In 2018, the City of Longmont spent $25,488.75 placing classified ads in the Times-Call, a newspaper formerly based in Longmont which now publishes out of Boulder and is owned by a hedge fund in New York City. This is according to a Colorado Open Records Act request filed by the Longmont Observer.
The ads, which are published under the heading “Public Notices” appear weekly in the Times-Call, often adjacent to classified ads placed by private citizens. These ads are legally mandated by the city’s charter, various ordinances and state statutes which require public notices be “published” for various governmental activities. These can include passing new ordinances, County Commissioner meetings and private individuals changing their names. The definition of “publish” is set in Longmont’s City Charter, Article 13 Section 15(d) which defines it as:
“The word ‘publication’ shall mean publishing in a newspaper of general circulation within the city. Only in time of emergency or disaster, or when no such newspaper is available, the requirements of publication may be met by posting such notice in at least six conspicuous public places within the city. Any notice published by posting shall be published in a newspaper of general circulation within the city as soon as such is again available.”
It’s the term “newspaper of general circulation” which results in the legal mandate to publish in the Times-Call. When asked about the rules for the passage of ordinances (Charter Article 4 Section 15), City Clerk Dawn Quintana explained that, “Ordinances are published in full – meaning the full text – in the Legal Notices section of the newspaper after first reading. If they are passed as they were originally published, with no changes, only the title is published after the second reading. A story about an ordinance would not suffice as publish.”
“Newspaper of general circulation” is a common legal term in the United States, whose use dates back to 1838. According to Richard Collins, Professor of Law at the University of Colorado–Boulder, Longmont is a home rule municipality and could exercise that authority to pass its own rules for public notice publication. Because it has not, it is subject to the State of Colorado definition in Title 24 Article 70 of the Colorado Revised Statutes. Sections 102 and 103 define the criteria for a legal publication:
- Depending on the frequency of publication, it must have been published without interruption for a period of time ranging from 6 months to 1 year.
- It must qualify for a special United States Postal Service rate reserved for periodicals.
- It must be published within the boundaries of the county in which the public notice is intended to reach residents.
A request to conduct an in-person interview with the City Attorney to understand the city’s interpretation of this section of the charter and state statute was denied by Public Information Officer Rigo Leal, who offered to seek answers to questions in writing. When asked who in the City Attorney’s Office the responses could be attributed to, Leal said they should be attributed to him. When asked for his credentials as an attorney, Leal clarified that he was responding on behalf of the City Attorney’s Office. It is not clear whether the response provided to the Longmont Observer was written by the City Attorney or Leal. When asked about the city’s interpretation of “newspaper of general circulation,” Leal replied, “I believe there is case law that interprets ‘newspaper of general circulation.’”
A search conducted with the aid of a research librarian at the University of Colorado–Boulder William A. Wise Law Library was unable to retrieve any case where a Colorado court ruled on the meaning of “newspaper of general circulation.” The closest is a non-binding special concurrence in the 1965 Colorado Supreme Court case Rector v. Northglen Metropolitan District. Justice Albert Frantz cited the 1930 case Burak v. Ditson from the Iowa Supreme Court to define “newspaper of general circulation.”
“A study of the decisions bearing on the question before us suggests the following criteria: First, that a newspaper of general circulation is not determined by the number of its subscribers, but by the diversity of its subscribers. Second, that, even though a newspaper is of particular interest to a particular class of persons, yet, if it contains news of a general character and interest to the community, although the news may be limited in amount, it qualifies as a newspaper of `general circulation.'”
The Annotated Colorado Revised Statutes provided by the state cites House Resolution Number 10 from 1911 to describe a newspaper of general circulation. It says, “The phrase ‘general circulation’ is descriptive of the character of the newspaper… It must be one of general, not special, or limited circulation…The newspaper may not be a mere advertising sheet, or a newspaper restricted or devoted to some particular trade or calling, or branch of industry.”
When asked if it was aware of other options available for the city to publish legal notices, Kevin Bommer, Deputy Director of the Colorado Municipal League, said, “The statutes require legal notices in a newspaper of regular circulation, which will cease to be the Times-Call when they stop printing. You’ll have to ask folks at the city what their plans are after that, but it will have to be in a newspaper of regular circulation – and obviously one that covers Longmont.”
Bommer was referencing the consensus of experts like Ken Doctor, a respected analyst at the Nieman Journalism Lab, who have closely monitored the strategy of Alden Global Capital, the Times-Call’s owner. Doctor explained that their intent is to, “Cynically [take] advantage of that incredible loyalty that these [newspapers] have built up… When you boil it all down, it is a milking strategy. The long and short of it is [Alden will] maximize [their] profit in the short term, and if [they] need to turn out the lights in 2021, or sell whatever remnants are left over, that’s OK.”
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