Send your questions to Steve Key, HSPA executive director and general counsel, skey@hspa.com or call (317) 624-4427.
The following questions were submitted by the North Vernon Sun and Plain Dealer, LaGrange News and LaGrange Standard, The Herald-Journal (Monticello), WFYI Side Effects Media (Indianapolis), and an HSPA associate member:
HSPA a resource for public notice questions
Q: I am new to the classifieds position. Do you happen to have a list or notes that might help assure that I am completing my job correctly as to public notices. For example, when do I use the 99P Form?
A: I would suggest you begin by going to the Hoosier State Press Association website (hspa2.aimmediallcindiana.com) to download our guide to public notices as a reference. When you get to the home page click on the legal help tab, then select resources, then select public notices, and lastly public notice advertising. That should take you to the page where you can download the guide.
I’m sure it won’t answer every question you have, but should answer a fair amount. Beyond that, you can rely upon me as a resource. My email address is skey@hspa.com. If I can’t answer the question we’ll figure out how to get to the answer.
I’ve also attached the charts for calculating the line rate for government public notices for this year. There will be a new set of charts created for 2021 that will reflect an increase of 2.75% allowed beginning in January.
You are correct that you should use the 99P form to bill state or local government units. Those government units are eligible for the state-capped line rates and the form provides them with the information as to the line rate you are charging and number of equivalent lines in the public notice. The state Board of Accounts can take this information and the tear sheet of the notice to determine whether you have charged the government unit more that the law requires.
As to notices placed by private parties – for opening an estate or changing a name or a divorce proceeding or request for a zoning variance, etc. – the newspaper can determine what rate it will charge. Your publisher could use a line rate, per inch rate, flat rate – it’s up to the newspaper. My only caveat is that newspapers shouldn’t use their monopoly position as the only newspaper in the county to gouge these customers who are forced to publish in your newspaper. Price gouging can lead to legislation to eliminate the publication requirement.
Codification of traffic laws might need to be published
Q: There is a rash of codification of traffic laws in our counties. This is an ordinance of significant length – pulling ordinances from as far back as the 1950s concerning stop signs, yield signs, speed limits, etc. into one document. Lawyers have been working on it for months. Does the ordinance need to be published? The lawyers don’t seem to agree.
A: The relevant statute is I.C. 36-3-4-14. The answer may hinge on whether any existing penalties from traffic laws are being changed or are we strictly talking about a reorganization of all existing traffic laws?
The statute requires ordinances “prescribing a penalty or forfeiture” must be published under I.C. 5-3-1. The only exceptions are:
An “urgent necessity” requiring immediate effectiveness of the ordinance, which would not apply with a recodification; or
They could preempt the newspaper publication by printing the recodification of the traffic laws into a pamphlet or book – I doubt that would result in a savings for them compared to the publication of a public notice.
I’m assuming the attorneys might argue that the recodification isn’t the passage of a new ordinance, but merely a reorganization of the existing law, which they would argue means the public doesn’t need the published notice since there is no new penalty or forfeiture that they need to be made aware.
I don’t know of any case law that has addressed the question as to whether a recodification of existing law would be exempt from the publication requirement.
Amount of information schools must publish will be reduced next year
Q: Can we expect smaller public notices for the school performance report and annual school district’s financial report in 2021? I’m working on next year’s budget.
A: H.E.A. 1003, passed in the last legislative session, did make changes to both the annual school performance report, which is published in March, and the annual school financial report, which is published in August. In both cases, the school district can reduce the amount of information it publishes in the local newspaper compared to what was required prior to 2020.
The school financial report changes did go into effect before the 2020 publication, so your newspapers may have already seen a change in the amount of revenue from those reports, although I know some school districts did not change what they published from previous years. The school performance report changes will become evident in March 2021.
Private ambulance service subject to media request for information
Q: I’m attempting to collect some information on ambulance runs. The service is privately owned, but has a contract with the county. The hospital replied that it didn’t believe is was a “public agency,” so it would not be covered by the relevant statute – I.C. 16-31-2-11(d). Your thoughts?
A: I’ve reacquainted myself with the statute and this subsection applies to emergency ambulance services that are provided by or under a contract with an entity that is a public agency for purposes of IC 5-14-3. The following information, if contained in a pre-hospital ambulance rescue or report record regarding an emergency patient, is public information and must be made available for inspection and copying under IC 5-14-3:
(1) The date and time of the request for ambulance services.
(2) The reason for the request for assistance.
(3) The time and nature of the response to the request for ambulance services.
(4) The time of arrival at the scene where the patient was located.
(5) The time of departure from the scene where the patient was located.
(6) The name of the facility, if any, to which the patient was delivered for further treatment and the time of arrival at that facility.
In my mind, it clearly applies to an ambulance service that is under a “contract” with a public agency. So if the service has a contract with the county or the department of corrections, then it’s rescue or report record should be available to the public under the Access to the Public Records Act to the extent required under (d)(1-6) above. I’m assuming the county dispatch utilizes the service to respond to medical emergencies.
If they decline after you point this out to them, then it would be time to reach out to the Public Access Counselor.
Pricing for public notices differs for individuals, government entities
Q: I’ve got a question for you. I don’t understand why Noblesville officials feel our locality newspaper doesn’t qualify to carry the city’s public notice. I understand there is a newspaper located in Noblesville, but the city could elect to run with us instead because we have a larger circulation, correct?
A: As I attempt to answer your question, keep in mind that when Rep. Jerry Torr, R-Carmel, championed legislation to allow certain free publication to carry public notices, he crafted language that would not bring into play the local government associations as opponents. To do so, his language was written to avoid creating additional costs for them by doubling how many publications would be required by the government entity to meet public notice requirements. Strategically, he neutralized potential opposition while opening the way for the Current to become eligible to carry public notices in Carmel rather than the county seat newspaper.
To accomplish his goal, the legislation created the following situation in Hamilton County:
For the Sheriff – as a county officer, if there is only one newspaper in the county, that is sufficient for publication of notices. [I.C. 5-3-1-4(b)] (Note: the specific statute for sheriff sales specifically requires publication in one newspaper – even if the county has two newspapers.) The sheriff has the option of the Noblesville Times and, if it’s still printing, the Hamilton County Reporter. There isn’t a provision to require publication in a locality newspaper, so any publication in The Current would be a supplemental publication beyond the requirement.
For Noblesville – city officials fall under I.C. 5-3-1-4(c). If there’s a newspaper located within its jurisdiction, then the public notices should go into that newspaper. A locality newspaper would be a supplemental option, but couldn’t be used to replace the newspaper publication.
For Westfield – Since there is no newspaper published in that city, it can choice (c)(1) or (c)(2) to meet its publication obligation, selecting between the publications that circulate within its jurisdiction. The Current has an equal footing with the Times or Reporter in that situation and the city officials can determine which publication to use. They could use more than one option, but that would increase their public notice costs.
In my 27 years at HSPA, I’ve only seen one government unit deliberately decide to supplement what it was required to do by law because they wanted to reach more of their community – the town of Fortville.
