This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

OFFICIAL NEWSPAPER -- Designation of (criteria for designation in towns)

GENERAL CONSTRUCTION LAW, §60; PUBLIC OFFICERS LAW, §70-a; TOWN LAW, §64(11): A publication which does not satisfy the threshold requirements of General Construction Law, §60 and Public Officers Law, §70-a, because it is mailed as third class matter and does not have a paid subscription, may not be designated as an official newspaper. A town board is not required to designate an official newspaper, but if it elects to do so the board must follow the order of selection set forth in Town Law, §64(11).

You ask whether a town may designate as its official newspaper a newspaper which is published in the town, mailed as third class matter and does not have a paid subscription. If not, you also ask whether the town, as a matter of law, must designate as its official newspaper another newspaper published in an adjacent town within the county. The other newspaper is published daily, mailed as second class matter and has a paid subscription.

In 1988 Opns St Comp No. 88-28, p 51, we concluded that a publication must be a "newspaper" as defined in General Construction Law, §60 and must satisfy the conditions precedent set forth in Public Officers Law, §70-a before it can be designated an "official newspaper" of a town pursuant to Town Law, §64(11). In general, to constitute a "newspaper" which satisfies the conditions precedent for designation as an "official newspaper" a publication must: (1) be in general circulation; (2) be established and ordinarily printed and distributed at least weekly for at least one year; (3) contain news, editorials and other matters of "current interest"; (4) have a paid circulation; and (5) be entered as second class mail matter (see General Construction Law, §60; Public Officers Law, §70-a). Any publication which does not satisfy these threshold requirements may not be designated an "official newspaper" (Opn No. 88-28, supra).

Thus, the first newspaper referred to in your inquiry may not be designated an an "official newspaper" of the town because it is not mailed as second class matter and does not have a paid circulation. Although the second newspaper satisfies these requirements, it is unclear from the inquiry whether the second newspaper satisfies the remaining requirements of General Construction Law, §60 and Public Officers Law, §70-a. Therefore, we express no opinion as to whether the second newspaper may be designated as an "official newspaper".

Assuming arguendo that the second newspaper satisfies the requirements of General Construction Law, §60 and Public Officers Law, §70-a, we note that Town Law, §64(11) provides authority for a town board to designate an "official newspaper" and establishes a hierarchy of newspapers which may be so designated. Section 64(11), however, does not require a town to designate an official newspaper. Therefore, a town board is not required to designate an "official newspaper", but if it does designate an "official newspaper", the board must follow the order of selection set forth in section 64(11).

Section 64(11) generally provides that if no "newspaper" is regularly published in the town and entered as second class mail matter, the town board must consider any paper published in the county having a general circulation in the town and entered in a post office within five miles from the town. If there is no such newspaper, then the town board may exercise a choice and designate as official newspaper either: (1) a newspaper published within the county having a general circulation within the town, but entered in a post office more than five miles from the town; or (2) any newspaper published in a city, town or village in an adjoining county and having a circulation in the town (Opn No. 88-28, supra).

September 14, 1992
Roger Pellegrini, Supervisor
Town of Orangetown