Request By:
Ruben Watts
County Judge/Executive
Letcher County Fiscal Court
Whitesburg, Kentucky 41858
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter raises a question concerning legal advertisement for the county. It reads:
"Letcher County has two local newspapers. Each of the newspaper publishers have claimed that their paper is the leading newspaper within the county, therefore, it is entitled to receive the county's advertisements. Please advise as to the legal procedure we must follow in order to comply with the law pertaining to the above stated issue."
You did not state in your letter that your county is operating under KRS 424.260, and that the Fiscal Court has not adopted certain portions of KRS Chapter 45A (Kentucky Model Procurement Code). Under KRS 45A.343, and where the Fiscal Court has adopted the provisions of KRS 45A.345 through 45A.460, no other statutes governing purchasing shall apply to such local public agency.
Thus, we shall answer your question under both factual situations, i.e., as involving operating under KRS 424.260 and operating under the Kentucky Model Procurement Code.
First, where a county operates under KRS 424.260, KRS 424.120(1)(a), (b), (c), (d), and (e) reads:
(1) Except as provided in subsection (2) of this section, 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 its principal 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 published outside of Kentucky shall not be eligible to carry 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 published 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 two-year period. A newspaper shall be deemed to be a 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 percent (50%) of its published price, and is paid for by not less than fifty percent (50%) of those to whom distribution is made; and
(c) It must bear a title or name, consist of not less than four pages without a cover, and be of a type of which the general public resorts for passing events of a political, religious, commercial and social nature, and for current happenings, announcements, miscellaneous reading matter, advertisements, and other notices. The news content must be at least twenty-five percent of the total column space in more than one-half of its issues during any twelve-month period.
(d) If, in a publication area there is more than one newspaper which meets the above requirements, the newspaper having the largest bona fide circulation as shown by the published statement of ownership for the publication area shall be the newspaper where advertisements required by law to be published shall be carried.
(e) For the purposes of KRS Chapter 424, publishing shall be considered as the total recurring processes of producing the newspaper, embracing all of the included contents of reading matter, illustrations, and advertising enumerated in paragraphs (a) through (d) of this subsection. A newspaper shall not be excluded from qualifying for the purposes of legal publications as provided in this chapter if its printing or reproduction processes take place outside the publication area.
Letcher County has two local newspapers. Each paper, however, claims it is the leading newspaper and is entitled to publish the county's advertisements. Assuming the two newspapers meet all other qualifications of KRS 424.120 (other than the question of largest bona fide circulation) , the threshhold question here is which newspaper has the "largest bona fide circulation" in the county. (Emphasis added.)
Under KRS 424.120(1)(d), if there is in the publication area (county) more than one newspaper which meets the requirements of subsections (1)(a), (b), and (c), "the newspaper having the largest bona fida circulation as shown by the published statement of ownership for the publication area shall be the newspaper where advertisements required by law to be published shall be carried." (Emphasis added.) Thus, the largest bona fide circulation must be reflected in the published statement of ownership. The greater bona fide circulation controls. In the event the two newspapers should in their published statement of ownership show an identical number relating to bona fide circulation, the Fiscal Court could request the two newspapers to submit affidavits relating to the precise bona fide circulation in the county, as defined in KRS 424.120(1)(b). Should the affidavits contain identical figures as to the bona fide circulaton, only the courts can resolve it. See Williams v. Commonwealth, Ky., 392 S.W.2d 454 (1965).
Now, in the situation where a county operates under the Kentucky Model Procurement Code, under the Competitive Sealed Bidding Statute, KRS 45A.365(3), "the public shall be given notice of the invitation for bids for advertisement in the newspaper of largest circulation in the local jurisdiction," etc. (Emphasis added.) Since the words "largest circulation" are not defined, we note that Webster's Seventh New Collegiate Dictionary at page 150 defines "circulation" as "the average number of copies of a publication sold over a given period." Should the two newspapers in the county come up with an identical figure for circulation in their published statements of ownership, then the Fiscal Court could request the two newspapers to submit affidavits as to the circulation, as defined above. In the event the affidavits contain identical figures of circulation, the courts would be asked to resolve it. "The advertisement requirement involves three important benefits: (a) an offering to the public, (b) an opportunity for competition and (c) a basis for exact comparison of bids. OAG 74-420." Handy v. Warren County Fiscal Court, Ky.App., 570 S.W.2d 663 (1978) 664-665. Thus, the importance of the county's using the statutorily qualified newspaper for ads must be viewed within the context of the above legislatively intended public benefits of competitive bidding.