Legal Publication Requirements and the Decline of the Local Newspaper

According to a report by Northwestern University’s Medill School of Journalism, between late 2019 and the end of May 2022, more than 360 newspapers closed across the country — and since 2005, the United States has lost more than one-fourth of its newspapers and will likely lose a third by 2025. The closures of these newspapers results in “news deserts,” which lack local journalists to report on local issues. Between 1,300 and 1,400 communities that had local newspapers in 2004 now have no local news coverage at all.

Factors contributing to this decline include a decrease in revenues from digital and print newspaper sales, a decrease in advertising dollars, changing consumer preferences about news sources, and the purchase and consolidation of newspapers by hedge fund and other non-local investors, among other things.

This blog will explore what this trend means for Washington local governments, including as it relates to state-based legal publication requirements in an “official newspaper” or “newspaper of general circulation.” This blog will also cover the nuts and bolts of designation of an official newspaper.

Why Do Newspaper Closures Matter to Local Governments?

Research shows that when local newspapers close, corruption in local government increases and civic participation decreases. Fewer journalists covering local issues means there is less oversight of local government activities and decreased citizen engagement with local politics — including fewer people running for local office.

As noted in the Washington Post Magazine:

(W)hen we lose local journalism, we lose a fabric that holds together communities; we lose crucial information that allows democracy to function; and at the most basic level, we lose stories that need to be told.

In terms of day-to-day operations, Washington cities, towns, and counties are required to contract with a newspaper to function as their “official newspaper,” and publication/notice in an official newspaper or a “newspaper of general circulation” is required under numerous statutory schemes for all types of municipalities, including for special purpose districts.

Since so many local newspapers are reducing the frequency of publication (e.g., from weekly to monthly), decreasing circulation, consolidating with other newspapers, or closing altogether, public agencies have fewer options when it comes to selecting their official newspapers and to publishing notices. It also means that some local governments may need to change their official newspaper of record. Anecdotally, MRSC is hearing from jurisdictions that more errors in publication are occurring — raising concerns about meeting an agency’s legal notice obligations — and our website is seeing increased user searches related to official newspapers, indicating that this is likely an issue of growing concern for local governments.

What Are the Rules that Apply to the Designation of an Official Newspaper?

The requirements for designation of an official newspaper are found at RCW 35.21.875 for cities and towns, RCW 35A.21.230 for code cities, and RCW 36.72.075 for counties. The designation of an official newspaper may be done by resolution.

Few, if any, special purpose districts are required to formally designate an official newspaper. However, even if not required by statute, some special districts opt to designate a newspaper of record by resolution that is a newspaper of general circulation in the district.

Counties are to select a “legal newspaper” published in the county or, if there is no legal newspaper, a legal newspaper published in an adjacent county.

Cities and towns are to select a newspaper of “general circulation in the city or town and have the qualifications prescribed by chapter 65.16 RCW.“

Per RCW 65.16.020, the qualifications of a legal newspaper are:

(The) newspaper shall have been published regularly, at least once a week, in the English language, as a newspaper of general circulation, in the city or town where the same is published at the time of application for approval, for at least six months prior to the date of such application; shall be compiled either in whole or in part in an office maintained at the place of publication; shall contain news of general interest as contrasted with news of interest primarily to an organization, group or class; shall have a policy to print all statutorily required legal notices; and shall hold a periodical class mailing permit:

A legal newspaper must be designated as such by a superior court in the county in which it is published. See RCW 65.16.040.

A newspaper of “general circulation” is not defined in statute, however, the attorney general (AGO) has opined in the context of special meeting notice:

It may be said generally that a newspaper is one of general circulation, even though it is devoted to the interests of a particular class of persons, and specializes on news and intelligence primarily of interest to that class, if, in addition to such special news, it also publishes news of a general character and of a general interest, and to some extent circulates among the general public.

See AGO 1956 No. 257. See also Warner v. Miner, 41 Wash. 98, 82 P. 1033 (1905); Beutelspacher v. Spokane Sav. Bank, 164 Wash. 227, 2 P.2d 729 (1931); Times Printing Co. v. Star Pub. Co., 51 Wash. 667, 670, 99 P. 1040, 1042 (1909).

MRSC’s take on the AGO language and the cases on “general circulation” is that courts are deferential when the validity of publication is challenged if the publication was among the best available options at the time.

If there are two or more qualified newspapers serving the jurisdiction, the legislative body of cities, towns, and counties are to award a one-year contract through a bidding process. In a code city, there is neither a bidding requirement nor a limitation on the length of the contract, although a best practice suggests using bidding when there is more than one qualified newspaper serving the city (see MRSC’s City Bidding Book). We also have several examples of calls for bids for official newspapers in our Sample Documents Library.

When Is Publication in an Official Newspaper Required?

Many statutes require public agencies to publish notice in an official newspaper in advance of agency action being considered, immediately following the official action, or both. While this blog will not set forth a comprehensive list, below are just some of the instances when publication in an official newspaper is required:

• All cities and towns are required to publish every ordinance or a summary thereof in their official newspaper. See RCW 35.22.288 (first-class cities); RCW 35.23.221 (second-class cities); RCW 35.27.300 (towns); and RCW 35A.12.160 and RCW 35A.13.200 (code cities).
• Counties must provide advance notice of consideration of any police or sanitary regulations. See RCW 36.32.120(7).
• Calls for bids for city and town projects subject to competitive bidding must be published either in an official newspaper or a newspaper of “general circulation most likely to bring responsive bid.” See RCW 35.23.352(1).
• Final budget hearings must be advertised for two consecutive weeks in an official newspaper. See, e.g., RCW 35A.33.060 (code city annual budget) and RCW 35A.34.100 (code city biennial budget).

Many other statutes require that notice be published in a “newspaper of general circulation” within the jurisdiction or district (e.g., sale of surplus water-sewer district property, RCW 57.08.015; adoption of port district regulations, RCW 53.08.220; public utility districts call for bids for public works contracts RCW 54.04.070).

What Are the Options for Local Governments Struggling to Meet Publication Requirements?

We have been asked whether local governments can skip publication in an official newspaper and instead use other means of notice, such as publication on the agency’s website. Unless and until the legislature amends statutory publication requirements, local governments must continue to provide notice in an official newspaper whenever required by state law. Further, we have indicated that an “official newspaper” must be a printed newspaper, again, unless and until the legislature amends the qualifications for a legal newspaper. See RCW 65.16.020.

Final Thoughts

Given the decline of local news outlets, it may become increasingly difficult to find a newspaper that meets the statutory qualifications of an official newspaper, legal newspaper, or newspaper of general circulation. Local governments may need to cast wider nets, looking beyond their borders for a qualified newspaper. With some good fortune, perhaps this trend of growing news deserts will slow or reverse. There is substantial effort and funding going toward re-establishing and strengthening independent local journalism and news sources.

Finally, publication in an official newspaper is not the exclusive means to provide the public with notice about agency business. Many local governments can and do utilize additional tools such as social media, radio, local newspapers that are not the “official newspaper,” online publications, and other media in order to “get the word out.” Indeed, it is important to utilize a variety of forums to reach diverse constituencies (e.g., through publications specific to certain ethnic populations). See MRSC’s Community Engagement Resources webpage for creative and effective ways to engage and inform the public.