County Will Allow Politics in Parks
“Bizarre” ban on political activity had restricted free speech for more than a decade.
Milwaukee County has included language in park-facility leases for years that bans all political activities. Following inquiries by Urban Milwaukee about the legality of this, the Milwaukee County Corporation Counsel Paul Bargen issued a legal opinion saying such restrictions on county parks were a mistake and will be “clarified” going forward.
The clause came to light in December when the Milwaukee County Board debated a proposed eight-page lease giving the City of Greenfield control over Kulwicki Park for up to 30 years. Under “Permitted Use of the Premises,” the lease read: “Consistent with County ordinances and other applicable laws, the City shall have the non-exclusive use of the Premises for park and recreational purposes and for no other purposes. No political activities may be conducted on the Premises at any time.” (Emphasis added.)
County supervisors rejected the lease by a 12-to-5 vote based on numerous concerns, but Supervisor Willie Johnson, Jr. did raise a red flag about the clause: “If anyone wants to go to the park and express themselves through political activity, they must be able to continue to do so.” The proposed lease granted Greenfield control of the 28-acre park and its facilities, including a pavilion and Little League fields. Bordering 107th Street and Coldspring Rd. Kulwicki Park was created on county land to memorialize NASCAR racer Alan Kulwicki. The city and the Greater Greenfield Lions Club contributed to its development.
Before review by the board, the agreement was promoted by Milwaukee County Executive Chris Abele, Greenfield Mayor Michael Neitzke, and John Dargle, director of County Parks, Recreation and Culture. It was also unanimously endorsed by the Intergovernmental Cooperation Council (ICC), which includes all mayors and village presidents within Milwaukee County. It’s unclear whether any of these people realized it included the ban on political activities.
In response to inquiries from Urban Milwaukee, Milwaukee County Board Chair Theo Lipscomb asked Bargren to analyze the clause in question. Bargen issued a four-page opinion which concluded: “Including the sentence with a flat ban on political activity in the Development [and] Management Agreement was a mistake. I am advised that this sentence has been included in parks leases to vendors, concessionaires, etc., for some time. The intent apparently was to bar political activity organized by the lessee, so that the Parks Department was not inadvertently supporting a particular point of view. This standard phrase will be modified to clarify that intent in future standard leases.”
Reached by phone, Mayor Neitzke confirmed he had not initiated the clause. Neitzke, an attorney, said his impression of the “no-political-activity” clause was, simply, “this is the way it is” in county contracts. He did not request its removal during year-long negotiations. He said he was preoccupied with other contract issues, especially relating to liability and insurance.
Megan Haeger, contracts manager for Milwaukee County parks, said the clause has been included in leases since at least the early 2000s.
Numerous court opinions have upheld First Amendment rights in parks. Bargren cited an ordinance attempting to ban “political and religious activity” in Milwaukee County parks in the 1940s that was rejected by the State Supreme Court in 1949. In a 1939 case, Hague v. C.I.O., the U.S. Supreme Court stated: “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.”
However, some limitations may be imposed. In the case of Gerritsen v. City of Los Angeles, an appeals court noted that “Traditional public forums, such as parks and public streets, however, are open to all manner of speech, subject only to reasonable time, place and manner restrictions…Such a restriction must (1) be content-neutral, (2) be narrowly tailored to serve a significant government interest, and (3) leave ample alternatives of communication.”
Larry Dupuis, legal director for ACLU-Wisconsin, said the county’s legal clause was a “bizarre thing” to write into a lease, especially for a municipality. “It’s not clear what it purports to do. A complete ban on all political activity would certainly have been unconstitutional. There is nothing in county ordinances that would allow that.” He noted that even a private leaseholder cannot restrict First Amendment expression when they are leasing an area that remains a “public-forum” space.
Bargren noted that other language in the lease affirmed traditional First Amendment rights. Notably: “Public Access and Use of the Premises. The Parties recognize that the Park is a public park and that public use of the Premises is mutually desirable. The Premises shall remain open and available to the public on a daily basis.”
Citing this clause, Bargren wrote: “In my opinion, this provision trumps the unenforceable ‘no political activity’ and would have guaranteed the public’s right for appropriate political activity in the park (i.e., as noted, political activity that did not unduly interfere with other activities underway). As a park, Kulwicki would remain a public forum, even under lease to the city of Greenfield. This is consistent with recent interpretations and enforcement by the Parks Department. Last summer, for example, Parks reminded the sponsors of a concert series and a farmers market that they needed to allow a group conducting voter education and registration activities to have access to attendees in a reasonable and non-interfering manner. The sponsors were advised they could not, for example, relegate the voter activists to a far corner of the grounds.”
Bargren noted that use permits must be equally accessible to all and “content-neutral.” Facility rentals include picnic sites, rooms, buildings, bandshells, gardens and sports facilities. Most rentals are handled through a centralized booking system and all must comply with parks ordinances.
The issue of First Amendment rights in parks land leased to private vendors is far from theoretical, as the tragic death of Dontre Hamilton proved. Starbucks leases a pavilion within the county-owned Red Arrow Park in downtown Milwaukee. In April 2014, an employee called police three times to request that a napping man — Hamilton — be removed from exterior park space, even though he had a legal right to be there. Hamilton was killed by a policeman who failed to follow protocol in responding to the call.
Arguments for rejecting the Kulwicki lease included concerns about spinning off parks from the county. Sup. Gerry Broderick wrote in an op-ed that handing over control of entire parks could lead to “unraveling the ‘Emerald Necklace’ of our nationally acclaimed park system. Turning parks back to municipalities to manage would simply undo efficiencies and other public benefits gained since they became part of a unified system back in 1938. A Public Policy Forum report stressed the cost-effectiveness of increased consolidation of services among county municipalities. Severing parks from the system is a move in the opposite direction.”
Supervisors also warned that unequal funding of parks leads to a “two-tier parks system”—with varying facilities for “haves and have-nots.” Sup. Steve Taylor of Franklin, who voted for the lease, said he favored having wealthier suburbs taking care of their parks. Other supervisors supporting the lease were Anthony Staskunas, whose district includes Kulwicki Park, Deanna Alexander, Eddie Cullen and Michael Mayo.
Neitzke and Staskunas saw the lease as a way to fix “one of the system’s 156 parks.” Greenfield would have handled all maintenance, rentals and major capital projects. Neitzke told Urban Milwaukee he had arranged to bond $200,000 in capital investments at Kulwicki. The county board has allocated $50,000 for upgrades to the ball fields in 2016 budget.
Staskunas said he thought Greenfield residents were not concerned about “dual taxation”–double funding of the same service (maintaining a county park). He said if they did object they could use the ballot box to make their views known. Neitzke ran unopposed for his third term in 2013. He told Urban Milwaukee that residents have urged him to ensure that the fields and parkland are better maintained.
The county executes many park-facility leases and cooperative-maintenance contracts. It has agreements with nonprofit and for-profit corporations, school districts, municipalities and friends groups. But Sup. Patricia Jursik said the Kulwicki lease “went too far” in giving away control of an entire park and its facilities. Lipscomb said in an email, “I never understood why the municipality [of Greenfield] couldn’t simply offer their investment as an inducement to the County to make improvements, like others do, without requiring such long-term and extensive control.” He noted that Glendale paid 20 to 40 percent of two recent parkway road projects and Wauwatosa did something similar. “Friends groups also regularly provide matching money without leases or extensive development agreements.”
John Lunz, president of Preserve Our Parks, said he was glad the Kulwicki deal is off and “pleased” the county is “now reading what they are putting into contracts and agreeing to make a reasonable clarification.”