When last I wrote about my library adventures (here is Part 1 and here is Part 2) regarding my local library, the one that I’d been using barefoot for nearly 20 years, I’d gotten to the point of being tossed three times because of their new shoe rule. I’d been denied in my official appeal to the library director and invoked my right to appeal to the full library Board of Trustees.
Here we will get to the thrilling conclusion and denouement of this story.
So now I was at the point of having to prepare my appeal to the Board.
I really didn’t know what to do. It was all new. Heck, the Administrative Procedure describing the appeal said nothing about how it would proceed, just that it would be before the Board.
I knew next-to-nothing about what they were thinking. I knew nothing about why they’d instituted their new barefoot rule. Was it aimed at me? What made them think it was necessary? Why had the Board, after all these years, decided they needed, not a new rule, but a new interpretation of the existing rule?
It turned out that two of the Board Members were on the Board back in 2011. Had there been discussion about me back then? What was their understanding of the intent of the original rule?
Questions. Questions. Questions.
So I made an official public records request under Ohio’s Public Records Act, O.R.C. § 149.43. The appeal had been made on February 2 and the next Board Meeting was scheduled for February 11. I would have preferred a bit more time for them to collect the material, but I wasn’t the one who took 2 months to respond to an appeal that was supposed to take 7 business days. On the other hand, the Ohio Public Records Act does require that a public entity respond “within a reasonable period of time.”
And oh yeah. I had another big question. Would they allow me to present my appeal barefoot, or would they invoke their shoe rule to keep me out of the Board meeting? That worried me a lot (maybe more than it should have).
As February 11 approached, it was clear to me that they would probably not be responding to my public records request in time. So I’d be mostly shooting in the dark. In the end, I decided to make my appeal comprehensive. I knew nothing about discussions amongst the members or what they considered important. I had no idea which argument (or arguments) of mine might be the camel’s nose under the tent. So I put together a (very) long talk covering everything I could think of. I was rather forced to by my lack of information.
Oh, and I also decided that, if I was tossed from the meeting and prevented from making my appeal, my wife would read what I had prepared. It would be rather ironic, though, if I was not allowed to make my appeal for doing what I was making the appeal for.
Before the Board Meeting, though, the Packet was sent out. The Packet is what the director prepares for the Board members in advance of the meeting. It contains all of the materials that they will have to consider. It has the agenda, meeting notes from the previous meeting (that have to be approved) and any other materials of importance (e.g., before they approved the new Patron Code of Conduct, that was included in their Packet for that meeting). The Packet for the February 11 meeting included a memorandum from the director.
At least it had some information I could use to try to tailor my appeal. The memo first gave a history of my barefoot travails with the library. (It was a lot shorter than my blog posts, though. 😉 ) It also told the library board about the research the director did.
The director told the board that he had consulted with attorneys to get their legal opinion, and reached out to businesses and nonprofit organizations to see what they did about shoeless patrons.
Here’s what he said he found out:
I found that many had the policy and almost everyone enforced it. I checked with the Ohio Library Council to get their opinion of this type of situation and to hear what their recommended policy and approach. OLC recommends we do not make an exception to our policy. Finally, I also reached out to OSU on how they handle accommodations for this type of issue, but they have yet to face this particular situation.
This I found a bit puzzling. I shop our local area barefoot all the time. I wonder who it was he was talking to who almost all enforced an NSNSNS policy? In one of my emails I mentioned our local Kroger store. I wonder if he’d talked to them?
I wasn’t surprised about the Ohio Library Council. I’d dealt with them before. But OSU? I’ve used their libraries (getting copies of some of the research papers on bare feet on my website). I suspect it wasn’t a case of their not having to face that particular situation so much as they really didn’t care to make a big deal about it.
The director also mentioned that he was concerned about the legal ramifications of taking more than 7 business days, but he was assured by his attorneys that that was OK. (While it annoyed me, I already knew it wasn’t a real legal problem and was not going to make a fuss about it.)
The final result of the memo was rather interesting:
Recommendation — Review all of the documentation involved with this issue and make a decision to support the eviction or overturn the decision.
In all of the other memos from the director I’d seen, he actually made a recommendation (usually to approve a resolution implementing something). At least in this case he really was leaving it up to the Board.
So, I prepared my appeal. That memo was really about all I had to go on (along with my initial interaction with the director where he brought up Athlete’s foot, and any subsequent emails).
So, what I wrote to present was very, very long (17 pages). I was worried about its being too much, but I really didn’t know what else to do. You can see it here.
A few highlights.
I tried to address what I knew from the memo. I talked about all the stores I regularly shopped. I addressed other libraries:
So let me return to libraries again, since Mr. Howard checked with the OLC and OSU. I’ve been in the OSU libraries barefoot; also OSU-Newark. I’ve never been told I couldn’t be. I had a meeting with Lynda Murray of the OLC back in 2007. She said then that the OLC’s position was that each library ought to determine this for itself. And then when I brought up the ALA Library Bill of Rights and the OLC Intellectual Freedom Policy Statement, she got rather rude.
Obviously, one library Mr. Howard did not check with was the State Library of Ohio. When he evicted me on November 11 I even told him that they allowed bare feet and have no problem with my using the place barefoot. In fact, they are quite happy to see me as one of their regular customers. (Let me note that the State Library of Ohio can provide me with a different sort of book than a regular public library. The State Library of Ohio gives me access to things like old books or textbooks, not more popular works.)
I tried to address my lawsuits and why they (erroneously, in my view) ruled against me.
I went into more detail about the ADA issue and my back and knee problems:
You already know that shoes give me problems. I have some numbness that is exacerbated by lost proprioception from wearing shoes. When I wear shoes it hurts my back, my knees, and my right foot.
Do I officially have a disability under the Act?
I have no idea.
But I do know that it hurts me when I wear shoes (whether that is “disabled” or not).
But I would hope it would be considered a disability, just as I would hope that if some store had stairs with 14 inch risers (instead of the usual 7 3/4) and it bothered the knees of a lot of older people, that that would be considered a violation of the act and the people would have recourse under the ADA.
Like I said, I have no idea if I am officially disabled under the Act. But what I do know, is that the attitude being demonstrated here is heartless. You know it hurts me to wear shoes (whether disabled or not); you know there is no decently valid reason, neither “appropriate attire” nor “health and safety”, to make me wear shoes, but the library is doing it anyways.
I also included the religious aspects of my going barefoot.
Anyways, go read the whole thing if you like.
So, what happened in the meeting?
First the good news: nobody tried to kick me out of it.
Also, surprising to me, the director’s report had an interesting item in it.
3 incidents — 2 intentionally destroying or defacing library property (Chewing tobacco spit on display case; vomit in water fountain) and 1 inappropriate dress (No Shoes).
Hey, I had not been in the library that previous month. Had he gotten a date wrong?
Then when we got to my part of the agenda, I started in. I got about 6 pages into it when the Board President interrupted me. She was getting tired of me (and she thought, when I was talking about how one library just copycats their rules off others, that I was off-topic) and wanted me to wrap up quickly.
I said I needed to continue to effectively present my defense.
I really had the impression that she didn’t know what was going on. Earlier in the meeting, when the time for public comment came up, she’d looked at me and I said that I was later on the agenda. The director had to tell her about my appeal. (That of course meant that the Board President had not even read the agenda in advance.) I’d also sent the director a packet of my own (things like the ALA Bill of Library Rights) to be distributed in advance (and he did so). But I bet the Board President hadn’t looked at that, either.
When I said I needed to continue, the Board President then said that public comments were limited to 5 minutes.
At that point I, as calmly and as measuredly as I could, let her know that this was an appeal, not a public comment, and that due process required that I have a chance to present an effective defense. I also said that there were absolutely no guidelines that the Board had given for presenting a defense such as mine, and that given that lack, I needed to be able to continue.
She grudgingly allowed me to do so, but also wanted me to keep it shorter.
At that point I did continue, trying to jettison parts that were not as central to my argument as others. This was actually rather familiar to me, since I’ve done real oral argument before appeals courts. You prepare what you can (appeals courts do let you know of time limits in advance), practice and practice and time it out, and then in court the judges start asking questions about the stuff they are interested in. So you have to respond to them. But that messes up what you’ve prepared and you have to, on the fly, modify what you are saying. So, as I said, I did continue, and I was not rattled by it.
There were two more things that I particularly made sure to mention in my appeal.
First, I talked about how the “excuse” for NSNSNS kept shifting, from Health Code to sign-on-the-door, to liability, to policy (page 4). I gave a bit of history (hippies) and how libraries picked up on it quite a bit later (page 2).
Second, I also talked about how I was let into the Field Museum in Chicago after I told the person there that if I were let in barefoot, they wouldn’t notice a difference, but they would have one more satisfied and happy customer (page 13).
I ended my appeal with a plea to the Board with the following:
So, I ask that you just remove the footwear rule. You won’t notice the difference and you will continue to have a happy patron. Or if you are too timid to completely remove it, grant me an exemption.
When I finished, the director started the discussion. Oddly enough, he claimed that in his research he’d found that libraries started making barefoot rules for liability reasons.
This was news to me (and I’ve researched it a lot, as you all well know). Maybe they had unjustified fears of liability, but I know how liability works. And libraries have insurance policies that are for all sorts of liability, including women falling off their high heels (or getting them caught in cracks). The liability for bare feet would be no different (except the kind of injury that might improbably occur would be very minor). I’ve written a lot on this blog about liability (just do a search on the word), but here’s one that applies to Ohio libraries: How Wanton.
I didn’t want to get into an argument about it then, but afterwards when I was talking with him he agreed to send me copies of the papers (from my understanding from library journals) he had gotten the information from.
Anyways, after that the whole Board started discussing my appeal.
One of the Board Members is a lawyer. He’s the older gentleman in the rear with a beard.
He mostly led the discussion about my appeal. I had hopes for him even going into the evening, for he had graduated from college around (as far as I could tell) 1970. He also had a small ponytail, which suggested to me that going to college in the late-1960s may have made an impression on him. Heck, he may even have gone barefoot then himself.
He made the point that the library would have to spend a lot of money defending itself in a lawsuit. In addition, they were planning on having a tax levy on the ballot the next year and the publicity would not be useful, even ignoring that they’d have less money to promote a tax levy.
During the discussion I also learned that they’d already spent a fair bit of money talking to their lawyers. Their lawyers were Vorys, Sater, Seymour and Pease, a BigLaw law firm with offices in 7 major cities. Their billing rates just have to be at least $250 an hour, and are probably closer to $450 an hour. And the director was consulting with them on my issue and getting legal opinions from them. Costs add up quickly!
In addition, when I’d made my Public Records request, you can be sure they were consulted on that, too, as to exactly which records had to be produced.
Having a lawyer on the Board of Trustees was probably a good thing, since he was able to distill the issue right down to its core. He at one point wondered if the Board needed to go into executive session to discuss things.
But they couldn’t (not then, at least). The Ohio statute on executive sessions, O.R.C. § 121.22(G)(3), only has such an exception to public meetings when consulting with an attorney when the entity is the subject of pending or imminent court action. First, if they went into executive session right then, they would not be consulting with their attorney. And second, I never at any point of this whole thing had threatened a lawsuit. In fact, I was still completely undecided how I wanted to proceed if my appeal was denied. (I’m tired of all this shit.)
On the other hand, I did have a reputation.
What I did find sad about the whole discussion amongst the Board members was that they never even questioned the wisdom of having a footwear rule. My emails, my letters, and my appeal did not appear to have made the least bit of impact on them. They just kept operating on the idea that a footwear rule was
So it came down to whether to grant me an exemption. This was something the Board President (and at least one other member, if I remember correctly) really hated to do. Because exemption. Rules should apply to everyone (even, I guess, if the rules really have no logical basis).
In the end, they voted. On one side of the argument was rules-is-rules. On the other side was fear-of-losing-money. (Hey, at least this library board considered it, unlike all the other libraries I’d dealt with.)
I’ll let you read the Meeting Minutes to see the result of the vote:
Eviction Appeal — Tony said that the Board was sent a memo regarding the eviction appeal and was aware of details. He asked that the Board review all of the documentation involved with the issue and make a decision to support the eviction or overturn the decision. Patron, Robert Neinast, made his presentation. The notes are included in these minutes.
Tony clarified a couple of things. Historically, libraries started making “no shirts-no shoes” rules came out of liability issues due to safety and fear of being sued. Tony also said that as Director, he has to look out for the best interest of the patrons and staff. This decision has nothing to do with the patron’s life choices or fashion. Cristie asked for comments from Board members. Michelle said that the patron was prepared and was passionate about this issue. Bob Mapes asked if there had been any complaints from other patrons about this issue. No complaints known. He also asked about the appeal process and possible litigation. Tony replied that without an attorney present, they Board cannot go into Executive Session. Money has been budgeted for attorney fees. Bob Mapes was concerned about the money and time being spent. He said the patron knows the risk and it is no bigger risk than other patrons. No liability to the library. Time and money better spent on the upcoming Levy. No benefit coming out of the time spent on this issue. He would give the exception. Mike Joes asked if there were any other patrons with the concern. Mike Jones said not to change the policy. Tony replied not with the same issue. Cristie said she didn’t have an issue with the no shoes. She did say that rules were made for the benefit of all people. Having a shoe rule for children is a good thing, wouldn’t want someone’s child walking around and through messes in bathrooms etc. Cristie does not want to change the policy for one person.
2-2-2016 Motion to make an exception to the Library Code of Conduct Policy
Bob Mapes made a motion to grant an exception to the barefoot rule in the Library Code of Conduct policy for this patron. Mike Jones seconded. Motion passed with roll call.
[The vote was 5-0 with 2 absent.]
There were two more items:
First, my Public Records request. I agreed to cancel it, and would do so in an official email to the director. There was no point in making them spend the time and effort. We’d had my appeal; it was successful.
Second, somebody did ask about the “No shoes” item in the director’s report. It wasn’t me. But it was sillier. Somebody sitting in a chair had taken their shoes (or maybe sandals) off. So they were told to put them back on.
This really does put the lie to the whole “liability” thing, doesn’t it? As I already wrote, the liability is extremely minimal even walking around barefoot, but sitting in a chair? No, this is mindless acceptance of rules, rules, rules. Even when they make no sense in the first place.
At the end of the meeting, the director came to me to shake my hand and to say he hoped I had no hard feelings. I really didn’t, and said so. I also assured him I’d send him the email the next day to cancel the Public Records request. I also asked him about his research that said that liability and fear of lawsuits is what prompted library NSNSNS rules (since my research had shown no such thing). Again, I figured that maybe there were professional journals for librarians that I didn’t have access to that talked about that. So he said he would email them to me (but would I please prompt him).
So the next day I canceled my public records request, and prompted the director to send me those articles on liability and libraries.
And then . . .
I waited again, and prompted him again.
This time I got an auto-reply that said he would be out for 3 weeks.
This I understood and had no problem with. You see, during the meeting we found out his wife was pregnant and expecting twins. So, I figured she’d given birth and he was out with her. OK. (It may have also explained why he hadn’t responded in the previous week—he was really busy getting ready for his leave.)
Finally, on April 1, he sent me his “research”. See if you can find anything useful in there about libraries making NSNSNS rules because of liability.
- Are “no shirt, no service” rules based on some kind of law, or just company policies?
- Barefoot in Columbus—The Legacy of Kreimer and the Legality of Public Library Access Policies Concerning Appearance and Hygiene (PDF, page 42).
- Library Service to the Homeless.
- U.S. libraries become front line in fight against homelessness.
- No Shirt, No Shoes, No Civil Rights?
That’s really a pathetic list.
So I sent the director another email:
Thank you for the links.
However, maybe I am misremembering.
I thought that, in response to my statement that library barefoot rules were in reaction to hippies in the 1960s/1970s, you said that your research had found that libraries were making the rules to protect themselves from liability if the barefooted patrons hurt themselves.
Do you have any research that shows that? Nothing you sent me addresses injury liability.
And then . . .
No reply. Sigh.
And that’s where things stand today.
The funny thing is, I had decided to make a donation to the library. I felt a bit guilty about all the money they’d spent on the attorneys.
I realize that I really should not feel guilty at all. I wasn’t the one who instituted the rule. I wasn’t the one that made them consult and spend money on attorneys when all they really needed to do was simply pay attention to reality and remove the rule.
But I’d still used the library for nearly 20 years (and I’d donated in the past) and gotten a lot out of it. It’s a good library.
So I’d decided that I would send them $100 when the director responded with his research sources on liability. And then I got what you see above.
In the end, I did send them the donation. (Maybe it would, if nothing else, make the director feel guilty for providing me with such lousy research and claiming liability? Nah, it didn’t. He still didn’t send me better research.)
But I did get a very nice handwritten thank you note from the director, and a separate note from their Fiscal Officer. No hard feelings.
But I also feel as if I failed. Yes, at least I do keep to using the library barefoot (as I have for nearly 20 years!). But I was unable to convince anybody about the silliness of a barefoot rule. As far as I can tell, the only reason I won was because, even though I did not make it, I had a credible threat (with a long past history) of an expensive lawsuit.
And I was unable to help the barefoot community. When I did my lawsuits before, I deliberately left out things like my knees or spiritual concerns because those would not be applicable to all barefooters. I wanted them all to benefit from a lawsuit win. In this case, I only helped myself. So I do feel bad about that.
I supposed I should think that a victory is a victory; I just wish it felt more like one. But maybe other barefooters can see the sorts of steps I took, regarding a lot of knowledge and research and using rules to my advantage as much as possible, and maybe it will help some other barefooter when they get into a similar situation.