Request By:
Mr. Ruben Watts
Letcher County Judge Executive
Courthouse
Whitesburg, Kentucky 41858
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Letcher County has two local newspapers, each claiming that it has the largest circulation.
The first question is in what newspaper must county advertising (where a statute requires such advertising be published in a newspaper) be placed.
KRS 424.120(1)(a) requires that the county advertising be published in the publication area. "Publication area" means the city, county or other local area for which an advertisement is required by law to be made. In your situation, the publication area is Letcher County. KRS 424.110(1). Next, the qualifying newspaper must be of regular issue and have the largest bona fide circulation in the county. See KRS 424.120(1)(b). Where there is more than one newspaper qualifying under KRS 424.120, then the newspaper with the largest bona fide circulation should get the county's advertising. In speaking of the largest bona fide circulation, it is the circulation shown by the published statement of ownership for the publication area. See KRS 424.120(1)(d).
It may be noted that KRS 424.120 does not explicitly deal with the precise manner in which the fiscal court, in its administrative capacity, may determine the question of which newspaper has the highest bona fide circulation in the county. A fiscal court in making that determination may use any reasonable means to elicit evidence necessary to make such determination. This may include a hearing before the fiscal court upon 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. Where both newspapers claim by their administrative evidence an identical bona fide circulation figure, only the courts can resolve it in an appropriate action.
As to whether it is mandatory for the county to place its required ads in a local paper, the answer is "yes", since they publish in the publication area, i.e., in Letcher County. KRS 424.110(1). The county has no authority to send required advertising to a newspaper of out-of-county circulation, regardless of a cheaper rate. KRS 424.120. In connection with the annual county tax settlement with the sheriff (KRS 134.310) and the advertisement of tax claims (KRS 134.430 and 134.440), such ads must be run in the local newspaper qualifying under KRS 424.120, as above mentioned.
You ask about the newspaper's charge for publishing your county ads. The rates are covered in KRS 424.160, as amended in 1982.
In general, the county is required to advertise matters as the statutes direct. For example, KRS 424.220 requires the newspaper publishing of financial statements. KRS 424.260 requires newspaper advertising for bids by the county where the expenditure will exceed $7,500. See KRS 45A.365, where the county has adopted the model procurement code. That statute requires advertising for bids.
We hope the above will be helpful to the county in connection with its required legal notices.