Opn. No.

TOWN LAW, § 64 (11)

(1) A Pennysaver-type circular may not be designated the official town newspaper; (2) provided all statutory criteria are met, a newspaper published in Pennsylvania may be designated the town's official newspaper; (3) it is not necessary for the town, in choosing a newspaper published outside the county, to designate the paper having the greatest circulation in the town. Hon. Charles P. Ayers, Jr. Town Attorney, Towns of Tioga, Newark Valley, and Berkshire

This is in response to your letter concerning the designation of an official town newspaper. You are the town attorney for the Towns of Tioga, Newark Valley and Berkshire, all of which are located in Tioga County, which is on the Pennsylvania border.

In the past, the towns you represent designated the Tioga County Gazette Times as their official newspaper. That paper is being consolidated with the local "Pennysaver", which is not for sale on newsstands, has no subscribers, and is delivered by some means other than mail. Although it appears that all of the Gazette's subscriptions within the county will be discontinued, since the Pennysaver will be distributed without charge, apparently a consolidated news edition will be published forout-of-county subscribers.

You ask the following questions:

1. Can the Pennysaver be designated the official newspaper under the circumstances?

2. Can a newspaper published in Pennsylvania be designated the official newspaper of a town?

3. In choosing a newspaper published outside the county as the official newspaper, need the town name the paper having the greatest circulation in the town?

Section 64 (11) of the Town Law provides, in relevant part, that a town board

"May designate as the official paper of the town any newspaper regularly published in the town if such newspaper has been entered as second class mail matter. If no such newspaper is published in the town * * * the town board may designate any newspaper published in the county if such newspaper has general circulation in the town or if no newspaper is published in the county entered in a post office within five miles from the town, any other newspaper published in a city or village in an adjoining county and having a circulation in the town."

We previously concluded that a Pennysaver-type circular is not a proper newspaper for the publication of legal notices (1946 Atty Gen [Inf Opns] 97). The Comptroller has also reached the same conclusion (see, e.g., 24 Opns St Comp 46 [1968]).

Section 64 (11) does not limit the designation of an official newspaper to one within New York. If no newspaper is published in the county entered in a post office within five miles of the town, any other newspaper published in a city or village in an adjoining county and having a circulation in the town may be designated. Provided all statutory criteria are met, a newspaper published in Pennsylvania may be designated the town's official newspaper.

It is not necessary for a town, in choosing a newspaper published outside the county, to designate the paper having the greatest circulation in the town. Section 64 (11) permits the designation of "any" newspaper published in a city or village in an adjoining county if such newspaper has a circulation in the town.

In summary, it is our opinion that:

1. A Pennysaver-type circular may not be designated the official town newspaper.

2. Provided all statutory criteria are met, a newspaper published in Pennsylvania may be designated the town's official newspaper.

3. It is not necessary for the town, in choosing a newspaper published outside the county, to designate the paper having the greatest circulation in the town.