Public notice exemptions spark legal challenge

Ellen Gerst, Casper Star-Tribune via Wyoming News Exchange
Posted 7/28/21

A judge will decide whether recent ordinances passed in Bar Nunn and Mills exempting the municipalities from publishing certain public notices in the newspaper are valid, after a petition was filed in Natrona County District Court this week.

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Public notice exemptions spark legal challenge


CASPER — A judge will decide whether recent ordinances passed in Bar Nunn and Mills exempting the municipalities from publishing certain public notices in the newspaper are valid, after a petition was filed in Natrona County District Court this week. 

Nearly identical ordinances were passed by Mills in January and Bar Nunn in June, invoking Wyoming’s “home rule” provision.

The ordinances were written to exempt the municipalities from state statutes that require all towns and cities to publish council meeting minutes, ordinances, notice of property sales, contracts for public improvements, public or parkland vacation notices, bond sales and notice of bond sinking funds dipping below $500. 

The only exception to that rule is a clause that allows cities and towns without a newspaper office in their limits to post ordinances in a local government office instead. 

Bruce Moats, a Cheyenne attorney who represents the Star-Tribune and the Wyoming Press Association, filed a petition for declaratory judgment in Natrona County on Monday arguing the ordinances overstep the municipalities’ powers and are therefore void. 

According to Moats’ argument, cities and towns can only exempt themselves from state statutes that don’t apply to all municipalities. 

The statutes cited by the ordinances — WS § 15-7-303, 15-7-106 15- 7-107, 15-1-110 and 15-6-202 — are meant to cover all Wyoming cities and towns, the suit says. 

Alan Romero, a professor of law at the University of Wyoming, agrees. 

While very few states have home rule provisions that allow municipalities to override state law, Wyoming is not one of them. 

Here, Romero explained, the state reserves the power to govern local affairs while the towns can fill in gaps not covered by statutes with their own rules and ordinances. 

“At first, you could read that (home rule) provision and think, oh, well, this is a broad grant of power,” Romero said. “And it is, but it’s not a surrender of state power.” 

The case hinges on the distinction between statutes that apply to all municipalities and those specific to certain classes, or sizes, of cities. A guide to home rule published in 2010 by the Wyoming Association of Municipalities says that “any law uniformly applicable to all cities and towns cannot be changed or ignored under home rule.” 

There are some things that can be exempted based on the home rule provision. 

For example, Mills also passed ordinances in January exempting the city from a statute requiring first-class cities to split into wards for council elections. Because that statute only applies to first-class cities, and is not “uniformly applicable to all cities and towns,” municipalities can exempt themselves from it. 

Moats said he sent a pair of letters to the municipalities and their lawyer, Pat Holscher, outlining his concerns with the “recent, illegal” adoption of the ordinances. 

In a reply sent July 7, Holscher said that the Star-Tribune has become less relevant in Natrona County in recent years, and is not the best way for local governments to reach their people anymore. 

“If the concern is actually providing notice to the members of the public,” Holscher said in the letter, “we would ask that you come forward with some constructive provisions that would seem to more adequately guaranty (sic) this in an era in which information delivery has shifted to the Internet and few people are willing to pay for subscriptions to newspapers.” 

The municipalities have 20 days after being served the suit to respond. 

Several requests for interviews or comments from Holscher, Bar Nunn Mayor Patrick Ford and Mills Mayor Seth Coleman were not answered Tuesday. 

According to the ordinances and memos available online, the move is intended to save Mills and Bar Nunn money. The cost to publish notices in the paper isn’t justified, the ordinances say, and the paper “fails to give adequate notice” to the public. 

“One of the virtues of public notices is that they are published by an independent third party,” said Jen Sieve-Hicks, president of the Wyoming Press Association. “It means that there is a permanent, written record that cannot be altered at some later date. Without an independent third party, those elected officials are asking the public to trust they will do the right thing, without any way to verify what is being done.” 

Mills’ ordinance now states the city will post notices at City Hall, the post office, library and on the city’s website. 

In Bar Nunn, they should be available at Town Hall and at the town’s fire station, as well as on its website. 

When the Star-Tribune first reported on the ordinances in late June, the municipalities had posted meeting agendas and minutes inconsistently online. As of Tuesday, both governments were mostly up-to-date with the documents available on their websites. 

The Wyoming Legislature has also repeatedly discussed bills in recent years that would remove the newspaper notice requirement for municipalities. The most recent effort, raised in this year’s legislative session, failed by a 9-20 vote on its third reading in the Senate.