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HomeMy WebLinkAbout031020-03.4 STUDY STUDY SESSION MEMORANDUM 3.4 TO: Mayor and Town Council March 10, 2020 SUBJECT: Flag Policy BACKGROUND The Town of Danville’s unwritten practice has been to fly either the American flag, or the American flag plus the California State flag at Town facilities equipped with one or more flagpoles. Upon completion of the new Town Offices, the Town plans to install three flag poles that will be used to fly the American, State and Town flags. The Town of Danville does not have a policy addressing the display of commemorative flags at Town facilities. In light of requests that the Town and surrounding cities have received to fly or display such flags, the Town Council requested information regarding how such policies work, particularly whether allowing some commemorative flags means that the Town would need to allow all requests for such flags. As explained below, the policies adopted by other cities allow the Council to retain control over the display of commemorative flags. DISCUSSION Because flags and the messages they convey are considered a form of speech, any policy addressing their display must conform with the First Amendment. Municipal flag policies do so by declaring that the city’s flagpoles are “non-public forums,” meaning that they are not intended to serve as a forum for anyone other than the city itself to speak. Under the government speech doctrine, the government agency itself may “speak” or express opinions (with exceptions for religion and election advocacy) without creating a forum where others with differing views get equal time. The flagpole policy adopted by the City of Pittsburg last year is attached to illustrate how these policies work: •The policy addresses the display of the flags of the United States, California and the city itself. •With respect to commemorative flags, the policy states that such flags are “an expression of the City’s official sentiments” and their display must be requested Flag Policy 2 March 10, 2020 by a member of the Council itself. This requires approval by adoption of a resolution. •The policy limits the time such flags may be displayed and at which city facilities. Currently the only commemorative flag flown on any Town-owned flagpole is the POW/MIA flag flown at the Veterans Memorial Building. Any policy could address this flag as being a permanent fixture at this location. Interestingly, in late 2019 Congress passed and the President signed S.693, which now requires that at specified federal properties, the POW/MIA flag shall be flown every day on any flagpole on which the flag of the United States is flown. Previously it was only flown on designated holidays. The rationale behind S.693 would certainly apply to the Town’s Veterans Building. Next steps The Town Council should provide direction to Town staff regarding adoption of a policy. It would appear to be reasonable to adopt a policy to clarify the legal issues, whether or not any commemorative flags other than the POW/MIA are ever approved. Prepared and reviewed by: Robert B. Ewing City Attorney Attachment: City of Pittsburg Flagpole Display Policy CITY OF PITTSBURG OUTDOOR FLAGPOLE DISPLAY POLICY The Pittsburg City Council desires to establish a flagpole policy regarding: 1) the outdoor display of the United States Flag, the California State Flag, and the City of Pittsburg Flag on Pittsburg City Hall flagpoles; and 2) the outdoor display of commemorative flags on Pittsburg City Hall flagpoles. In adopting this policy, the City Council declares that the City of Pittsburg's flagpoles are not intended to serve as a forum for free expression of the public, but rather for the display of Federal, State, and City Flags, and any commemorative flag as may be authorized by the City Council as an expression of the City Council's official sentiments. The purpose of this flagpole policy is to provide procedural guidance for the outdoor display of flags on City-owned and/or maintained flagpoles. Policy: I. Standards Flags shall be displayed in accordance with Federal and State statutes, including, but not limited to, Title 4, Chapter 1 of the United States Code and Sections 430 through 439 of the California Government Code, and this policy. II. Procedure A. United States Flag, California State Flag, and City of Pittsburg Flag 1. No other flag shall be placed above the United States Flag and no other flag shall be larger than the United States Flag. Other flags may be flown at the same height and in the same size, in accordance with this policy. Where both the United State Flag and the California State Flags are flown, they shall be of the same size. 2. Flags should be hoisted briskly and lowered ceremoniously. The United States Flag should be hoisted first and lowered last. 3. Flags shall be displayed during operating hours on all days on which the City is open for business, and on national and state holidays, at a minimum. Flags may be displayed twenty-four (24) hours a day as long as they are illuminated during darkness . 4. Flags shall not be displayed during inclement weather, unless they are determined to be all-weather flags. 5. When flags are displayed on a single pole, the order from top to bottom shall be: the United States Flag, the California State Flag, and if displayed, the City of Pittsburg Flag. 6. When the flags are flown from adjacent flagpoles, the United States Flag shall be flown at the highest point of honor, which is either the tallest flagpole of the furthest point to the left from the standpoint of the observer ("the flag's right"). The "standpoint of the viewer," shall be considered right-of-way to which the City facility adjacent to the flagpole is addressed (e.g. City Hall is located at 65 Civic Avenue, thus the standpoint of the viewer shall be considered Civic Avenue). The California State Flag shall be placed in the second position of honor. The City of Pittsburg Flag, if displayed, shall be placed in the third position of honor. 7. The United States Flag, the State of California Flag and the City of Pittsburg Flag shall be flown on the City Hall flagpoles . B. Commemorative Flags 1. The City's flagpoles are not intended to serve as a forum for free expression by the public. The City shall display commemorative flags only if authorized by the City Council as an expression of the City's official sentiments. Any such authorization shall be given at a duly noticed meeting of the City Council. a) The City Council shall only consider a request to display a commemorative flag if the request is made by a member of the Pittsburg City Council. 2. Commemorative flags shall be displayed for a period of time that is reasonable or customary for the subject that is to be commemorated, but no longer than thirty-one (31) continuous days. 3. Commemorative flags shall be displayed exclusively on Pittsburg City Hall flagpoles and shall not be displayed on flagpoles at City Park or Small World Park. 4. Commemorative flags displayed on the Pittsburg City Hall flagpoles shall be displayed in the last position of honor beneath the City of Pittsburg Flag, unless otherwise directed by the City Council and to the extent such display does not conflict with federal law, state law, or this policy.