The city attorney for Salem and Spanish Fork, S. Junior Baker, improperly directed city staffs to publish public notices in the Spanish Fork News, potentially exposing a number of city actions since September to legal challenges.

"If people's rights have been harmed by lack of legal notice, they may have standing" to challenge the validity of the affected government actions, said assistant Utah attorney general Sheila Page.

Lane Henderson, publisher of the Spanish Fork News, is also the mayor of Salem. Payment for the legal notices was made by Salem City to Henderson's newspaper.

In a written statement on Friday, Baker admitted the impropriety of the public notices and said that Henderson had previously informed city staff that his newspaper did not qualify as an outlet for them. At the same time, he said that he was unaware of the law.

"I had missed this earlier, since I was researching in Title 10, a completely different volume of the code than where Title 45 is located," Baker wrote. "As far as I could see, the Spanish Fork News qualified as a paper for publishing public notices."

Public notices are announcements on a wide range of official acts, or proposed acts, such as announcements of hearings on city ordinances, annexations or public meetings. To be valid, the general public must be notified in advance, and notices must be published in "a newspaper of general circulation." A newspaper of general circulation, under the law, is one having at least 200 subscribers, having had continuous publication for 18 months and which is qualified under U.S. Postal Service regulations as a periodical.

The Spanish Fork News was founded less than a year ago and is distributed in the mail under a third-class postal permit that does not qualify under the law.

Henderson said that he had nothing to do with the decision to place public notices in his newspaper. He said city staff made the decision to switch and that he wasn't involved.

"No, not at all," he said. "It really isn't a decision that I made."

Henderson did not respond to an e-mail Friday asking why his newspaper accepted the ads if he had previously told employees, as Baker said he did, that the News was not eligible to publish them. When contacted about the same discrepancy, Baker refused to comment.

Notarized affidavits of publication for each notice are sent by newspapers to the cities involved. Cities are required by law to keep the affidavits on file to establish the validity of the public notification process. Affidavits typically indicate that the newspaper qualifies as one of "general circulation" as defined by statute, though that language does not appear on the affidavits returned by the Spanish Fork News. The News's affidavits simply confirm that the notices were published. The affidavits obtained by the Herald were signed by editor Steve Hardman and notarized by Dale D. Whitlock.

Baker said he made the change in Salem to save taxpayers money and "instructed city staff to publish future notices ... in the paper which had the lowest rates." He gave the same advice to Spanish Fork city staff.

Before the September change, public notices had been published in the Spanish Fork Press or its daily counterpart, the Daily Herald, both of which compete with the News and receive revenue for such announcements. Both of those newspapers charge more for public notices than the News, which has a smaller circulation.

Salem city records show that 11 notices were published in the Spanish Fork News from Sept. 29 through Jan. 31. The notices advertised Salem City Council hearings concerning zoning changes, annexations, a general plan amendment and a donation to Salem Elementary School.

All of the items advertised in the notices have already been approved by the Salem City Council.

Spanish Fork had only one notice appear in the News -- about a hearing on a proposed $22 million bond issue, Spanish Fork Mayor Joe Thomas said. The mistake was caught with that notice, and it was subsequently re-published in the Spanish Fork Press to satisfy state law.

A city resident who is unhappy with any of the city actions approved without proper public notice could challenge the action in court. But such challenges are rare, said David Church, general counsel for the Utah League of Cities and Towns.

"Nothing automatically happens" to city business transacted at the improperly noticed hearings, he said. "It might be voidable, but it's not void."

"You'd have to look at it on a case-by-case basis," said Page of the attorney general's office.

It is not illegal for a non-qualifying newspaper to publish a public notice, according to Page. It is a city's responsibility to ensure that it meets the notice requirements.

Baker, the Salem city attorney, wrote that the newspaper switch first occurred with a late notice. It needed to be published but the deadline for the qualifying newspaper, the Spanish Fork Press, had passed. Henderson's News could still accept the notice, he wrote.

The problem has been corrected, Baker wrote. "No notices are currently being published in the News, nor will there be until it qualifies as a newspaper of general circulation."

Thomas said of Baker: "His motive was great -- he was trying to save us money. When he was made aware of that code, he immediately sent out an e-mail that said, 'We made a mistake. We're going to have to fix this.' "

This story appeared in The Daily Herald on page D1.