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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.
ADVERTISING -- Municipal Advertising (no authority to sell in newsletter)
VILLAGES -- Powers and Duties (publication of informational newsletter)
VILLAGE LAW, §4-412(1): A village, by local law, may provide for the publication and distribution of a newsletter for its residents containing information including notices of public meetings, information as to the structure and function of village government, schedules of village activities and financial reports. The village may not sell advertising space in such a newsletter.
You ask whether a village, at village expense, may publish a newsletter to be distributed to village residents.
Section 89(71) of the former Village Law provided that a village board of trustees:
May publish reports, bulletins or other information relating to the official acts and meetings of the officers, employees, boards, commissions, departments and other agencies of the village and may distribute such reports, bulletins or other information to the residents and taxpayers of the village.
The current Village Law, which became effective in 1973, does not provide similar express statutory authority for a village to publish a bulletin or newsletter. Section 4-412(1) of the Village Law, however, provides as follows:
In addition to any other powers conferred upon villages, the board of trustees of a village shall have management of village property and finances, may take all measures and do all acts, by local law, not inconsistent with the provisions of the constitution, and not inconsistent with a general law except as authorized by the municipal home rule law, which shall be deemed expedient or desirable for the good government of the village, its management and business, the protection of its property, the safety, health, comfort, and general welfare of its inhabitants, the protection of their property, the preservation of peace and good order, the suppression of vice, the benefit of trade, and the preservation and protection of public works. * * * (emphasis added)
Based on this authorization in section 4-412, we have expressed the opinion that a village, by local law, may provide for the publication and distribution of a newsletter for its residents containing information similar to that described in former section 89(71) (1979 Opns St Comp No. 79-383, unreported; 1978 Opns St Comp No. 78-559, unreported; see also Municipal Home Rule Law, §10).
The content of the newsletter, we believe, must be intended to inform or educate residents as to the official affairs of village government, and not relate to matters which promote primarily private, partisan or political purposes or undertakings (see NY Const, art VIII, §1; Phillips v Maurer, 67 NY2d 672, 499 NYS2d 675; Schulz v State, 148 Misc 2d 677, 561 NYS2d 377, app dsmd; judgment affd 175 AD2d 356, 572 NYS2d 434, lv denied 78 NY2d 862, 578 NYS2d 877; Stern v Kramarsky, 84 Misc 2d 447, 375 NYS2d 235; cf. People v Ohrenstein, 77 NY2d 38, 563 NYS2d 744). Notices of public meetings, information as to the structure and function of village government, including names and official phone numbers of village officials, schedules for village activities, summaries of official actions, and financial reports are among the items which generally may be contained in the newsletter (see, e.g., 1990 Opns St Comp No. 90-52, p 119; 1988 Opns St Comp No. 88-32, p 60; 1983 Opns St Comp No. 83-204, p 263; see also Public Officers Law, §87; cf. Town Law, §116).
We have also expressed the opinion, however, that, except in connection with a proprietary activity or pursuant to express statutory authority, it is not a proper municipal purpose to raise revenues by selling advertising space on municipal property (1982 Opns St Comp No. 82-133, p 167; cf. 1980 Opns St Comp No. 80-671, unreported; General Municipal Law, §77-d). Thus, it is our opinion that a municipality may not sell advertising space in an informational newsletter to be distributed to its residents (1979 Opns St Comp No. 79-475, unreported; see also 1992 Atty Gen Formal Opn No. 92-F5; 1992 Atty Gen Inf. Opn No. 92-56; 1955 Atty Gen 181; cf. Opn No. 80-671, supra; 1977 Atty Gen 42).
October 14, 1992
William J. Schimpf, Deputy Mayor
Village of Maybrook