Mayor & Village Board of Trustees

VILLAGE OF PELHAM BOARD OF TRUSTEES REGULAR MEETING TUESDAY, AUGUST 11, 2020, 7:30 PM VILLAGE HALL – 195 SPARKS AVENUE, PELHAM, NY 10803 Pursuant to Executive Order 202.1 issued by Governor Andrew Cuomo on March 12, 2020, all in-person public access to Village Board of Trustees Meeting is suspended. Each Village Trustee will participate remotely either by video or telephone via GoToMeeting. Please join my meeting from your computer, tablet or smartphone. https://global.gotomeeting.com/join/905737645 You can also dial in using your phone: United States: +1 (646) 749-3122 Access Code: 905-737-645 Minutes 1. Call to Order 2. Pledge of Allegiance 3. Roll Call 4. Trustees’ Reports 5. Village Administrator’s Report 6. Mayor’s Report 7. Public Comments EMAIL COMMENTS/QUESTIONS CARA.FARRELL@PELHAMGOV.COM # Agenda Items: Non-Recurring Items 8. Discussion on Non-Union Salaries 9. Discussion on Potential Sale of Village Land 10. Discussion on Public Art Displays 11. Discussion on Proposed Tree Legislation 12. Resolution Authorizing an Inter-Municipal Agreement between the County of Westchester and the Village of Pelham for Access to the Westchester County Repository for Integrated Criminalistic Information (RICI) 13. Resolution Reappointing a Climate Smart Communities Task Force Coordinator and Reappointing a Climate Smart Communities Task Force 14. Resolution Recognizing Sustainable Westchester’s Heatsmart Westchester Program to Bring Clean, Sustainable Heating and Cooling Alternatives to Residences and Businesses in the Village of Pelham 15. Other Business Recurring Items 16. Authorizing Accounts Payable 17. Authorizing Minutes of: June 23, 2020 and July 14, 2020 18. Adjournment to Executive Session Next Regularly Scheduled BOT Meetings: Tuesday, September 8, 2020 Tuesday, September 22, 2020 Board of Trustees Regular Meeting Tuesday, August 11, 2020 All meetings start at 7:30 PM unless otherwise noted. *The agenda is subject to change* Item # 1 – Meeting called to order: Mayor Mullen called the meeting to order at 7:30 PM. Item # 2 – Pledge of Allegiance: Mayor Mullen led the Pledge of Allegiance. Item # 3 – Roll Call: Attendee Name Present Absent Late Mayor Mullen ☒ ☐ ☐ Trustee Carpenter ☒ ☐ ☐ Trustee Greco ☒ ☐ ☐ Trustee Hill-Ries ☒ ☐ ☐ Trustee Kamal Eldahry ☒ ☐ ☐ Trustee Potocki ☒ ☐ ☐ Trustee Spira-Cohen ☐ ☒ ☐ Village Administrator Small ☒ ☐ ☐ Asst. Village Administrator Scelza ☒ ☐ ☐ Asst. to the Village Admin. Farrell ☐ ☒ ☐ Item # 4 – Trustees’ Report: Trustee Carpenter thanked all the departments for their service during and after the tropical storm. Trustee Greco reiterated the attractiveness and opportunities offered by our downtown. Trustee Hill-Ries reminded residents to continue supporting our local businesses while being considerate to remember social distancing. Trustee Kamal Eldahry updated the residents regarding the food scrap recycling program. The SAB has been in communication with the Town of Pelham which would make the opportunity available to all Pelham residents. Trustee Potocki thanked village employees who worked on reinstating power to residents. He said he was disappointed with the preparedness and response time of Con Edison. He continued by saying Assemblywoman Amy Paulin will be meeting with Con Edison to discuss changes to their response plan and to learn more about Con Edison’s reimbursement offerings go to their website. Trustee Potocki asked everyone to do something nice for their neighbor and lastly urged residents to complete the census. Trustee Spira-Cohen was absent. Board of Trustees Regular Meeting Tuesday, August 11, 2020 Item # 5 – Village Administrator’s Report: Village Administrator Small thanked acting Superintendent of Public Works, Sean McDonough for coordinating with Con Edison as well as the police and fire departments. Item # 6 – Mayor’s Report Mayor Mullen said we are down to one household without power. He said when such a large storm rolls in, there is a process by which municipalities work hand-in-hand with suppliers including Verizon, Con Edison and Altice, etc. Mayor Mullen voiced his discontent surrounding the severely delayed response of Con Edison and their lack of communication and coordination with local response which slowed the entire process. He commended Assemblywoman Amy Paulin, Westchester County Legislator Terry Clements and Westchester County Executive George Latimer and Administrator Small for working to resolve these storm-related issues. Mayor Mullen then brought up COVID-19 and the reality of being diligent and working in our “normal” lives. He also mentioned that the Streering Committee on Policing and Inclusion has met a few times and he will be posting a summary of action items they’ve been tasked. The goal is to align our systems with the morals we hold. Finally, Mayor Mullen announced the Chamber of Commerce’s recent appointment of Cristina Chianese for the position of President. He also thanked Amy Cole and Clay Bushong for their leadership. Item # 7 – Public Comments Elizabeth Hani of 55 First Street, said she’s in support of the food scrap recycling program and she wondered how she could assist. Trustee Kamal Eldahry said it would be great to have her join the team. Board of Trustees Regular Meeting Tuesday, August 11, 2020 Non-Recurring Items Item #8 – Discussion on Non-Union Salaries This discussion was moved to executive session. Board of Trustees Regular Meeting Tuesday, August 11, 2020 Item # 9 – Discussion on Potential Sale of Village Land Village Administrator Small provided an overview of the potential sale of land located adjacent to the Highbrook Highline and just south of Young Avenue Field. Trustee Carpenter asked how we could represent that issues don’t exist with the property as he knows there are issues near that area. He is worried about being on the hook for remediation after a sale. Administrator Small said our Superintendent of Buildings & Public Works didn’t see any issues with the property. Trustee Carpenter followed up by suggesting the resident create something similar to an escrow account to pay for the Village’s costs in the event that there are Village expenses and a sale isn’t consummated. All of the Trustees present say they have no problem moving forward with this, except for Trustee Carpenter. Board of Trustees Regular Meeting Tuesday, August 11, 2020 Item # 10 – Discussion on Public Art Displays Mayor Mullen declared we don’t have a clear way in which the Village allows the display of art on public land. Trustee Carpenter shared his findings on the subject including guidelines which are how councils and commissions evaluate the artwork on behalf of the government. He provided examples of municipalities that have a policy or are currently displaying public art on public property. Trustee Carpenter continued to say the concept of government speech is an integral part of the discussion given the ramifications of the First Amendment. Trustee Carpenter recommends that until we have a policy in place, we pause before doing anything new. Deputy Mayor Potocki asked where we are talking and how this would interact with the current situation with the restaurants having open seating in our Wolfs Lane Park. Trustee Carpenter thinks the policy created should not be limited to a list of locations, instead be applied whenever a request is submitted for art to be displayed on public land. He said it’s important we maintain “viewpoint and content neutrality”. Mayor Mullen said we are going to establish guidelines and a process by which a request can be submitted to display art on public land in order to evaluate installations including the exhibit entitled “Pelham Laundry” recently on display at the Pelham Art Center. Board of Trustees Regular Meeting Tuesday, August 11, 2020 Item # 11 – Discussion on Proposed Tree Legislation Trustee Kamal Eldahry presented a submission from the Sustainability Advisory Board (SAB) regarding the ways in which we manage trees on public land by way of the Village Code. The sections of discussion included: • §93-7 Trees which may be plants • §93-8 Spacing • §93-9 Distance from curbs and sidewalks • §93-10 Distance from street corners and fireplugs • §93-11 Distance from utilities • §93-12 Public tree care • §93-13 Tree topping • §93-14 Pruning Discussion was held on who currently has authority, the importance of public safety, timeliness of tree removal, and the duties of staff, advisory boards, and appointed and elected individuals. Mayor Mullen recommends removing the title “Tree Committee” from the Village of Pelham Code, as our SAB should have this in its portfolio. Board of Trustees Regular Meeting Tuesday, August 11, 2020 Item # 12 – Resolution Authorizing an Inter-Municipal Agreement between the County of Westchester and the Village of Pelham for Access to the Westchester County Repository for Integrated Criminalistic Information (RICI) Resolution Authorizing an Inter-Municipal Agreement between the County of Westchester and the Village of Pelham for Access to the Westchester County Repository for Integrated Criminalistic Information (RICI) Whereas, the County of Westchester (“County”) has implemented a system called the Westchester County Repository for Criminalistic Information (“RICI System”) to allow for the electronic transmission and storage of criminal record and police blotter information; and Whereas, the type of information that is transmitted and stored on the system includes, but is not limited to, information related to a subject’s arrest, booking, detention or incarceration including name, address, social security number, physical description, telephone number, fingerprints, palm-prints, photographs and related data; and Whereas, the information is stored chronologically on a central computer maintained by the County and is shared by multiple law enforcement agencies having access to the system; and Whereas, the Pelham Police Department currently has access to the system through an Inter- Municipal Agreement with the County that has been effective since August 1, 2015 and expired on July 31, 2020; and Whereas, the Pelham Police Department desires to have continued access to the RICI System and in order to do so must renew the Inter-Municipal Agreement with the County; and Whereas, the attached renewal agreement is valid for a five-year period from August 1, 2020 through July 31, 2025, with all other terms and conditions unchanged. Now, therefore, be it resolved, that the Board of Trustees of the Village of Pelham herein authorizes the Police Chief to execute the attached Inter-Municipal Agreement between the County of Westchester and the Village of Pelham for access to the County’s Repository for Information and Criminalistic Information for period of five (5) years commencing retroactively to August 1, 2020 and ending July 31, 2025. Vote Record - Item #12 – Resolution Authorizing an Inter-Municipal Agreement between the County of Westchester and the Village of Pelham for Access to the Westchester County Repository for Integrated Criminalistic Information (RICI) Village of Pelham Board of Trustees Regular Meeting Tuesday, August 11, 2020 Yes/Aye No/Nay Abstain Absent ☒Approved Mayor Mullen ☒ ☐ ☐ ☐ ☐Approved as Trustee Carpenter Motion ☒ ☐ ☐ ☐ Amended Trustee Hill-Ries ☒ ☐ ☐ ☐ ☐Tabled Trustee Greco Second ☒ ☐ ☐ ☐ ☐Withdrawn Trustee Kamal Eldahry ☒ ☐ ☐ ☐ ☐Discussed Trustee Potocki ☒ ☐ ☐ ☐ Trustee Spira-Cohen ☐ ☐ ☐ ☒ Board of Trustees Regular Meeting Tuesday, August 11, 2020 Item # 13 – Resolution Reappointing a Climate Smart Communities Task Force Coordinator and Reappointing a Climate Smart Communities Task Force Resolution Reappointing a Climate Smart Communities Task Force Coordinator and Reappointing a Climate Smart Communities Task Force Whereas, the Village of Pelham (hereinafter “the Village”) believes that climate change poses a real and increasing threat to our local and global communities and that the effects of climate change will endanger our infrastructure, economy, and livelihoods, harm ecological communities, reduce drinking water supplies and recreational opportunities, and pose health threats to our citizens; and Whereas, it is incumbent upon the Village to do what it can to address these threats, reduce carbon emissions, and mitigate the effects of climate change; and Whereas, to this end, the Village adopted the New York State Climate Smart Communities Pledge by Resolution on February 12, 2019; and Whereas, the Village wishes to obtain certification under the Climate Smart Communities Program and is desirous of mitigating the effects of climate change on the Village and of taking further steps toward reducing greenhouse gas emissions, and making the Village of Pelham more sustainable; Whereas, forming a Climate Smart Communities Task Force is a mandatory action required for participation in and certification by the Climate Smart Communities program, and such a task force can provide the Village with information about establishing and implementing climate smart initiatives, propose new ideas, and identify funding sources for projects. Now, therefore, be it resolved, that the Board of Trustees of the Village of Pelham officially designates the Village of Pelham Sustainability Advisory Board (SAB), Village of Pelham Trustee Hanan Kamal Eldahry, and Assistant to the Village Administrator Cara Farrell, along with the individuals named below, each serving a two-year term commencing August 11, 2020, as the Climate Smart Communities Task Force for the Village of Pelham. Marc Burgess Nadine LeeSang Kate Doebler Lindsay Preftakes Melissa Eustace Anna Riehl Kevin Fleming Debbie Winstead Vote Record - Item #13 – Resolution Reappointing a Climate Smart Communities Task Force Coordinator and Reappointing a Climate Smart Communities Task Force Village of Pelham Board of Trustees Regular Meeting Tuesday, August 11, 2020 Yes/Aye No/Nay Abstain Absent ☒Approved Mayor Mullen ☒ ☐ ☐ ☐ ☐Approved as Trustee Carpenter ☒ ☐ ☐ ☐ Amended Trustee Hill-Ries ☒ ☐ ☐ ☐ ☐Tabled Trustee Greco Motion ☒ ☐ ☐ ☐ ☐Withdrawn Trustee Kamal Eldahry ☒ ☐ ☐ ☐ ☐Discussed Trustee Potocki Second ☒ ☐ ☐ ☐ Trustee Spira-Cohen ☐ ☐ ☐ ☒ Board of Trustees Regular Meeting Tuesday, August 11, 2020 Item # 14 – Resolution Recognizing Sustainable Westchester’s Heatsmart Westchester Program to Bring Clean, Sustainable Heating and Cooling Alternatives to Residences and Businesses in the Village of Pelham Resolution Recognizing Sustainable Westchester’s Heatsmart Westchester Program to Bring Clean, Sustainable Heating and Cooling Alternatives to Residences and Businesses in the Village of Pelham Whereas, the Village of Pelham’s Sustainability Advisory Board and Climate Smart Communities Task Force suggest completion of this application as we continue to take and support initiatives through Sustainable Westchester; and Whereas, the Village of Pelham has been designated by the New York State Energy Research and Development Authority (NYSERDA) as a Clean Energy Community; and Whereas, the Village of Pelham supports energy efficient designs and green building technology projects, reducing the volume and impact of energy consumption in the and reducing our carbon footprint; and Whereas, other benefits to those using clean heating and cooling technologies include energy bill savings and increased comfort levels and health benefits compared to conventional heating and cooling technologies; and Whereas, HeatSmart Westchester is an initiative of the Sustainable Westchester and has received funding and support from NYSERDA to administer a two-year campaign with an application deadline of September 8, 2020; and Whereas, HeatSmart Westchester is modeled after successful Solarize and Energize campaigns; and Whereas, the installation of ground source heat pump and air source heat pump systems helps protect our environment by reducing the use of fossil fuels used to heat and cool our buildings and provides and creates new jobs in this emerging market. Now, therefore, be it resolved, that the Village of Pelham recognizes the HeatSmart Westchester initiative would bring clean heating and cooling technologies to the residents and businesses of the Village of Pelham. Vote Record - Item #14 – Resolution Reappointing a Climate Smart Communities Task Force Coordinator and Reappointing a Climate Smart Communities Task Force Village of Pelham Board of Trustees Regular Meeting Tuesday, August 11, 2020 Yes/Aye No/Nay Abstain Absent ☒Approved Mayor Mullen ☒ ☐ ☐ ☐ ☐Approved Trustee Carpenter ☒ ☐ ☐ ☐ as Amended Trustee Hill-Ries Second ☒ ☐ ☐ ☐ ☐Tabled Trustee Greco Motion ☒ ☐ ☐ ☐ ☐Withdrawn Trustee Kamal Eldahry ☒ ☐ ☐ ☐ ☐Discussed Trustee Potocki ☒ ☐ ☐ ☐ Trustee Spira-Cohen ☐ ☐ ☐ ☒ The passing of this resolution gives the SAB permission to submit a dual application with the Town of Pelham to Sustainable Westchester's Heatsmart Westchester Program. Board of Trustees Regular Meeting Tuesday, August 11, 2020 Recurring Items Item # 15 - Authorizing the Accounts Payable Trustee Greco audited the Accounts Payable. Resolution Authorizing the Accounts Payable Whereas, pursuant to §5-524 of the New York State Village Law, the Board of Trustees shall audit all claims against the Village. Now, therefore, be it resolved, that the Board of Trustees of the Village of Pelham after audit of the following vouchers, authorizes payment for services rendered and materials received, for the following items that have been submitted to the Treasurer's Office for payment and authorized by the Village Administrator and Assistant Village Administrator/Village Treasurer: Fund Name: Amount General Fund $221,173.38 Capital Projects Fund $39,400.00 Grand Total $260,573.38 Be it further resolved, that this Board hereby approves payment of the above-mentioned claims and authorizes payment thereof. Vote Record - Item #15 - Resolution Authorizing Accounts Payable Village of Pelham Board of Trustees Regular Meeting Tuesday, August 11, 2020 Yes/Aye No/Nay Abstain Absent ☒Approved Mayor Mullen ☒ ☐ ☐ ☐ ☐Approved as Trustee Carpenter Motion ☒ ☐ ☐ ☐ Amended Trustee Greco Second ☒ ☐ ☐ ☐ ☐Tabled Trustee Hill-Ries ☒ ☐ ☐ ☐ ☐Withdrawn Trustee Kamal Eldahry ☒ ☐ ☐ ☐ ☐Discussed Trustee Potocki ☒ ☐ ☐ ☐ Trustee Spira-Cohen ☐ ☐ ☐ ☒ Deputy Mayor Potocki requested we switch from weekly executive orders to passing a local law which would save money and be longer term, yet still amendable. It was suggested we reach out to Assemblywoman Amy Paulin to see if there is an option to have these executive orders last longer than five days. Trustee Carpenter requested a memo along with a voucher for any ongoing litigation as to better track the progress of said litigation. Board of Trustees Regular Meeting Tuesday, August 11, 2020 Item # 16 – Authorizing Minutes of June 23, 2020 and July 14, 2020 Vote Record - Item # 16A - Authorizing Minutes of June 23, 2020 Village of Pelham Board of Trustees Regular Meeting Tuesday, August 11, 2020 Yes/Aye No/Nay Abstain Absent ☐Approved Mayor Mullen ☐ ☐ ☐ ☐ ☐Approved as Trustee Carpenter ☐ ☐ ☐ ☐ Amended Trustee Greco ☐ ☐ ☐ ☐ ☒Tabled Trustee Hill-Ries ☐ ☐ ☐ ☐ ☐Withdrawn Trustee Kamal Eldahry ☐ ☐ ☐ ☐ ☐Discussed Trustee Potocki ☐ ☐ ☐ ☐ Trustee Spira-Cohen ☐ ☐ ☐ ☐ Vote Record - Item # 16B - Authorizing Minutes of July 14, 2020 Village of Pelham Board of Trustees Regular Meeting Tuesday, August 11, 2020 Yes/Aye No/Nay Abstain Absent ☐Approved Mayor Mullen ☐ ☐ ☐ ☐ ☐Approved as Trustee Carpenter ☐ ☐ ☐ ☐ Amended Trustee Greco ☐ ☐ ☐ ☐ ☒Tabled Trustee Hill-Ries ☐ ☐ ☐ ☐ ☐Withdrawn Trustee Kamal Eldahry ☐ ☐ ☐ ☐ ☐Discussed Trustee Potocki ☐ ☐ ☐ ☐ Trustee Spira-Cohen ☐ ☐ ☐ ☐ Item # 17 – Adjournment to Executive Session Vote Record - Item #17 – Adjournment to Executive Session Village of Pelham Board of Trustees Regular Meeting Tuesday, August 11, 2020 Yes/Aye No/Nay Abstain Absent ☒Approved Mayor Mullen ☒ ☐ ☐ ☐ ☐Approved as Trustee Carpenter Second ☒ ☐ ☐ ☐ Amended Trustee Greco Motion ☒ ☐ ☐ ☐ ☐Tabled Trustee Hill-Ries ☒ ☐ ☐ ☐ ☐Withdrawn Trustee Kamal Eldahry ☒ ☐ ☐ ☐ ☐Discussed Trustee Potocki ☒ ☐ ☐ ☐ Trustee Spira-Cohen ☐ ☐ ☐ ☒ The public portion of the Regular Board Meeting was adjourned at 9:50 pm to enter into Executive Session to discuss an ongoing litigation and a personnel matter. After which time the Board of Trustees would adjourn for the evening. Respectfully submitted, Cara R. Farrell, Assistant to the Village Administrator TO: MAYOR MULLEN AND THE BOARD OF TRUSTEEES FROM: TRUSTEE CARPENTER SUBJECT: ART ON PUBLIC PROPERTY DATE: AUGUST 8, 2020 The following is my compilation of sources linked at the end of this memo. It is not meant to be relied upon as a representation or opinion, legal or otherwise. The First Amendment “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” – U.S. Const. amend I. Local government control of art arises frequently: for example, in the regulation of murals as a form of outdoor signage or advertising, in graffiti abatement, or in government selection of artwork for display in public parks or public buildings. These controls present many familiar First Amendment concerns. Because art has been characterized by the courts as a form of First Amendment-protected speech, regulations pertaining to artwork must be content neutral, contain adequate procedural safeguards, and may not be unconstitutionally vague. Although the scope of First Amendment protection for artwork is expansive, it is not boundless. The same carve-outs from First Amendment protection applicable to other media of speech, including carve- outs for obscenity, fighting words, and incitement, exist with respect to artwork. The U.S. Supreme Court has defined obscenity as “works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value,” as determined by an “average person, applying contemporary community standards.” Applications of the foregoing test do not provide bright- line clarity as to what types of artwork are obscene for constitutional purposes. For example, the Supreme Court has found “hardcore” pornography and child pornography to be outside of the scope of First Amendment protection; however, courts have struck down legislative limitations on speech and expressive conduct they related to poetry with a sexual content, pornography that may be understood as degrading toward women, depictions of animal cruelty, virtual depictions of child pornography, films or artwork where obscene images are paired with nonobscene material, and parody material. Thus, artwork that depicts nudity, violence, or thought-provoking portrayals that might be cast as having sexual content is not likely to fall outside the scope of First Amendment protection. However, to the extent art exhibits material of a vulgar, pornographic nature, it may not enjoy First Amendment protections and may properly be limited by local codes or ordinances. As with artwork of an obscene nature, artwork that contains elements of “fighting words,” incitement, or defamation may also fall outside of the umbrella of First Amendment protection. So-called fighting Art on Public Property August 8, 2020 words, including words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace,” fall outside the scope of First Amendment protection; however, the exception from First Amendment protection for fighting words has been generally very limited. Similarly, First Amendment protection is also unavailable in the limited context where advocative speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Under this principle, criminal aiding and abetting lacks First Amendment protection, yet mere endorsements or encouragement of violent or unlawful action receive First Amendment protection. Thus, where a work of art is intended to counsel viewers toward criminal violence, it may lack First Amendment protection. For example, where an artist does not intend for his work to provoke unlawful action, and where the risk of such unlawful action is not great, the work would presumably be entitled to First Amendment protection. An artist's First Amendment right to free speech may additionally be limited by state common law limitations on “verbal torts,” including defamation—slander or libel—as well as torts such as intentional infliction of emotional distress. Specifically, where defamatory speech is a matter of private concern and involves private individuals, the First Amendment generally does not protect the defendant speaker. Conversely, where speech critical of another relates to a matter of public concern—meaning, in essence, that the speech relates to “any matter of political, social, or other concern to the community,” is a subject of news or other general interest, or occurs in a public place—or where such speech involves a public figure, the speaker may have a First Amendment defense against a claim sounding in tort. For example, when the host of a nationally syndicated television program challenged a magazine's parody portrayal of him, the challenger was found to be a public figure such that the publisher of the portrayal could successfully raise a First Amendment defense to an intentional infliction of emotional distress claim.” Thus, artwork that criticizes a public figure or addresses a matter of public concern would likely carry First Amendment protections that would be unavailable if the work criticized or parodied a private individual on a matter of private concern. Art on Public Property In cases of materials displayed on public property, courts first review where the property falls within the public forum doctrine—that is, whether the property is a traditional, designated, limited, or nonpublic forum. • Traditional Public Forums: These include public parks, sidewalks and areas that have been traditionally open to political speech and debate. Here, the government may not discriminate against speakers based on the speakers' views. Doing so is called viewpoint discrimination, which is prohibited under the First Amendment. The government may, however, subject speech to reasonable, content-neutral restrictions on its time, place, and manner. • Designated Public Forums: Sometimes, the government opens public property for public expression even though the public property is not a traditional public forum. Examples of designated public forums include municipal theaters and meeting rooms at state universities. • Limited Forums: A type of designated public forum where the government limits access to certain classes or types of speech. For example, the government may limit access to public school meeting rooms by only allowing speakers conducting school-related activities. 2 Art on Public Property August 8, 2020 • Nonpublic Forums: Nonpublic forums are forums for public speech that are neither traditional public forums nor designated public forums. Examples of nonpublic forums include airport terminals, a public school’s internal mail system, and a polling place. An outright ban or severe limitations on the display of noncommercial artwork in traditional public fora, such as streets or sidewalks, is likely to fail the narrow tailoring part of the intermediate scrutiny test. Time, place, and manner restrictions are permissible, for example, where necessary to ensure safe passage for pedestrians along public sidewalks or to limit traffic congestion along public streets. Local Government Regulation of Art In general, the government has wide latitude to engage in the selection of artwork for government properties and to relocate or remove that artwork in the event the government chooses to redevelop or otherwise modify government properties. This principle is best enshrined in the case of National Endowment for the Arts v. Finley, in which the U.S. Supreme Court held that the federal government could “allocate competitive funding [for the arts] according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake. The Court found that, in the allocation of funding, the government has broad discretion to fund “one activity to the exclusion of the other” and that the government's selection of works of art to patronize—even where the criteria are somewhat imprecise—does not give rise to a First Amendment violation. Even prior to Finley, however, the courts gave significant deference to the government in its decisions regarding the funding, selection, display, and relocation of privately produced artwork. The rise of the government speech doctrine lends additional support to local governments engaged in the selection and ownership of artwork on public property. Even before the U.S. Supreme Court adopted the government speech doctrine—which carves out from First Amendment application any speech promulgated by the government—federal appeals courts had used the concept of “government speech” to reject First Amendment claims of message or viewpoint discrimination, or prior restraint, by artists. The Supreme Court has also found that donated monuments in a public park constitute government speech. Given this recent case law, artwork selected by the government for display on public property is likely to be considered by a court to be government speech. Government Speech Two hundred years after the ratification of the Bill of Rights, the Supreme Court decided Rust v. Sullivan, 16 commonly recognized as the origin of the government speech doctrine. In Rust, the federal government authorized funds for family planning services but prohibited the funds from being used to discuss abortion as a method of family planning. The grantees and doctors who received the funds argued that the prohibition violated their First Amendment rights. The Court disagreed, holding that government may “refus[e] to fund activities, including speech, which are specifically excluded from the scope of the project funded.” Rust is noteworthy in that the government was speaking by controlling the message through private agents rather than through governmental employees. The Court next applied the doctrine in National Endowment for the Arts v. Finley. The National Endowment for the Arts (NEA) awarded funding to artists who demonstrated “artistic excellence and artistic merit.” In selecting recipients, the NEA would “tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public.” Artists who were denied 3 Art on Public Property August 8, 2020 funding challenged the funding criteria as viewpoint discrimination in violation of the First Amendment. The Court ruled in favor of the NEA, noting that “the Government may allocate competitive funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake.” In Johanns v. Livestock Marketing Association, two associations representing beef producers objected to mandatory assessments used by the federal government to fund an advertising campaign promoting beef. The associations argued that the assessment violated the First Amendment because it compelled them to subsidize speech they found objectionable, and the government countered that the advertisements constituted government speech. The associations then argued that the advertisements could not constitute government speech because they were designed and delivered by private parties and were represented to the public as funded by “America's Beef Producers.” Finding that the advertisements were government speech, the Court noted that “[t]he message set out in the beef promotions is from beginning to end the message established by the Federal Government.” Moreover, “[w]hen, as here, the government sets the overall message to be communicated and approves every word that is disseminated, it is not precluded from relying on the government-speech doctrine because it solicits assistance from nongovernmental sources in developing specific messages.” Finally, in responding to the argument that the government must disclose that it is the speaker, the Court noted that “whether or not the reasonable viewer would identify the speech as the government's” was of no consequence in determining if the government speech doctrine applied. In 2009, the Court decided Pleasant Grove City v. Summum, perhaps the first clear and formal articulation of the government speech doctrine. Pleasant Grove City, Utah, had placed various monuments in a city park including one displaying the Ten Commandments. Summum, a religious organization, sought the city's permission to erect a stone monument, similar in size and nature to the Ten Commandments monument, that celebrated the “Seven Aphorisms of Summum.” The city declined the request, and Summum sued, asserting that the city's acceptance of the Ten Commandments monument and rejection of the Summum monument violated the First Amendment. Summum argued that the city park was subject to the rules for regulating speech in a traditional public forum; the city argued that the issue was one of government speech. The Court agreed with the city: “There may be situations in which it is difficult to tell whether a government entity is speaking on its own behalf or is providing a forum for private speech, but this case does not present such a situation. Permanent monuments displayed on public property typically represent government speech.” In response to Summum's argument that a governmental agency accepting a privately donated monument must go through a formal process adopting the message that the monument conveys, the Court observed that a monument may mean different things to different people and that the “message” the governmental entity wishes to convey by accepting the monument may differ from the message the creator of the monument wished to convey. “By accepting such a monument, a government entity does not necessarily endorse the specific meaning that any particular donor sees in the monument.” Conclusion Local governments that select artwork for display on government property should carefully consider the parameters of the government speech doctrine to ensure that their art programs are classified as government speech. Following the Serra and Newton line of cases, for example, the government should 4 Art on Public Property August 8, 2020 ensure that it controls the artwork by taking ownership of the artwork and negotiating with the artist for complete control over the artwork's placement, care, and eventual removal or relocation. Examples I. City of Berkeley The City of Berkeley has created a visual Arts Panel in its code and provided it with general rules and standards when evaluating visual art in public places: In performing its duties with respect to art in public places, a visual arts panel shall give special attention to the following matters: A. Appropriateness of the design to the functions of the site; B. Representation of a broad variety of tastes within the community and the provisions of a balanced inventory of art in public places to insure a variety of style, design, and media throughout the community that also will be representative of the eclectic tastes of the community. General rules for art in public places: A. Review of permanent and temporary installations: Permanent and temporary installations shall receive the prior review and advice of a visual arts panel. Extensions of time for temporary installations to remain for one year or more may be granted by a visual arts panel. Permanent installations shall not be removed, altered, or changed without the prior review and advice of a visual arts panel and the artist, whenever feasible. B. Private sites for art in public places: No work of art financed or installed whether wholly or in part with City funds or with grants procured by the City shall be permanently installed on privately owned property without a written agreement between the City and the owner specifying the proprietary interests in the work of art, binding the owner to the general rules for art in public places, specifying that the owner shall assure installation of the work of art in a manner which will protect the work of art and the public and that the work of art will be maintained in good condition, and providing for appropriate insurance and indemnification, as well as any other provisions deemed necessary or desirable by the City Attorney. C. Consultation with the artist: Installation, maintenance, alteration, refinishing, and moving of art in public places shall be done in consultation with the artist whenever feasible. D. Inventory of art in public places: The Civic Arts Commission shall maintain a detailed record of all art in public places, including site drawings, photographs, designs, names of artists, and names of architects whenever feasible. II. City of Palo Alto The City of Palo Alto's Temporary Artwork Program is intended to activate publicly-owned spaces in parks, plazas, streetscapes, and other City-owned property. Temporary artworks enliven communities, provoke conversations and refresh the public realm. The City of Palo Alto commissions temporary artworks through its Public Art Program. 5 Art on Public Property August 8, 2020 Temporary artworks may be funded by the City or by private individuals or organizations. The City may initiate temporary artworks, or individuals or community organizations may initiate or request City consideration of temporary art projects. The Temporary Artwork Policy establishes criteria and guidelines for the consideration and installation of temporary artworks in parks, plazas, streetscapes and similar City property. These policies and procedures are intended to complement Municipal Code Section 2.26, Visual Art in Public Places, in order to insure a consistent approach to placing art in the public realm. Selection criteria will be defined in advance by the Public Art Program based on the goals articulated in the annual Public Art Work Plan. In general, selection criteria will include: • Artistic merit • Appropriateness to site and goals articulated for the project • Community engagement • Feasibility and durability • Compliance with City codes III. City of Columbus The Columbus Art Commission (CAC) was appointed in 2007. It has statutory authority over the design and placement of all works of art to be acquired by the city, placed on land owned or leased by the city, or placed anywhere in the public right‐of‐way. The seven‐member commission is comprised of individuals experienced and interested in the arts, landscape architecture and architecture. It is the CAC's belief that public art, when done successfully, can reflect a community's history, culture and values. It helps to define and create a sense of place --- making something memorable out of our daily comings and goings. Public art bridges the old with the new, and is accessible to all. From a practical standpoint, public art can improve the aesthetics and neighborhood acceptance of public works projects and employ local artists, crafts people, fabricators and materials suppliers. In making the approvals and performing its duties, the CAC shall be guided by the preserving of the proper decor of the city, the maintenance of the proper aesthetic values, the providing for the orderly growth of the city and its artistic treasures, the providing and maintenance of an orderly balance in the location and design of works of art, the preservation of property and the uses and condition thereof, and the prevention of blight or deterioration in and around public buildings and works of art. IV. Longmont, Colorado Drive through town, run along the trails, enjoy a round of golf. Wherever you go in Longmont, you will find art. Established in 1987, Longmont’s Art in Public Places Program is funded through a one percent levy on most capital improvement projects more than $50,000. It is administered through the Longmont Museum and managed by the Art in Public Places Commission of the City of Longmont. In performing its duties with respect to art in public places, the commission shall give special attention to the following matters: 6 Art on Public Property August 8, 2020 A. Determination of whether works of art for a site should be permanent and owned by the city, temporary art, or art on loan; B. Conceptual compatibility of the design with the immediate environment of the site; C. Appropriateness of the design to the function of the site; D. Compatibility of the design and location with a unified design character or historical character of the site; E. Creation of an internal sense of order and a desirable environment for the general community by the design and location of the work of art; F. Preservation and integration of natural features for the project; G. Appropriateness of the materials, textures, colors and design to the expression of the design concept; and H. Representation of a broad variety of tastes within the community and the provision of a balanced inventory of art in public places to ensure a variety of styles, designs and media throughout the community. V. Salt Lake City Salt Lake City is calling on local artists, designers and community members to help create a Black Lives Matter mural at the entrance to City Hall. The City will outline the words “Black Lives Matter” directly off the east steps of the City and County Building and a committee will select design entries to fill each of the letters in the coming weeks. “We want to make it clear that Salt Lake City believes Black Lives Matter and is committed to real change in our community. We’re taking this symbolic step as a city to boldly acknowledge this movement and commit to our role in it,” Salt Lake City Mayor Erin Mendenhall said. “An important part of this for us is creating a space where artists and community members are able to come together to express their feelings on this movement.” “Black Lives Matter Utah is very excited about this mural. This mural is a symbol of how this country is changing, and coming to understand the movement,” said Lex Scott, Founder of Black Lives Matter Utah. “We have been in these streets working towards justice and equality for 6 years. Now we get a visual representation of our work and goals to truly achieve justice in this country.” This painting is legally considered “government speech” and in creating it, the city is not also creating a public forum for other messages. While the mural will be temporary due to materials, weather, and fading, the city plans to document it digitally for preservation. 7 Art on Public Property August 8, 2020 Links to sources • Connolly, B. J. (2017). Local Government, Land Use, and the First Amendment. Chicago, IL: American Bar Association. https://www.americanbar.org/products/inv/book/273018582/ • Forums. (n.d.). Retrieved August 08, 2020, from https://www.law.cornell.edu/wex/forums • City of Berkeley, CA, municipal code chapter 6.14. Retrieved August 08, 2020 from https://www.codepublishing.com/CA/Berkeley/?comp- Berkeley06/Berkeley0614/Berkeley0614.html • City of Palo Alto, CA, temporary artwork policy (2017, February). Retrieved August 08, 2020 from https://www.cityofpaloalto.org/civicax/filebank/documents/55993 • City of Columbus, OH, public art overview (c.d.). Retrieved August 08, 2020 from https://www.columbus.gov/planning/publicart/ • City of Columbus, OH, code of ordinances chapter 3115. Retrieved August 08, 2020, from https://library.municode.com/oh/columbus/codes/code_of_ordinances?nodeId=TIT31PLHIPRC O_CH3115COARCO • Longmont, CO, art in public places history and overview (n.d.). Retrieved August 08, 2020 from https://www.longmontcolorado.gov/departments/departments-a-d/community-services- department/art-in-public-places/aipp-history-and-overview • Longmont, CO, code of ordinances chapter 14.42. Retrieved August 08, 2020 from https://library.municode.com/co/longmont/codes/code_of_ordinances?nodeId=PTIICOOR_TIT1 4PUSE_CH14.42ARPUPL • Salt Lake City, UT, (n.d.) Salt Lake City Calls on Local Artists To Help Design Black Lives Matter Mural. Retrieved August 08, 2020 from https://www.slc.gov/mayor/2020/07/08/salt-lake-city- calls-on-local-artists-to-help-design-black-lives-matter-mural/ 8