A competing free publication may start making noise with local government officials about its “new” eligibility to carry public notice advertising with a law change that went into effect on July 1.
Publishers need to arm themselves with an understanding of what H.E.A. 1017, authored by Rep. Jerry Torr, R-Carmel, did to change eligibility rules.
The legislation creates a new category of publications called “locality newspapers.” This is added to the existing categories of “newspapers” and “qualified publications.”
The following is an explanation of the impact of H.E.A. 1017 for county and local government units:
There are differences between the three types of publications in the law.
A “newspaper” is a paid-circulation newspaper. It must be printed at least once a week and have a circulation of at least 200 copies. This can be verified by the Statement of Ownership that it must publish in its newspaper in October as required by the United States Postal Service. That form publication is part of the newspapers’ eligibility to have a Periodicals mail permit, which is also required to be defined as a newspaper. More than 50 percent of the newspapers distributed must be purchased newspapers, either through subscriptions or single-copy purchases. Generally, a newspaper has had to have been published for three years before it becomes eligible to carry public notice advertisements. [See IC 5-3-1-0.4].
A “locality newspaper” is a free-circulation newspaper that is distributed to customers by the United States Postal Service under a Standard mail permit. It must have an office in the county and be published at least once a week. It also has to have been printed for three years to be eligible to carry public notice advertisements. Its circulation must be verified annually by an independent audit. There are some other specification concerning content, advertising percentage and ownership. [See IC 5-3-1-0.2].
A “qualified publication” is also a free-circulation newspaper, but doesn’t have to be circulated through the mail to its customers. (It might be distributed by racks located in local businesses, for example.) It operates under a Standard mail permit, must be published at least weekly and have an office in the county. It also has to have been published for three years to be eligible to carry public notice advertisements. Its circulation does not have to be verified through an independent audit. [See IC 5-3-1-0.7].
A local government unit may use several factors to determine if it must use a particular publication or two publications or whether it has a choice between several publications.
For counties, H.E.A. 1017 has little impact. County officials must look to see how many newspapers are located within the county. Except for Crawford County, the answer is at least one. For at least 50 counties, the answer is two or more newspapers.
If the county has two or more newspapers, then public notice advertisements must be published in at least two newspapers. County officials have the discretion to choose which two if there are more than two newspapers. Throughout the Indiana Code, there may be exceptions to the general rule of two newspapers that would allow the publication in only one newspaper, for example, notices of a sheriff’s sale (mortgage foreclosure) only need be published in one newspaper. [See IC 5-3-1-4(a)].
If the county only has one newspaper, then publication of public notice advertisements in that newspaper will satisfy the county’s minimum statutory requirement. [See IC 5-3-1-4(b)].
(Note: that publication in a locality newspaper or qualified publication cannot be done as a substitute for publication in the newspaper or newspapers located in the county.)
For school districts, cities and towns, townships or other government units, officials must look to see how many newspapers are located within the government unit’s boundary. There are more than 160 newspapers currently operating in Indiana, so the answer will range from zero to two in almost all cases.
If the unit has two newspapers within its boundary, then public notice advertisements must be published in both newspapers. Again, there may be a few exceptions sprinkled throughout the Indiana Code that require publication of a specific type of notice in only one newspaper. [See IC 5-3-1-4(a)].
If the unit only has one newspaper located within its boundary, then publication of public notice advertisements in that newspaper will satisfy the minimum statutory requirement. [See IC 5-3-1-4(c) & (d)].
If the unit has no newspaper located within its boundary, then it must identify which newspapers or locality newspapers are located within the county and circulate within the units’ boundary. It there’s only one such publication located in the county, then that newspaper or locality newspaper must be used for the publication of the unit’s public notice advertisements. If there are more than one such publication, the unit must publish in at least one newspaper or locality newspaper located in the county. [See IC 5-3-1(c) & (d)].
(Note: Qualified publications never meet the statutory minimum for publication of public notice advertisements. They are only eligible to be used to supplement the minimum requirement so that the government unit can expand the number of citizens who will have that notice placed in their hands.) [See IC 5-3-1-4(f)].
For government units whose boundary crosses a county line so that its territory is within two or more counties, there is a special rule. Officials of a multi-county unit first determine if there are two or more newspapers located within their boundary. If that’s the case, then the unit must publish its public notice advertisements in two of those newspapers.
If there’s only one newspaper located within the multi-county unit, then that unit must publish its notices in that newspaper and at least one newspaper or locality newspapers located within the counties that the unit’s boundary crosses if those publications distribute within the unit’s jurisdiction.
If there are no newspapers located within the multi-county units’ boundary, then the unit must publish in two publications (choosing between newspapers and locality newspapers eligible by being located in one of the counties where the units’ boundary crosses and that circulate within the units’ boundary. [See IC 5-3-1-4(e)].
Public officials may publish notice in more than the minimum number of publications required by law. There is nothing to prevent government officials from choosing additional publications, be it newspapers, locality newspapers or qualified publications if they want to expand the reach of the public notice advertisements, but as noted above, one or two will always be the minimum to meet statutory requirements. Government units may not satisfy their public notice advertising requirements by placing notices in online publications or just posting it on the unit’s website.
Online newspapers or news blogs are not eligible to carry public notice advertisements. Publication on a government website also does not meet the publication requirements under IC 5-3-1. (Note: Indiana law does require publications to also post government units’ public notice advertisements on their websites and the Hoosier State Press Association hosts www.indianapublicnotices.com, where published public notices from across the state are collected and made available for anyone to access.
When failing to comply with state requirements to publish public notice advertisements, a government official commits a Class C infraction.
If you have questions about statutory requirements or eligibility of printed publications, please call Steve Key, executive director and general counsel for the Hoosier State Press Association. Key is willing to help answer questions concerning the publication of public notice advertisements. He can be reached either via email at firstname.lastname@example.org or by phone at (317) 624-4427.