Request By:
Mr. Harry G. Hoffman, II
Montgomery County Judge/Executive
P.O. Box 640-C
Mt. Sterling, Kentucky 40353
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Two weekly newspapers of general circulation are published in Montgomery County, Kentucky. They are the Mt. Sterling Advocate and The Montgomery News. In connection with county ads, the fiscal court is required to apply KRS 424.120. Specifically the fiscal court must determine, under KRS 424.120(1)(b), the qualified newspaper having the largest bona fide circulation in the publication area.
You have written that both newspapers possess all of the qualifications delineated in KRS 424.120, except for the problem of determining which newspaper has the largest bona fide circulation in the county. See KRS 424.110(1).
KRS 424.120(1)(a) and (b) reads:
"(1) Except as provided in subsection (2), whenever an advertisement for a publication area is required by law to be published in a newspaper, the publication must be made in a newspaper that meets the following requirements:
"(a) It must be published in the publication area. A newspaper shall be deemed to be published in the area if it maintains a known office in the area for the purpose of gathering news and soliciting advertisements and other general business of newspaper publications, and has a second-class mailing permit issued for that office. A newspaper printed outside of Kentucky shall not be eligible to publish advertisements for any county or publication area within the county, other than for the city in which its main office is located, if there is a newspaper printed in the county that has a substantial general circulation throughout the county and that otherwise meets the requirements of this section; and
"(b) It must be of regular issue and have the largest bona fide circulation in the publication area. A newspaper shall be deemed to be of regular issue if it is published regularly, as frequently as once a week, for at least fifty (50) weeks during the calendar year as prescribed by its mailing permit, and has been so published in the area for the immediately preceding one-year period. A newspaper shall be deemed to be of bona fide circulation in the publication area if it is circulated generally in the area, and maintains a definite price or consideration not less than fifty per cent (50%) of its published price, and is paid for by not less than fifty per cent (50%) of those to whom distribution is made; and"
At a hearing of the Montgomery Fiscal Court on November 16, 1981, each of the newspapers was represented by counsel and presented evidence on the question of "who has the largest bona fide circulation in the county." The evidence took the form of affidavits from the publishers as to circulation, and the testimony of witnesses under oath was also heard. Based solely on the affidavits of the publishers, the Mt. Sterling Advocate has the largest circulation in the county. The Montgomery News, however, introduced evidence (witnesses under oath) challenging the accuracy of the affidavit submitted by the Mt. Sterling Advocate.
The Montgomery Fiscal Court has deferred final action on the matter pending the receipt of the opinion of this office on this question:
"Whether a fiscal court having received affidavits of publishers may consider extrinsic evidence challenging the accuracy of factual information contained in the affidavits in making its determination of which of two newspapers has the largest bona fide circulation in the publication area for purposes of satisfying the requirements of KRS 424.120(1)(b)?"
The fiscal court, of course, must strictly follow the language of KRS 424.120(1)(b) in making a determination of which newspaper has the largest bona fide circulation in the county (publication area). However, the statute does not explicitly deal with the precise manner in which the fiscal court, acting in an administrative capacity, may determine the question of qualification, i.e., the newspaper having the largest bona fide circulation in the county.
It is our opinion that the power to determine this question vests in the fiscal court the authority to use any reasonable means to elicit evidence necessary to make such administrative determination. This may include a hearing, upon proper notice, and the taking of sworn testimony of witnesses and the filing of affidavits which reasonably throw light on the question at hand and determine the facts necessary to make an intelligent decision.
Of course a fiscal court is a body of record. KRS 67.100. Its administrative action, taken pursuant to statute, can only be taken in a proper meeting of the fiscal court and as indicated by the record of the particular meeting.
Stringer v. Commonwealth, Ky., 428 S.W.2d 203 (1968).
The fiscal court is a constitutional executive body with legislative, ministerial, and quasi-judicial powers which are delegated, vested and defined by the
General Assembly. Newell v. Cincinnati, N.O. & T.P. Ry. Co., 246 Ky. 628, 55 S.W.2d 662 (1932) 663.
A fiscal court has power to take action in specific areas of government expressly indicated by statute. Fiscal
Court v. City of Louisville, Ky., 559 S.W.2.2d 478 (1977) 482. However, where the legislature has expressly granted a power to deal with a specific category of government, the fiscal court has the implied power as may be reasonably necessary to execute the express power, or to discharge the duties expressly devolved upon that body.
Bruner v. Jefferson County Fiscal Court, 239 Ky. 613, 40 S.W.2d 271 (1931) 273.
CONCLUSION
A fiscal court, in determining administratively which newspaper in the county has the greatest bona fide circulation in order to effect county legal advertising, may use any reasonable means to elicit evidence necessary to make such administrative determination. This may include a hearing, upon proper notice, and the taking of sworn testimony of witnesses and the filing of affidavits. Thus sworn testimony may be introduced which may have the effect of challenging so called factual data contained in affidavits of publishers previously filed. We dealt with the matter of the meaning of the term "bona fide circulation" in OAG 42,442, a copy of which is enclosed for any help it may give you.