Ongoing Legislative Battles Put Public Notices in Peril

If you look closely at the fine print just below the banner logo for PublicNoticeAds.com, a single-source searchable database for legal ads published by “participating newspapers” across the country, it reads: “The public notice database on this site is not a substitute for the official publication that is required by law. You will still find those notices in your local newspaper.”

On the site’s homepage are links to each to state with “participating newspapers,” though most simply redirect the browser to other websites of a similar design. For example, clicking on the link to Connecticut redirects the user to Connecticut public notices, which is “powered by MyPublicNotices.com.” From there, users can click on individual links to public notices on individual websites for each newspaper title, or search notices published in any of the state’s local and regional titles.

In fact, legally mandated public notices are already prevalently available online and digitally redundant to what’s published in printed newspapers. In addition to these sites, they are also found on government-maintained sites, legal sites and on many newspaper-branded websites.

Yet, in several states just this year, legislators have proposed bills that would allow for public notices to bypass print altogether, possibly narrowing access to information and starving newspapers of the revenue derived from publishing information of this kind.

Given the legislative effort that feels coordinated and party-centric, E&P went in search of who and what was behind the lobby for this legislation and answers to what it would mean to newspapers if printed public notices become obsolete.

Severe Measures

As the director of the Public Notice Resource Center, Richard Karpel is intimately familiar with ongoing legislative efforts to break the relationship between public notices and newspapers.

“We’re the only national organization focused on public notices…and follows all 50 states and analyzes the bills,” Karpel said.

He noted that there are “two parts to this battle.” The first is simply to keep public notices in newspapers. The second is more operational in nature, which is to speak to newspaper publishers about thinking about public notices in a new way.

Publishers should “do whatever they can, in this age of declining print circulation, to make sure that notices get noticed and that they’re still effective,” he said.

Among Karpel’s suggestions is to not just begin to publish online and collect readership data associated with public notices—as publishers would do with any editorial or advertising content—but create innovative designs for the public notices.

Richard Karpel

“Don’t just stick them in the back of your newspaper and forget about them,” Karpel said. “The easiest way to innovate in this area is through design. There are so many newspapers that run notices in a manner that makes readers think, ‘Did they want to hide this intentionally?’ Then, there are very few others that I feel are doing a great job.”

Karpel said there are 12 states that now require the digital publication of public notices, whether it’s on the newspaper of record’s website or on statewide websites administered by the government. Still, he pointed out, most newspapers will inherently have larger audiences than any third-party or government-run website.

It’s important to note that not all public notices are of the same ilk and not all proposed legislation is of the same language. Some are narrow in scope, regulating only certain types of information, while other proposed bills take a broader approach and seek to take public notices out of newspaper entirely. Karpel said it’s important to distinguish between the two.

In the case of those broad legislative efforts, he said that politics can be the impetus, and historically, Republicans have been behind these efforts, though not in all cases.

“Usually when we see these sweeping bills, they want to hurt newspapers,” Karpel said. “It is the case that the GOP has had a constant drumbeat—media is the enemy—that did not start with President Trump…There are plenty of cases where none of this was about public policy; it was more about punishing newspapers.”

Karpel acknowledged that the vast majority of this type of legislation has come out of the GOP, but not in all cases has it received purely Republican endorsement. Republican Gov. Chris Christie introduced a bill that would move state government notices to government sites, and it garnered initial bipartisan support in the New Jersey legislature.

Karpel added in solidly red states like Mississippi and Alabama, there is not the groundswell of interest in legislation like this because even politicians understand the need to leverage newspapers to reach rural constituents.

Around the Nation

Just this year, Joe Gamm, a reporter with the News Tribune in Jefferson City, Miss., reported on Missouri House Bill 1651, which proposed allowing foreclosure notices to be published by private, third-party websites, rather than in community newspapers.

In an article published last February, Gamm explained the existing law stipulated that foreclosure notices be published for 21 days in daily newspapers or in four consecutive editions of weekly titles. The proposed legislation, sponsored by Republican State Rep. Robert Cornejo, would mimic that 21-day publishing cycle, but the platform would change.

The proposed legislation had also been suggested in 2017, and based on objections, it had been modified to include a layer of accountability requiring digital publishers of foreclosure notices to submit an affidavit at the conclusion of the publishing cycle, which would declare the dates posted and compliance with state law. In effect, the revised legislation would introduce further regulation that would cost taxpayers to administer.

When Gamm was reporting on the topic, he quoted the oppositional voice of Rep. Peter Meredith, a Democrat, who pointed out that this is an issue of public trust, too.

“The primary concern I think I had last time is that I still don’t see anything that stops the entity with the website from being the same entity that’s selling the property,” Meredith said in the article.

Then, there’s the fundamental technical challenge of search engine optimization (SEO), according to Zach Ahrens, the general manager for Central Missouri Newspapers, who Gamm attributed as saying, “If you have a website and nobody knows about it, how do they find it?”

The proposed legislation never made it to a vote in the legislature. It was defeated in committee, along with a similar bill under consideration in the State’s Senate.

A look around the country reveals that other states—Illinois, Iowa, Maryland, Minnesota, Oklahoma and South Carolina—have also considered making amendments to public notice law.

The Georgetown (Ky.) News-Graphic publishes its public notices with a bold section header, large fonts and on an uncluttered page with plenty of white space.

The Veto Stamp

Jeffrey Roberts is the executive director for the Colorado Freedom of Information Coalition. A former reporter and editor at the Denver Post, Roberts has been closely monitoring the drumbeat to legislate away the relationship between government-authored public notices and Colorado’s newspapers.

In Colorado, the proposed legislation manifested in Senate Bill 18-156 is designed to “phase out” the legal requirement to publish county financial information in newspapers. Republican State Sen. John Cooke sponsored the bill and cited a 2017 line item cost of $84,000 for public notices by Jefferson County alone.

“This particular bill was limited to county financial notices and the requirement that counties publish certain financial information in newspapers,” Roberts said. “It has been on the books—I think I heard—for more than 100 years.”

As in an increasing number of states, there is also a state-centric website in Colorado for all local, regional and state public notices. It’s administered by the Colorado Press Association and sanctioned by law.

The lobby for Senate Bill 18-156 came from the counties themselves, Roberts said.

“The argument is that, year after year, we’re spending taxpayer money needlessly for something that we could just put up on the county’s website,” he said. “They don’t want to spend money putting it in newspapers, which they believe fewer and fewer people are reading.”

Jeffrey Roberts

When the legislation was being bandied about in committees, there was some controversy associated with its debate. The counties’ cost estimates—what they’re spending each year to publish public notices in newspapers—has been inflated. They needed to be revised.

“During testimony, one of the publishers of a newspaper in south Denver said that public notices in his paper were ‘bestsellers,’” Roberts said “He said that his readers want to know what their government is up to.”

Roberts credits the Colorado Press Association with being able to lobby Colorado’s Gov. John Hickenlooper, and when the approved bill reached Hickenlooper’s desk, he vetoed it, citing a lack of broadband access outside of Colorado’s more urban areas.

Even some of the legislators who supported the proposed bill did it half-heartedly, according to Roberts, including one of the bill’s sponsors, who acknowledged that it could fiscally harm Colorado’s newspapers in a time when they’re already challenged in so many ways.

“So it was like he was saying, ‘Eh, I’m sorry I’m doing this, but I’m going to do it, anyway,’” Roberts said. “I don’t think it’s very much money from the counties, but that money might mean more to the news organizations than it means to the county. It’s so hard to know that.”

Much of the debate in Colorado centered on the community’s access to information, the newspaper as a platform and readership behaviors in an increasingly digital world.

As newspapers begin to publish public notices on their websites, the industry will have a better understanding of their readership; who finds them useful or interesting; how much time they spend reading them; and whether reading about a topic in a public notice inspires the reader to seek out more information about the topic.

In print, it’s somewhat impossible to gauge reader engagement and what readership behaviors the information inspires. And readership behavior is an important facet to this topic and legislative debate. For example, readers may be more likely to see the information in their printed newspaper or on their newspaper’s website, which will have a larger readership than any county government website.

Roberts suspects that public notices have a narrow audience. He suggested that there are two kinds of readers: Those who are anticipating or seeking out specific information; and those who more passively consume that information as they’re flipping through the pages of their favorite newspaper title. Roberts also suspects that public notices may have greater—vital, even—value for smaller communities and community newspapers, particularly in rural areas.

“There’s information in these notices that never make it into a newspaper either, but they are of interest to certain people,” he said.

Roberts pondered the ethics of monetizing public notices, suggesting that many publishers may “feel odd” about accepting this revenue stream, but acknowledged that there are real costs in print and online that newspapers are just not in a position to absorb. He expects that the debate about public notices isn’t over in Colorado, and that it will continue to be raised during conversations about austerity.

“It’s getting harder and harder for the press associations to fight this,” he said.

Jerry Raehal would know. He’s the newly-appointed publisher for the Post Independent in Glenwood Springs, Colo. Previously, he served as director of the Colorado Press Association.

The Post Independent continues to publish public notices for government agencies and private entities. They’re published “as they come in,” according to Raehal, who noted that they appear both in print and on the newspaper’s website. They’re also published on the Public Notice Colorado website, per law.

Now that he’s a publisher and tasked with the bottom line of the newspaper, Raehal has considered what it would mean if public notices were to “go away.”

“It wouldn’t impact our paper as much as it would impact some other papers,” he said. “It would be a hit, but we could sustain. Some other papers could not.”

And what would it mean to his newspaper’s readership?

“It would be huge. That is their access to the government; it’s the government’s own reporting, but provided by a third-party source, which cannot be altered after the fact,” Raehal said. “Public notices published in newspapers and on their websites protect the reader and the government by being a trusted, third-party source.”

What’s Best and What’s Right

In North Dakota, there’s another battle going on with newspapers and public notices. Jack Dura, a reporter with the Bismarck Tribune, reported in August on proposed amendments under consideration in the State legislature’s interim Judiciary Committee.

The amendments, Dura explained in an article, “would have allowed counties to publish their official proceedings online. The other two amendments were for similar changes, not requiring the publication of orders and vouchers in counties’ minutes and allowing election results to go online, rather than in newspapers.”

According to the North Dakota Newspaper Association’s estimates, publication of public notices in newspapers amounted to a miniscule percentage of the county’s budget. The draft of the bill was championed by Republican legislators, who believed that native digital publication by the counties themselves would be sufficient to fulfill their duty to push information out to the public.

The proposed amendments were voted down in committee in a 6-4 vote, but Steve Andrist, the executive director for the North Dakota Newspaper Association, predicted that it will arise again during the 2019 legislative calendar.

But Andrist stressed that publishing public notices digitally is a good thing, and newspapers are not against moving this content online.

“The point that we like to make is that both are important, and it’s a very small cost,” Andrist said. “Our research—and this is based on real data—showed that the cost of publishing minutes of governing bodies…was less than one-tenth of 1 percent of the effected budgets.”

Despite the faint budgetary blip, Andrist said that he believed the legislative debate has derived from an “attempt to do what’s best and what’s right.”

“We’ve been able to successfully make the case…to make sure that the citizens of our state have easy access to information, both online and in print, and that it’s a small expense to pay for informing your constituents,” he said.

Regarding the revenues newspapers derive from public notices, Andrist said that it’s all about economies of scale. For major-market titles, the revenue is likely “noticeable but mostly insignificant.”

“For the smallest newspapers we have—weekly newspapers in very small communities, which have circulation of under 1,000 and sometimes even under 500—those are the titles for which public notices are a very important part of the revenue stream. If they disappear, on a large scale, there would be a revenue loss to small newspapers that they could not survive,” he said.

Andrist predicts that debate about public notices hasn’t been settled. He said that it’s possible legislators will loosen requirements—for example, changing law about publication frequency and duration.

Back in August, when Dura reported on the committee defeat, the reporter noted that lawmakers “also floated the idea” of putting this matter to a public vote, but Karpel of the Public Notice Resource Center said, “Public notices aren’t a high-profile issue. A lot of people don’t even know how they work, and even in legislatures, it’s not the highest priority…the internet plays such a big part in our lives that people don’t often think about its inadequacies.”

Karpel cited at least two occurrences—one in Michigan and one in Arkansas—when vital environmental information failed to reach the public because it was limited in its digital reach, which is why he believes print is “inherently superior for providing public notices.”

“Newspapers are still the best way to do this,” he said.

Gretchen A. Peck is an independent journalist who has reported on publishing and printing for more than two decades. She has contributed to Editor & Publisher since 2010 and can be reached at gretchenapeck@gmail.com.

Editor's Note: This article has been edited to reflect Richard Karpel's correction.