75 Op. Att'y Gen. 269 (1986)

Wisconsin Attorney General Opinions
 
75 OAG 269 270 271 272 273

Opinion # OAG 47-86,

31 December 1986

Newspapers; Open Meeting;
Schools and School Districts;

Under Section 120.11(4), Stats., a school
district in which no newspaper is published
may print legal notices of the proceedings of
school board meetings in a shopper paper
which does not meet the qualifications
contained in Section 985.03(1)(a).

Other legal notices required to be
published by law may not be printed
in such a shopper paper.

MR. JEFFREY R. KOHLER,
District Attorney Washburn County

In your letter of September 22, 1986, you
indicate that a school district in your
county desires to publish legal notices in a
shopper paper which does contain some news
items but does not meet the qualifications
contained in Section 985.03(1)(a), Stats.

You also state that two newspapers which do
meet the qualifications of that statute have
paid circulation within the district, but
that neither of them actually publishes
within the school district within the
meaning of Section 985.01(5).

It is also my understanding that neither of
these newspapers has been designated as
an official newspaper by the district.

Based upon the preceding fact situation, you
ask whether Section 120.11(4) empowers the
school district to publish legal notices
in the shopper paper.

Your inquiry arises because unlawful
publication could conceivably subject the
school district or its officials to
prosecution under Section 985.03(2).

In my opinion, the district may lawfully
publish legal notices concerning the
proceedings of school board meetings
in the shopper paper under the
circumstances you describe.

However, the shopper paper could not be used
for the publication of other kinds of legal
notices required to be published by law.

Section 120.11(4) provides as follows:

   The proceedings of a school board
   meeting shall be published within
   45 days after the meeting as a class I
   notice, under ch. 985, in a newspaper
   published in the school district, if
   any, or publicized by school
   district-wide distribution
   prepared and directed by the school
   board and paid out of school funds.

   If there is no newspaper published in
   the school district, the proceedings
   shall be posted or published as the
   school board directs.
75 OAG 269 270 271 272 273

   For the purpose of publication, the
   proceedings shall include the substance
   of every official action taken by the
   school board at the meeting and a
   statement of receipts and expenditures
   in the aggregate.

   The school board shall make a detailed
   record of all receipts and expenditures
   available to the public for inspection
   at each school board meeting and
   upon request.

Section 985.08(5), provides as follows:

   Except as otherwise provided in this
   Section, no fee shall be paid and
   no public funds shall be used for
   subsidizing any privately owned
   newspaper for payment for any
   legal notice, which newspaper
   has not previously qualified
   as a public newspaper as
   defined in Section 985.03.

Because of the prohibition contained in
Section 985.08(5), a municipality generally
may not expend funds to publish the text of
a legal notice in a shopper paper which
does not meet the qualifications
contained in Section 985.03(1)(a).

71 Op. Att'y Gen. 177 (1982).

This position was recently affirmed in
OAG 29-86 (unpublished).

In the absence of statutory language to the
contrary, a school district and its officials
are subject to the statutory prohibition
contained in Section 985.03(1)(a) because a
school district is a "municipality" within
the meaning of Section 345.05(1)(c).

The term legal notice includes

   every publication of laws,
   ordinances, resolutions,
   financial statements,
   budgets and proceedings
   intended to give
   notice in an area.

Section 985.01(2)(a), Stats.
 

The notices required by Section 120.11(4)(a)
fit within the scope of this broad
definition.

However, neither 71 Op. Att'y Gen. 177 nor
OAG 29-86 examines the impact of the
exemption provision contained in
Section 120.11(4) upon the prohibition
on publication contained in
Section 985.03(2).

Section 985.05(3) provides, in part, that

   in lieu of the requirements of this
   Chapter, a school board may publish or
   publicize under Section 120.11(4). . .

Section 120.11(4), in turn, authorizes legal
notices to be

   publicized by school district-wide
   distribution prepared and directed by
   the school board and paid out of school
   funds.

In the fact situation you describe, Section
120.11(4) contains an additional exemption:

   If there is no newspaper published in
   the school district, the proceedings
   shall be posted or published as the
   school board directs."

Statutes dealing with the same subject matter
must be read together and harmonized.

City of Hartford v. Godfrey, 92 Wis.2d 815,

818, 286 N.W.2d 10 (Ct.App. 1979).

75 OAG 269 270 271 272 273

Statutes are to be reconciled if possible
and construed so as to avoid contradictory
legislative intent.

Brookhill Development v. City of Waukesha,
99 Wis.2d 485, 491,
299 N.W.2d 610 (Ct.App. 1980), aff'd,
102 Wis.2d 686,
307 N.W.2d 227 (1981).

And, where two statutes relate to the same
subject matter, the specific statute
controls over the general statute.

Gottsacker Real Estate v. State,
121 Wis.2d 264, 269,
359 N.W.2d 164 (Ct.App. 1984).

Applying these rules of construction, it is
clear that, at a minimum, Section 985.05(3)
absolves a school district from the
publication "requirements" of Chapter 985.

That is, in lieu of publication, a school
district is free to "publicize" its
proceedings "by school district-wide
distribution prepared and directed by the
school board and paid out of school funds"
or, in this case, to "post or publish
as the school board directs."

Section 120.11(4), Stats.

Thus, with the exception of school board
elections under Section 120.06, which are
governed by the specific provisions of
Section 985.05(1), posting is permissible
under Section 985.02(2), and publication in
one or more qualified newspapers likely to
give notice within the district is
permissible under Section 985.02(1).

In lieu of publication, a school district may
also, pursuant to Section 120.11(4),
"publicize" its proceedings by means of a
district-wide distribution (such as mailing
or personal delivery of a letter or pamphlet)
prepared and funded by the school board.

The difficult question is whether Section
985.05(3) permits a school district to
avoid the prohibition on publication
contained in Section 985.08(5).

In my opinion, that prohibition does not
apply when a school district publishes
notice of its proceedings.

In construing a statute, the general
object is to give effect to the intent
reflected in the language and to give
every word, clause and sentence in a
statute a construction that would not
render it surplus.

State Central Credit Union v. Bigus,
101 Wis.2d 237, 242,
304 N.W.2d 148 (Ct.App. 1981).

The use of the phrase "may publish" in
Section 985.05(3) indicates a belief on the
part of the Legislature that school boards
could engage in the process of publication
in a manner other than that which is
permissible under Chapter 985.

The only possible way in which to interpret
Section 120.11(4) so that such alternative
modes of publication would be permissible is
to construe the phrase "published as the
school board directs" as authorizing the
school board to determine the manner of
publication of school board proceedings.

75 OAG 269 270 271 272 273

I am unwilling, however, to conclude that
Sections 120.11(4) and 985.05(3) absolve
newspapers from the entirety of the
prohibition contained in Section 985.03(1),
or to conclude that those statutes absolve
school districts from the entirety of the
prohibitions contained in Section 985.03(2).

In 71 Op. Att'y Gen. at 179-80,
it was stated that

   each time the text of an item which
   must be published appears in the print
   media, the publication of a "legal
   notice" within the meaning of
   Section 985.01(1), Stats., occurs."

Section 120.11(4) authorizes a school board
to direct the manner of publication only with
respect to "proceedings," which is defined in
Section 985.01(4) as

   the substance of every official action
   taken by a local governing body at
   any meeting, regular or special.

Generally, such notices would
be of the kind mentioned in
Section 985.01(2)(a), which includes

   publication of laws, ordinances,
   resolutions, financial statements,
   budgets and proceedings . . . . .

However, other legal notices could not be
published in newspapers that did not
meet the qualifications contained
in Section 985.03(1)(a).

I, therefore, conclude that a construction
which reconciles Sections 120.11(4) and
985.05(3), with Section 985.03, requires
compliance with the prohibitions contained
in Section 985.03(3) whenever a municipality
engages in the process of publication of all
legal notices required to be published by
law, except for notices of school board
proceedings which are published by
a school district.

BCL:FTC

75 OAG 269 270 271 272 273