate�s adult: court.°found that "users seldom encounter, such content '
790•)' Thus, an "criminal, or LtabiIity 'for, intentional accidentally. Almost'all,sexually`exp licit images are
'30 could never be n emahonal.distress Appellant describes this preceded by warnings.as to content For that`reason, the
been dicta. In 'rpateatl- absurd and `hardly what Congress odds are slim that a user would enter.a sexually explicit
sdoun court thon�ght. ie man's:wrong rusts' not in :creating- or site by aocideat''.(Id at P.854.) Here;it is not alleged that
miry ander section n8 ,images but is choosing to publicly exhibit Brandon stumbled across anything harmful by accident
Loudoun ll that thrix than`eo Impressionable yotmgsters. It is no dlffermt with Nevertheless,appellant has likened library computers to , .
t the library might the hbrary whkh knowingly allows ,minors'to access machine where you push a red button, [and] obscene
(Loudoun yw _an Its premises and, when.asked,,would'even pornography appears,on the screen.". Appellant's briefs
We therelkim them doing so with o66-on-one help. ;According' represent that an impressionable child:need only type.the ,
to Loudoun Ithat is briefs,.the library;Is ``giy[ing].operating ward`girl'[into a library computer]and click thrice to view
how to ca11 up harmful images' obscene perversions of the darkest order"_ Appellant has
is a governmentsl descnbed in te briefs isnot alleged cit the advised that she has experts who can demonstrate".it's_so
0 ccannot beonlplalnt..Whey a'
case has bees dismissed for easy to obtain obscene pornography from library terminals
+i ase bemuse .' �s�canse of action,all proper y pled material in the City of I.ivermon that's basically`the"same thing as
ongress in passing as true, (Blank v ,Kirt►tart'(1985) 39 City librarians simply providing pornography.", .Thus.
Jetted States Code ll,31$)-We must thus assume,as the complaint appellant argues that respondent has a"policy of essentially _
lith section 230 as x t PuirrIases and maintains computers giving obscene pornography to any willing child who
Act of 1996, and s can and_have bees used patrons,
by,library asks. (Italics added.)
]visions addressed .: *eminors,to access and display material which is Contrary to this line of argument,.there is, a crucial
ppelLhnt refers and harmful to minors.'`.We cannot assume that distinction between providing minors,with harmful matter ,
`'t librarians exhibit'obscenity-or other matter on the one hand,and maintaining,computers where minors
time to`lice[]any ,minors,or that they help minors use the librarymay obtain such matter, however Basil , on. the other.
Ay
age, ,r to recess those materials,because that conduct Sax on 230 draws `this distinction° by immunizing
Y In a manner
mY
erther acpnessiy or by reasonable implication in interactive computer service providers from liabrlty;;for.
. Image,err other r �,.
scribes, 9n ;
- Plant. (See ibid [complain must be given,."a mere'failure to "restrict'access -to offensive material
otem ? inO°+reading it as a whole and Its parts disseminated through their medium":' (Blumenthal'v.
�' . ppjt t"].): Drudge. suprm 992,F.Supp.'at p 49.) Congress was
activities err.: �* implication waild be'contrary to the lbraiy indeed concerned with"children's access to'objectionable
of such service
b�"and sectwn ;i Cached to the complaint,which among other things., or inappropriate online material" when it enacted,section
Iawingly �� "� bits the ase of computer resources for illegal purposes. 230. ( 230(bX4).)` To combat that problem and`remove
r (See Pea,Code,§313:1,subd.(a)[prohibiting exhibition of disincentives"far, the; development and utilization of
le s]control to 6e brary's. bkrcking„ And filtering .technologies" (J' 230(bx4)),
that it be used .r m minors].) Coosrstent with the li
mission of encouraging children to develop a li5elong Congress con section 230(cp):immunity for actions
in.the t in learning,the library presumably seeks to impart. to restrict access to objectionable"material :However,as the
aminal laws wiere,
rods in Rain v tile-"[e]lecGtonre Inforniatiaa research skills" the Polity Fourth Circuit _9", context of.a,tort claim
l 521. U.S. g44. , drums "increasingly important so'students ,and otbas.; against a coarmeriaal interactive bomputer service,
cv what Congress
:`brarians cannoit be prosecuted for 'providing- such "Cmgress made a'policy_choice , novio- deter harmful ;'
in on(Pen.Code,0 3133;Moore V. Younger(1976) online.speec6'through the separate route of imposing tort
im e[nforcin'230] Cal APP3d�1122), and we cannot presume that such liability r , pr+es 'ty as companies that serve as intern►ediaries for other
I `section.-g( on would include lessons on finding obscenity,or parties'.potentially injurious messages",(Zeran v.America ,
because section -harmful matter on the Internet. Such lessors would Online, Inc, supra,',-129 Fad at pp:; 330-331.) "Isle .
in this',section.' fortber the library's stated mission,and would not be purpose of this statutory immunity is not difficult to liscern. :
nt of section 223 sistent with its polity that computers are to be used only Congress recognized the threat that tort-based lawsuits pose
and because her
"tduc4tional,informational and recreational purposes:' to freedom of speech in the new and burgeoning Internet
At vanaus points in her arguments.appellant suggests medium. The imposition of tort liability_on service :
t the distribution that Iespondeat can be bald liable for
�,»section� h providing obscene providers for the communications of others.represented,for
le her state law :P Br'aPhy to minors,even if librarians themselves do not Congress,:simply another form of intrusive government ,
acxlially exhibit such matter to minors or teach them how to regulation of speech.._Section 230 was enacted,in part, to
maintain the robust nature of Internet communication and,
is that this is not y accordingly,to keep government interference is the medium
ellant cites raise This:argument h cones insofar as it implicitly concedes that "
enforreahent of >;respondent would not be liable as a pubiishez or distributor of harmful to a minimum (Id at P. 330.) Tbtxefoee, we conclude
x, an issuenot maner ply M ring an' compacr service.-Tic u^m that the application of section 230(cxI) immunity to bar
Lint in this civil ease holds that section 230(cXl)in—mity extends a distributor,as well appellant's state law causes of action is fully consistent
ue in'her briefs as pubksbw. �ihe for_defamation,-Wed thus that ars interactive with the purpose as well as the letter of section 230.
Ing intentional computer service mot be ferric liable nerdy because it has notice of a
polmda ly defamatory statements on its service. (7eran Y. America
Online. Inc., supra; 129 Fad at pp. 331-334.) The Zeran court
: among other, things that "liability upon coerce (would] ` This concern is further Te lected in the Children's Internet Protection
it is not apparent reasoned
tY a federal reiofonee[j service providers',inn"dives to restrict specch.7 and timmiry Act(Pub...No.106-554,tit.XVII.1 1701 a seq..(Dec.21.2000)114
Car
state law eonoravew section 230's aim of promoting the continued development of Stat._.which conditions libraries'receipt of certain federal funds and
-,'the Interact. (Id at p.333.) This name consideration precludes treating assistance an the uw.of filtering technology to prevent minors from�yste s,Ingrespondent as a distnbotor of obscenity or other harmful Matta merely viewing obscene or other harmful material on computes linked to the
t (�� because it has notice that such matter may be transmitted through its hua
at. This recently enacted ®
law has no bearing on the munity at
Fast �a>dinat ., issue m shit case -
h'bruy co'°putas'
8
2386 Daily Appellate Report
Thursday,Manch 8,2001 Thu
Appellant contends that any immunity in this case "to protect the people from the State,not to ensure that the
would extend only to tort claims,and thus would not cover State.protect[s] them from each other." (DeShaney v. 879
her taxpayer cause of action. This argument is based on Winnebago Cry. Soc. Servs. Dept.(1989) 489 U.S. 189, Ural
language in the Zeran and Blumenthal cases refecting to 196.) 'Ilius, as a general rule "[t]he State's failure to F3d
section 230(cXl)immunity from"tort liability." (Zeran v prevent harm inflicted by a private actor does not give rise ply
America Online, Inc., supra, 129 F.3d at p. 332; see also to a cause of action under section 1983." (Garcia v mid'
Blumenthal v. Drudge, supra, 992 F.Supp. at p. 49 Superior Court (1990) 50 Ca13d 728, 739.) 1 Two
["Whether wisely or not, [Congress]made the legislative exceptions to this general rule have been recognized: the danf
judgment to effectively immunize providers of interactive "special relationship"or"`functional custody'"exception; whit
computer services from civil liability in tort with respect to and the "`danger creation'"-or snake-pit'"'exception. anal
material disseminated by them but created by others," (Liebson v New Mexico ,Corrections Dept.' (10th Cir. Cou
italics added].) Appellant also suggests that this immunity 1996) 73 F3d 274, 276;L.W. v'Grubbs (9th Cir. 1992) was
would not apply to her claims for declaratory and injunctive 974 F.2d 119, 121; Blum, DeShaney: Cust
honey otfy, Creation pent
relief. She notes that in Loudoun I the court concluded, of Danger, and Culpability(1994)27,Loyola L.A. LRev. mau
after discussing 7eran,that"[elven if§230 were construed 435, 436-437 (hereafter .Blum).) Neither of 'those
that
to apply to public libraries, defendants cite no authority to exceptions applies here. brill;
suggest that the `tart-based' immunity to `civil liability' ,The special relationship or functional custody.exception was
described by§ 230 would bar the instant action,which is applies"when the State takes a person into its custody and as t
for declaratory and injunctive relief." (Loudoun I,supra,2 holds him there against his will";in that situation;the state gove
F.Supp.2d at p.790.) has "a corresponding dutyto assume some responsibility DeS
We reject these arguments and hold that respondent is far[the person's] safety.' (DeShaney v Winnebago Cty. of
immune from all of appellant's state Iaw claims. Sot.., Servs. Dept., supra, 489 U.S: at pp.;'199-200.) Nix
Loudoun I is distinguishable, again, because I it involved "DeShaney left undefined the precise measureof state the
immunity,under section'230(eX2), not section 230(cXl). restraint that engenders an individual's right to claim's [plai
Whereas section 230(cX2) prohibits interactive computer
corresponding affirmative duty." (Graham v Independent beca
service providers from being "held liable,' for specified 'School'DiA No 1-89.;(10th Cir.,1994)22 F3d 991;994:) 509
conduct, and that language may arguably refer only to However, DeShaney seta "high standard",fix''liability mins
damage, claims.' m such. liatiting language appears in when it indicated that the "deprivation'of liberty"'" harn
section 230(cXl).-; Zerart and Blumenthal, are"also which triggers the.,protecd s.,of due "`' Supe
distinguishableprocess ,.,. rs the
on rbcs point because, unlike appellant's State's'affirmative`act of restraining the individual's elan
case, they involved only tort claims. Since there was no freedom to act on his own behalf.'" (Garcia v..Superior's
occasion to address nontort claims in those cases, their Court,supra, 50 Cal3d at 0. 762,(dis:opn.'of Mosk,,iJ
reasoning does not: preclude section 230(cXi) immunity ;see also id at p.;740.)' Given this stringent standard,arost"'" does
from extending to such claims. (Ginns v.Savage(1964)61 courts have lin
'declined-to find that:students ane m `'the; ° '" fibra
Cal.2d 520, 524" fa. 2 [opinions are not authority, for functional custody of schools despite. the compulsory � apix
propositions they do not consider].) attendance laws.' (Blum, supra;27 Loyola L:A. l.Rev. at prov
Section 230 provides broadly that "[n]o cause of action 445;e. .,Graham v.Inde �t
P 8 pendent School Dist No I-89,
may be brought and no liability may be imposed under any supra,.22 F3d at P.--994.)' Similarly".here, even 'if.,as Jibe
State or local law that i's inconsistent with this section."' (§ appellant.alleges'minors are expected to go to respondeht's restr
230(eX3), italics`added) Thus,'even if for purposes of libraryto complete public school asci suP'
section 230 -liability- es,iib ]?; P '"meets, the library
means only an award of damages does trot exercise "`pervasive control'"over minors (see imp]
(Loudoun 1,supra.2 F.Supp.2d alp.790),the statute by its Blum, supra,,27.Loyola LA. L Rev.'`at pp.`"449=450 im
terms also precludes,other causes of action for other forms [arguing for an.expansive interpretation of DeShaney]); COT
of,relief. This interpretation is confirmed by the Tenth much less restrain their 1ltedom to action their own sur(
Circuit's decision in Ben Ezra, Weinstein, & Co. v. b allowin them to frecl use the lir flea
America Online Inc., mora, 206 F3d at pages 983-984, Y 8 Y -brdry computers irons
mo P g No`could the library's opea.Internet access polity:be
which upheld the dismissal under section 230 of state law considered a state�eated:danger for purposes of.the"snake com
claims for injunctive ielief as well as damages.:Taxpayer` pit" erioeption,to the "rule of nonliability, for failtire'to bete
actions and claims for declaratory and injunctive relief are provide protective.services. '(Bowers v.Devito (7th,Cir. Chu(
no less causes of action than tort claims for damages, and 1982)686 F.2d 616,618[when"the state puts a,man in a Cou
thus fall squarely within the section 230(e)(3)`prohibition: 'position'of danger from private pemm'and then'fails.to [sub
(F.g. Barguis v Merchant. Collection Assn..(1972) 7 protect him,...it is as much an active tartfeasar as if it had its L
Cal-3 94, 113 [neferring_to cause of action for injunctive thrown him into a snake pit"]) For.,the danger creation Glut
relief]; Lawrence Barker, Inc.v Briggs(1952) 39 Ca1.2d acception to apply,it is not enough that the plaintiffs harm fund
654.663[referring to cause of action for declaratory relief]; might have been foreseeable. (DeShaney v. Winneba o coni
Fiske v. Gillespie (1988) 200 Cal.App.3d'' 1243, 1246 Cty.Soc.Servs Dept,supra,489 U.S. 201 state as brad
[referring to taxpayer cause of action].) Appellant's .not liable for returning child-to custodyf`abusive father ebsc
taxpayer and equitable theories to prevent respondent firm even if it was aware of the danger].) hus, rm- pondeat's rnfli
providing open access to'the Internet on its library alleged awareness that minors are being exposed at library. ' .r °
computers contravene to
230's stated purpose of computers. to obscenity- and harmful matter.from the Brat
.:
promoting unfettusd development of the Internet no less Internet is insufficient to craze any liability. It must further '" 724-
1
than her damage claims. Tberef)m all of appellant's state appear that the state, has "`af5rmatively-plac[ed] -an ti ';. the
law claims are preeniptecl under section 230individual in a position of danger, effectively, stripping a
person of her ability to defend herself; or cutting off _
B. Section 1983 Cause of Action potential.sources of private aid.'" -(Johnson v Dallas � ` c e
Appellant's attempt to state a case.for violation of her Independent School Dist (5th Cir. 1994) 38 F3d'-198, An,,,
son's right to substantive due process-also fails. The 201.) For example,in Wood v Ostrander(9th Cir. 1989)
government has an; interest in 'protecting minors fromram
harmful materials on the Internet,(Reno v.American Civil
` Ixat
Liberties Union,supra,521 U.S.at p. 875),but it does not s. Theae is a split of authority as to whether govermneat polxaesioward w ' conic
have a constitutional duty to do so. Due process is afforded the gawarpuUlic such as rhe open interna access raspootleot•s a.. sure
Wxwy.as opposod to State attim toward inm at >' Wei
specific indrvrdual:c cm ever
t
titin rm
h
v4
2001r,
001 {' Thursday,March 8,2001 Dafy AppOate Report 2387
" M S policy arguments ppm
879 F2d 583,the classic dam er creation case.(Sutton v. These are insupportable becik. mt 1s rite the..
afty Y Utah State School for Deaf and Blind(10th Cir.1999)173of respondent's library to,,prnvlde minors wzth '
S; 189. F3d 1226, 1237, fn. 12), a state trooper impounded the obscene pornography. Provision of computer-transmitted
nlure,to ; � plaintiff s car and abandoned her in a high crime area in ti1e obscenity to minas would contravenethe library policY'.s
pv�nae `^ f mtiddle of the night directives that computers''be used' for .'educahoaal,,
arcia v.. A library does not "affirmatively plac[e]" minors in 'informational, recreational, but not illegal, purposes
r lion danger by allowing them unsupervised use of computers policy warns that "controversial" material is avatlable oa
which are linked to the Internet The situation here is the Internet. that patrons who.use the Internet do so,"
analogous to the one considered in Carlton v..Cleburne their own risk," and that the library,.does not,supervise.
i3. .. County.Ark (8th Cir. 1996)93 F3d 505,where a county minas'use of the Internet This acknowledgement that�t1e
was sued for vrdating the substantive due process rights of `library does not undertake to protect mwors from trarmful
people:who were killed and injured :when .a bridge matter on the Lltt:aex does notimply teat the library intends
L"toR ;•: maintained by the county collapsed The plaintiffs:argued for minas to be exposed to obscenity.._ The library's
Ing,
b'. that the county had placed them in danger by promoting the affirmation of"the right o mlatenaleach s"is uuot as endorsemenhave i6�iii t t
#t,. bridge as a tourist attraction when it lmcw that the budge coastitutiooally protected
's r+ ��#t was dderio ating. The court held that"offering;a'location of minors' access to obstxmty. (See Ginsberg v New York
n° as a `tourist attraction is not the type of ',8ffirmative (1968) 390 U.S. 629, 636-637 [minors have
mdy government action that creates a duty,to pro�tpctmunder 'constitutional right]. .�try3"
the state sti DeShaney. [Plairniffs]allege no affirmative on a part Since it is not the cy'of�resJ
' ' t 'li to
1b>lity ,of government officials directly,plaang them m the bridge. provide obscene pornography to minors,we-- not called
Norid the Connty['sJ actions `create the 'w'causing upon to decide whether minors have a filrldaaieatal right to
`v° ire to such material. There is ao state
- ) t>x budge to collapse To the contrary, g the freedom from expos
;of state •] allegations as true, the bndge,t lh policy mfringtng on any such interest is this instance;there
kms. because of internal corrosion caused by, r p' his only a failure to render protection'j' private'serene
illci i" is not actionable
} ):The library's Internet policy likewrsrr. nat+oamrpgl ;harm which,'under well settled prm P a% ant's briefs
11.9941 imiaocs to use the library s computers;a create any of'the under section 1983: Fidally, if as appellant's
i"� r: harmful matter aaxssMe through such use (CL Garcia v. maintain there are librarians m respondent's employment
Ai " the who are vidin obscene pornography
to aunacs,
Srtperior Court.supra,50 CaL3d at p 738 [rejecting Pro g.
m ;tbtt : foci respondent
not liable under section 1983 for their
that section 1983 simplyderaltxea11
�k ` t unauthorized actions. (Monell v. New York'City'Dept. of
duan r '' claims against state actors"].) 9 ��;i s Social Services (1978) 436 U.S. 658. 690-691, 694 [no
"'Appellaot attempts to avoid the r t11af due pieces 83 unlawful
alk,I x s kt does not guarantee protective services-by distorting, the respondeat superior liability under section 19
Y' noted, action must execute municipalpolicy]..see, a g.,''1.
pnlicy 0. v
practices. As previous Y� ,
henry
R appellant's briefs assert that the libraryhas.a poLry'of 'Alton Community Unit School Dist. (7th Cir: 1990)909
'providing obscene pornography to minors. Appellant 'F2d 267,272)
� contends that the policy,as so concaved, violates,Honors'
° I-gg• -71.` �F "liberty interest,in pasoaal seauity and frredo��from III. DISPOSITION
� 1f as-: k. �' ::restraint aod`i�ietian of pain" (Wood V. Os r, The judgment of dismissal is affirmed with costs to
In sham' y, Wrti ht res dent.
I supra, 879'F.2d at p.•389. citing g 8 P�
"" ' w ;1(1977) 430 U.S. 65L 674-675 [liberty interests.:are s
t ( HANLON,I.
X149.450 k� z,implicated when a school restrains a child and administers ;
�� caa[ioral Punishment]•) Appellant submits that minas are
• 4tV seriously injured by viewing obscene pornography,:.-that We contra:
4", ' 'freedom from infliction of such pain is afundamental REARDON.Acting P.J.
Yee� r constitutional right which cannot be infringed without a SEPULVEDA,J.
'compelling state interes14 and that there is no such rafesest
1be"snake r 4`' , hen;•because "there is -no 'compelling' reason to give
failure'to1 't ,children any access to the Internet at all." (See generally
Counly.of Sacramento x Lewis(1998)523 U.S.833,846 Trial Court
A man in a [substantive due process limits what government may do in Superior Court of Alameda County
ser fails to Washington v.
1 its legislative as well as executive capacity]:
as if it had ,. - �:GGrcksberg (1997) 521 US. 702.,721: Daws'.infringing Trial Judge:
a OII =ftmdamenW rights must be narrowly tailored to serve a. Honorable George C.Hernandez.Jr.
tiffs harm
compelling state interest].) 1a the same vein, appellant's
1Vurnebago " , briefs assert that respondent's librarians;are giving minors Attorney for Appellant:
[state was .cene P� Phy,and thus that this case concerns harm Michael Millen
sive,'father ' �A by government employees, rather,than their mere
sptxideat s b� �'lfailure to provide protection (See, e g, Stoneking v. Attorney for Respondent:
J at library. > ;Bi6dford Area School Dist. Cad Cir. 1989)882 F.2d 720, Thomas R.Curry
_from the , �� '725[distinguishing DeShaney where injury resulted at City Attorney
mgt furtherDaniel G.Sodergren
thehaads of a state employee].)
lac[ed] an • Assistant City Attorney
stripping a Gabrielle P.Whelan
cutting off;` F r":• yM v. Cowuy of tog Ci Attorney
aeaic habthty under a snake pit dwory. ( .0 n Deputy City Y '
v. Dallas °;Atiaetes (9th Cir.1998) 147 F3d 1054, 1061.fiL 4.) In Mark v.
JF3d 198. = i3orargh of Hatboro(3d err. 1995)51 F3d 1137, 1153,the caul Attorney for Amtici Curiae in Support of Respondeat
eG' a reasoned that a city,could zea be held liable under ilia danger creation
i' caaVtiou far failing to adequately screen hue dcPattrmut aWficauts
because dauges creation ages invohe "ducraa_ grossly teddm acts
committed by the state a state actors using their peculiar positions as 'k Retired Presiding Justice of the Cant of Appeal,•First Appellate
dtnrs�osvard Moe actors,leaving a di=m plaintiff valnaable.b foreseeable injury." :Ihstrict assigned by the Chief]ostia ptusuant b article VI section 6 d
r reap0[Idea[f
btt� evt3' O ill assume without deciding that the danger creationtheuy could the California Constitution
i V*hero nawidmunding this authority.
'1 -
(BURIJNGAME 1
T
B U R L I N G A M E
P U B L I C
LIBRARY
TO: Library Board of Trustees
FROM: Alfred Escoffier, City Libman
RE: Library Board Meetings
Attached is a copy of an in-house schedule for Board Meetings.
I am proposing that we reschedule two Board meetings this year in July and
November. We would move both meetings a week earlier. Please check your
calendars and see if this will work for you.
Many thanks!
4 8 0 P r i m r o s e R o a d • Burl i n g a m e • C A 9 4 0 1 0 4 0 8 3
Phone ( 650 ) 342 - 1038 • Fax ( 650 ) 342 - 1948 • www . pls . lib . ca . us / pls / pls . html
I � 1
Monthly Library Board Reports Cycle
Year2001
Library Trustee Meetings Third Tuesday of the Month, at 4:30pm
Library Conference Room
Meeting Date Division Reports Due Library Reports Due Mail
Tuesday, January, 16 Friday, January, 5 Monday, January, 8 Wednesday, January,10
Tuesday, February, 20 Friday, February, 9 Monday, February, 12 Wednesday, February, 14
Tuesday, March, 20 Friday, March, 6 Monday, March, 12 Wednesday, March, 14
Tuesday, April, 17 Friday, April, 6 Monday, April, 9 Wednesday, April, 11
Tuesday, May, 15 Friday, May, 4 Monday, May, 7 Wednesday, May, 9
Tuesda , June, 19 Friday, June, 8 Monday, June, 11 Wednesday, June, 13
Tuesday, July, 10 Friday, June, 29 Monday, July, 3 Wednesday, July, 5
Tuesday, August, 21 Friday, August, 10 Monday, August, 13 Wednesday, August, 15
Tuesday, September, 18 Friday, September, 7 Monday, September, 10 Wednesday, September, 12
Tuesday, October, 16 Friday, October, 5 Tuesday, October, 9 Wednesday, October, 10
Tuesday, November, 13 Thursday, November, 1 Tuesday, November, 6 Wednesday, November, 7
Tuesday, December, 18 Friday, December, 7 Monday, December, 10 Wednesday, December, 12
*Meeting Rescheduled
rBURLIi`IGAME 1
r
B U R L I N G A M f
P U B L I C
LIBRARY
City Librarian's Report
March 20, 2001
Budget Preparation is Underway
City budget preparation is underway, with a deadline of April 13th. Increases
are anticipated in personnel, building maintenance and energy costs.
Easton Upgrade Project
Kathy Page and Group 4 Architecture are assisting us with development of
costs for renovation of the Easton Branch. In discussing options, we realize
there may be more work involved than originally planned. Both
recommended that we seek community input in an effort to gather
information from library users on what sorts of services they feel are
essential at the Branch facility before we go ahead with renovation priorities.
Children's Services
For the Begin with Books program, during February we did a total of 33
programs including: 8 Preschool Story Times, 10 Toddler Story Times, 2
Saturday Story Times, 2 visits to Easton, 1 visit to the Main and 10
programs at schools. These programs were attended by a total of 1,278
people.
Planning took place for future programs including: St. Patrick's Day
program, Teen Poetry Workshop, the summer reading clubs.
Programs and Exhibits
The Friday Evening Book Club met on February 9 to discuss Jane Austen's
Pride and Pre'u� dice. The six participants included discussion leader Pam
`- Gehrke and library representative Sue Reiterman.
4 8 0 P r i m r o s e R o a d • B u r l i n g a m e • CA 9 4 0 1 0 4 0 8 3
Phone ( 650 ) 342 - 1038 • Fax ( 650 ) 342 - 1948 • www . p1s . lib . ca . us / pls / pls . html
Volunteer Program
The library benefited from the efforts of 24 volunteers in February for a total
of 130.5 hours of service. Beside the Friends book sale efforts, volunteers
maintained indoor plants, processed new paperbacks and magazine
donations, tutored patrons on Internet navigation, opened the terrace for
public use, processed book withdrawals, maintained the Popular Materials
collection, cleaned public computer terminals, straightened shelves,
delivered books to the homebound and helped maintain supplies of income
tax forms.
Reference Services
Several reference staff attended the OCLC training session for the reference
tool First Search. In addition, Info People offered a workshop on Microsoft
Word at the San Francisco Public Library. Sue Reiterman attended a
workshop on Electric Library, another online database at Redwood City
Library on February 1St
Energy Update
We have been in touch with the electrical engineering consultant who
designed the lighting system for the library several years ago. We are
considering hiring him to review our emergency lighting with an eye toward
conservation and cost cutting.
Alfred H. Escoffier
City Librarian
March 9, 2001