During the 07/07/2021 Common Council meeting, the Council took up Resolution #5-R-21 regarding political signs on City-owned property.
This resolution was submitted on April 7, 2021 by former Alderperson Kyle Lobner (District 13) in response to the display of campaign signs for current Alderperson Sheri Hartzheim (District 13) on the USA Youth soccer fields–property which USA Youth leases from the city.
The original language of the resolution read:
WHEREAS municipal governments are responsible for administering local elections and must remain neutral in that process.
AND WHEREAS political signs posted on municipal property may create the impression that the municipality is not neutral in the election process.
THEREFORE BE IT RESOLVED that political signs shall not be posted on any city-owned property, including property leased from the city.”
After some research, the City Attorney’s Office concluded that the city could not implement a ban on the display of political signs, but it would be able to negotiate with lessees of city property terms that would forbid the display of campaign signs. As Attorney Behrens explained during the Common Council meeting, they recommended that if the Council wanted to move forward with this resolution, the last paragraph of the original resolution should be switched out with language provided by the Attorney’s Office which read:
That upon negotiating or renegotiating lease of City-owned land, the City Attorney’s Office shall endeavor to incorporate language limiting the posting of political signs by the tenant subject to any legal limitations, count decisions and the like in place at the time. A political sign shall be considered a sign erected for the purpose of soliciting support for, or opposition to, a candidate or a political party or relating to a referendum question in an election held under the laws of the this state.
Alderperson Hartzheim started off the discussion by saying her concern with this resolution was the First Amendment rights of the lessees of city owned property. She didn’t believe that there was a leased property in the city on which a regular person on the street would see a campaign sign displayed and think that meant the city wanted that person to be elected. In the specific case of her campaign signs being displayed on the USA Soccer Fields, she didn’t think anyone with reasonable expectations took those to indicate the city was supportive of her being elected. Although the language of the resolution was changed to move from a ban to contract negotiations, she was still concerned about the First Amendment rights of the lessees and didn’t believe there was a problem to be solved. She encouraged her fellow Alderpersons to defeat the resolution.
Alderperson Alex Schultz (District 9) wanted to know how many incidence there were in the last election cycle of political signs being posted on public property that needed to be removed.
Attorney Behrens said that all he could speak to was the one incident that his office was asked about. That was the USA Soccer Fields case, but at that time there wasn’t anything for his office to respond to regarding that. He thought that incident was what prompted this resolution to be brought forward.
He stressed that what the committee voted on and what was before the Council that day was an option. He did not want the impression to be given that the Attorney’s Office had taken a position one way or the other on the issue. They were simply saying that, if the Council wants to move forward with this resolution, the most workable way to do that would be through the language his office provided which would create the ability to engage in contract negotiations with lessees. He said that some of the leases the city currently has already have some restrictions about signs that can be posted in more public areas. He reiterated again that this was just an option, and his office was not recommending one way or the other.
Alderperson Hartzheim said she would like to expand upon the USA Soccer Field incident. She said that she purposefully went to the Board of Directors of the USA Soccer Fields and asked their permission to put signage on their property. Apparently, their current lease does not restrict the display of political signs, so they allowed her to place them. However, under pressure from a constituent, they were asked to remove the signs, and Alderperson Hartzheim immediately complied and removed them. She reiterated that she believed this was a solution to a problem that they do not have. She was concerned that even with the language provided by the Attorney’s Office that turned this into a negotiation point they would be coming to a lessee and telling them they want them to never post a political sign and she wondered what would happen if the lessee said they wanted to retain that right. What would happen if the city and a lessee could not reach an agreement on that issue. Would it come before the Council?
Attorney Behrens answered that the proposed language is that the City Attorney’s Office would “endeavor” to include the recommended language. In the situation that Alderperson Hartzheim described, he thought that the lease would probably come back through whatever committee had jurisdiction over the particular property and the Attorney’s Office would point out that they had discussions with the proposed lessee who did not want language in there. Then it would be a decision for the committee and Council to decide how to move forward with or without that language.
Alderperson Hartzheim asked if they were making more work for themselves for necessary reasons. She again asked that the resolution be defeated.
Alderperson Joe Martin (District 4) spoke. It was difficult for me to understand what he was saying, even after listening to his words multiple times, because he has health issues that affect his speech and he was also wearing a mask which muffled his voice. Either one of those things on their own would not have caused me problems, but I found that the two combined did cause some issues. At first it sounded to me like he said he was going to support the resolution, but then it sounded like he said he didn’t know how he was going to vote at that moment. It sounded as if he said he would not support limiting anything that the city could control and that he thought it was very important to have that control. His statement was more involved than that, but those were the key points I was able to glean.
Alderperson Vered Meltzer (District 2) encouraged the alderpersons to vote in favor of the resolution on the grounds that the city has rules and standards that they old their own non-leased property to and it would be consistent and appropriate for them to have a policy dealing with leased property. There were currently 5 properties whose leases were expiring in 2022, 2023, 2025, 2026, and 2038 so it seemed to be appropriate when those leases come up to maintain consistent policies across the board. Were they making more work for themselves? The fact is, they were here to do work for the community and make sure they uphold consisten rules and policies.
Alderperson Nate Wolff (District 12) stated that there were other instances of political signs being put up on Appleton properties during the last election, but he did not give any specifics. In light of that, he thought that this resolution was an important step to make sure that the city made it clear where yard signs could and count not be placed. He thought this was a good way to communicate that with constituents.
Alderperson Chad Doran (District 15) said that the original intent of this resolution was to make sure residents were not led to think that the city was endorsing a particular candidate, political group, or political organization. However, if you asked almost any resident in the city, his guess was that almost none of them could mention any of the 5 places on the list that are privately leased public property, so he found it doubtful that anyone would get the impression that the city was endorsing a candidate. He also thought they needed to look at the bigger picture in regards to the resolution and was concerned that it would result in unintended consequences for some of the businesses affected. He pointed out that the Appleton Family Ice Center sells advertising space on the board around the hockey rink, and if they wanted to sell space to a candidate or committee or some political organization for some cause this resolution would restrict their right to generate revenue from the business that they operate. Due to his concerns about unintended consequences, he did not support the resolution.
Alderperson Kristin Alfheim (District 11) didn’t think there was any ill will meant in the display of political signs. Now that the issue had been brought up she didn’t think it was fair to put it back to bed just because nobody had figured out that these properties were city owned. At this point, because it had been brought up, they had to think in terms of the fact that the city owns property for the community and the community is the owner of the property. She wondered if this would have been a louder issue had it been a bigger sign with someone that no one in the room liked, and she thought the answer would have been yes. She didn’t think it was there job to say whether they thought it was a big deal or whether anybody realized it was an issue or not. She thought that it was appropriate now that they realized there was an opportunity to make a stand and say, “It’s the constituents’ property. It’s our residents’ property.” With that in mind, she said that everybody has varying political opinions, so she thought they should keep political signs off of property that is owned by the community. Eventhough the issue hadn’t come up in the past, it was here now, and she supported the resolution.
Alderperson Katie Van Zeeland (District 5) said that, to Alderperson Doran’s point, she got concerned with talk of about politicians and money and property and ads. She also worried about what if the chair of a committee that deals with a lease wanted to put a sign on that property; at that point they would be in some territory where things didn’t look kosher, and she preferred that they stay out of that, so she was going to support the resolution.
Alderperson Hartzheim responded to Alderperson Alfheims point that city property is the property of the residents, and said that statement negated any rights of the lessees of city property. She thought it was important to recognize that lessees of city properties did still have rights, unless they were negotiated out in contractual agreements. She disagreed with Alderperson Alfheim’s statement to the extent that they could not forget that the lessees have rights as well. She said that if, for example, there were some city-wide or county-wide referendum involving something important regarding children and the Board USA Soccer had a very strong opinion regarding the issue, she didn’t think it would be appropriate for the city to prevent them from making a statement on the property they leased in District 13. She said that to Alderperson Doran’s point as well, the resolution specifically reads “Whereas political signs posted on municipal property may create the impression that the municipality is not neutral in the election process”, and she didn’t believe that anyone could mistake that as a point. She didn’t believe that people would look at a Vote for Sheri Hartzheim sign on the USA Soccer Field and think that meant that the city supported Sheri Hartzheim. She thought residents were smarter than that.
Alderperson Martin said that Fratellos has a lease agreement that specifically says it’s open to the public. [They lease outdoor patio space next to Vulcan Heritage Park, and members of the public are allowed to sit in that patio area even if they don’t purchase anything]. He often rolls in there with his own bottle of water and sits at one of their premier tables because it’s written into the lease that members of the public can do that. He can’t bring out a sandwich, even though he tried once, because that also is in the lease. That clause is in there for a purpose. He asked for the other alderpersons to support this resolution. He thought it was very, very important and said that as a 7 term alderperson he valued what they have built. It was a good system, and he asked the other alderpersons to support this.
Alderperson Brad Firkus (District 3) returned to Alderperson Doran’s concerns about the Ice Center not being able to put paid advertising up. He said his reading of this was that they were not explicitly banning that. He asked Attorney Behrens if, in his opinion, the resolution would cover that. Would selling paid advertising be in the same category as putting up a sign on the property?
Attorney Behrens said he was hesitant to answer because they were getting into the weeds on specific details regarding specific locations. If the situation described came up, they would look at it at the time. He thought part of the evaluation would be did it fall under paid advertising and what was the nature of that compared to traditional political advertising. He also thought there would be a certain level of flexibility regarding discussion and understanding should something like that occur. He thought that if the resolution passed, that issues would come up in the future, but in those situations the intent of the Attorney’s Office would not be to immediately declare that there was a breach of the lease but instead to have a conversation with the lessee and come to a better understanding.
He said that, quite frankly, if the resolution was passed that evening it could result in some future amendment being needed to provide better guidance on what is and is not permissible. So, this resolution was more of a starting point. He apologized for not being able to give a specific explanation of what they would do in that situation, but he thought they would just have to address situations at the time and make decisions based on those circumstances.
Alderperson Firkus agreed that given how different these properties were from each other that it was hard to say what every single situation would be like. As far as paid advertisements went, he thought that if you have a sign for a candidate right next to a sign for a grocery store and an auto parts place that that was a different context as compared to seeing a sign along the driveway up to a property.
Alderperson Alfheim returned to what Alderperson Hartzheim said. She thought she was absolutely right that no lessee’s rights should be stepped on. She thought that lessees did have contractual rights which was what the resolution was about. If you set up the terms in a contract, then you would not be trampling on their rights because everything would be clearly laid out on the front end. Right now they were in jeopardy of trampling on rights, but if they establish a rule and contractually set it then they would not be stepping on anybody.
Alderperson Denise Fenton (District 6) said she took issue with some of the references to infringing on a lessee’s First Amendment rights. Appleton already has in the Municipal Code restrictions on the size of campaign signs and the duration that those signs can be displayed. There are also subdivisions that have deed restrictions that expressly prohibit the display of any kind of political signs whatsoever. Those property owners when they entered into the contract to purchase that property agreed to abide by the deed restrictions. The same holds true for tenant in an apartment complex or condominium where the owner expressly forbids the display of political signs. She wasn’t sure that arguments about First Amendment rights were a valid argument. She thought that what the city attorney had presented was probably good, although they were going to have to work on a case by case basis. Luckily there were only five properties and the leases didn’t expire any time soon, so they had time to work it out. She thought that the city needed to be like Caesars wife and be above reproach and that there should not be an inkling that the city was showing favoritism. She supported the resolution and urged her colleagues to also.
Alderperson Wolff asked to call the question. [I haven’t been keeping track of specific numbers, but I feel like he calls the question more frequently than other alderpersons do, and I’m always glad when he does. I appreciate when someone is able to recognize when the discussion is dragging on and losing usefulness.]
There was only one more alderperson in the queue, and the Council approved by voice vote the motion to call the question.
Before they voted on the actual item Alderperson Hartzheim asked one point of clarification. She wanted to know if they were voting on the resolution as originally written or with the inclusion of the language provided by the by Attorney’s Office.
Attorney Behren said that what they were voting on and what the committee did was adopt the language the Attorney’s Office presented in place of the italicized language in the agenda. So they were voting on that language.
The resolution was approved 11-3 with Alderpersons Matt Reed (District 8 ), Hartzheim, and Doran voting no.
[I think there were good arguments on both sides. The resolution as originally written struck me as badly written and inappropriately non-specific about what constituted a “political sign”. The Attorney’s Office seemed to do a good job of fixing those issue. For entertainment purposes alone, I am hoping that one of the lessees will decline the proposed contract changes when their lease is up, because I would really like to see what would happen.
In a more general sense, the discussion really drove home to me the importance of private property and actually owning things, given how tenuous some of your rights can be if you don’t own anything and just rent or share.]
View full Common Council meeting details and video here: https://cityofappleton.legistar.com/MeetingDetail.aspx?ID=867240&GUID=24258141-DBC7-4247-935C-A5411B4C9045&Options=info|&Search=
Be the first to reply