Opinion 93-33

OFFICIAL NEWSPAPER -- Designation (use of newspaper not entered as second-class matter); (use of newspaper entered as second-class matter outside the municipality)

PUBLIC MEETINGS -- Notice (use of newspaper not entered as second-class matter); (use of newspaper entered as second-class matter outside the municipality)

SCHOOL DISTRICTS -- Powers and Duties (publication of notice of annual meeting)

EDUCATION LAW, §2004(1); PUBLIC OFFICERS LAW, §70-a; GENERAL CONSTRUCTION LAW, §60(a): A publication entered as second-class matter at a post-office located outside the boundaries of a school district may meet the requirements of General Construction Law, §60(a) and Public Officers Law, §70-a. If the newspaper also has a general circulation within the school district, the school district may publish notice of the school district's annual meeting in the newspaper. A school district, however, may not pay a claim for publication of a notice in a publication which is not entered as second-class matter, even though the publication contains local news articles and has circulation within the school district.


You ask whether a school district may publish notice of the school district's annual meeting in a publication which is entered as second-class matter at a post office located outside the boundaries of the school district and which has only "marginal circulation" within the school district. You also ask whether the school district may pay a claim for publishing the notice in a publication which is not entered as second-class matter, but which contains local news articles and has circulation within the district.

Education Law, §2004(1) provides that the clerk of each union free school district shall give notice of, inter alia, the time and place of the annual meeting "in two newspapers if there shall be two, or in one newspaper if there shall be but one, having general circulation within such district". Although section 2004 does not define the word "newspaper", the word is defined in General Construction Law, §60(a). Further, Public Officers Law, §70-a sets forth certain conditions precedent to a newspaper making a claim for compensation for the publication of official notices of political subdivisions.

In general, to meet the requirements of General Construction Law, §60(a) and Public Officers Law, §70-a, 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. Any publication which does not satisfy these threshold requirements does not constitute a "newspaper" which may make a claim for payment of compensation for publication of school district official notices.

Neither General Construction Law, §60(a) nor Public Officers Law, §70-a prescribe a particular location at which a publication must be entered as second-class matter in order to qualify under those sections (see, gen., US Postal Service Publication DMM Issue 46, 7-1-93, section E216, Second-Class Mail Privileges, setting forth the procedure for entry as second-class matter). Therefore, in our opinion, a publication which is entered as second-class matter at a post office located outside the boundaries of the school district may meet the requirements of General Construction Law, §60(a) and Public Officers Law, §70-a. Such a newspaper, however, also must meet the requirement in Education Law, §2004(1) that it have "general circulation" within the school district. Since you indicate that the newspaper in question has only "marginal circulation" within the school district, it is not clear whether the newspaper meets this requirement (compare Barrett v Cuskelly, 52 Misc 2d 250, 275 NYS2d 280 affd on other grnds 28 AD2d 532, 279 NYS2d 380, Bankers Trust Co. v Terll, 35 Misc 2d 835, 231 NYS2d 374, People ex rel. Guernsey v Somers, n.o.r., 130 NYS 761, affd 153 AD 623, 138 NYS 1136 affd 208 NY 621; see gen 24 ALR 4th 822). We express no opinion as to whether the newspaper in question meets all statutory requirements since we believe the necessary factual determinations must be made, in the first instance, at the local level.

As to paying a claim for publication of the section 2004 notice in a publication which is not entered at the United States post office as second-class matter, we believe it is clear that the provisions of General Construction Law, §60(a) and Public Officers Law, §70-a prohibit such payment. A publication which is not entered at the United States post office as second-class matter does not qualify as a "newspaper" under the requirements of General Construction Law, §60(a), and may not make any claim for compensation under Public Officers Law, §70-a. In this regard, we note that statutes such as General Construction Law, §60(a) and Public Officers Law, §70-a, which set forth standards for publication, have been strictly applied, even in circumstances when a publication which did not meet the statutory standards had greater circulation within an area than a publication which did meet the standards (see, e.g., Guardian Federal Savings and Loan Association v Horse-Hawk Holding Corp., 72 AD2d 737, 421 NYS2d 244; Town of Almond v Penfold, 58 Misc 2d 780, 296 NYS2d 619).

Accordingly, we conclude that a publication entered as second-class matter at a post office located outside the boundaries of the school district may meet the requirements of General Construction Law, §60(a) and Public Officers Law, §70-a. If the newspaper also has a general circulation within the school district, the school district may publish notice of the school district's annual meeting in the newspaper. A school district, however, may not pay a claim for publication of a notice in a publication which is not entered as second-class matter, even though the publication contains local news articles and has circulation within the school district.

December 31, 1993
Warren E. Berbit, Esq., Attorney at Law
Clarkstown Central School District