The Appleton Finance Committee met 04/12/2012. This was Alderperson Kyle Lobner’s (District 13) last time chairing the Finance Committee before he departs the Common Council after having lost the recent election by two votes to incoming District 13 Alderperson Sheri Hartzheim. The recent campaign season is what prompted the main item that the Finance Committee discussed which was the Resolution that Alderperson Lobner submitted aimed at banning the display of political signs on city-owned property even when that property is leased by a private entity.
Alderperson Lobner started out the discussion by saying that the resolution came about from something that came to his attention this spring. He was surprised that there was nothing already in place to prevent it from happening. There is property in his district that is leased from the city. That lease has been in place for a long time. This year, for the first time during the course of that least, one of the renters decided to allow political yard signs to be displayed on the property. [He never mentioned details, but the USA Youth Sports Complex off Evergreen Drive in District 13 rents that property from the city and gave permission to income Alderperson Sheri Hartzheim to display her campaign signs there.] Lobner was surprised to learn that this was an action that the city has no mechanism to prevent, so he introduced this resolution.
Appleton City Attorney Christopher Behrens indicated that his office would need to do more research into what the city could do. He said he could give the committee an overview so they could decide if they wanted to move forward. The first part of the resolution talks about political signs being posted at any city owned property. Attorney Behrens stated that any unauthorized sign posted on the city owned right of way, regardless of its content, is already removed. What the resolution is addressing is signs that are classified somehow as a political sign and are posted on property that is leased from the city. He stated that it becomes more complicated when a property is leased by a third party. The city may own the underlying property but it’s in the control of that third party. It’s also sometimes easy to forget that the underlying property is city owned property when the lease is very long-standing as in the case of the USA Youth Sports complex and the Appleton Ice Center. He said there were a couple of businesses that have, for a long time, leased portions of city property. It’s also challenging that some of these leases are long-term leases.
Per Attorney Behrens, the question is could the city regulate the type of signs that a business or an entity that is leasing property from the city can display? Right now, it may be possible to insert a contractual term within the lease, but that would have to be addressed at the time the lease is renewed, unless the business leasing the property was willing to amend the lease midterm. He stated that it would take some additional work to investigate if that could be done and then to craft the language of how a political sign would be defined in that context. He mentioned that there are always First Amendment issues that they have to be very careful of. In this context, the restrictions would strictly happen through a contractual agreement between an entity and the government telling them what they can and cannot put on a sign.
He said he didn’t recall this issue coming up previously and said they had to be careful of how they do this. He gave an example of the Ice Center selling space on boards around the rink for advertising. If, to make up an example, Mayor Woodford decided to purchase space on one of those saying “This space is sponsored by Jake Woodford Appleton Mayor”, they would need to figure out if that was a political sign. Given that context, he wanted to know if this was something the committee wanted to move forward with. If there was not an appetite to move forward with it at this time, certainly in a year or so if the problem presented itself again, it could be revisited. If the committee wanted more work from the Attorney’s Office they would be happy to do that.
Alderperson Vered Meltzer (District 2) was definitely interested in seeing what the city could do with this and mentioned being told by renters that they couldn’t put campaign signs up because their landlords didn’t allow any political signage in the yards. Whether it is a right a landlord has to regulate the signs of their property or whether landlords within the city have been misappropriating that right, it was worth looking into so the city could craft a policy about it.
Alderperson Matt Reed (District 8) wanted to know if moving forward with this on a case by case basis would create a backlog of redoing leases with existing tenants. How would implementing this work?
Attorney Behrens said it could work two different ways. Assuming the city could come up with some language that the attorney’s office believed would be definable within a reasonable means and enforceable within a reasonable means, then that language would be inserted as leases came up for renewal. The only other way to implement it would be if the city reached out to the different tenants to find out if they would be willing to amend their current leases but those tenants would not be obligated to do that.
Alderperson Reed said the city could essentially have a hodgepodge of some tenants who had the restriction and some that didn’t.
Attorney Behrens confirmed that was correct. The updates would occur over time, and there would be some leases not yet up for renewal that didn’t have that language.
Alderperson Reed was a little curious why this was even necessary when the issue hasn’t even come up in the past. He wondered if it was necessarily even a good thing to put a rule like that in place just because the issue did come up now.
Alderperson Lobner said that even if the case never came up before, it did happen this spring. He would encourage this Council to not wait until there might be a problem with it again in order to act on it. He thought having political yard signs on property that is owned by the city raised questions about whether the city had become involved in a race and it raised some questions about whether the political sign should be there.
He was surprised when he discovered that political signs were allowed on city owned property. He reached out to the Parks and Rec Department to find out if they were allowed, and the Parks and Rec Department was also surprised that it was allowed. They had previously told Alderperson Lobner that it would be taken care of, until Attorney Behren’s office told him they couldn’t do anything about it. He felt this was a relatively common sense thing to say political signs can be put on city property. He would have hoped that it would have gone without saying, but unfortunately it didn’t. He would like to see some effort made to make sure this doesn’t continue to happen.
Attorney Behrens reiterated to the committee that if it was the will of the committee to move forward with this then he would ask that they consider holding it just to allow the Attorney’s Office to do a bit more work on it and perhaps come back with something more tangible for the committee to act such as some language that could be inserted into leases going forward. He asked for them to target the 2nd meeting in June which would give his office 60 days to work on it.
The committee voted to hold it until the June 21 Finance Committee meeting.
[It does seem to me that the attorney’s office indeed has some work cut out for them. The original resolution seemed to have quite a few issues. (a) Is it legal to ban the speech of people/entities leasing space from you? (And, as an aside, I think it would be interesting to find out if those Appleton landlords Alderperson Metzler referenced have unenforceable terms in their leasing contracts.) (b) What exactly is meant by the term “political sign”? Attorney Behrens brought up a good example of a problematic and confusing hypothetical. Even more broadly, one could construe such a rule to ban a pro-life or a BLM sign on city-owned property. And if they passed the resolution in its original form instead of only targeting language to long-term leases of city property, it seems like it would prevent political candidates or organizations from displaying signs on a park pavilion that they rented to hold a picnic. So, clearly, there are problems and I will be interested to see what the Attorney’s office comes back with in June.]
View the full meeting details and video here: https://cityofappleton.legistar.com/MeetingDetail.aspx?ID=856742&GUID=2DBF8F7A-866E-4A8F-AA7C-1A002FBFAD8E&Options=info|&Search=
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