Sometimes government officials force newspapers to play hardball when it comes to public notice advertising.
It happens when the government unit refuses to publish public notices in a newspaper that it is required to use under I.C. 5-3-1.
Reasons for refusals vary, but they usually fall under one of two categories:
• A public official is upset with the newspaper over coverage of a particular issue or of the official’s government unit in general; or
• The public official doesn’t think a weekly newspaper is a “legitimate” paper, or it’s inconvenient to plan ahead to meet the weekly’s submission deadline.
When reason fails to sway the public official into following the law, the newspaper does have a couple of tools at its disposal to force the public official into compliance.
The first and least costly is to go after the public agency’s budget.
To gain approval of a proposed budget, a public agency must go through a hearing process with the state Department of Local Government Finance.
Part of the process includes verification that the public agency published a proposed budget and notice of a public hearing on that budget.
If publication of the budget and notice of hearings doesn’t comply with the state’s public notice advertising law (I.C. 5-3-1), the state agency can change line items in a budget to the lower amount of last year’s or the proposed budget.
This serves as a check on a government unit moving forward a budget that was voted on without adequate opportunity for public input.
The newspaper that the official refused to publish public notices in can bring the action to the attention of the local government finance department.
In all but rare cases, the department’s budget-trimming reputation is enough to put the offending local government unit back on track when it comes to publishing public notice advertisements.
If that’s not the case the newspaper can rely on a 1939 Indiana Supreme Court case to take matters into its own hands.
In that case, the publisher of the Greensburg Times published public notice advertisements that the law required the Decatur County Board of Commissioners to put in the newspaper but had failed to do.
The publisher then filed a claim for payment for the publication of the notices.
The commissioners denied the claim, and the publisher filed suit.
The state Supreme Court found that a quasi contract existed because the law required the publication and set the fee for the service provided by the newspaper.
It held that the commissioners were required to pay for the publication of the public notice advertisements even though they had not asked that they be published.
Indiana Justice Curtis G. Shake wrote: “[The county] was required by law to publish its legal notices in [Greensburg Times]; the manner and frequency of publication and the charges to be made for the service were specifically covered by the statute. Nothing was left to the discretion of the officials directed to see that such publications were made.
“Without publication of the notices, the action of the board of commissioners in respect to matters to which they related would have been null and void and the county auditor liable to criminal prosecution.
“[Greensburg Times) published the notices and the county may not now be heard to say that it is not liable because its agents did not do their duty. To hold otherwise would be to permit the county to reap the benefits of its own wrong.”
The case still stands 72 years later and gives newspapers the opportunity to force public agencies to follow the public notice advertising law if a newspaper is willing to invest in the cost of filing a lawsuit.
Stephen Key is executive director and general counsel of HSPA.
