Can a Kansas city post official notices on its own website instead of in a newspaper?

Plain-English summary

A state representative asked whether a second-class city could use its home-rule power to get out of K.S.A. 12-1651's requirement to designate an official newspaper for publishing city business, and if so, whether the city could then use its own website as a substitute "official city newspaper."

The Attorney General concluded a city can do both, in sequence. K.S.A. 12-1651(a) only applies to cities of the second and third class, since first-class cities follow a different statute (K.S.A. 64-101) for their own official-newspaper designation. Because the requirement is written to apply to only some cities rather than uniformly to all of them, it is not a "uniform" act of the Legislature, and the Kansas Constitution's home-rule provision lets a city exempt itself, by charter ordinance, from any state law that does not apply uniformly to all cities. Once a second-class city has properly adopted such a charter ordinance opting out of K.S.A. 12-1651, the opinion found nothing in state law stopping the city from publishing official business on its own website instead of a newspaper. The opinion added one important caveat: the website substitution only works for the general newspaper-designation requirement in K.S.A. 12-1651 itself; other statutes that specifically require newspaper publication for a particular purpose, such as budget hearing notices or service of process by publication, would still require actual newspaper publication regardless of the city's charter ordinance.

What this means for you

City councils and clerks in second- and third-class cities: the opinion confirms you can adopt a charter ordinance exempting your city from K.S.A. 12-1651's official-newspaper designation requirement, and then move official city business publication to your own website, saving on newspaper publication costs for routine notices.

Local newspapers relying on city legal-notice revenue: the opinion signals that cities have a clear, court-tested legal path to move away from newspaper publication for general city business once they adopt the right charter ordinance, though specific statutory notice requirements elsewhere in state law (budget hearings, service of process) would remain unaffected.

Residents trying to find official city notices: the opinion means that once your city adopts this kind of charter ordinance, you may need to check the city's own website rather than a local newspaper for certain official notices, though other specific legal notices should still appear in a newspaper as required by other statutes.

Common questions

Does this opinion apply to cities of the first class too?
No, the opinion is specific to second- and third-class cities under K.S.A. 12-1651; first-class cities are governed by a separate statute, K.S.A. 64-101, for designating their official newspaper.

Can a city just start using its website without doing anything else first?
No. The opinion is clear that the city must first properly adopt a charter ordinance exempting itself from K.S.A. 12-1651 under its home-rule authority before it can substitute its website for a newspaper.

Are there any city notices that still must go in an actual newspaper even after a city opts out?
Yes, according to the opinion, which flags that separate statutes, like the one requiring newspaper notice of a budget hearing or the one governing service of process by publication, still require actual newspaper publication regardless of a city's charter ordinance under K.S.A. 12-1651.

Background and statutory framework

K.S.A. 12-1651(a) requires the governing body of every second- and third-class city to designate, by resolution, an official newspaper for publishing city business, with subsection (b) listing qualifications that newspaper must meet. First-class cities instead follow K.S.A. 64-101 for the same purpose, meaning K.S.A. 12-1651 by its own terms does not reach every Kansas city. Article 12, Section 5 of the Kansas Constitution gives cities broad home-rule power to determine their local affairs, to be liberally construed in favor of self-government, and lets a city adopt a charter ordinance exempting itself from any legislative enactment that is not uniformly applicable to all cities.

Because K.S.A. 12-1651's newspaper-designation duty falls only on second- and third-class cities, the opinion concluded it fails the uniformity test that would otherwise bind all cities to it, opening the door to a home-rule exemption. The opinion then looked for, and found no, statutory language barring a city that has opted out of K.S.A. 12-1651 from using its own website instead, while flagging that other statutes imposing their own, independent newspaper-publication requirements (such as K.S.A. 79-2929's budget hearing notice or K.S.A. 60-307(d)'s service-by-publication rule) are unaffected by an opt-out from K.S.A. 12-1651 specifically.

Citations and references

Statutes and constitutional provisions:
- K.S.A. 12-1651 (incl. (a), (b))
- K.S.A. 64-101; 79-2929; 60-307(d)
- Kan. Const. Art. 12, § 5

Cases:
- Dwagfys Mfg., Inc. v. City of Topeka, 309 Kan. 1336, 443 P.3d 1052 (2019)
- City of Junction City v. Griffin, 227 Kan. 332, 607 P.2d 459 (1980)

Source

• Landing page: https://www.ag.ks.gov/reports-resources/ag-opinions
• Original PDF: https://www.ag.ks.gov/home/showpublisheddocument/10496/638460984364070000

Original opinion text

July 26, 2023

ATTORNEY GENERAL OPINION NO. 2023-5

Honorable Stephen Owens
State Representative, 75th District
P.O. Box 606
Hesston, Kansas 67062

Re: Official Newspapers in Cities of Second and Third Classes;
Qualifications; Kan. Const. Art. 12, § 5, Cities' Powers of Home Rule

Synopsis: K.S.A. 12-1651(a) requires second and third class cities to designate an
official city newspaper for the publishing of official city business,
provided the newspaper meets the qualifications set forth in K.S.A. 12-
1651(b). However, under the home rule provisions of the Kansas
Constitution, Kan. Const. Art. 12, § 5, which allows cities to exempt
themselves from nonuniform acts of the legislature, a city may exempt
itself by charter ordinance from the requirements set forth in K.S.A.
12-1651 because the statute is not uniformly applicable as it applies
only to second- and third-class cities.

Dear Representative Owens:

As a member of the Kansas House of Representatives, you ask whether second class
cities may exempt themselves pursuant to the Kansas Constitution's home rule
powers from K.S.A. 12-1651 which requires such cities to designate an official
newspaper for the publication of official city business. You also ask whether such a
city may designate its webpage as its "official city newspaper."

For reasons explained below, we conclude that a second class city may exempt itself
by charter ordinance from the requirements of K.S.A. 12-1651, and once having
done so, may then choose to publish official city business on its own webpage.

The home rule provisions of the Kansas Constitution empower cities to "determine
their local affairs."1 "Taking effect in 1961, the home rule amendment empowered
local governments to determine their local affairs and government by ordinance."2
This constitutional provision is to be liberally construed in order to give cities the
largest measure of self-government.3 While a city's home rule authority is not
limitless, any city may by charter ordinance elect to have an enactment of the
legislature not apply to such city if the enactment is not uniformly applicable to all
cities.4

Applying the uniformity element, it is clear on the face of K.S.A. 12-1651 that it is
not a uniformly applicable statute. K.S.A. 12-1651 contains two major provisions.
Subsection (a) states as follows:

    "The governing body of each city of the second and third class shall
    designate by resolution a newspaper to be the official city newspaper.
    Once designated the newspaper shall be the official city newspaper
    until such time as the governing body designates a different
    newspaper."

Subsection (b) lists the qualifications a newspaper must have in order to qualify as
an official city newspaper.

Subsection (a) refers only to cities of the second and third class, meaning the
requirement in the statute is limited to only those types of cities, not to all cities.
Thus, the statute is not uniform. For example, cities of the first class must abide by
K.S.A. 64-101 when designating an official city newspaper. Accordingly, a city of the
second class may exempt itself from the requirements of K.S.A. 12-1651 provided its
governing body properly enacts a charter ordinance doing so.

As to the question of whether a city of the second class may instead designate its
webpage as its "official city newspaper," we see nothing in state law that prohibits a
second class city, once it has exempted itself from K.S.A. 12-1651 by charter
ordinance, from publishing official city business on its own website. However, we
would note that publication by website would not be sufficient where some other
form of publication is specifically mandated.5

1 Kan. Const. Art. 12, § 5(b).
2 Dwagfys Mfg., Inc. v. City of Topeka, 309 Kan. 1336, 1339, 443 P.3d 1052 (2019).
3 Kan. Const. Art. 12, § 5(d).
4 Kan. Const. Art 12, § 5(c); City of Junction City v. Griffin, 227 Kan. 332, 337, 607 P.2d 459 (1980).
5 See K.S.A. 79-2929 (governing body of city must allow taxpayers opportunity to be heard on budget

by giving notice of such budget meeting by publication in a weekly or daily newspaper); K.S.A. 60-
307(d) (service by publication requires notice be published in newspaper in county where lawsuit
filed).

         Sincerely,

         /s/Kris Kobach

         Kris W. Kobach
         Attorney General

         /s/Anthony J. Powell

         Anthony J. Powell
         Solicitor General