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HomeMy WebLinkAbout10. Consideration of Neutral Flag Policy Item No. TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: OFFICE OF THE CITY MANAGER OFFICE OF THE CITY ATTORNEY DATE: MAY 14, 2024 SUBJECT: CONSIDERATION OF NEUTRAL FLAG POLICY EXECUTIVE SUMMARY The City Council will discuss the subject of a neutral flag policy and flags to be displayed on City-owned and City-maintained flagpoles. RECOMMENDATION That the City Council: Discuss the subject of a neutral flag policy and flags to be displayed on City-owned and City-maintained flagpoles as those designated by the City Council. BACKGROUND At the City Council meeting on April 23, 2024, Mayor Pro Tem Sosa requested that a neutral flag policy be agendized for consideration. The City has a current flag policy. Known as the “Policy Regarding the Display of Flags on City Flagpoles” (Flag Policy), it was adopted by the City Council on August 23, 2022. A copy of the Flag Policy is attached (Attachment A). The Flag Policy outlines the protocols for display of the federal, state, local, and Prisoners of War/Missing in Action (POW/MIA) flags on City-owned and City-maintained flagpoles, plus commemorative flags. Commemorative flags are defined by the Policy as flags “that symbolize a historical event, cause, nation, or group of people that the City Council chooses to honor or commemorate.” Commemorative flags may be authorized by the City Council for a limited period of time if approved by a majority of the City Council. Requests to fly a commemorative flag by members of the public cannot be considered. Commemorative flags, if authorized, may only be flown below the City of Downey Flag at the City Hall flagpoles. CONSIDERATION OF NEUTRAL FLAG POLICY MAY 14, 2024 PAGE 2 In June 2021, prior to the adoption of the Flag Policy, the City Council voted to display the Pride Flag during the month of June beginning in that year and going forward as a commemorative flag. DISCUSSION Like many city flag policies, the City’s Flag Policy is based on what is known as the government speech doctrine. Under this doctrine, when a government body (like the City of Downey) speaks for itself—such as by flying flags from its flagpoles—Free Speech protections do not apply. This means that the government is allowed to communicate one message and not another, provided only that it does not show religious preference or encourage a certain vote in an election. As expressed in the Flag Policy, the City’s flagpoles are not intended to serve as forum for free expression or speech by the public and are reserved exclusively for the City, which alone can make the decision as to what flags should be flown on City flagpoles. When flagpoles are opened up to public expression, they become public forums and therefore subject to First Amendment protections. This typically happens when cities allow third parties to fly flags on their flagpoles or provide input on what flags should be flown. Downey’s flagpoles are not open for any citizens or groups to express their own views. Under the Flag Policy, they remain under the sole control of the City, allowing the City alone to legally shape and control the content and meaning of all flags flown on the flagpoles. Consistent with the government speech doctrine, all flags currently approved for display have been authorized solely by the City. Future actions on the display of flags would similarly comport with that doctrine provided that it is the City alone making the decision as to what flag(s) to display. FISCAL IMPACT There is no fiscal impact. ATTACHMENTS Attachment A: Policy Regarding Display of Flags on City Flagpoles I N*1101 q I i d [01 kI k[11 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DOWNEU ADOPTING A POLICY REGARDING THE DISPLAY OF FLAGS ON Cl FLAGPOLES I 11' 1111flflt!Z:141 Jjjljj!!- . -1111 11 1. The indoor and outdoor display of the United States Flag, the California State Flag, the Prisoners of War (POW) Flag, and the City of Downey Flag at City facilities and City -owned or City -maintained flagpoles; and 2. The indoor and outdoor display of Commemorative Flags at City Hall, City facilities, and City -owned or City -maintained flagpoles, including those flagpoles on public rights - of -way; and, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DOWNEY DOES REBY RESOLVE AS FOLLOWS: SECTION 1. The recitals are incorporated by reference herein. SECTION 2. The City Council adopts the Policy on the Display of Flags on City Flag Poles as set forth in Exhibit A, attached hereto. 1111! 11 iii; : 1 iq1!!!l1; il 1111 I'll iiiiiiiii ''I Ill!''!1i !: Irsyrar—Wre Me 96TOTSTEINT5 M—TOTROMAPPROVED AND ADOPTED this 23rd day of A A PACHECO, Mayor F- 11I kll*i I HEREBY CERTIFY that the foregoing Resolution was adopted by the City Council of the City of Downey at a Regular meeting held on the 23rd day of August, 2022, by the following vote, to wit: AYES: Council Members: Frometa, La Plante, Trujillo, Alvarez, Mayor Pacheco NOES: Council Members: None. ABSENT: Council Members: None. ABSTAIN: Council Members: None. CITY OF DOWNEY POLICY REGARDING THE DISPLAY OF FLAGS ON CITY FLAGPOLES PURPOSE A. The Downey City Council desires to establish guidelines regarding, 1. The indoor and outdoor display of the United States Flag, the California State Flag, the Prisoners of War (POW) Flag, and the City of Downey Flag at City facilities and City -owned or City -maintained flagpoles; and 2. The indoor and outdoor display of Commemorative Flags, as defined, at City Hall, City facilities and City -owned or City -maintained flagpoles, including those flagpoles on public rights -of -way. B. In adopting this Policy, the City Council desires to reflect the dignity of the flags flown on City flagpoles or displayed at City -owned or City -maintained facilities. C. In adopting this Policy, the City Council declares that flagpoles owned or maintained by the City of Downey, including those in the public rights -of -way, are not intended to serve as a forum for free expression by the public, but rather as a non-public forum for the City's and City Council's expression of official sentiments i.e., government speech). D. The U.S. Constitution's Free Speech Clause allows the government to speak for itself. Although the Free Speech Clause limits government regulation of private speech, it does not restrict the government when the government expresses its own views. The government's speech is still subject to other parts of the Constitution, including the Establishment Clause, which prohibits the government from preferring or promoting religion. Ile FLAGS GENERALLY A. Conformance with Federal and State Regulations. The United States and California State Flags shall be displayed in accordance with Federal and State statutes and regulations, including, but not limited to United States Code, Title 4, Chapter 1 and California Government Code section 430 et seq., and this Policy. 1. Per California Government Code section 431(a), the United States Flag and the California State Flag shall be prominently displayed upon or in front of each public building belonging to the City. 2. Per California Government Code section 434.7, any United States Flag or California State Flag that the City purchases must be made in the United States. 3. The United States Flag may only be flown at half-staff in accordance with the guidelines set forth in this Policy. The California State Flag shall be flown at half-staff if the United States Flag is flown at half-staff or by order of the Governor. B. Flagpoles atp2wney Cfty Hall, 1. There shall be three flagpoles at Downey City Hall to fly the following four flags in the manner described below: United States Flag, the Prisoners of War (POW) Flag, the California State Flag, and the City of Downey Flag. The City of Downey Flag shall fly at half-staff if either the United States or California Flag is at half-staff. The City Manager may order just the City of Downey Flag to fly at half-staff for a city employee killed in the line of duty or who has died as a direct result of injuries incurred while in performance of his/her official duties. The flag shall be flown at half-staff either until sunset of the day of the funeral or for no more than seven days. 3. The United States Flag, State of California Flag, and the City of Downey Flag shall be displayed in the City Council Chambers. C. Flamooles at City Facilities other than City Hall. At facilities the City owns or maintains (other than facilities maintained by other governmental entities), there must be at least one flagpole where the United States Flag shall be flown and the State of California flag must be flown as described in this Section 11. If flags are displayed indoors, those flags are limited to the flag of the United States, State of California and City of Downey. D. Public Riahts-of Wav Owned and Maintained y,the g . On city street lamps and poles in the public right-of-way, only the United States Flag, California State Flag, the Prisoners of War (POW) Flag, the City of Downey Flag and banners of city -sponsored events and programs may be flown and displayed. COMMEMORATIVE FLAGS A. As an expression of official government speech, the City Council may authorize the display of a Commemorative Flag to fly below the City of Downey flag at the Downey City Hall flagpoles only. Commemorative Flags shall not be flown on flagpoles at City -owned or City -maintained flagpoles, including those flagpoles on public rights -of -way. B. The City Council shall only consider a request to display a Commemorative Flag if the request is made by at least one member of the Downey City Council. Requests to fly a Commemorative Flag by members of the public will not be considered. C. At a noticed and agendized City Council meeting, the City Council will consider the member's request to display a Commemorative Flag in light of this policy. A majority of the total membership of the City Council must affirmatively approve the flying of the Commemorative Flag. D. Commemorative Flags shall be displayed for a period of time that is reasonable or customary for the underlying subject or event as determined by the City Council, but no longer than thirty consecutive days. E. Commemorative Flags may be temporarily donated for the City's use and, if donated, are subject to inspection by the City Manager's office. Such donated flags must be clean, without holes and tears, and be made of an all-weather fabric. Commemorative Flags must be the same size or smaller than the United States, California and Downey Flags that are flown. The City will not be responsible for the condition of a donated Commemorative Flag once flown and may dispose of any Commemorative Flag not retrieved within 30 days after it has been flown. The City may purchase Commemorative Flags to fly on the City Hall flagpole, at the direction and authorization of the City Council. F. If any other flag is flown at half-staff, the Commemorative Flag will also be flown at half-staff. G. A Commemorative Flag as defined in this Policy means a flag that symbolizes a historical event, cause, nation or group of people that the City Council choses to honor or commemorate. The following are not Commemorative Flags and will not be considered by the City Council: L Flags symbolizing a particular religious movement or creed to avoid the appearance of City government endorsing religion or a particular religious movement or creed; ii. Flags advertising a business conducted, goods sold or services rendered; iii. Flags symbolizing a political party or candidate to avoid the appearance of City government endorsing a particular political party or candidate; and iv. Flags advocating a certain outcome in any election. IV PROCEDURES FOR FLYING FLAGS A. 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 heigh'I and in the same size, in accordance with this Policy. Where both the United State Flag and the California State Flag are flown, they shall be of the same size. 1. Flags should be hoisted briskly and lowered ceremoniously. The United States Flag should be hoisted first and lowered last. C. Flags shall be raised at 7:00 a.m. and lowered at approximately 5:30 p.m. on al' days on which the City is open for business, and on national and state holidays. Flags may be displayed twenty-four 24 hours a day provided they are illuminatei., during •.I D. Flags shall not be displayed during inclement weather, unless all-weather flags are used and are illuminated during darkness. E. When flags are displayed on a single pole, the order from top to bottom shall be: The United States Flag, the California State Flag, the City of Downey Flag (if displayed), and the POW Flag (if displayed). F. When the flags are flown from adjacent flag poles, the United States Flag shall be flown at the highest point of honor, which is the furthest point to the left from the standpoint of the observer ("the flag's right"). In the case of the Downey City Hall, this shall mean facing the main doors of the City Hall, the United States flag shall be flying from the farthest flagpole to the left away from the building and first seen as walking towards the building. The California State Flag shall be placed in the second position of honor, which is the next further flagpole to the left. The City of Downey Flag, if displayed, shall be placed in the third position of honor and closest to the building. Any Commemorative Flag approved by the City Council shall be placed in the third position of honor under the City of Downey Flag. G. When a flag is displayed at half-staff, it shall first be hoisted to the peak for th(.- moment and then lowered to half-staff position. Before being lowered at the enl of the day or when taken down, the flags shall again be hoisted to the peak for ff and then fully lowered.