Author Archives: Richard Karpel

Flood of Public Notice Bills Hits State Legislatures

At least 62 bills relating to public notice in newspapers have been introduced in 25 different states through the first week of February, according to a review of bill-tracking software used by the Public Notice Resource Center. In addition, no fewer than 16 other bills targeting public notice in three states carried over from 2016 and are still active.

Many of the new bills merely add or change requirements for particular categories of notice, but at least 12 states are considering legislation that would move all or most of their official notices from newspapers to websites operated or controlled by government units. The potential that any of these bills will become law varies by state, according to newspaper lobbyists, but nobody is taking any of them lightly.

In Connecticut, several different bills that could eliminate newspaper notice in some form or fashion were introduced in the House in January, each by a different Republican member of that body.

In Michigan, the second bill introduced in the House this year would create separate “tiers” of public notice, each allowing or requiring some level of notice by government website. House Bill 4002, which would phase out newspaper notice by 2024, is a “replica” of a bill introduced in the last two legislative sessions by a former representative, according to the Michigan Press Association.

The bill in Kansas that would allow notices to be published on designated “internet websites” is also similar to legislation that has been introduced in the state in the past, according to Kansas Press Association Executive Director Doug Anstaett. It was read in the House last week on the same day KPA members were visiting the capital for the association’s annual lobbying day.

In Missouri, bills have been introduced that could move both government and foreclosure notices out of newspapers. Senate Bill 47 would permit all notices required by law or the courts to be published on an “official government legal notice website established and maintained by the secretary of state.” The bill would allow the secretary of state to charge $10 for each notice. Separate companion bills in the Missouri House and Senate would allow foreclosure notices to be published on websites “hosted by an entity that maintains such website for the purposes of providing web-based notice of foreclosure sales.”

Legislation in South Dakota and Virginia would permit jurisdictions meeting certain population thresholds to move their public notices to government websites. In South Dakota, House Bill 1167 would allow municipalities with population above 5,000 to designate an “official Internet website” that could be used to publish notices in lieu of newspapers. The bill would also require the municipalities to publish two annual newspaper notices specifying where to find documents and other information relating to their notices. A hearing on HB 1167 is scheduled for this Thursday.

In Virginia, House Bill 286 would allow localities with populations of 50,000 or above to satisfy notice requirements by publishing notices on their own websites, or by broadcasting them on a local radio or TV station. Another bill in the Virginia House would allow cities within certain counties in the Washington, D.C. area to post notices on their websites in lieu of newspapers. Both bills were introduced in January 2016 and were carried over to the current session by voice vote.

The two public notice bills in New Jersey that received so much attention in December also carried over to the current session. Governor Chris Christie, who vigorously lobbied for the bills’ passage, has served notice that he will continue to pursue the issue in 2017. Christie issued a letter last month (pdf) claiming that his “office had uncovered additional information that demonstrates the amount of money wasted (on public notice in newspapers) is exorbitant.”

Most of these bills would provide government units with discretion over whether to publish notices in newspapers or on their own websites, which would give government officials the power to punish local papers for coverage they deemed insufficient. However, Iowa Senate File 158, sponsored by 11 Republican Senators, would completely eliminate newspapers’ traditional role of providing notice, requiring all government notices in the state to be published on government websites.

Bills that would permit most public notices to be published on government websites have also been introduced in Illinois, New York, Oregon and Texas. The Oregon bill would move the notices to the websites of associations that represent counties, cities and other state government units. One Texas bill would allow political subdivisions in the state to satisfy notice requirements by posting them on “a social media website.” Another would allow them to publish notices on “any other form of media”.

Not all of the public notice legislation introduced this year would subvert government transparency. At least 22 bills would establish or enhance newspaper notice in particular categories, like gravesite relocations (Florida), government budgets (Mississippi), redevelopment plans (Nebraska), bond measures (Oklahoma, Texas) and issuance of cannabis licenses (New Mexico). Minnesota and Nevada were blessed with three bills in each state — four in Minnesota if you count companion bills — that would increase newspaper notice.

Links to Some Bills Cited Above

Researchers Rush to Preserve Data on Government Websites

For over 200 years, public notices have been published in newspapers in part as a consequence of the inviolability of newsprint. Legislators have always understood that when they passed laws requiring notice of official actions to be published in newspapers, a record of the notice would be easy to authenticate and would remain in newspaper archives in perpetuity.

A recent conference of independent researchers provides an excellent reminder that government websites fail miserably at meeting that traditional public-notice standard.

According to StateImpact Pennsylvania, about 100 researchers met in Philadelphia last month to participate in the University of Pennsylvania’s Data Refuge “hackathon,” to copy important environmental data that they fear may disappear from government websites for political reasons. The archivists, librarians, tech workers and students “hunched over computers” and made notations on white-boards as they raced to preserve climate data from the National Oceanographic and Atmospheric Administration that was potentially endangered by the incoming Trump Administration.

But regardless of whether their worst fears turn out to be valid, government websites are not a reliable place to store important information, assistant director for digital scholarship at Penn Laurie Allen told StateImpact, a collaboration between local NPR stations in the Pennsylvania.

“The internet is a terribly unstable way to keep information available,” said Allen. “A huge number of references to websites no longer work.”

Within hours of its inauguration, the Trump Administration demonstrated that the researchers who met at Penn were prescient, as reports quickly circulated about information that had been erased from the White House and other federal agency websites.

Q & A: Beth Bennett, Wisconsin Newspaper Association

In 2016, the Wisconsin legislature created a study committee to “update and recodify” the statute relating to public notice “to reflect technological advances and remove obsolete provisions.” The committee was charged with considering changes to the statute that would “allow for information to be made available only electronically or through nontraditional media outlets.”

The Wisconsin Newspaper Association (WNA) mounted an impressive effort to convince the committee that newspapers and their websites were still the right place for public notice. The committee met three times and ended its review on Oct. 10, deciding to recommend only one change to a minor category of notices. We spoke with WNA Executive Director Beth Bennett about the process.

PUBLIC NOTICE MONTHLY: How did the process get started?

BETH BENNETT: Representative Jesse Kremer requested that the Wisconsin Joint Legislative Council conduct a formal review of how public notices are published by newspapers. Rep. Kremer cited the need to address “new technologies” in the current public notice statute that requires publication in newspapers. He stated in his request that he was working on legislation to change the statute, to allow online-only news sources to be designated as “newspapers of record”. This is just another way of saying that he wanted to amend the statute to allow online news sources to publish legal notices.

PNM: Is Kremer still considering introducing a bill?

BENNETT: Not that I am aware of, but we know of two other legislators who have plans to introduce bills this year that will do-away with newspaper publication of public notices.

PNM: For other newspaper industry representatives who may eventually be faced with a similar situation in their state, can you quickly name the three most important things WNA did to protect its members’ public notice franchise?

BENNETT:

1: A great business model for supporting the statewide public notice website and historical archiving of all public notices via the Wisconsin newspaper archive which dates back to 2005.

2: Providing the Council with the “big” picture of just how involved a process the publication of public notices is.

3. Successfully arguing that there is no other third-party vendor that can represent all of the needs of public notice advertisers like newspapers.

PNM: Did you organize any grassroots outreach by members during this process?

BENNETT: We did not ask members to reach out. There was no real “ask” during the review. We believed that it was better not to lean on the public officials that were a part of the committee before knowing if we even had a problem.

PNM: Was there a key moment in the process when you realized, “Ok, this isn’t going to end badly?”

BENNETT: Yes. It was a real eye-opening moment for the government representatives on the committee when our folks pointed out that the courts and private citizens also place notices and would be affected by any changes in the law. I guess it was the first time they realized that it’s not just units of government that would be affected by any decision made on the publication of public notices.

PNM: Did the process reveal any holes in the Wisconsin newspaper industry’s handling of public notices that you think needs to be corrected?

BENNETT: Only that we would be advised to call on our public notice advertisers in the same way that we call on all other advertisers.

AP Reports on “Fight Against Publishing Notices in Newspapers”

ap_logoOn the final day of 2016, the Associated Press provided subscribing news organizations with a brief story about the “fight against publishing notices in newspapers”. The piece covered Gov. Chris Christie’s stalled attempt to eliminate newspaper notice in New Jersey, and also mentioned new public notice laws passed last year in Arizona and Massachusetts.

“I think with the state legislatures it’s just simply a matter of saving a few bucks,” Kip Cassino, a media analyst at Borrell Associates, told AP reporter Josh Cornfield. “It’s going to keep coming up and I think before the next decade ends, I don’t think you’re going to see the legals in newspapers anymore.”

The 550-word article cited public policy considerations supporting public notice in newspapers only in the final paragraph.

“You don’t want to put the fox in charge of the hen house,” Massachusetts Newspaper Publishers Association Executive Director Robert Ambrogi told the wire service. “The main reason legal notices are published is to ensure government transparency and government accountability. In order to have that process done in a neutral and objective way, it needs to be managed and overseen by a third party.”

A Google search indicates at least 60 subscribing news organizations published all or part of the story on their website.

Kentucky Paper Treats Public Notice Like News

mike-scoginMost public notices look like classified ads — an undifferentiated mass of agate type, designed primarily for goal-directed readers.

The public notices in Kentucky’s Georgetown News-Graphic are different. They look like news stories (PDF), designed to capture readers’ attention and promote the kind of serendipity that distinguishes newsprint from electronic formats. News-Graphic Publisher Mike Scogin (photo on left) decided to make this change about a year ago, after reading an issue of a newsletter distributed by newspaper-design consultant Ed Henninger.

One of Henninger’s suggestions — make public notices look more like the news — made sense to Scogin, who worked in newsrooms in Natchez, Mississippi and Mobile, Alabama before becoming a publisher. He was the kind of journalist who read the public notices in his newspaper because he knew they were a source of news.

“The news value of public notice is overlooked,” Scogin says. “I thought that redesigning our public notice section was a good way to promote that. I also wanted to show the local government units that run the notices that we’re acting in their best interest.”

Scogin said the transition to a “presentable public notice section that invites readers” hasn’t been easy. Public notices must be run verbatim, which eliminates the design flexibility that comes with news stories. And the production staff responsible for designing public notices at the News-Graphic “just want to make ads,” so they aren’t used to thinking in terms of news design. So Scogin had to bring his newsroom and production department together to make the change.

He says local government officials have generally acknowledged the new look, but its biggest proponents have been his readers. He hears regularly from subscribers who hail the increased accessibility of the notices. 

Not everyone has been happy about it though. The owner of a liquor store who placed a notice in the News-Graphic to qualify for a liquor license was irate because its increased visibility prevented him from keeping his plans hidden from his local competitor. 

Scogin’s upgrade exceeds the letter of the law in Kentucky, which only requires notices to be published in 7-point type. The public notices in the News-Graphic are now 10.5 points, the same size as the type used for news stories in the paper. Moreover, the section head, large headlines, and pillowy white space, and the graphics that now accompany some notices, also use space. It’s space that Scogin doesn’t charge extra for.

“This is important,” Scogin says. “I’m happy to give up the extra space to provide our readers with information they need.”

Christie’s Effort to Eliminate Newspaper Notice in NJ Stalls

chris_christieIt isn’t unusual for politicians seeking revenge for negative press coverage to retaliate by sponsoring legislation that would eliminate public notice advertising in newspapers. It is unprecedented, however, for the press to openly acknowledge the lawmaker’s intentions and to dub the legislation a “newspaper revenge bill.”

Such is the bruising nature of politics in New Jersey, where Gov. Chris Christie’s effort to move all public notices in the state to government websites was withdrawn from consideration on Monday afternoon. But the newspaper industry isn’t out of the woods yet. The bill remains active and Christie has vowed to make it his “top priority” in 2017. The speaker of the General Assembly has also announced his intention to return to the issue “very soon.”

The legislation was introduced last Monday and had the support of members of both parties, including the Republican governor and both leaders of New Jersey’s Democratic-controlled legislature. By Thursday, it was reported out of Senate and Assembly committees with wide margins and bipartisan support and was fast-tracked for a Monday afternoon vote in both chambers. Things looked grim for the newspaper industry.

But a ferocious lobbying effort mounted by the New Jersey Press Association (NJPA) and wall-to-wall coverage of the “newspaper revenge bill” by the state’s newspapers and their websites unleashed a wave of grassroots opposition that ultimately swept through the statehouse and turned things around. On Monday morning, the Democratic caucus met for several hours and by the end of the meeting it was clear to party leaders the legislation lacked support. Both houses pulled the bill from their voting agendas.

According to press reports, the legislation was the result of a backroom deal between Christie and the Democratic leaders in which each pledged to support two separate bills. In addition to the “newspaper revenge bill,” the other bill would have overridden statutory limits on the governor’s income and allowed Christie to profit from a book deal. It also would have boosted the salaries of Cabinet members, judges and other executive branch personnel, and increased legislative staff budgets.

By all accounts, the deluge of press coverage about the secretive deal-making generated widespread citizen concern, and as a result legislators’ phone lines and email inboxes were overwhelmed. By Monday morning, that grassroots uprising and Christie’s weak political support  — he has an 18 percent approval rating — had turned the tide.

During the two hearings on Thursday and the lobbying that followed, the newspaper industry george-whitewas joined by a wide range of New Jersey-based nonprofit organizations, including unions, environmentalists, and citizen groups. They were troubled by the prospect of eliminating public notice from newspapers and their websites and understood the blow to transparency that would result from spreading the notices across the websites of the state’s 1,000+ lightly trafficked government websites, many of which are haphazardly maintained.

The New Jersey State League of Municipalities and the state’s Association of Counties officially backed the bill, but neither appeared to testify at the hearings. Clearly, support among government officials wasn’t unanimous. “We rely on local press to cover planning boards and township committee meetings,” GOP Mayor Nicolas Platt, of Harding Township, told the Star-Ledger. “This is a bill we did not ask for. This came as a shock to me. We don’t manage our web sites that well.”

The battle generated national coverage, with the Associated Press, New York Times, Washington Post and Wall Street Journal among the news organizations reporting on the “newspaper revenge bill” and Christie’s book deal. The national coverage largely mirrored the reporting in New Jersey, where the primary substantive issues addressed were the newspaper closures and loss of newspaper-industry jobs the bill would cause, and questionable assumptions about the taxpayer money that would be saved by moving public notices to government websites.

Christie claimed the bill would save the state $80 million, but his administration never provided a source for its estimate. NJPA estimated that government expenditures on public notice in the state were closer to $20 million, with $8 million paid by the government and the remainder funded by businesses and individuals. In one of the more unusual details of the battle, Christie’s repeated and mistaken claim that homeowners tied up in foreclosure are responsible for paying the cost of foreclosure notices was never challenged in any of the many press reports about the bill.

According to NJPA, the bill would have caused the loss of 200 to 300 newspaper industry jobs in the state. This figure was cited in almost every news report on the legislation. By mid-day on Monday, Christie’s communications team was lashing out at the papers, issuing a release titled “Media Billionaires Continue To Demand NJ Taxpayer Subsidy.” The release focused primarily on Gannett and Advance Publications, the two biggest newspaper publishers in the state, accusing the companies of profiting from “corporate welfare from a mandate that municipalities, school districts and counties publish legal notices in print newspapers, instead of giving them the option to post online.” (Emphasis in the original)

In fact, the bill would have given municipalities the option of purchasing space in newspapers in order to provide public notice. However, as NJPA and others opposed to the bill noted, this provision would have given government officials a club to punish local newspapers for negative coverage.

When the prospects for newspapers were darkest, NJPA offered lawmakers a compromise, agreeing to cut government rates for taxpayer-funded public notice ads by 50 percent while instituting a series of gradual increases in the fees charged for notices subsidized by businesses and other private parties. Public notes rates in New Jersey are set by statute and haven’t been raised since 1983.

“We’re pleased that many legislators and citizens heard our message and ultimately decided not to rush such an important government transparency issue,” said NJPA Executive Director George White (pictured above). “We look forward to returning after the holidays and continuing the conversation about how to effectively modernize the public notification process for the digital age.”

“Legislators in New Jersey recognized with some prodding that this issue is more complex than they thought and the public is very concerned about reducing government transparency,” said Brad Thompson, CEO of the Detroit Legal News Co. and president of PNRC. “We are gratified New Jersey decided not to become the first state in the country to vastly reduce their citizens’ right to know by eliminating public notice in local newspapers.”

    Press Coverage:

Jersey Publishers ‘Not Slowing Down’ in Opposition to Christie Newspaper ‘Revenge Bill’, Politico
The Ramifications of Christie’s Failed ‘Newspaper Revenge’ and Book Deal Bills, The Observer
The Newspaper Issue isn’t Over Yet, NJ Advance Media
Lawmakers’ Revolt Sinks Christie Book Deal, Newspaper Bill, The Record/NorthJersey.com
A Message From Governor Chris Christie On Posting Legal Notices Online, Gov. Chris Christie
Christie & Dem Bosses Get Public Spanking They Deserve, Tom Moran, Star-Ledger
Sorry, Christie, Newspapers are Alive and Kicking, Alfred Doblin, The Record

Government Website Notice Inadequate, Admits Environmental Agency

heidi2_529340_7The director of the same Michigan environmental agency under fire for dismissing concerns about the contamination of Flint’s water supply admitted her department failed to provide sufficient notice of another recent water proposal in the state, according to MLive Media Group.

Michigan Department of Environmental Quality (MDEQ) director Heidi Grether (pictured on the left) told an air and waste management law conference last week that 42 days on MDEQ’s website “probably” wasn’t sufficient to properly notify the public about a request by Nestle Waters North America to increase the amount of groundwater it pumps in Osceola County. Grether was named director of MDEQ in August after her predecessor was forced to resign in the wake of the Flint crisis.

“Was this advertised and noticed in a way it should have been? Probably not, it appears to me,” Grether said.

Nestle’s request first came to wide public attention on Oct. 31, when Garret Ellison of The Grand Rapids Press reported on the multinational corporation’s plan to increase the amount of groundwater it pumps from a particular well by 167 percent. MDEQ received more than 3,000 emails after the news organization published the story, which prompted the agency to extend the public comment period by several months. MDEQ also now plans to schedule a public hearing on Nestle’s request, which would support a $36 million expansion of its Ice Mountain bottling plant in the state.

MDEQ has already issued a draft approval for the request.

“The issue is the privatization of a critical resource,” Jeff Ostahowski told MLive. The vice president of the Michigan Citizens for Water Conservation (MCWC) objects to water bring diverted from watersheds that feed the Great Lakes.

An attorney who represented MCWC in a previous battle with Nestle over groundwater pumping told MLive the right of Michigan citizens to register their opinion on government decisions about water has been “diminished to the point of absurdity.”

“Water is public, subject to high ethical and legal duties of protection for Great Lakes, lakes and streams, wetlands, groundwater, fishing, recreation, farming and businesses here,” said Jim Olson, co-founder of the Traverse City-based freshwater advocacy nonprofit FLOW (For Love of Water). “The MDEQ’s handling of the Nestle application is as lax as the handling of the Flint water crisis. Nothing has changed.”

MDEQ’s latest crisis comes on the heels of the Environmental Protection Agency’s recent decision to eliminate mandatory newspaper notice for Clean Air Act permits issued by it and EPA-affiliated agencies like MDEQ. EPA eliminated newspaper notice (PDF) for actions taken under the Safe Drinking Water Act in 2000.

Texas Legislative Committee Recommends Maintaining Newspaper Notice

texas-mapSupport for public notice in newspapers received another boost on Nov. 1, when a joint legislative committee issued a report (PDF) recommending that Texas continue to rely on newspapers to inform the public about official actions in the state. The Joint Interim Committee on Advertising Public Notices suggested the legislature “maintain the current print requirement” and called newspapers “a third party who both creates a lasting and reliable record of the notice and acts as a gatekeeper to ensure that governments post their notices correctly.”

Texas was the third state this year in which a legislative committee created to study public notice advertising ultimately recommended it remain in newspapers. Legislative committees in Wisconsin and Kentucky both issued their reports in support of newspaper notice in October.

Texas Lt. Gov. Dan Patrick announced the appointment of the joint committee in April, asking it to “ensure efficiency, effectiveness and transparency in the way public notices are posted.” At its only hearing, held on Aug. 18, “ none of the lawmakers (appointed to serve on the committee) voiced support for loosening notice requirements,” according to a report in the El Paso Times. Several newspaper industry representatives testified at the hearing, including El Paso Times Editor Robert Moore; Gainesville Daily Register Publisher Lisa Chappell; Beeville Bee-Picayune Co-Publisher Chip Latcham; and Texas Press Association (TPA) Executive Vice President Donnis Baggett.

Although the committee recommended that legislators continue to study the issue, it clearly indicated that government agencies should never be entrusted with the responsibility of providing public notice about their own activities. “(T)here may come a time when the print requirement no longer serves the needs of the people,” the report noted. “In such a circumstance, however, the necessity of placing the notice with a local, third-party media organization likely remains.”

The committee also cited newspapers’ online presence and their willingness to post public notice advertising on their own websites as additional reasons to retain the current statutory requirements.

The committee called on the legislature to distinguish the costs of public notice from other types of advertising, and to create a supplemental notification system through the state comptroller’s office. As TPA’s Baggett noted this week at a Newspaper Association Manager’s meeting in Arlington, Va., the first recommendation was necessary because government agencies in Texas lump all advertising costs together and have no way of knowing how much money they spend on public notice. Baggett also said the committee stipulated that the website and email notification system it is recommending for the comptroller’s office does not alone satisfy the public notice requirement.

Kentucky, Wisconsin Conclude Public Notice Reviews on Positive Note

wisconsinCommittees formed to review public notice laws in two states adjourned last month after showing strong support for maintaining public notices in newspapers. Wisconsin’s Legislative Study Committee on Publication of Government Documents and Legal Notices ended its review on Oct. 10, deciding to recommend only one change to a minor category of notices. Three days later, the Kentucky General Assembly’s Program Review and Investigations Committee ended its 27-month study with no changes.

“The final recommendation of the (Legislative Study Committee) unanimously supported the continued publication of public notices in newspapers,” said Beth Bennett, executive director of the Wisconsin Newspaper Association (WNA), in an email sent to her members following the committee’s third and final hearing. “We believe that the committee conclusions and recommendations will benefit newspaper efforts to fight off attempts to eliminate public notice going forward.”

Bennett said the legislation recommended by the committee would slightly modify a category of notices required to be published by local government units. She said WNA has not opposed the change in the past and will review the legislation when it is drafted.

The review in Kentucky was prompted by a senator’s assertion that the state could save a significant amount of money by moving public notices from newspapers to government websites. The committee staff presented highlights from its 115-page report at its final hearing, which also featured testimony from Kentucky Press Association (KPA) Executive Director David Thompson.

The report showed wide variations in the estimated cost of public notice spending by individual counties, cities, and school districts. Nevertheless, even jurisdictions that spent the most, percentage-wise, devoted a mere fraction of their budget to public notice advertising, according to the minutes of the meeting. For instance, although the city of Sadieville, with a population of 313, spent less than half of 1 percent of its budget on public notice, Louisville/Jefferson County spent even less, just two-hundredths of 1 percent.

KPA’s Thompson told the committee that the state should continue to require public notices in newspapers to support government transparency and ensure taxpayers know how their tax dollars are spent. He said a change in the law and consequent loss of revenue would “be detrimental to weekly papers (who’ve told him) they would probably have to cut one or two employees,” according to a report in The Daily Independent of Ashland.

“Several committee members made comments and asked questions but none were convinced moving notices out of newspapers is best for taxpayers,” reported KPA’s member website.

Note: The photo illustrating this post shows Gregg Walker (left), publisher of The Lakeland Times in Minocqua and the Northwoods River News in Rhinelander, and Andrew Johnson, publisher of the Wisconsin Free Press Group, testifying in July before the Legislative Study Committee. Photo courtesy of the Wisconsin Newspaper Association.

California Governor Signs Law Redefining Public Notice Jurisdictions

california_flagCalifornia Governor Jerry Brown signed an omnibus bill on Sept. 27 that included comprehensive changes to the state’s public notice law. The changes brought clarity to jurisdictional issues relating to the publication of public notices in the state. The issues first became a concern almost 20 years ago, when the state reorganized its judicial system.

According to the California Newspaper Publishers Association, which supported the legislation, the new law creates Public Notice Districts to define where local notices must be published. These new geographical designations will replace Judicial Districts, which were eliminated when the state’s trial courts were unified in each county in 1998. The law still requires notices to be published in newspapers of general circulation, and it automatically recognizes newspapers currently adjudicated to accept such notices.

The new law will take effect on January 1.