City Hall

City Bent Contract Rules to Remove Lee Statue From Park

The Dallas City Council voted Sept. 6 to remove the Robert E. Lee statue from Lee Park.
The Dallas City Council voted Sept. 6 to remove the Robert E. Lee statue from Lee Park. Jim Schutze
Just after the Dallas City Council voted Sept. 6 to remove a statue of Robert E. Lee from a public park, a crane and work crew appeared to take it down. Municipal government is not known for its speed, and it is constrained by rules to make spending slow and therefore more transparent.

So how did the city come to spend an estimated half-million so quickly? The City Council isn't entirely sure, and those on the council offer differing views on how the contract, valued at around $450,000, was allowed to be signed without being put out for competitive bidding from contractors.

In some ways, it's not odd that the council voted for the removal without knowing how it would be accomplished. Laws prohibit these politicians from being involved in the specifics of contracting to prevent anyone from steering business toward friends or contributors. Council members can't recommend the city pursue a particular contract or even type of contract, leaving such matters to the city manager's office.

But a week later, some council members are unclear about what they voted for. Many others are confused over how the council will ultimately ratify the expenses it voted for, which is a vital part of its oversight responsibility.

The council members definitely knew when the removal would happen: Mayor Mike Rawlings told them the night before the Sept. 6 vote that the statue would be hauled away immediately after the vote, and they saw media reports that a crane was already at Lee Park.

The council questioned City Manager T.C. Broadnax about the price tag during the next day's meeting. He told them it would cost as much as $450,000 to remove the statue, a figure city officials tell the Dallas Observer has not changed despite a court order and fatal traffic accident that delayed the process. There was only one procedural complaint: Councilman Phillip Kingston, a longstanding proponent of removing the statue, pointed out that the vote occurred on a day reserved for briefings. The mayor overruled him, no one appealed and the council voted 12-1-1 to haul the statue away immediately.

Most city expenses over $25,000 must be put out through a bidding process. It includes public advertising of the job for two weeks, posts on city websites, and online questions and answers from interested vendors. Any expense more than $50,000 requires City Council approval. By state law, a contract made without compliance with competitive procurement laws is void. 

There are two exceptions: The city can decide the work is too specialized for an open bid and declare it a "sole source." For example, a previous sole-source procurement in Dallas dealt with maintaining proprietary software already in use by the city, bought in an earlier competitive process. No one else can do this but the company that owns the software, so bidding is useless.

If this were the rationale, the removal of a statue with a large crane, done in such a way that doesn't damage it, could only have been done by the crew that did the job. Hefting several tons of statue is a big job, but not exactly the rarefied air of a typical sole-source procurement. Broadnax later publicly cited difficulties in securing a crane operator because many others were busy or didn't want to be associated with the job.

The second way the city can rush the job is to designate an expense as an emergency. Spokesmen for the city confirm that the contract to take down the statue was considered an emergency expense.

City Councilman Scott Griggs is a patent attorney who has learned municipal parliamentary procedures. But he told the Dallas Observer this week that he understood that the statue had been taken down as a sole-source procurement. "I don't recall anyone saying emergency," he says. "We didn't declare an emergency."

The resolution that the City Council approved didn't say the word "emergency" and doesn't resemble earlier uses of the provision. City spokesman Richard Hill says that "the last item similar to the confederate monument was on Aug. 30, 2017" to fund the Office of Emergency Management's response to Hurricane Harvey. The $5 million item was called an "emergency supplemental addendum to the agenda."  

It was very clearly an emergency and was described as such. The resolution authorized the city manager "to execute agreements for goods and services resulting from emergency procurements necessary to respond to Hurricane Harvey and related weather events, including, but not limited to, associated flooding and displacement of individuals."

Scott Goldstein, chief of policy and communications in the mayor’s office, sent emailed replies to the Dallas Observer about the statue resolution. “Our understanding is that the city manager determined this to be an emergency in consultation with City Council members,” he wrote. “The resolution does not have to say the word ‘emergency,' but it did require the immediate removal and the city manager acted on it as such.”

Texas is pretty specific when it comes to what qualifies as an emergency. State law and city regulations lay out the circumstances starkly; the usual rules can be ignored if there is “a public calamity where it becomes necessary to relieve the necessity of the citizens or preserve the property of the city.” An emergency expense can also be authorized to preserve the public health or safety of the citizenry or in the event of unforeseen damage to property that disrupts vital city services.

This emergency spending was also authorized in 2012 during the fatal West Nile outbreak, when the city hired a plane to drop pesticide on the city. Then, the emergency declaration had its own paperwork, and there was no ambiguity over what the council was deciding, Griggs says.

District 7 Councilman Kevin Felder told the Dallas Observer this week that the council declared the statue removal an emergency but that he didn’t see or sign anything saying that. He voted for the statue's removal but chafes at the way the decision was presented to him.

“I wasn’t asked,” he says of the emergency declaration. “That was something crafted by the other three African American council members. They pushed that through.”

He adds he would rather have bid on the removal. “I think we should have gone through the process,” he says.

On the day of the removal, radio host Mark Davis asked Mayor Pro Tem Dwaine Caraway on a live Periscope interview on Twitter why there was such a rush. "It is an emergency for all the people of Dallas," Caraway said. He also invoked the July 6, 2016, shootings of five police officers at a police brutality protest in downtown Dallas, saying that “we did not need to revisit something that occurred a year ago. ... More rallies would mean that folks in our police would have been at risk at every single rally, every single weekend.”

The council cited the threat of impending demonstrations at the statue and said taking it down quickly would reduce the chance of an incident. But after a court's temporary restraining order and traffic accident delayed the removal, no chaos ensued. The gatherings during the removal and a subsequent rally proved to be tense but peaceful exercises of public assembly.  Pro-statue rallies have often doubled as venues to flaunt open-carry firearm laws, a legal display that nonetheless understandably puts police on edge.

“I think we should have gone through the process.” – City Counciman Kevin Felder

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The council was on edge, too. Caraway has claimed that some protesters "threw bottles" at an August pro-statue rally at City Hall, which he told Davis is justification for an emergency designation. Observer reporters at the scene didn't see the bottle throwing occur, nor did Dallas Morning News staff covering the event.

The Dallas Observer called Caraway for more details, but has not received a response. Caraway's comments suggest that City Council members felt the issue threatened them personally.

Dallas' resolution also came on the heels of a fatal attack on protesters at a statue in Charlottesville, Virginia. There, a white nationalist used a car to kill one protester and wound five others. The political atmosphere in early September was charged by the national revulsion over white supremacists using Confederate monuments as rallying points. The council cited this national mood as a justification for immediate action during its Sept. 6 meeting. The meeting’s agenda states the council’s action was in response to “unrest across the country over the presence of Confederate monuments in city centers.”

The City Council doesn't always react so quickly to a perceived emergency. Less than a year before the 2016 fatal attack on police in Dallas during a national outpouring of anger against fatal law enforcement shootings, a gunman opened fire on police headquarters. Police demanded more security at station houses. Instead of quick infrastructure fixes, the council eventually voted to spent $1 million for improvements, but not before undertaking a $125,000 study of how to spend the $1 million.

"This was a decision about morality, about right versus wrong." Scott Goldstein, of the office of Dallas Mayor Mike Rawlings, on removing a Robert E Lee statue from a public park.

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The council could just as easily have declared an emergency, waived contracting rules and build fences around the stations' parking lots. What qualifies as an emergency, or even the rationale behind a sole-source contract, is in the eye of the beholder — the unelected city manager.    

What comes next is a source of confusion inside City Hall. State law is also pretty clear regarding the way the council tracks spending in cases in which an emergency or sole-source contract has been issued without traditional bidding. At some point, the council must ratify the expense, whatever it turns out to be.

How that will happen in this case is unclear. In an email, city spokesmen said "it will be put on a Council agenda at some point." Goldstein said the mayor's office "expects the costs for the removal to be finalized in the coming weeks and the item to appear on a voting agenda."

This ambiguity is manifesting at City Hall. Griggs says that confusion bubbled over Monday when the Budget, Audit and Finance Committee rejected a line item asking for large cranes from two companies to be made available to the city for three years.

"A theory going around was that this was statue related," Griggs says. "City staff don't have the answers, and so that was not approved."

Griggs says the council became leery that this was a way to ratify some of the city's expense of removing the statue, preparing for a pending move of the Lee statue or preparing for more removals of more statues. Or, he says, it could be unrelated. "No one said the word 'statue,'" he says. "But no one could answer what they'd be used for. It was bizarre."

An explanation of the request for more cranes is pending, he says.

The thought behind the removal was no statue, no protests. However, protesters gathered around the empty pedestal Saturday. The event organizer, the Texas Freedom Force, worked with the city while planning the event. The organization, police said in a bulletin issued before the rally, “estimated [a] crowd of 200 will also be armed as they are a pro-open carry group. The organizer is stressing that this is a peaceful event, and is working with DPD. … The safety of our officers and citizens is the primary concern as individuals or groups gather to express their First Amendment rights.”

This is in line with DPD's willingness to police events with large crowds, even politically charged ones. Dallas is not known for large rallies against police brutality, but there have been several since July 2016. Pro- and anti-Trump rallies have also occurred, with few isolated incidents, since the mass shootings. The city has allowed these gatherings, and the Dallas police have deployed large contingents of officers to make them happen safely.

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Lee takes his last ride out of the park that bears his name.
Brian Maschino
This weekend’s rally around the pedestal was hardly incendiary. Texas flags, Confederate banners and Trump signs waved. One Dallas Observer reporter said the crowd was “chill,” and a freelance photographer apologized to editors that it was “boring.”

Police reported one arrest for disorderly conduct, stemming from a short fistfight. A TV crew on the scene showed footage of the arrested man, who was wearing a Black Lives Matter T-shirt and got in a shoving match with statue supporters. Observer columnist Jim Schutze reported a few altercations but lots of conversation, prompting him to write that "more face-to-face debate about slavery and the Civil War probably took place last week than has happened in Dallas since the Civil War."

At the end of the day, the city has learned a way to circumvent the bidding rules whenever it determines the politics are too hot to handle. The work of the Confederate Monument Task Force, established in the Sept. 6 vote, will likely suffer from the message of mistrust delivered to statue defenders by the city in this first, rushed removal.

Griggs says the process has alienated the council and citizens alike, and he blames the mayor for announcing and repeatedly reducing the removal timeline. "First it was December, then it was October, then the vote was next week," he says. "Then it was: We're removing it tomorrow."

The mayor's original timeline gave the impression that he'd make room for public debate, but he backed away from that expectation in small steps, Griggs says. The result "is what's driving a lot of anger over this. To be told you'll help decide the statue's fate and then have it taken away, that's on the mayor. He changed the rules of engagement of this process."

Goldstein says Rawlings is not second-guessing his choices. "The mayor felt comfortable with the process for the reasons he stated on the day of the vote, most notably that the events in Charlottesville highlighted the fact that this statue is widely viewed as a totem for hate and racism,” he says. “This was a decision about morality, about right versus wrong. The task force is continuing to do important work to make recommendations on other decisions that remain.”
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Joe Pappalardo is the former editor-in-chief of the Dallas Observer.
Contact: Joe Pappalardo