It’s the old ‘Chicken or the Egg’ argument on two Public Notice bills from 2020 session

Which came last, the chicken or the egg? Yes, I know the old saying is “Which comes first…” But when it comes to the legislature, the question is changed. “Which came last….?”

There aren’t many occasions when this policy comes into place but as the 2020 General Assembly banged to Sine Die late, late Wednesday night, there was one.

It’s always been a case that if two pieces of legislation, both concerning the same state statute, is approved then the last one being passed becomes the law. We’ll seek a determination and let you know in next week’s On Second Thought which will be law come early July.

KRS 424 is the Public Notice Advertising law in Kentucky. There were two bills that contained language on KRS 424, both in KRS424.110 to KRS 424.370.

We’ve written about both bills here in On Second Thought and via numerous emails to publishers and ad managers.

House Bill 195 was filed in the first 30 minutes of the ‘2o session on Tuesday, January 7. Sponsored by Rep. Jerry Miller, R-Louisville, the language would have allowed all public agencies in all 120 counties to use their own website to publish public notices that should be in newspapers.

KPA got into action, met with Rep. Miller and found out he was willing to consider a compromise if we could work with the Kentucky League of Cities and Kentucky Association of Counties. Those meetings and discussions took place over several weeks and resulted in language that would make posting on a government website permissible in counties of a certain population. KLC and KACO opted for a 70,000 population threshold. KPA sought the threshold that was put in place in July 2018, a 90,000 level of residents.

Negotiations continued and finally the groups settled for an 80,000 population level. A public agency had to be in a county with at least 80,000 population to be able to publish its notices on a government website.

The existing 90,000 figure applied to eight counties — Boone, Kenton, Campbell, Daviess, Fayette, Jefferson, Hardin and Warren. Making it 80,000 minimum would have added in Bullitt and Madison. HB 195 was amended to show the 80,000 threshold, passed committee, was approved in the House and then receive similar support in the Senate.

Meantime, much later in the session, the state Revenue Bill was introduced — House Bill 351 — and it restored the original language from HB195. That, too, passed the House and headed to the Senate. But there, the language on publication under KRS 424 was deleted. The revised bill then passed the Senate and headed back to the House. There, the House could accept the changes made in the Senate or reject the amended version and send it to the Free Conference Committee. That’s a committee of House and Senate members formed whenever legislation changed in one chamber is not approved in the other.

Early in its first meeting, Sen. Chris McDaniel, chair on the Senate Appropriations and Revenue Committee, announced that language on the publication requirements was taken out by the Senate in the revised HB 351.

A conference committee then develops its own language and chances are pretty high that whatever language the committee comes up with is going to be the final version of a bill. As the amended legislation became public, the conference committee reverted to language from 2018 that applied publication on a government website only for counties of 90,000 and above. That’s the threshold Sen. McDaniel used in 2018 to satisfy his home are of Boone, Kenton and Campbell counties. But he was surprised that the legislation would sunset on June 30, 2020. That’s what necessitated Rep. Miller to work on House Bill 195.

When House Bill 195 arrived on the governor’s desk, he vetoed it.

The Senate’s amended HB 351 language was approved by the House and then sent to the governor’s desk.

He used line-item veto powers on 351 and part of the veto was on the publication requirement.

On the final two days of the session — Tuesday and Wednesday — most action was focused on overriding vetoes from the governor.

On Tuesday’s legislation calendar was House Bill 195. The House voted to override the veto and the Senate followed suit. That meant HB 195 was then the law and publishing on government websites was the option for agencies in counties of 80,000 or more population.

Wednesday, in the waning hours of the 2020 session, the Senate finally took up veto overrides and on the list was HB 351.

As expected, and following suit with other vetoed measures, the Senate voted to override the veto.

That should mean that as the most recent piece of legislation dealing with KRS 424, HB 351 is the one that becomes law.

It’s 99 percent the same language inserted in the budget legislation in 2018. That is, it allows cities, counties and school districts, in a county with a population of 90,000 or above to publish their notices on the government’s website, after newspaper publication of where the notice can be found on the agency’s website, with the URL listed.

But this year, it came with odd language that’s meant to embarrass newspapers.

Notice the final two sentences and the entire section amended on KRS 424 is shown below. And unfortunately, the way it’s worded, it would affect ANY public notice published in any newspaper. We’ll get a determination if that’s true or not.

Those two sentences read:

“Any advertisement required to be published in a newspaper under KRS Chapter 424 shall contain the following statement at the end of the advertisement:

“This advertisement was paid for by [insert the name of the governmental body required to advertise in a newspaper] using taxpayer dollars in the amount of $[insert the amount paid for the advertisement].”

Now here’s the entire section amending KRS 424:

Section 73.

Publishing Requirements: Notwithstanding KRS 83A.060, 91A.040, and Chapter 424, a county containing a population of more than 90,000 or any city within a county containing a population of more than 90,000, as determined by the 2010 United States Census, may publish enacted ordinances, audits, and bid solicitations by posting the full ordinance, the full audit report including the auditor’s opinion letter, or the bid solicitation on an Internet Web site maintained by the county or city government for a period of at least one (1) year. If a county or city publishes ordinances, audits, or bid solicitations on an Internet Web site, the county or city shall also publish an advertisement, in a newspaper qualified in accordance with KRS 424.120, with a description of the ordinances, audits, or bid solicitations published on the Internet Web site, including the Uniform Resource Locator (URL) where the documents can be viewed.

Any advertisement required to be published in a newspaper under KRS Chapter 424 shall contain the following statement at the end of the advertisement:

“This advertisement was paid for by [insert the name of the governmental body required to advertise in a newspaper] using taxpayer dollars in the amount of $[insert the amount paid for the advertisement].”

Legislation enacted in the 2020 session will take effect in early July. The exact date will be determined by the Legislative Research Commission and will be announced so. We’ll be sure to let you know.

At the end of the legislation, it sets out effective dates and sunset dates for various sections since budget and revenue bill language is good for the biennial only. So the language above, found in Section 73, comes with this sunset provision:

Section 80. Sections 63 to 73 of this Act apply to the fiscal year beginning July 20 1, 2020, and ending June 30, 2021, and the fiscal year beginning July 1, 2021, and ending 21 June 30, 2022, and shall expire at the end of June 30, 2022.

However, you can bet there will be legislation during the 2021 session that begins in January to make public notices on government website the final word.

Leave a Reply

Your email address will not be published. Required fields are marked *