By January 6, 2020 Read More →

Understanding Public Notice

From the Public Notice Resource Center:

https://www.pnrc.net/

I.     Public Notice

Public notice is information alerting citizens of government or government-related activities that may cause a citizen to take action.  Traditionally and effectively newspapers—that are intended for general circulation, published regularly at short intervals, containing intelligence of current news of general interest—have published public notices because newspapers spark the curiosity and are delivered to the interested public.

     A.     History of Public Notice

The history of public notice begins long before the emergence of newspapers. The concept itself has existed since early civilizations posted notices in public squares. This crude method was eventually refined with the publication of the first English language newspaper in 1665. This was a court newspaper called The Oxford Gazette. Later, after being renamed The London Gazette, this official newspaper carried not only notices from the King’s Court, but also public notices from London officials and even from outlying regions.  Allen, Charles, A Series of Articles on Public Notice, (1947).  The American system is modeled closely after the British system. While state governments had been publishing public notices in newspapers throughout colonial times, it was not long before the newly-created federal government followed suit. In 1789, the Acts of the First Session of the Congress required all bills, orders, resolutions and congressional votes be published in at least three publicly available newspapers.

     B.     Purpose of Public Notice

The purpose of public notice is to display information in places where the public is likely to come into notice. The important premise is that information about government activities must be accessible in order for people to make well-informed decisions.

Public notice laws in this country serve to outline the most effective method of reaching the public.  Before a state designates a newspaper to publish public notices, states generally require the newspaper to have a paid circulation, a minimum percentage of news content, a local publishing address, and a continuous publishing history.  The latter requirement ensures stability in the venue for public notices, so that the public will have a reliable place to search for public notices.

     C.     Public Notices Are Important 

An important premise found in federal, state, and local governments is that information about government activities must be publicized in order for people to make well-informed decisions. Public notices provide this sort of transparency and accessibility to citizens who want to know more about government actions. Providing public notice provides the opportunity for the public to influence governing bodies and allows the public to be an active participant in a democratic society.

II.     Defining Characteristics

There is a long tradition that there are four elements that mark a valid public notice.  The notice must be published from an independent party, the publication must be archivable, the publication must be accessible, and the publication must be verifiable.  If any one of these elements is absent, the public loses and the notice itself may be challenged.

     A.     Public Notice Must Be Published by an Independent Third Party         

A public notice must be published in a forum independent of the government, typically in a local newspaper.  An independent and neutral third party has an economic and civic interest in ensuring that the notice delivery requirements are followed.

     B.     Public Notice Must Be Archivable

A public notice must be archived in a secure and publicly available format.  Print newspapers have always fulfilled this element because a public notice published in a newspaper is easily archivable, and can be archived now, in several different places, formats, and without wait.  Newspapers are usually archived by the publishing company and by libraries. These archiving venues provide the public with the option to retrieve the notices for years after date of publication.

     C.     Public Notice Must Be Accessible

A public notice must be capable of being accessed by all segments of society.

     D.     Public Notice Must Be Verifiable

The public must be able to verify that the public notice was not altered once published. In a newspaper notice, an affidavit is provided by the publisher, which can be used in an evidentiary proceeding to demonstrate that a true copy was published as well as the exact wording that was used.

III.     Types of Public Notices

Generally, citizen participation, business and commerce, and court notices are the three types of public notices.

     A.     Citizen Participation  

Public notices that provide information about government activities are designed to alert the public of government activities, and provide an opportunity for the public to comment on such activities.   Some of these public notices include publication of government budgets, notices of public hearings, and notices of intentions to change government run or managed programs.

Many of these notices are intended to satisfy the requirement of “due process of law”, found in both federal and state constitutions. The concept of Due Process is based on notions of fairness, and requires governments to notify citizens against whom they plan to take action in order to allow citizens the opportunity to be heard.

     B.     Business and Commerce

Public notices that contain government requests for bids for services, purchases and other business-related activities are designed to provide businesses with the opportunity to participate in the government procurement process.  Requiring governments to publish notices calling for contract bids ensures that the government is operating in accordance with principles of equal opportunity and provides a competitive bidding process. It also allows the requesting government the opportunity to receive numerous bids, which ultimately can lead to lower costs and better service.

Public notice laws also require corporations and other business entities to publish their intention to do business in an area, which provides the public with the opportunity to either support or oppose such intentions.  Also public notice alters the public when a business or corporation dissolves. This serves to protect creditors and consumers from fraudulent practices.

Public notice laws also provide notice of unclaimed property. Often, insurance companies and other businesses possess money or property that has been separated from the true property owner due to the rightful owner’s relocation or displacement.  Businesses are required to keep these items for a specified continuous time, after which such property is surrendered to the state.   Most states then publish public notices describing the property in the area where the true owner was last domiciled, in order to return the property to its rightful owner.  Unclaimed property notices are some of the largest and most popular public notices that are printed.

     C.     Court Notices

The final type of public notice consists of notices by non-governmental entities which use public powers or institutions in some way.  When probating a will, attorneys must often publish a notice informing the public of the appointment of an administrator of the estate being probated. This allows the public to object to any appointment based on conflicts of interest.  The attorney must also publish a notice to alert any unknown creditors. This serves the function of notifying anyone with a claim against the estate of the deceased that they must assert their claim within a certain time period, or else risk having their claim barred.

IV.     Public Notice Protects Due Process

Public notices are integral to democratic governance and stem from the right to “due process of law” guaranteed by the federal and state constitutions. Due process of law protects Americans’ rights from arbitrary or wrongful actions.

This concept has two parts:  substantive due process and procedural due process.  Substantive due process refers to the types of rights that are protected.  Procedural due process refers to the means of protecting those rights.  Substantive due process ensures that certain basic rights are not violated, while procedural due process may require suitable notice and a hearing before a government or court-appointed body can act in a way that may affect those basic rights.

Public notices play a vital role in both substantive and procedural due process because they provide a window into government actions and also afford notice to citizens of actions about to take place, so they may exercise their constitutional right to be heard.  Importantly, notification not only informs the individual or entity most directly affected, but also the general public which has an interest in knowing how public powers are being used.

V.     Government Accountability

An important premise upon which the principle of democracy is based is that information about government activities must be accessible in order for the electorate to make well-informed decisions. Public notices provide access to citizens who want to know more about government activities.

Public notices serve as a conduit of information from the government to the public. They enable citizens to monitor the actions of their local governments, as well as to keep track of events occurring the in the local court system. Public notices allow citizens to serve as watchdogs for fraud and incompetence by both government officials and private interests. Each year, examples of government fraud are discovered by everyday citizens who read their public notices. When government officials try to hide damaging information by ignoring public notice rules, citizens and community newspapers often force the proper notice to be published.

Through the publishing of financial reports, citizens can see if tax dollars are being wasted. With notices of incorporation and dissolution, citizens can be aware of who is doing business in their community and ensure that businesses are not abusing limited liability incorporations to avoid the payment of debts.

Further, through public notices, citizens are given the opportunity to make their voices heard in public hearings and meetings. Citizens across the nation have used public notices and public hearings to object to changes in their community that could depress property values or alter the fabric of the area. Similarly, citizens have been able to participate in changes that enhance their communities, such as the construction of parks and other improvements. Allowing the public to influence the governing bodies of their local communities is crucial to the functioning of democratic society.

VI.     Public Notice Laws

Thousands of laws in all 50 states of our nation require governmental and non-governmental entities to publish public notices.  The types of notices required to be published range from public budgets, to notices of public hearings, to notices informing creditors of dissolving corporations. While these laws vary greatly with regard to the details of publication, they all share the same goal: to ensure that the public is adequately informed of the actions of its government and other entities in their communities.

VII.     Applying Public Notice 

With an estimated 30,000 public notice laws between the states and federal government, there are not many ways that public notices have not been used to educate the community. When applying public notice to daily activities, the three most common are community changes, government transactions, alerting the public to fraud and dishonest businesses.

     A.     Community Changes

Public notices help citizens stay informed about changes in their communities. Local governments often must hold public hearings before attempting to make any change which will impact the local community. Laws in almost all jurisdictions require local governments to publish notice of these hearings in local newspapers. These laws are intended to make sure that the citizens affected by the proposed government action are given the opportunity to participate in the decision-making process. Public notices equip local residents with the information they need to support or oppose local government actions.

A good example of this is found in notices of public hearings dealing with zoning changes. Many jurisdictions require local governments to hold public hearings, and to publish the date, time and location of those hearings when any exemption from zoning ordinances is requested by a citizen or business, or when a planning commission or board recommends changes to a master plan.

Local governments are often required to publish a detailed public notice of exactly what land will be affected by a zoning change accompanied by a map of the land. This occurs on a routine basis, and often there are no objections to minor changes or exemptions. However, individuals or businesses can petition local governments for major variances which could affect surrounding property values, or the overall atmosphere of the neighborhood.

For example:

•  Homeowners in a residential area may request a variance in order to operate a business in their homes.

•  Owners of large parcels of land in residential areas may ask local governments to rezone the entire area as commercial, in order to take advantage of competitive commercial leasing rates.

•  Homeowners may wish to add additions to their homes that encroach upon set-back limits for residential yards.

     B.     Monitoring Government Transactions

Public notices that are designed to inform the public of government business dealings allow the public to monitor their government’s transactions.  Bid notices are notices published by governments seeking to employ independent contractors, usually for public construction work or for procuring goods from the private sector. The notices invite contractors to submit sealed bids quoting a price for their goods or services. Governments use public notices of bids to inform the public how tax dollars will be spent and demonstrate that there is no appearance of impropriety between businesses that answer a government’s request for proposal and the selection process that results in awarding the contract.

     C.     Fraud Prevention and Debt Collection

Public notices are often used by citizens to monitor their debtors and to eventually collect money owed to them.  Public notices designed to alert creditors are notices published on behalf of the estate of a recently deceased person, usually by the executor or administrator of that estate. These notices inform the public and potential creditors of the estate that the remaining assets are being divided up among the creditors and heirs. Failure to make a claim against the estate for any money owed within a certain period of time will result in that claim being barred. Not only does this type of notice allow people to monitor and legally collect any money owed to them, but it also simplifies the probate process by providing certainty and expediency to the decedent’s heirs. Requiring estates to publish notices to creditors enables certain individuals to collect what is rightfully owed.

Further, public notices assist citizens in the collection of debts, and in the prevention of fraud. Many states require residents intending to conduct business as a corporation or other business entity to give notice to the community by publishing notice in the local newspaper. These laws serve to ensure that people doing business locally are not improperly taking advantage of the limited liability aspect of incorporating.

VIII.     Discovering Public Notices

Almost every state in our nation has laws that regulate the manner in which public notices are published.  These laws are designed to ensure that people within a community receive important information about the actions of their government. Currently, local newspapers are the preferred venue to distribute public notice.

However, to successfully fulfill the purposes of the laws, numerous requirements are imposed upon newspapers wishing to carry public notices. For example, many states require a newspaper to have been published continuously for a certain period of time prior to carrying notices. In addition, many states require that a newspaper contain a certain percentage of news. Finally, these requirements are put in place to ensure that a newspaper is already a trusted source of community information and that the notice will be read.

— The West Virginia Press Association thanks the PNRC for this resource.

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