Bi-Weekly Roundup

Highlights from the Financial Affairs, Community Affairs, and Government Affairs meetings last week

→ If a city owns a flag pole, they can mostly put whatever they want at the top of it. The government can use the flag pole to express certain points of view, and they can also decline to express certain points of view. The city can even let some people put up their own flags if they feel it aligns with the city’s values, and they can decline to let other people put up theirs if they don’t.

But if the city let’s, like, 248 people raise their flags and they never even ask to see the flag before saying Yes, then it starts to seem less like the city is practicing government-speech-via-raising-of-flags and more like the flag pole is just a way for ordinary people to exercise their right to free speech. And the government is totally not allowed to abridge people’s freedom of speech.

This is essentially what the Supreme Court decided in a unanimous 9-0 decision earlier this year when a Christian group sued the City of Boston for denying their request to fly a Christian Flag at City Hall despite the City of Boston having no official policy for when to approve or deny these requests and despite never having denied the requests of the several hundred previous people who had asked:

The question remains whether, on the 20 or so times a year when Boston allowed private groups to raise their own flags, those flags, too, expressed the city’s message. The circumstantial evidence of the public’s perception does not resolve the issue. The most salient feature of this case is that Boston neither actively controlled these flag raisings nor shaped the messages the flags sent. To be sure, Boston maintained control over an event’s date and time to avoid conflicts, and it maintained control over the plaza’s physical premises, presumably to avoid chaos. But the key issue is whether Boston shaped or controlled the flags’ content and meaning; such evidence would tend to show that Boston intended to convey the flags’ messages as its own. And on that issue, Boston’s record is thin. Boston says that all (or at least most) of the 50 unique flags it approved reflect particular city-endorsed values or causes. That may well be true of flying other nations’ flags, or the Pride Flag raised annually to commemorate Boston Pride Week, but the connection to other flag-raising ceremonies, such as one held by a community bank, is more difficult to discern. […] All told, Boston’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads the Court to classify the third-party flag raisings as private, not government, speech.

[…]

Because the flag-raising program did not express government speech, Boston’s refusal to let petitioners fly their flag violated the Free Speech Clause of the First Amendment. When the government does not speak for itself, it may not exclude private speech based on “religious viewpoint”; doing so “constitutes impermissible viewpoint discrimination.”

The City of Wauwatosa definitely does not want just any old yahoo raising their flag in front of City Hall. And so they passed, with unanimous approval during this week’s Common Council meeting, a resolution that lays out an official policy for which flags can be raised and how special requests will be approved (usually by vote of the Common Council). Permitted flags include:

1. The United States flag

2. The Wisconsin state flag

3. The City of Wauwatosa flag

4. City departmental flags adopted by the Common Council

5. The POW-MIA flag

6. The United Nations flag (per 1976 citywide referendum)

   • Mayor McBride gave some historical background here, noting that “when I was a paperboy” the John Birch society would protest at City Hall every year during United Nations Day which ultimately precipitated the referendum above to officially allow flying the United Nations Flag.

7. The Tree City USA flag

8. The Bird City Wisconsin flag

   • Flags (7) and (8) are actually the flags of two separate non-profit organizations, the Arbor Day Foundation and Bird City Wisconsin (Motto: “Making our communities healthy for birds…and people”). I’m not sure why they get explicitly included here, but okay.

They will not allow the flying of flags that express:

1. Support of political parties or candidates for local, state or federal office, or flags associated with partisan political campaigns and messaging;

2. Messages associated with advertising or marketing of corporate or for-profit organizations not associated with specific city activities;

3. Religious messaging which would implicate the Establishment Clause of the United States constitution;

4. Content which would violate one or more city policies, including but not limited to conflicts of interest, discrimination against one or more groups of individuals, or expressions of violence; and

5. Messages which are inconsistent with the adopted vision and mission of the City of Wauwatosa.

Number (3) is interesting, because the Supreme Court kind of waffled on this point. In the majority opinion, Justice Breyer claimed that the Establishment Clause didn’t apply because the Court had already found that this was a Free Speech issue not a Government Speech issue: “When a government does not speak for itself, it may not exclude speech based on ‘religious viewpoint’; doing so ‘constitutes impermissible viewpoint discrimination.’”

However, several Justices, in concurring opinions, made the point that even if it was government speech, the establishment clause wouldn’t apply. Justice Kavanaugh phrased it this way: “As this Court has repeatedly made clear, however, a government does not violate the Establishment Clause merely because it treats religious persons, organizations, and speech equally with secular persons, organizations, and speech in public programs, benefits, facilities, and the like. See, e.g., Zelman v. Simmons-Harris, 536 U. S. 639 (2002). On the contrary, a government violates the Constitution when (as here) it excludes religious persons, organizations, or speech because of religion from public programs, benefits, facilities, and the like.”

That said, and although my knowledge of the law mostly stops at Wikipedia, concurring opinions don’t actually have binding precedent for lower courts, so if someone sued the City of Wauwatosa because they denied his request to fly the Flag of Islam at Hart Park, I don’t know what would happen.

But wait, there’s more. If you thought discussions of flag raising policy were low-energy affairs, you would be wrong. At one point during the Government Affairs meeting after the resolution had been discussed for about 15 minutes, Ald. Lowe asks to address the committee. It was actually not clear what prompted his comment the first time I watched it, but I think it was this somewhat cryptic exchange between Ald. Moldenhour and City Attorney Alan Kessner shortly prior.

Ald. Moldenhour: The concern that I have is that, I’ll just come out and say it, and I think when we had the discussion about some other things that were transpiring over the last year-and-a-half over city display of things—and that includes street murals and things like that—and I think this case speaks to the fact that if you have something that’s city-owned and you do something with it […] we have other aspects […] that we have to be very concerned about under this ruling. Is that a fair way…

City Attorney Alan Kessner: That is correct, there was for example, there was specific concern, there was an informal proposal that never came all the way to council about painting certain designs on the streets themselves. And this same legal concept was actually my caution to the people that were considering that. [It] was that if the city sponsors that then we have to do it consistent with a policy and [we’re] doing city speech so we have to make sure we’re doing it appropriately if we do do that.

Ald. Moldenhour: Yeah, so that’s where I’m going with this. I just want to bring it up, that my reading of this case is that this gets into […] this sort of thing where we have a city-owned property or something that’s under control of the city that becomes a public forum. And we have to be very concerned as a result of this ruling…because if you followed the City of Boston, and you don’t allow one organization to come in for whatever reason and allow another organization [to] do something, you have to let everybody do everything.

[The City Attorney agrees, there’s some more back and forth, and then Ald. Moldenhour expresses a few concerns he has with the text including one related to reason number 5 for disapproving a flag which says, “Messages which are inconsistent with the adopted vision and mission of the City of Wauwatosa.”:]

Frankly, I would like to include ‘values’. Because we have that as part of our Strategic Plan. We have a mission, and we have a vision, and we have values. And if it’s codified in the Strategic Plan, I think it should be codified in that phrasing as well. […] Other than that, I like the policy and I think it’s something we should have.

There’s some more back-and-forth among members of the committee, and then Chairman Ald. Tilleson calls on Ald. Lowe.

Ald. Lowe: *[heavy sigh]* I don’t even know where to start. So, instead of dancing around the issue let’s just put it on the table. *[Addressing Ald. Moldenhour, I think?]* So, you’re referring to the Equity and Inclusion Commission asking for Black Lives Matter to be on the street. So let’s just call out what we’re talking about. The only reason I did not push that further—

Committee Chair Ald. Tilleson: Ald. Lowe, you can’t attack a council member. You can direct it to the committee. You can’t look directly at one council member and lecture him.

Ald. Lowe: Since when can’t you look directly at one council member and—

Ald. Tilleson: Right now. Direct it to the committee.

Ald. Lowe: I am directing it to the committee. I can look at whoever I want to look at though. That’s not a rule, that you can’t look at somebody.

Ald. Tilleson: Decorum rules. I’m not going to allow you to attack a committee member in front of the rest of the committee. You can address the committe if you want as a whole. You cannot look at one committee member and lecture him.

Ald. Lowe: Cool. I’ll remember you said that for the minutes. That you cannot look at one committee member. So I got new rules. Okay. So, what I’m getting at is there was a discussion 5 minutes ago regarding the Equity and Inclusion Commission’s proposal to put Black Lives Matter on the street. And there was a lot of discussion on that.

The only reason that’s not going to be on your agenda next week is because I felt that, watching what was happening around the nation, I did not like—and I felt that the Wauwatosa Police, the Fire Department, the City, and everyone else was going to deal with too many graffiti issues regarding it. Because what I watched is these beautiful displays went up in other cities, is they constantly were attacked with graffiti.

And I didn’t want to see that side of Wauwatosa—which certainly does exist—come out and be displayed. And it certainly does exist, because the Mayor and other people got emails very upset about this even being proposed. So that’s what I’m getting at. There was a discussion with two people regarding this issue, so I addressed that discussion that just happened.

So, with that being said, if this does get approved, you best believe if there’s any Black Lives Matter flag in the Wauwatosa parking lot, or property, whatever…it’s not a political flag, and it certainly falls in line with my values.

That’s what I wanted to say. Thank you.

Ald. Tilleson: Thank you, Ald. Lowe.

Ald. Lowe: Mmhmm.

I found the exchange a little confusing. I couldn’t exactly tell if Ald. Lowe was upset about the resolution itself, Ald. Moldenhour’s comments, or residents of Wauwatosa because he felt they would deface a Black Lives Matter street mural if one was put up.

It also wasn’t clear to me whether the likelihood of the City allowing a Black Lives Matter mural to be painted or a flag to be flown became more or less likely after the resolution was passed. Although, maybe to Ald. Lowe’s point, there didn’t seem to be much appetite for it in general. The Mayor, speaking after Ald. Lowe’s comment, said:

There are times when symbolic speech is appropriate and other times when it just courts controversy and divides our community even further than sometimes it is divided. On the issue of the Black Lives Matter mural and painting the streets, if we would fly a Black Lives Matter flag, we would be immediately asked to fly a Blue Lives Matter flag or a Back the Badge flag. And I don’t just speculate that. In just about every other city there have been such controversies. I think it would be safer, more appropriate if we flew a Juneteenth Day flag for example. A little less loaded. Still the same general statement. Just as the Pride flag is that we support, as a city, value, [and] envision the equality of all people.

→ Harlow and Hem, the proposed apartment complex occupying the corner surrounded by Harwood Avenue, Wauwatosa Avenue, and Blanchard Street received final plan approval at this week’s Common Council meeting. Construction will begin sometime…in the next year. The current plans call for 15 studio apartments, 58 1-bedroom apartments, 43 2-bedroom apartments, and 14 3-bedroom apartments. Twenty-six of these apartments will be for workforce housing which means they’ll be rented at below-market rates. Twenty-two will be priced at rates affordable for individuals at 80% of the Area Median Income (AMI) and 4 studio apartments will be priced at rates affordable for individuals at 30% AMI. The Census Bureau says AMI for Wauwatosa is $46,300 per year.

Mandel Group’s Concept Design submitted to Community Affairs Committee

One attendee of the Community Affairs meeting did express worry about the modern aesthetic of the building andthought it might detract from the downtown area’s appeal as a “European village.” He was also concerned about the lack of condos and other opportunities for home ownership, thought homeowners might take better care of their properties than renters, and felt the City’s planning department seems to be more aligned with the interests of developers than with the electorate. Finally, he emphasized that Wauwatosa is a city of homes and worries about the elimination of single-family zoning—something that is occurring in other cities and states.

While all committee members were ultimately in favor of the development, Ald. Meindl from District 1 did take the opportunity to make his own statement about the lack of condos and homeownership options for residents in the community which led into a broader statement on the general unaffordabilty of housing in the United States and the difficulty young people have building wealth. “Those 50-and-above own 15 trillion in the real estate market. Those under 40, likely due to the pandemic and other things, own less than a trillion,” he said.

He expanded on this comment during the Common Council meeting the next week. I think there is more to say, but I’ll probably wait until next week.

→ If you think about diversity and discrimination from an economic perspective, one implication of, for example, only hiring from a restricted subset of the population is that you have artificially reduced your labor supply. If there is some fixed demand for workers but employers only hire men or those under 40 even when there are many women or 41-year-olds who could do the job just as well, you should expect to pay more for them given employers are fighting over a smaller pool of potential workers. The corollary is that there is relatively less demand for people in the disciminated group and so either they should be cheaper to hire or you should be able to get higher quality work for the same price. A non-prejudiced employer should actually have a competitive advantage because he can get labor more cheaply.

But it doesn’t seem to work this way. One reason are search costs. It can be easier to hire people you know or who live nearby, but costly to recruit outside the immediate area even if the workers are better, because it might require different, more expensive methods of advertising, or relationships and expertise that recruiters don’t have. Or there might be an artificially low supply of women and 41-year-olds with particular skills because discrimination occurs in other parts of the training pipeline. Or it just might be more difficult to identify certain groups of workers and notify them of potential opportunities.

So something that theoretically might save money can actually cost tens of thousands of dollars. $71,444 to be exact. This is the amount of a proposed contract between the City of Wauwatosa and a company called Prism Technical that was presented to the Financial Affairs committee last week. A developer, MSP Real Estate, was recently approved to develop a 50-unit apartment complex at 6400 River Parkway. Because the project lies within Tax Incremental District 8, it is eligible for some amount of tax credits or subsidies which the City has agreed to provide on the condition that most of the apartments be priced affordably and that:

the Developer hire or sub-contract with firms registered as Disadvantaged Business Enterprises with Milwaukee County or the State of Wisconsin Department of Transportation to complete 25% of the construction and professional services work. In addition, the developer is required set a goal of hiring 25% of their additional construction work force from distressed zip codes within Milwaukee County. This is a requirement of the City’s Procurement Equity policy.

It turns out this is actually a pretty hard goal to meet. And it’s difficult for the City to monitor for compliance. So they want to hire a firm that specializes not only in making sure the developer tries to meet these goals but that will also assist them in identifying which skilled trades have more or less Disadvantaged Business Entities (DBEs) to sub-contract to, connect the developer with various training agencies, and then provide a report to the City after the project’s completion.

Prism Technical apparently provided a similar service to the City of Milwaukee when the Northwestern Mutual Tower was being built, Wauwatosa itself is currently working with Prism Technical as part of another development project, and everyone seems like they’ve been pretty satisfied.

I find Prism Technical’s business model interesting. Mostly, I wonder what specific insight companies like this have into the supply of skilled labor that MSP Real Estate doesn’t. It seems like “where to find workers” would be a skill that’s very important for a developer to have in-house. I also wonder why the City pays for these services rather than the developer themselves. I think the answer to the last question might be because these workforce requirements were added after an initial agreement with MSP Real Estate was made, but it’s not entirely clear.

In any case, the contract was approved unanimously by the Common Council this week.