July 17, 2024

Keeping Media and Government Accountable.

AG opinion on state law raises concerns about legal notices

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A Kansas taxpayer is sounding an alarm about a recent opinion by Attorney General Kris Kobach, and its effect on constituents’ access to local government notices about official government business that appear on various issues in newspapers.

The issue for Hutchinson resident Harley Teel revolves around Kansas Statute 12-1651, which defines “an official newspaper in cities of the second and third classes”, depending on population:

  • 3rd Class cities are those with populations between 2,000 and 4,999
  • 2nd Class cities are those with populations between 5,000 and 14,999
  • 1st Class cities have populations above 15,000

The statute sets out the qualifications for “official newspapers’:

     1 -It must be published at least weekly 50 times each year and have been so published for at least one year prior to the publication of any official city publication.

     2 -It must be entered at the post office of publication as second-class mail matter.

3 -More than 50% of the circulation must be sold to the subscribers either on a daily, weekly, monthly or yearly basis. It shall have general paid circulation on a daily, weekly, monthly or yearly basis in the county and shall not be a trade, religious or fraternal publication.

     4 -It shall have general paid circulation on a daily, weekly, monthly or yearly basis in the county and shall not be a trade, religious or fraternal publication

Teel contends a recent opinion from Kobach in a letter to State Representative Stephen Owens gives local governments an “opt-out” in providing news and information to constituents, allowing them to use only their city’s website to disseminate information to taxpayers.

In his opinion, the attorney general reasons since the statute applies to only the newspapers in second and third class cities, not those above 15,000 residents, it should not require “official newspapers” to be designated for any city, and cities are free to use only their city websites to keep their constituents informed:

Photo courtesy of the Office of the Attorney General

“K.S.A. 12-1651(a) requires second and third class cities to designate an official city newspaper for the publishing of official city business, provided the newspaper meets the qualifications set forth in K.S.A. 12- 1651(b). However, under the home rule provisions of the Kansas Constitution, Kan. Const. Art. 12, § 5, which allows cities to exempt themselves from nonuniform acts of the legislature, a city may exempt itself by charter ordinance from the requirements set forth in K.S.A. 12-1651 because the statute is not uniformly applicable as it applies only to second- and third-class cities.”

Kobach added:

“The home rule provisions of the Kansas Constitution empower cities to “determine their local affairs. Taking effect in 1961, the home rule amendment empowered local governments to determine their local affairs and government by ordinance. This constitutional provision is to be liberally construed in order to give cities the largest measure of self-government. While a city’s home rule authority is not limitless, any city may by charter ordinance elect to have an enactment of the legislature not apply to such city if the enactment is not uniformly applicable to all cities.”

In a letter to State Representative Michael Murphy, Teel says the issue of transparency goes beyond the designation of “official newspapers” and urged action to be taken by the Legislature:

“A website can be changed in 5 seconds with no transparency to the public.   I have challenged our Mayor several times on her mistakes and within minutes the website was changed even though what was voted on by the city council differed in wording.    There is no public record of when a document/ordinance is placed on a website – or removed.  There is no affidavit to validate the “publication”.Those are problems being created by the State Legislature with allowing website in lieu of print.

 “Both first and second classes may stop the requirements of validated, unquestionable publications in print and simply place it on a website. That means that a council can approve an ordinance and by that evening it will be in force without allowing a single citizen to know ahead of the enactment. Agendas are not ever required to show everything in detail and I guarantee you that council meetings have pre-prepared documents and ordinances introduced and voted on.   

“I hope you will consider these changes and challenge the opinion of Kobach.   If not, please change every statute that is in the Chapters 12 through 15 and repeal them since they must be invalid according to the opinion.”

Teel concluded in an interview with The Sentinel that his concern is transparency and accountability of local government:

“Smaller towns (Cities of 2nd and 3rd class) are often subject to less revenue than what would drive a professional and thorough audit.  So, they have little transparency and no audits to encourage it. I can’t say that anyone has abused the process yet but our 3rd class city just drafted the ordinance to charter out of the statute. They could literally have an ordinance in place in less than an hour.   Bring it to vote on (the information can be handed out before a council meeting).   Vote – approve and set the website as the new law.

“Kobach, in my opinion, is totally off base on his opinion on the statute.    If this is non conforming because it applies only to 2nd and 3rd class, then they can also charter out of anything that offers different criteria for 2nd and 3 class cities.   If the legislature lets them get by with this then the representatives are dumber than I thought.”

At one time, local newspapers were a primary way of connecting with city residents.  But widespread access to the internet and the gradual erosion of newspaper subscriptions changed that dynamic.  Now, local government entities have more cost-effective means to notify residents than publishing in newspapers, but newspaper owners don’t want to give up the revenue that comes with having a monopoly on legal notices.  Eventually, the Legislature may have to craft a solution.

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