Who will decide what happens to 38th and Chicago?

As pressure mounts to re-open the intersection where George Floyd was killed, Minneapolis Mayor Jacob Frey and City Council members can’t agree on who’s responsible for deciding the future of 38th Street and Chicago Avenue — and are fighting it out in press releases.

The four-block area around where police officer Derek Chauvin killed Floyd has been managed by activists as an “autonomous zone” since May, shut off from car traffic and largely free of police presence. A community has formed to maintain an expansive memorial to Floyd and also run a medical tent and even a greenhouse. But the area has also suffered from gun violence and activists have formed an awkward alliance with the Bloods gang.

The mayor, who announced Thursday that he’s running for reelection, has been quietly lobbying the City Council to sign onto a letter addressed to three members of the group Meet on the Street, urging them to allow the city to reopen the area to traffic. He’s been working with Council Vice President Andrea Jenkins and Council Member Alondra Cano, whose wards meet at 38th and Chicago and who are under intense pressure from their constituents to return order to the area.

The letter is meant to present a unified front among city leaders, showing resolve to activists who say they won’t cede the square until a list of demands are met. The letter would also shield the mayor and two council members who represent the area from feeling the entire brunt of any political backlash, as moves to break up the autonomous zone could become confrontational, drawing widespread — perhaps even national — media attention.

The letter is addressed to three Meet on the Street members asking them to work with the city on two “interim winter design concepts” the city created in October that restore car traffic as well as allowing “within the next few weeks, the removal of the external barricades where necessary.”

“We know we must protect the existing memorial in the street through harsh winter months. We also must meet our civic obligation to reconnect neighborhoods, improve (American with Disabilities Act) and transit access, and support local businesses,” a draft of the letter obtained by the Reformer reads.

The letter is already two months old — dated Nov. 23 — but was never sent. At the time, at least three council members said they wouldn’t sign it, saying doing so violates the council’s legislative process and gives the appearance of backroom decision making. In September, when the City Council and mayor sent a letter to community members in south Minneapolis about recovery efforts from the civil unrest, they did so only after it came before the council and was voted on.

The letter resurfaced this week, after a Star Tribune editorial called for the city to make a decision and quoted the mayor saying “clearly we need a decision.” Bender released a statement on Tuesday, explaining her decision not to sign the letter, calling it an “end-run” around the council’s legislative process.

“The Mayor has both the responsibility and authority to make that decision based on over 80 community meetings that have taken place since May,” Bender wrote in a tweet. “Either the Mayor uses the authority he already possesses to reopen 38th and Chicago as he sees fit, or the council begins the normal, public legislative process of making this decision for him.”

On Wednesday, Frey, Jenkins and Cano — who declined interview requests — released their own press release on the future of 38th and Chicago. It lays out their efforts toward racial justice and community engagement so far, and sharply criticizes Bender for being unwilling to lend her support.

“Refusing to engage in good faith conversation around the future of the intersection or even offer a position, and then presenting this as a ‘mayor or council’ issue – and not a Minneapolis issue – amounts to an attempt to challenge decisions after the fact without taking responsibility now,” Frey wrote in a statement.

The entire council and mayor seem to be in agreement that there needs to be a permanent memorial to Floyd, and the intersection needs to be reopened. Yet the divide over the letter and how to reopen the streets has cracked along predictable fault lines, like those seen during the debate over the city’s budget last month.

Just seven of the city’s 13 council members voted to move $7.7 million from the police department’s budget to other public safety and violence prevention initiatives, which the mayor opposed and threatened to veto before agreeing to. Council Members Jeremy Schroeder, Jeremiah Ellison, Cam Gordon and Philippe Cunningham declined to sign the letter.

The worsening relationship between the mayor and some members of the council is also a worrying sign leading up to the trial of Chauvin for killing Floyd and the possibility of more unrest and rioting like over the summer, which destroyed dozens of buildings and a police station. It also underscores the challenge of governing in a city where the mayor controls the police force, the city council essentially controls everything else, and city staff are sometimes given conflicting orders.

“What we need now in a time of crisis is governance not politics,” said Council Member Lisa Goodman. “Governance means finding as much consensus as you can and not fighting with each other.”

Goodman said she signed onto the letter as a way to support her colleagues Jenkins and Cano, who have been holding public meetings and discussions with activists occupying the square.

Bender argues she’s always been clear: if Frey, Jenkins and Cano want the entire City Council to sign onto something, they should follow the usual process.

City Clerk Casey Carl, who helps ensure city leaders follow the rules, agreed that council action should go through the official process so that the council doesn’t violate open meeting laws. He added: “There’s good process and there’s the real world.”

“Go back to the park in June, when nine council members got up and read a statement. Was that an act of council? I sure hope not because I just spent the last year saying it wasn’t,” Carl said.

Bender was among those council members who stood on a stage in Powderhorn Park in the wake of Floyd’s killing promising to dismantle and replace the police department.

After Frey, Jenkins and Cano released their statements on Wednesday, yet another voice entered the fray. City Attorney Jim Rowader issued a statement arguing that the City Council needs to play a role in deciding when and how to reopen the intersection at 38th Street and Chicago Avenue.

“While specific authorization from the City Council is not necessary for most enforcement efforts, the situation at 38th and Chicago is anomalous and is clearly unprecedented,” Rowader wrote. “It is also clearly not a police operation alone, such that the City Council can abdicate any responsibility.”

It would also require employees from Public Works and non-city law enforcement, “all of which may require City Council approval,” according to Rowader.

That statement took some Minneapolis council members by surprise.

“I had not heard of the city attorney’s concerns until this moment,” Council Member Jeremy Schroeder said in an interview with the Reformer.

Bender, in her press release, pointed to two similar situations in which the council was not sought for approval. In August, the city told community members that it would be removing the barriers at 38th and Chicago. Activists pushed back and the barriers stayed. Bender says the council was not asked to give approval.

“Neither did former Mayor (Betsy) Hodges ask for or receive council approval before deciding to end an 18-day protest outside the 4th precinct,” Bender wrote. “Mayor Frey already knows this because he was a council member at the time.”

Council Member Linea Palmisano takes issue with Bender’s characterization of breaking up the 4th Precinct protest, noting that Hodges had the support of the council president and the local council member when deciding to clear the protest.

She also called Bender’s position that the letter needed to go through the official process “a farce.”

“It’s not a policy decision. It’s not a resolution. We’re not doing anything behind closed doors,” Palmisano said.

Even if the mayor and city council are able to resolve their differences over process, they still need to engage with the community activists. Their demands include the resignation or removal of Hennepin County Attorney Mike Freeman and a 10-year, $156 million economic package for the neighborhood around George Floyd Square to fund a job training program, a racial justice center and affordable housing, among other programs.

The City Council and the mayor are worried about how to reopen the area peacefully and keep it open.

Council Member Jeremiah Ellison, who declined to sign the mayor’s letter, expressed doubt the city can enact any decision it makes without buy-in from the activists holding the intersection.

“The big thing is what’s going to work,” Ellison said. “We can talk about consensus at City Hall, but if we don’t have consensus from the folks who are occupying that intersection and making it a living memorial, then they may not allow any decision that City Hall makes to come to fruition.”

*This story originally misstated who the city voted on sending a letter to in September. It has been corrected.