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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 in villages)

VILLAGE BOARD -- Powers and Duties (designation of official newspaper)

PUBLIC OFFICERS LAW, §70-a; GENERAL CONSTRUCTION LAW, §60(a); VILLAGE LAW, §4-412: A village board, by resolution, may designate as an official newspaper any publication meeting the requirements of Public Officers Law, §70-a and General Construction Law, §60(a) and having general circulation within the village, without regard to whether the newspaper is published within the village.

You ask whether a village is required to designate as its official newspaper the only newspaper which is "published" in the village.

The Village Law contains no provision expressly authorizing or requiring the designation of an official newspaper (cf. former Village Law, §89[8], repealed by L 1972, ch 892; Town Law, §64[11]). The Village Law, however, does make several specific references to the publication of certain notices in a village's official newspaper (see, e.g., Village Law, §4-408[e], notice of filing of annual financial statement; Village Law, §5-508[3], notice of public hearing on the tentative budget). Accordingly, we have expressed the opinion that a village board has implied authority to designate, by resolution, one or more official newspapers (1984 Opns St Comp No. 84-58, p 73; 1982 Opns St Comp No. 82-173, p 223).

Any publication so designated must constitute a "newspaper" within the definition of General Construction Law, §60(a), and meet the requirements for an "official newspaper" set forth in Public Officers Law, §70-a. General Construction Law, §60(a), with certain exceptions, defines the term "newspaper" as follows:

In any case in which notice of any fact is required by law to be published or advertised in a newspaper, the term 'newspaper' shall mean a paper of general circulation which is printed and distributed ordinarily not less frequently than once a week, and has been so for at least one year immediately preceding such publication or advertisement, and which contains news, articles of opinion (as editorials), features, advertising, or other matter regarded as of current interest, has a paid circulation ... and has been entered at United States post-office as second-class matter. A publication which is distributed or made available primarily for advertising purposes to the public generally without consideration being paid therefor shall not be deemed to be a 'newspaper' for the purpose of publication or advertisement of such notice required by law.

Further, Public Officers Law, §70-a sets forth the following conditions with respect to the designation of a newspaper as an "official newspaper":

Every newspaper printed, published or having its principal office outside of a city having a population of over [350,000] inhabitants, as a condition precedent to designation as the official newspaper of any county, city, town, village or other political or civil subdivision of the state or for the making of claim for compensation under the foregoing provisions of this section, must be established at least one year and entered in the post office as second class matter***

Thus, in general, pursuant to General Construction Law, §60(a) and Public Officers Law, §70-a, in order to be designated as an "official newspaper" of a village, 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 in the post office as second class matter. In addition, since the purpose of designating an official newspaper is to ensure that notices reach as many people within the village as possible (see Myers-Brooks Publishers v Board of Supervisors, 68 Misc 2d 1033, 328 NYS2d 741), we have expressed the opinion that a village's official newspaper must have a general circulation within the village (Opn No. 84-58, supra; Opn No. 82-173, supra; see also NY Const, article I, §11). There is, however, no statutory requirement that a newspaper meeting the requirements of General Construction Law, §60(a) and Public Officers Law, §70-a also be "published" within the village in order to be designated as the village's official newspaper (cf. Town Law, §64[11] and former Village Law, §89[8], generally providing that a newspaper "published" in the town or village may be designated as an official newspaper; see also 1988 Opns St Comp No. 88-28, p 51, discussing the general rule that a newspaper is "published" in the place it is first given to the public for circulation).

Accordingly, a village board is not required to designate as its official newspaper the only newspaper which is "published" within the village. Rather, the board, by resolution, may designate as an official newspaper any publication meeting the requirements of General Construction Law, §60(a) and Public Officers Law, §70-a and having a general circulation within the village, without regard to whether the newspaper is "published" within the village. Whether a particular publication meets the necessary requirements involves questions of fact which, in the first instance, must be resolved by the village.

November 23, 1993
Dennis S. Cohen, Esq., Village Attorney
Village of Avon