Alabama Advisory Opinions March 14, 2018: AGO 2018-023 (March 14, 2018)

Advisory Opinion Text

Honorable Barry Willingham

Cullman County Revenue Commissioner

500 Second Avenue SW, Room 105

Cullman, Alabama 35055

Revenue Commissioners - Tax Sales -Notices - Newspapers - Competitive Bid Law

A revenue commissioner is not bound by the print advertising contract entered into by the county commission and may designate a newspaper to print legal notices that are required pursuant to section 40-10-12 of the Code of Alabama.

Dear Mr. Willingham:

This opinion of the Attorney General is issued in response to your request.

QUESTION

Is a revenue commissioner bound by the print advertising contract entered into by the county commission or may a revenue commissioner acquire quotes from competing newspapers for upcoming print advertising required pursuant to section 40-10-12 of the Code of Alabama?

FACTS AND ANALYSIS

Your request states as follows:

On June 13, 2017, a bid for print advertising was awarded by the Cullman County Commission. . . . Pursuant to section 40-10-12 of the Code of Alabama, I am required to provide notice of the impending tax sale by publication in a newspaper in the county for three successive weeks. Ala. Code § 40-10-12 (2011). The language of the bid states that the "Cullman County Commission is seeking sealed proposals from qualified bidders for print advertising services. The Cullman County Commission and its entities . . . ." Another provision of the bid specifications that is found in the Scope of Work states that "the awarded contractor will be required to meet all the print advertising needs of the Cullman County Commission and its entities for all of the advertising activities which occur during the term of the contract. The awarded bid will be effective for one year from the date of the award."

The budget of the revenue commissioner is funded and provided by the county. Once the invoice arrives following this printing service, the money used to pay the invoice comes from the general operating account of the Revenue Commissioner's Office. This account is funded by the county with revenue from the county general fund.

You question whether the county or you, as an officer, may designate which publication will be used for legal notices required under section 40-10-12. Section 6-8-60 of the Code of Alabama sets forth information regarding the publication of a legal notice. Ala. Code § 6-8-60 (2014). Section 6-8-60(a) states as follows:

(a) The party in interest or at whose instance the publication of notice is to be given by advertisement in a newspaper may designate the newspaper in which such advertisement shall be made. If the officer charged with the duty of making the advertisement disregards such designation and makes advertisement in some other paper, he or she must pay the cost thereof and shall not be entitled to reimbursement.

Ala. Code § 6-8-60 (2014) (emphasis added). This Office has interpreted this provision as generally providing authority for either the county commission or a county officer to designate a newspaper in which legal notices may be published. Opinion to Honorable F.R. Albritton, Jr., Chairman, Wilcox County Commission, dated June 23, 1982, A.G. No. 82-00406.

The publications here, however, are governed by section 40-10-12, which specifically requires the revenue commissioner or tax collector to publish notice of any decree for sales of real estate for the lack of payment of taxes. Section 40-10-12 states as follows:

Immediately at the end of any term of court at which any decree for sales of real estate for the payment of taxes is rendered, or as soon thereafter as practicable, the tax collector shall proceed to enforce such decree by sales of real estate ordered to be sold, and to this end shall give notice for 30 days before the day of sale, by publication for three successive weeks in some newspaper published in the county, or at least three weeks before the day of sale shall post a notice at the courthouse of his county and at some public place in the precinct in which the real estate is situated that at the time specified therein he will proceed to sell such real estate ....

Ala. Code § 40-10-12 (2011) (emphasis added).

Recently, in State ex rel. Allison v. Farris, 194 So.3d 214 (2015), the Alabama Supreme Court was faced with a similar issue. In particular, the Walker County Probate Judge brought an action against the county administrator, seeking declaratory and injunctive relief that would require the administrator to make payment on behalf of the county to newspapers designated by the probate judge for publications of voter lists and election notices. The county had initially invited separate bids for publications of legal notices and informed certain newspapers that the county would not pay for advertising requested by the probate judge. In reviewing section 17-4-1 of the Code of Alabama and the specific role of the probate judge versus that of the county, the Court determined that the probate judge, as chief elections officer, was authorized to contract to publish legal notices that the office of judge of probate was required to publish. Id. at 221, citing Ala. Code § 17-4-1 (2006). Consistent with Farris, it is the opinion of this Office that the revenue commissioner is authorized to designate a newspaper to publish legal notices required pursuant to section 40-10-12.

This Office notes that although the revenue commissioner may designate a newspaper to publish legal notices, a contract of this nature must be within the budgetary constraints established by the county commission and comply with section 6-8-64 of the Code of Alabama, which establishes rates for publication of public notices. Ala. Code § 6-8-64 (2014). Accordingly, the revenue commissioner and the county commission should work together to achieve the goals of the county in a manner that is most advantageous for all. The revenue commissioner may, even if not required to do so, choose to comply with and designate the newspaper under the county contract. This opinion is limited to the facts and circumstances of this request.

CONCLUSION

A revenue commissioner is not bound by the print advertising contract entered into by the county commission, and may designate a newspaper to print legal notices that are required pursuant to section 40-10-12 of the Code of Alabama.

I hope this opinion answers your question. If this Office can be of further assistance, please contact Monet Gaines of my staff.

Sincerely,

STEVE MARSHALL, Attorney General

G. WARD BEESON, III Chief, Opinions Section