Newspapers don’t have “equal time” requirement for political ads

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 The following questions were submitted by the Connersville News-Examiner, South Bend Tribune, The News-Journal (North Manchester): 

Newspapers don’t have “equal time” requirement for political ads

Q: We have a potential political advertiser whose campaign called to inquire about placing ads. When doing so, she asked our account manager to disclose whether an opponent is placing advertising with us.

She is under the impression that the newspaper is required to do so by law. Typically, this isn’t something we would discuss for any advertiser. How should I respond to the political ad client? 

A: I would tell the advertiser that she may be confused with “equal time” requirements that affect radio and television political advertising because the airwaves are regulated by the Federal Communications Commission. There is no such regulation for newspapers since they fall under the First Amendment’s freedom of the press.

Your newspaper respects the privacy interests of your advertising clients. You wouldn’t tell one grocery store how much its competitor is spending on newspaper advertising and likewise you wouldn’t tell the opponent that she is looking to advertise in the newspaper.

 Open Door Law prohibits conducting executive session in the middle of public meeting

Q: I have questions regarding the Fayette County Board of Commissioners. They met this morning, but around 10 a.m., the president announced that they would recess until 1 p.m. so they could meet with a county health department employee to discuss the county’s needle exchange program. The president indicated the commissioners would probably adjourn today’s meeting from the health department location (same building, different room). Is ending the meeting in a different place from where it started legal?

After the recess was declared, the commissioners huddled with their attorney and talked with her quietly. The county auditor told them that was illegal and that she would not participate. The commissioners stopped, but one angrily said he and the other commissioners were just giving direction to the attorney – not taking action. 

I’d like your reactions to both situations.

A: The Open Door Law clearly prohibits the conducting of an executive session in the middle of a public meeting. [See IC 5-14-1.5-6.1(e).] It even states “A meeting may not be recessed and reconvened with the intent to circumventing this subsection.”

They may claim the recess was for them to hold an “administrative functions” meeting – which doesn’t require notice to the newspaper, but would have been open to the public if any attendees wanted to follow the commissioners to the other room. I’d have to hear the county’s argument on how they believe the discussion of the needle exchange program would fit an “administrative” meeting – sounds more like a policy discussion based on your email.

If they recessed the meeting, they would be OK to reconvene at a different location, as long as they informed those present as to the location and time that they would reconvene. It appears they did do that, so I don’t have an issue with that part of your scenario.

The unannounced executive session with the attorney following the recess is also a problem. If an executive session, 48 hours notice is required under the Open Door Law. If an administrative functions argument is made, then the public present had a right to hear the conversation, which the commissioners attempted to avoid.

You also need to remind the county commissioners what official action includes – it’s not just a vote. [See I.C. 5-14-1.5-2(d).]

 Correspondence received weeks after executive session doesn’t justify session

Q: Earlier this week I received the attached item from the LaFontaine town attorney in reply to my request for a copy of the written notice that the Clerk-Treasurer provided them as to a threat to hire an attorney.

The letter is correspondence from her attorney to the board on matters related to passwords and access to various accounts following the resignation of her and her deputy clerk. She resigned effective Aug. 13. The executive session was on July 24.

The town attorney believes that this is a written notification that she hired an attorney. However, I don’t believe it is a what the section of the Indiana Open Door Law cited by the board as justification for an executive session requires. [See 15-14-1.5-6-1(b)(2)(B).] Also, even if it would be considered written notification, this correspondence happened on or about Aug. 14, about three weeks after the executive session took place.

Any concerns?

A: I’ve read the letter and there is no threat of litigation that can be found. The fact the clerk-treasurer hired a lawyer could be to either protect herself from a lawsuit or possible criminal action.

And obviously, the town can’t use correspondence received three weeks after the executive session as justification for an executive session that was based on a threat of litigation in writing.

Send your questions to Steve Key, HSPA executive director and general counsel, skey@hspa.com

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