City's legal office had vigorous debate on historic issues for Confederate monument

The removal of two statues from the “Women of the Southland” Confederate monument was not an action that required Mayor Donna Deegan to first get a certificate of appropriateness from the Jacksonville Historic Preservation Commission, the city’s general counsel told City Council.

City Council members questioned Michael Fackler, the city’s top attorney, during the Rules Committee meeting Tuesday, less than an hour after Fackler released his legal memorandum regarding the controversial monument removal.

Council members took issue with various parts of the opinion – from the definitions the relatively new general counsel used to Fackler’s conversations with the mayor’s administration about the forthcoming opinion.

“There's been changes, arguments back-and-forth and new reasoning to justify that action that occurred, and I just want to make sure that we're not starting with the decision and then working backwards through the code and the charter to justify it,” Nick Howland, a City Council member, said during the meeting Tuesday.

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Prior to the release, the opinion also brought sharp debate within the Office of General Counsel, stemming partly from previous legal advice against a mayor’s authority to remove the monuments without a certificate, according to emails obtained by the Times-Union through a public records request.

Debate over the ethics of keeping Confederate monuments converted into debate over how they were removed on Dec. 27 after  Deegan approved the removal of bronze statues portraying a woman holding a Confederate flag on top of the monument and a woman reading to two children inside it.

The $187,000 to pay for taking down those statues came from the Jessie Ball duPont Fund and 904WARD, both Jacksonville nonprofit organizations, and 904WARD contracted with ACON Construction for the work.

The legal issues posed by council members since its removal have included whether City Council approval was necessary for such work when private money was used and whether the monument's location in a historic district meant it fell under certain protections in the city's ordinance code for preservation.

Though some members of council discussed the opinion Tuesday, City Council President Ron Salem will hold a public meeting next week for all members to question Fackler. Salem requested the official opinion from the Office of General Counsel and said Tuesday he still had concerns regarding how Fackler reached his decision.

“I am concerned that we were trying to find an opinion that it took in order to accomplish a project,” Salem said. “... I want a general counsel that calls balls and strikes, and I'm concerned that that was not what occurred in this opinion.”

OGC releases official legal opinion

Fackler worked with Assistant General Counsel Craig Feiser on a draft legal memo in December that Fackler said was the basis for him giving his advice to Deegan.  Salem and Howland then asked Fackler to put his finding into an official binding opinion that Fackler presented Tuesday.

The resulting final opinion solidified previous stances while also prompting new questions.

Fackler and his staff – which included former General Counsel Jason Teal – came to a consensus on the final draft, he said Tuesday. In doing so, the opinion maintained Fackler’s previous statements that Deegan had the authority to use private financial and in-kind donations without City Council approval for the project, given the funds were not taxpayer dollars.

Salem proposed new legislation following Fackler’s original explanation that would prevent future mayors from using such donations without approval. The bill will go through the committee process next month.

City Council focused Tuesday, however, on Fackler’s opinion that the removal did not require a certificate of appropriateness normally considered necessary for work on property in historic districts – and the process of coming to that decision.

The city created the Springfield Historic District in 1992, covering an area that includes the park, which used to be called Confederate Park. The district, including the park, also is on the National Register of Historic Places.

The application to the U.S. Department of the Interior in 1987 to designate Springfield neighborhood on the National Register of Historic Places describes the historic significance of the park. The application's list of "contributing properties" to the historic district includes the monument.

The Jacksonville ordinance code describes the need for a certificate of appropriateness when altering properties in such historic districts. But, Fackler’s opinion looked at the legislative history and found an exhibit of the original 1991 ordinance that specifically described the actions necessary for the certificate. Fackler said the removal of the statues from the “structure” – not “building” – did not meet the standards.

The city has previously treated all structures in Springfield Park as needing a certificate of appropriateness, but Fackler’s opinion says not every action taken on the monument requires one. The guidelines outlined in city code, for example, specify that cleaning the structure needed a certificate – which the city obtained in 2007.

“Because the Code requires that all actions requiring a COA be listed in the designation ordinance… the City is prohibited from requiring a COA for alteration of the Monument,” the opinion says. “If the City Council desires to prohibit such an activity from occurring on any of Springfield's non-buildings in the future, it should consider amending the Code or the specific legislation to specifically require that.”

Records show internal debate in OGC

Prior to reaching a consensus, Teal, now a senior assistant general counsel, wrote in a Jan. 8 email to other attorneys that he completely disagreed with a conclusion that the monument did not fall under protections in the city's ordinance code for historic preservation.

In arguing against a legal conclusion that the city's historic preservation requirements did not apply to the monument, Teal wrote in his email that "what is being overlooked and is unexplained" is that the actual address of Springfield Park is "separately and independently listed" on the list of contributing structures for the historic district.

"If you read the local historic designation application — which was accomplished by virtue of the submission of the National Register application documents as allowed by code — the significance of Springfield's parks, and their monuments, is clearly identified as contributing to the historic fabric of the area," Teal wrote.

He said the Confederate monument is "specifically and repeatedly referenced in the application documents as being an important part of the park, and a map of the Springfield historic district attached to the application clearly depicts the monument and the other structures within the park as contributing structures."

He wrote that between 2007 and 2012, the city parks department applied for at least four certificates of appropriateness to do work at the park, including one certificate to clean and repair the Confederate monument.

Teal gave similar advice in July when he concluded any attempt to alter the Confederate monument would require the Deegan administration to apply for a certificate of appropriateness.

The planning department's historic preservation section would evaluate the application and the Jacksonville Historic Preservation Commission would decide whether to issue the certificate. Any appeals of the preservation commission's decision would go to City Council.

The OGC team considering the opinion, including Teal, met after he sent the Jan. 8 email. Fackler said they then came to an agreement.

This article originally appeared on Florida Times-Union: Historic protection at issue in Confederate monument removal