Request By:
Mr. David L. Keller
Executive Director
Kentucky School Boards Association
Englewood Office Park
Route #3, Box 96A
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Kevin M. Noland, General Counsel
This is in response to your recent inquiry relating to KRS 158.690 and the publication requirement for a school district's annual performance report.
You report that many areas of the state now have a newspaper which is paid for by advertising revenue and not by subscription. The newspapers are usually published on a weekly basis and distributed free by home delivery and by leaving copies at public locations, such as supermarkets and drug stores. Your questions are as follows:
(1) May these type papers be considered for publication of the district's annual report?
(2) How is a district to determine which paper is the largest circulation and how will it determine the circulation of a paper which is paid for by advertising revenue and not subscription?
(3) Does the statute found at KRS 424.120 also apply to requirements such as the one found in KRS 158.690?
KRS 158.690(3) requires ". . . local boards of education to publish in the newspaper with the largest circulation in the county by October 1 of each year an annual performance report on district accomplishments and activities pertaining to product goals including, but not limited to, retention rates and student performance on basic and essential skills tests by grade level, the district's goals for the succeeding year and other items as may be set forth in State Board of Education regulations . . ."
From this quoted provision, it can be seen that KRS 158.690 requires the school district's annual performance report to be published annually in the newspaper with the largest circulation in the county. In determining whether a free newspaper as you have described may be considered as eligible for satisfaction of this requirement, we must determine whether KRS 424.120, relating to qualifications of newspapers for legal notices, is applicable. KRS 424.110(2) defines "advertisement" , as used in KRS 424.110 to 424.370, to mean ". . . any matter required by law to be published."
KRS 424.120(1) provides:
"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: . . ."
The annual performance report required by KRS 158.690 to be published is a matter required by law to be published. Therefore, it is an "advertisement" within the meaning of KRS Chapter 424. It then follows that KRS 424.120 is applicable to the school district's duty to publish the annual performance report pursuant to KRS 158.690, as KRS 424.120(1) clarifies that whenever an advertisement for a publication area is required by law to be published in a newspaper, the requirements of KRS 424.120 are applicable.
Since KRS 424.120 is applicable to the school district's requirement under KRS 158.690 that it publish in a newspaper with the largest circulation in the county an annual performance report, we set out the provisions of KRS 424.120 as follows:
"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 a 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 meeting all the criteria to be of regular issue, except publication in the area for the immediately preceding two-year period, shall be deemed to be of regular issue if it is the only paper in the publication area and has a paid circulation equal to at least ten percent (10%) of the population of the publication area. 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 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 (4) pages without a cover, and be of a type to 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 (25%) of the total column space in more than one-half (1/2) of its issues during any twelve-month period.
(d) If, in a publication area there is more than one (1) newspaper which meets the above requirements, the newspaper having the largest bona fide paid circulation as shown by the average number of paid copies of each issue as shown in its published statement of ownership as filed on October 1 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.
(2) If, in the case of a publication area smaller than the county in which it is located, there is no newspaper published in the area, the publication shall be made in a newspaper published in the county that is qualified under this section to publish advertisements for the county. If, in any county there is no newspaper meeting the requirements of this section for publishing advertisements for such county, any advertisements required to be published for such county or for any publication area within the county shall be published in a newspaper of the largest bona fide circulation in that county, published in and qualified to publish advertisements for an adjoining county in Kentucky. This subsection is intended to supersede any statute that provides or contemplates that newspaper publication may be dispensed with if there is no newspaper printed or published or of general circulation in the particular publication area.
(3) If a publication area consists of a district, other than a city, which extends into more than one (1) county, the part of the district in each county shall be considered to be a separate publication area for the purposes of this section, and an advertisement for each such separate publication area shall be published in a newspaper qualified under this section to publish advertisements for such area." (Emphasis added).
The above emphasis was added to certain provisions of KRS 424.120 to underscore that in order to meet the circulation requirements of KRS 158.690 and KRS 424.120, certain minimal paid circulation criteria must be met. Therefore, in response to your first question, a newspaper distributed for free may not be considered for publication of the district's annual report.
As a part of your second question, you inquire as to how a district is to determine which paper is the largest circulation. To resolve this question, consider the criteria of the applicable KRS 424.120, as quoted above. Particularly, for this question we refer you to KRS 424.120(1)(d), which is on point and directly answers your question.
The remainder of your second question involves determining the circulation of a paper which is paid for by advertising revenue and not subscription. This determination is unnecessary, since we have concluded above that a newspaper that is distributed for free is not the type of newspaper which is eligible for publication by the school district of the annual performance report in compliance with KRS 158.690.
Your final question, whether KRS 424.120 applies to the requirements found in KRS 158.690, has been answered affirmatively in the discussion above relating to your first question.
We hope this adequately responds to your inquiry.