Cover Story

Put On Notice

by R. Reese Fuller

By law, Louisiana’s public bodies must publish notice of their upcoming meetings in the state’s local newspapers. But in this age of cost -cutting and cheap distribution via the Internet, Joey Durel hopes to tighten local government’s belt a bit more. “It is essential to the maintenance of a democratic society that public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy.”

— from Louisiana Revised Statute 42:4.1

For Norma Dugas, Lafayette Consolidated Government’s council clerk, it was business as usual the week of Jan. 12. Her office sent out the public notice of the upcoming city-parish council meeting to The Daily Advertiser, but it was never published. Limited by the city-parish’s own Home Rule Charter, LCG canceled the council meeting scheduled for Jan. 20. And the council wasn’t the only public body to cancel a meeting for that week — so did the planning and zoning department, the planning commission and the Lafayette Public Trust Financing Authority.

Lafayette City-Parish President Joey Durel now refers to the incidents as “a glitch.” But these mistakes by The Daily Advertiser halted the business of local government. State law mandates that a democratic society can only be maintained when public business is performed in an open and public manner in which all citizens are advised of the performance of public officials, as well as the deliberations and decisions that go into the making of public policy.

But is the continued expense of public notices to local governments justified in a day when the Internet makes communication instantaneous and cheap, government budgets are being slashed, and the influence and reach of newspapers deteriorates?

That’s what Durel wants to know.

Dugas says the process for submitting public notices to The Daily Advertiser has always been the same. The notices are e-mailed to The Daily Advertiser as well as hand-delivered to the newspaper’s offices. The daily then faxes back a verification to LCG. Dugas says all of those things happened in anticipation of the council’s Jan. 20 meeting, but the notices simply weren’t published in the paper.

“They undoubtedly didn’t hit the button for publication,” Dugas says. After the notice failed to appear, LCG canceled its council meeting, moving the agenda items to its Feb. 3 meeting. “I think they didn’t realize the importance of these publications and the ramification if they are not published. By our charter, it has to be published.”

LCG’s Home Rule Charter stipulates that the council’s agenda must be published two days prior to the meeting, excluding Saturdays, Sundays and holidays. And since the notice was to be printed on a Friday for the Tuesday meeting, there wasn’t enough time to reprint it before the meeting. The Advertiser ran an article titled “Council meeting delayed” on Jan. 17. “It is unfortunate that we mishandled the scheduling of a legal notice for the upcoming council meeting,” Blake Spivak, sales and marketing director for The Daily Advertiser said in the story. “We understand and respect the legality of these notifications. I assure you we are re-evaluating our procedures to ensure The Daily Advertiser is compliant in publishing legal notifications for the parish.”

Compounding the problem is The Advertiser’s decision to no longer publish legal notices on Monday and Tuesday.

Dugas says she met with Spivak after the incident but has never heard back from Advertiser Publisher Leslie Hurst. Sources indicate that the public notice gaffe is a direct result of the December round of Gannett layoffs, when The Advertiser terminated its law clerk, Rose Penfold, who has since been re-hired. Neither Hurst nor Spivak responded to a request for comment.

In the last four years, Lafayette Consolidated Government has spent an annual average of $230,000 to publish public notices in the pages of The Daily Advertiser (a figure that does not include what groups like the Lafayette Public Trust Financing Authority also pay). It’s a contract that has increased from $6,000 to $10,000 every year when it comes up for renewal each June. Last year, LCG paid The Advertiser $243,423 to publish public notices. But if LCG isn’t satisfied with the level of service, can’t it just publish its notices somewhere else?

Not so fast.

According to state law, an “official journal” must have paid subscribers, can’t be published less than weekly, must be of general interest, can’t have more than 75 percent of ads in the paper, and must have a principal business office in the parish. The police juries, city and parish councils, municipal corporations, and school boards select the official journal every June for a term of one year. “The newspaper selected shall be known as the official journal of the parish, town, city or school board, and it shall publish all minutes, ordinances, resolutions, budgets and other official proceedings of the police jury, town or city councils, or the school board.” All public bodies — school boards, parish governing bodies, incorporated municipalities, and any other political subdivisions like sewer districts, levee boards, drainage districts — must publish public notices of their meetings.

Public officials can be fined and jailed for neglecting to turn over public information to the official journal, but there are no penalties for official journals not publishing them. And by law, the official journal is to be paid at a set rate for the notices it publishes. For all of the 64 parishes in Louisiana, there’s an official journal; of those, 19 are daily newspapers and 45 are non-dailies.

Louisiana State Newspapers owns 28 newspapers in the state; of those, 12 are official parish journals. The city of Eunice sits in both Acadia and St. Landry parishes but is the seat of neither parish. However, the city still pays The Eunice News, which is the city’s official journal, an LSN newspaper, $15,000 a year for public notices. Taking into account that number, LSN could lose out on at least $180,000 annually without public notices. Attempts to confirm this estimate with LSN’s chief operating officer, Darrell Guillory, were unsuccessful as of press time.

Clearly these are badly needed revenues for an industry in dire straits.

In response to declining ad revenue, mainly attributable to the Internet, newspapers across the country are laying off workers, cutting pay, shrinking page sizes and printing fewer pages. There isn’t a week that goes by without word that a newspaper giant is either cutting back its frequency or shutting down. On Friday, The New York Times Co. threatened to shut down one of its own, the Boston Globe, in a dispute with the paper’s unions. Within the past month, the Seattle Post-Intelligencer ceased publishing its print edition and moved its operations online, and Denver’s Rocky Mountain News shut its doors. Last week, the Associated Press published a list of 99 newspapers from across the nation that were publishing on a daily basis just a year ago but are now publishing less than seven times a week. Out of the 50 states, 32 had at least one newspaper within the last year move from publishing on a daily basis to less than seven days a week.

In March, the Public Affairs Research Council of Louisiana made five recommendations to bolster transparency and open government in Louisiana. The group’s major criticism of Louisiana’s public records and open meeting laws is that they are too broad and are peppered with “copious exceptions and scattered cross-references throughout the law. Further, Louisiana offers no meaningful remedy to citizens who are denied information unless they can afford legal counsel. The result is that average citizens have no idea what they are entitled to legally, custodians are often confused about which records are public and citizens who are denied access are forced to file a lawsuit to resolve the issue.”

One of the solutions PAR offers: “Public records and open meetings should be more accessible via the Internet to minimize the burden on citizens who want to view them. Finally, Louisiana should go the extra mile in financial transparency — requiring a robust online outlet for citizens to track where their tax dollars are being spent.” In addition to posting documents from open meetings online, PAR wants the open meetings laws to “require public bodies to provide meeting notices via e-mail to citizens who request the service.”

The Louisiana Press Association already provides an online database of public notices published throughout the state. There are more than 100 daily and weekly newspapers (including The Independent Weekly) that belong to the LPA, the official trade organization for Louisiana’s newspapers. Membership includes 25 dailies, two thrice-weeklies, five semi-weeklies, 80 weeklies and 19 other news publications. Executive Director Pam Mitchell says that nearly all of the official journals are reporting to the LPA’s online public notices database and that the Web site is “a good supplement” to the printed notices.

“I think printed public notice is absolutely vital,” Mitchell says. “It’s there, and people can see it. I have found that with things on the Internet I just don’t go skimming around, I go and look for a specific thing. And I’m not necessarily going to know, if I’m in Central, that the city of Central is planning to rezone the cattle farm next to me and make it an apartment complex, which I might be interested in being opposed to. That is the beauty of public notice. It’s out there for you to find out and know things before they happen, rather than after. Also, public notice holds government accountable. It’s easily accessed, and it cannot be hacked. You need that permanent archivability and the verification that it was there in the form that it was in.”

Will Chapman says public officials complaining about the expense of public notices is a song that’s been sung for 50 years. “Government is always complaining about the cost of public notices, but look at the cost and compare it to the other costs,” he says. Chapman is the publisher of The Daily Iberian, the official journal for Iberia Parish, the city of New Iberia, and the Iberia Parish School Board. “We’re not in the printing business,” he says. “We’re charging for the audience.” Chapman points to a recent survey conducted for the LPA as proof that readers want public notices in their newspaper.

In a survey conducted by Newton Marketing & Research for LPA in 2008, 67 percent of those surveyed had read “notices on a tax increase, a property notice change or notices about government meetings,” and 84 percent believed that state and local government should be required to publish the notices in the paper on a regular basis. More than 80 percent agreed that public notices keep local officials honest and fiscally responsible. They also believed the money was well spent and “provides information you would not get from other sources.” When asked if public notices were posted on the Internet how likely would they be to seek out and read them, 54 percent responded that they were “not at all likely.”

The LPA has long fought to keep legal notices in the state’s newspapers. In last year’s legislative session, Republican state Rep. Hunter Greene of Baton Rouge introduced a bill in the House that aimed to cease publishing the acts of the Legislature in The Advocate, the official journal of the state, at a cost of more than $200,000 a year. Johnny Koch, the LPA’s general counsel, lobbied against the bill, and it died in the Senate.

Public officials are eager to point out that they can post the information to their Web sites at little to no cost, but Chapman says that ignores the issue of accountability and a third-party keeping an eye on what government is doing. The truth is that papers of record don’t keep tabs on the work of the government through legal notices — certainly not in the typical role of media as watchdog of government.

The paper merely receives the notice, much like it does a camera-ready ad, publishes it and collects its money. In fact, of The Daily Advertiser’s four mistakes that caused meeting cancellations earlier this year, all were first caught by the respective staffs of the entities — not by the paper.

“[Posting on LCG’s Web site] would allow many more parties to keep an eye on government,” Durel says. “And this would not prevent the same organizations from doing so as they are now. Actually, I have always thought that publication should be a community service provided by the media. And let’s not forget that every news outlet has Web sites that can post the announcements for almost no cost.”

Echoing Mitchell’s sentiment, Chapman maintains that readers are more apt to happen upon information in the paper than the Internet, where they are more likely to seek out specific information. “Clearly you could get them on the Internet, but it’s a lot different than the paper,” he says.

Chapman would not divulge how much revenue public notices generates for the privately held Iberian, nor would he indicate what percentage of the paper’s income was from public notices. “It’s not like we’re getting rich doing this,” he says, adding that The Iberian charges public bodies significantly reduced rates, about a third of the regular commercial rate, for publication.

Mitchell adds, “I think it’s a mistake to think it’s just this huge profit center for newspapers. Certainly any income is important, but it is not what’s keeping a paper going.” Mitchell can’t say how much money is spent on public notices every year in Louisiana, but she does say that when LPA has conducted surveys of public bodies to determine how much of its expenditures were spent on public notices, it’s 3 percent or less.

For Lafayette City-Parish President Joey Durel, there are two issues when it comes to public notices — cost and technology.

“It’s an antiquated law,” Durel says. “There are so many ways to communicate now, including the Internet and e-mail. And it’s a cost burden on government at a time when the state is cutting millions of dollars in higher education, they’re forcing local governments — in our case over $200,000 — doing stuff we can do much cheaper and probably better. The law clearly didn’t envision the Internet and other sources. It never changed with radio and television.” Durel has begun discussing the issue with Lafayette’s legislative delegation, and he wants to bring it up for discussion at the Louisiana Municipal Association. “We have the ability to reach more people without spending any tax dollars,” he says.

Durel’s Chief Administrative Officer Dee Stanley details all the information that is posted on LCG’s Web site. “You can get everything you need from the council Web site, on every agenda item, down to the backup information. And that’s not what’s required in the official journal. The official journal prints the agenda. If you go on our site, not only do you get the agenda, you get all of the ordinances and all of the backup data. The public gets exactly what the city-parish council gets before it considers its business. So how could someone say — not withstanding the fact that the notice was missed — that you’re not conducting your business in an open and effective manner?

“There was a time,” Stanley continues, “when a move by an elected or appointed official to blow out a requirement for public notice would be perceived as an effort to return to the days of the smoke-filled rooms, where meetings were conducted outside of sunshine. The fact of the matter is that there’s so much else out there that provides sunshine, for free, that the opening meetings law, in its efforts to achieve that, has not followed suit to recognize that technology. The open meetings law says, right from the get-go, right off the bat, that the law is to be construed in a liberal manner, that the people of the community have the right to have their business discussed in an open and public manner.”

Adds Durel, “My attitude is while the state is cutting millions and millions of dollars from higher education and health and hospitals, they’re requiring us to spend money we could be saving, too. I just can’t see how they can justify cutting that and not letting us cut this.”

Lafayette Consolidated Government’s total appropriations for last fiscal year topped $549.6 million. Excluding Lafayette Utilities System from the picture, there were $229.1 million in local government appropriations, making the $243,423 paid to The Advertiser only .1 percent of the funds spent by the city-parish government last year.

Still, if the method for getting the information out is truly antiquated, as Durel and Stanley argue, that’s a quarter million dollars local government could save annually. “It is just another way to save taxpayers dollars to put them to work for the community,” Durel says. “Clearly we will always have roads that need overlay as well as drainage that needs work. Since these are general fund dollars, they can be used anywhere in government including economic development or law enforcement.”

“Citizens have the right to have their public business conducted in an open and public manner,” Stanley says. “That includes letting people know who, what, when, where, and why. If you’re only going with one source, isn’t that the irony? That the law requires one source?

“Our responsibility,” Stanley says, “what I’ve heard from the mayor, has to be to the public first, and if there’s a way to comply with the open meetings law and not diminish the amount of information and the timeliness of the information that gets to our constituency, we have an obligation and a responsibility to pursue that.”