Less than a week after directing the city manager to remove the Confederate fountain from Hill Park, the Helena City Commission on Monday passed an emergency ordinance suspending a review process for historic structures so the monument could be taken down immediately for safety reasons.
The commission’s abrupt decision last week to remove the Confederate monument without taking a formal vote has left some questions about whether the proper procedures were followed.
A group of Native American lawmakers in Montana called on the city to remove the granite fountain from Hill Park in downtown Helena on Aug. 15, and the commission directed the city manager to make that happen as soon as possible during an administrative meeting the next day. City staff removed the monument from its pedestal and took it to an undisclosed location Friday.
Commissioners cited the recent white nationalist rally in Charlottesville, Virginia, and violence including the death of a counter-protester, for their quick action on the fountain.
Since the fountain is listed on the National Register of Historic Places, Lewis and Clark County Heritage Preservation Officer Pam Attardo said it is subject to a city ordinance that requires a special review process for historic structures.
According to the city code, “No historic structure shall be demolished without obtaining a demolition permit from the director of building and safety.” The historic preservation commission is then required to conduct a public meeting and make a recommendation to the city commission, which must then decide whether to grant the permit.
The same city ordinance was cited in a recent lawsuit seeking to prevent the planned demolition of historic Central School. However, district Judge Michael McMahon ruled that Helena Public Schools is not subject to the ordinance and has “exclusive and sole authority” over its property as a government entity.
The city as a government entity is also not subject to its own historic preservation ordinance, according to the city’s legal analysis, although historic reviews are typically done.
After noting the commission’s opinion that the presence of the fountain presented a public safety concern, Monday’s ordinance suspends the city code requiring historic review “for the sole purpose of facilitating the removal, without delay, of the Daughters of the Confederacy Fountain.”
Mayor Jim Smith said Monday he believed deputy city attorney Iryna O’Connor, who attended last week’s meeting as legal counsel, would have advised the commission “if we were treading on ground that was not legally sound.”
In an interview before Monday’s commission meeting, city manager Ron Alles said the safety ordinance aimed to clear up legal questions about the removal, but emphasized that the commission chose to act quickly in the interest of public safety.
“They weren’t going to allow folks to use that as a lightning rod in Helena, Montana,” he said.
Commissioner Robert Farris-Olsen challenged the ordinance’s language that the “Helena City Commission heard numerous public safety comments expressing public safety concerns,” saying that the majority of comments he heard centered on the monument's Confederate status.
Commissioner Dan Ellison disagreed, saying he felt comments did express a public safety concern.
The only public commenter Monday was Gerald Hutch, who delivered scathing remarks to the commission, in part telling them that he believed they “dishonored all the veterans in this country with their actions.”
City attorney Thomas Jodoin said the safety ordinance would “button up any legal arguments otherwise” as to why the commission and the city removed the fountain without the full review process. While the city is not required to follow its own historic preservation code, the code, as a zoning regulation, does have state public hearing requirements. Those state requirements were addressed when the commission took public comment last Wednesday and the city moved for its stated reason of public safety, he said.
Jodoin also said that he did not believe there was a public notice issue with how the commission acted either last week or Monday night.
Neither one of the commission's two discussions about the fountain in the last week was posted on an official meeting agenda.
Helena attorney Mike Meloy, who specializes in open government issues, told the Independent Record he believes the commission "technically" violated open meeting law by leaving the fountain issue off of the agenda last week. However, he said news reports announcing the meeting could ward off any potential legal claims regarding the absence of a formal notice.
Alles cited the same news reports and attendance and public comment at last Wednesday’s meeting when asked about the agenda. The agenda had already been posted before the events in Virginia, and commissioners can bring up issues of interest on their own outside of the agenda, he added.
“Any commissioner can discuss any topic at that time,” O’Connor told the Independent Record. Different types of items require different legal notices, such as land use regulations, while others are more general.
But Wednesday’s direction by the commission was a departure from the procedure commissioners followed last time they took up the Confederate fountain, although that decision did not include a public safety component.
In 2015, the commission asked the Lewis and Clark County Heritage Tourism Council to draft language for an interpretive sign to accompany the memorial. The commission then voted at a later commission meeting to approve language recommended by the council.
When asked why the commission voted on language for an interpretive sign but not removal of the fountain, Alles indicated that the commission in the first case used discretion to vote, but he felt it was optional.
Answering the same question, Ellison said commission members do not vote during administrative meetings, but on issues of consensus that “don’t require a resolution of intention” they give direction to the city on “more of an operational running of the city kind of matter.”
Smith said he was unsure about the proper procedure, but felt the commission acted “in the face of what it thought was a critical public safety need.”
According to the city charter, the commission is bound to take votes on taxes and must hold a public hearing for any ordinance or resolution regarding fees. It does not mention voting versus non-voting measures outside of those instances.