Fight in Concord over removed Gurley Flynn historical marker takes new approach

A historical marker dedicated to Elizabeth Gurley Flynn stands in Concord in May.

A historical marker dedicated to Elizabeth Gurley Flynn stands in Concord in May. AP file

By DAVID BROOKS

Monitor staff

Published: 12-17-2023 8:13 AM

One of the supporters of the controversial Elizabeth Gurley Flynn historical marker says the state program that installed and then removed the sign is operating without the necessary legal rules, and he has proposed a solution: He can write them.

“Since the program’s operation without any existing rules makes it vulnerable to the political and ideological whims of elected and appointed officials which may be at odds with the program’s purpose, I hereby petition the Department of Cultural and Natural Resources to commence a rulemaking proceeding,” wrote Arnie Alpert in a Dec. 6 letter to Sarah Stewart, Commissioner of the DCNR.

Included with the letter are his proposed set of rules. “The purpose of this petition is to remedy this failure by proposing rules which will enable the program to operate consistent with its statutory obligations.”

Among his proposed rules: “Approval or rejection of proposed markers shall be based on the program’s goals and priorities, not on any ideological or political consideration.”

The rules also say that “retirement and/or revision” of an existing marker must be proposed by Division of Historical Resources staff and “reviewed and approved by the State Historic Research Council at a public meeting, with the SHRC’s decision recorded in official minutes.”

Gurley Flynn, born in Concord in 1890, was known as a fiery member of the labor movement, supporting such issues as birth control and the right to vote. She became a leading member of the Communist Party and, according to her obituary in the New York Times, her body was laid in state in the Soviet Union.

The historical marker was removed from a parking lot near where Gurley Flynn was raised after Executive Councilors Joseph Kenney and David Wheeler, both Republicans, objected because of her connection to the Communist Party. “It’s not part of my history,” Kenney said in one meeting, while Wheeler said he was “totally offended” by the sign, according to news reports.

Alpert’s application for rules is separate from a lawsuit in Merrimack County Superior Court arguing that the removal of the sign less than two weeks after its May 1 installation violated informal guidelines about writing and maintaining the more than 28o roadside historical markers around New Hampshire.

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The state has moved to dismiss the lawsuit, which was filed by Alpert and Mary Lee Sargent, the two main advocates for the Gurley Flynn sign. No hearing date has been set for that motion.

Like all state agencies, the DNCR has rules and regulations for how it operates. Many agency rules are established after a formal procedure that involves notifying the public, holding hearings, and going before the Legislative Committee on Rules, but many other rules never go through that process.

Alpert argues that the historical marker program does not have the option of side-stepping the formal process because of wording in state laws that established it in 1958, which he said requires such a process.

“None of the historical marker program procedures or guidelines have ever been put through the required process,” said Andru Volinsky, an attorney representing the case. “They are technically considered rules but because they were never promulgated property they have no force and effect.”

Alpert’s rules list a variety of reasons why a marker can be created and installed, including historical significance and the existence of supporting information.

As has long been the rule, living people cannot be honored and the subject of a marker must have been dead for at least five years. The bulk of the state’s historic markers concern buildings and events, rather than individuals.