Lawsuit filed against Palm Springs to stop removal of Frank Bogert statue from city hall

Paul Albani-Burgio
Palm Springs Desert Sun
A statue of longtime Palm Springs mayor Frank Bogert sits in front of Palm Springs City Hall, June 18, 2020.

A lawsuit challenging the removal of the Mayor Frank Bogert statue from Palm Springs City Hall was filed in Riverside County Superior Court on Monday.

The lawsuit was filed by former state Assemblymember Rod Pacheco on behalf of the Friends of Frank Bogert group that formed to defend Bogert's legacy last year. It argues that the city council ran afoul of city and state law in voting to remove the statue from the site in front of Palm Springs City Hall, where it has been located since 1990.

“We are seeking court intervention to stop that city decision because it's not based on law or fact,” Pacheco said.

Two months ago, the city council said the statue should be placed in storage if a new location could not be found and agreed upon within 60 days. That 60-day period ended Sunday.

The statue remains in place, but a city spokesperson said Monday that a new location has not been agreed on and that the city is planning to have it removed. 

Rod Pacheco

"We’ll be making an announcement soon about when that will occur," Communications Director Amy Blaisdell said. 

Bogert was mayor in the 1950s and '60s when about 200 people were removed from their homes on Section 14, a parcel of land belonging to members of the Agua Caliente Band of Cahuilla Indians. At the time, rules around how long such land could be leased for had recently changed, and the evictions, facilitated by the city, were intended to accelerate the economic development of the property.

The lawsuit lays out many arguments that Pacheco previously made during an appeal hearing held by the city about the removal of the statue. Among those arguments is that the city's historic preservation board erred in issuing a certificate of appropriateness needed to greenlight the removal of the statue. The issuance of that certificate was later unanimously upheld by the city council after Pacheco appealed the decision. 

The city's rules for issuing that certificate state that the city should allow an alteration to a historic site if it does not "impact or materially impair the character-defining features of a historic resource" and "the proposed alteration will assist in restoring the historic resource to its original appearance." 

During the hearing process, the city argued that the statue detracts from city hall as a historic resource because the statue was added decades after the 1957-1965 period when the building was constructed.

Ambassador of Aloha Waltah Clarke with Frank Bogert and philanthropist and socialite Elsinore Machris in front of Clarke's Hawaiian Shop on South Palm Canyon Drive, circa 1960.

The city says that is the period of significance that was the basis for why city hall was made a historic site. The 1996 resolution designating city hall as a historic site does not specifically mention the term "period of significance" as the basis for the designation but does state that its architecture is an "excellent example of the modernism architectural movement as designed and adapted by [architect Albert] Frey." 

However, Pacheco points to a 2012 resolution amending the initial resolution protecting city hall as a historic resource stating that the historic designation applies to “features” and “structures” on the city hall property — including the Bogert statue.

Pacheco has argued that resolution means that the statue is part of the historic resource protected by the historic designation and that a certificate should not have been issued because removing the statue would impair the resource and change the appearance of the city hall site from how it was when the 2012 resolution was passed.

He also argues that the city invented the period of significance rationale after realizing that a desire among some in the community to see the statue removed was not a sufficient legal basis for its removal under city law.

“Unfortunately, the rationale here is not availing and is merely an attempt to force a 'round peg into a square hole.' It should not be surprising that some public officials use obfuscation to achieve goals the law does not allow,” the lawsuit states.

The filing also argues that the city did not conduct the processes required by the California Environmental Quality Act for the removal of historical resources.

“Any proposed relocation of the Mayor Bogert statue requires an elaborate CEQA process typically involving an environmental impact report and other determinations by the lead agency, the City,” the lawsuit states. “Of course, a full public review of this process is part and parcel of the requirements. None of these rules have been followed, no [environmental impact report] has been done, the city has merely relied on an unqualified, and false claim of exemption."

The Frank Bogert statue in front of Palm Springs City Hall, Thursday, August 19, 2021.  Bogert served as mayor from 1958 to 1966 and from 1982 to 1988.

Pacheco also argued in the filing that the decision to remove the statue breaks a state law banning “anyone, including municipalities," of intentionally committing “any physical defacement, mutilation, alteration, or destruction of fine art.”

“Only the artist who created the fine art may authorize any alteration of their work,” he wrote.

Negie Bogert, Frank’s widow and the president of the Friends of Frank Bogert group, said in a statement issued by the group that the filing was the latest step in a fight to defend Bogert’s legacy.

 “With time running out to achieve a consensus, we are left with no other choice but to fight for my husband’s legacy as the kind, warm, and beloved public servant he was to all in Palm Springs. Frank was a fighter — first in World War II, then fighting for all in Palm Springs. Frank’s legacy is now being attacked by city officials who never knew him, and who are attempting to rewrite history for their own ulterior political motives. These attacks have made it feel like Frank has died all over again.”

Palm Springs City Attorney Jeffrey Ballinger told The Desert Sun on Thursday night that while he just saw the complaint hours earlier, it appeared to be "utterly devoid of any legal merit." 

"I anticipate the city will ask the court to dismiss the lawsuit, and I expect the city will prevail, as it has in other similar cases recently," he said. "It's very unfortunate that the petitioners and their attorney are resorting to a frivolous lawsuit like this." 

Ballinger added that he was not aware of any plans to delay the removal of the statue in response to the lawsuit. 

Middleton suggested new sites 

On March 30, Pacheco told The Desert Sun that Palm Springs Mayor Lisa Middleton had been in conversations with the Friends of Frank Bogert and suggested possible sites since the appeal hearing. 

"So far we haven't reached an accommodation but it hasn't been for lack of trying," he said. "I know the mayor has been very polite at least when our hearing was, and I can't say that for a couple of other city council members. ... She's been very solicitous about our opinions and trying to resolve the matter." 

Pacheco added that members of the group had been open to considering the new locations and gone to look at multiple locations suggested by Middleton. 

"We've gone to look at them and unfortunately, they're out of the way and kind of hidden, and that's really not what we're looking for," said Pacheco.  "I mean it's not an insult from the mayor, but it would be insulting to the family if this statue was kind of hidden behind a bunch of stuff."

One of the sites Middleton suggested, which Pacheco said members of the group had gone to look at, was the site of the Neuro Vitality Center on East Alejo Road. He said she had also suggested Sunrise Park.* 

"But Sunrise Park is public and the city council led by councilmember [Geoff] Kors had been adamant about anything being on public property," he said. 

Pacheco said his group has also repeatedly been given that feedback when it suggested another property: the Village Green on Palm Canyon Drive in downtown Palm Springs. He said that if the city agreed to relocate the statue there, the whole situation could be resolved. 

"I don't know why it's so sacred, but for some reason, it can't be on public property," he said earlier this month. 

Pacheco said in March that the opposition to the statue being on public property seemed to be coming from Kors and Councilmember Christy Holstege, although he was unsure if Councilmembers Grace Garner and Dennis Woods also shared that view. He said those were the two councilmembers who voiced the loudest opposition during the appeal hearing. 

"But it's all kind of noise to me," Pacheco said at the time. "I mean, if they want to resolve it, we'll resolve it. If they don't want to resolve it, because they can't work together or whatever, then we'll have a court resolve it. It's OK with us. That's where we want to be. I've never deluded myself into thinking we were going to get a fair hearing with the city."  

Correction: An earlier version of this story used an outdated name of the location on East Alejo Road proposed for the statue. It is the current Neuro Vitality Center.

Paul Albani-Burgio covers breaking news and the City of Palm Springs. Follow him on Twitter at @albaniburgiop and via email at paul.albani-burgio@desertsun.com.