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DISCUSSION OF CITY COUNCIL POLICY MANUAL CHAPTER 2.07, CITY OF STOCKTON FLAG POLICY, AND ANNUAL PRIDE FLAG DISPLAY
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RECOMMENDATION
It is recommended that the Legislation and Environmental Committee review and discuss the City of Stockton Flag Display Policy, Chapter 2.07 of the Council Policy Manual, for potential revisions.
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Summary
This report is for discussion on the City of Stockton Flag Display Policy, Chapter 2.07 of the Council Policy Manual (Attachment A). The flag policy was adopted in 2019 by the City Council to ensure that the City could exercise control over any commemorative flags raised on City flagpoles. The policy ensures that the raising of such commemorative flags is an act of government speech subject to the full discretion of the City Council.
On May 24, 2024, the City Council requested that the policy be brought to this Committee for expedited review outside of its ongoing Council Policy Manual update. In particular, the City Council requested that information regarding the annual display of flags be brought to the Committee. At its May 15th meeting, this Committee clarified that it would like information on the annual display of the Pride Flag.
DISCUSSION
Background
Prior to the adoption of the Flag Display Policy, the City of Stockton displayed only the United States Flag, the California State Flag, and the City of Stockton Flag on the flagpole located at Stockton City Hall. There are both Federal and State regulations which dictate how the United States Flag and the California Flag must be displayed.
At its July 30, 2019, meeting, the City Council expressed an interest in the display of the Pride Flag on the City’s flagpole during the week leading up to the Stockton Pride Festival of August 24, 2019. The City Attorney’s Office cautioned the City Council about potential First Amendment speech implications of raising commemorative flags following citizen requests. Specifically, the City Attorney explained that allowing the display of commemorative flags without a policy may limit the City’s ability to deny future requests. As such, the City Council directed staff to research and present information on a formal flag policy which could be utilized to process future requests for any commemorative flags and ensure consistency with the City Council’s official positions and sentiments.
In accordance with Council direction, on September 30, 2019, the City Attorney’s Office presented a draft policy to the Legislation and Environmental Committee for the display of commemorative flags on City flagpoles. Following the presentation, the Committee approved Motion 2019-09-30-0302 forwarding the policy to the City Council for consideration and adoption. Staff incorporated the comments from the Committee and brought the policy to the City Council on November 5, 2019. The City Council voted unanimously to adopt the policy via Resolution 2019-11-05-1103 (Attachment B).
This year, pursuant to the Flag Display Policy, the City Council again considered raising the Pride Flag in commemoration of Pride Month. Following its discussion on May 24, 2024, the City Council requested that the Flag Policy be brought to this Committee for additional information and possible revision. Additionally, the City Council asked for additional information regarding the possibility of approving the annual display of flags. At its May 15th meeting, this Committee clarified that it would like information on the annual display of the Pride Flag.
Present Situation
The City of Stockton Flag Display Policy declares that City flagpoles are not intended to serve as a forum for free expression by the public. The policy specifically provides that commemorative flags may be flown only as authorized by the City Council as an expression of the City’s official sentiments. The policy is structured to ensure that the raising of commemorative flags remains an act of official government speech.
If the City raised commemorative flags without a clear policy that establishes that the raising of these flags is an act of government speech, the City would lose significant control and discretion over what flags can be raised on its flagpoles or otherwise open itself up to significant claims of violations under the First Amendment.
When a government regulates private speech on government property it must do so in compliance with the First Amendment. Where a government takes a nonpublic forum, a place that is not typically open to the public and public communication, and intentionally opens it to the public for a specific purpose it creates a “limited public forum.” This would include a city flagpole where a city allows the public to display commemorative flags to communicate support for specific groups or ideas. In such a limited public forum, the government’s regulations need to be reasonable and viewpoint neutral. In other words, the regulations could not discriminate based on the stance or position the speech took. Consequently, under these circumstances, a city would not be able to refuse the display of a flag because it disagreed with the message the flag displayed.
However, a government entity has the right to speak for itself. The United States Supreme Court recognizes that a government entity is entitled to say what it wishes and to select the views that it wants to express. Such government speech is not regulated by the First Amendment. Accordingly, if a city wishes to use its own flagpoles to communicate only its own views it can do so. By controlling and adopting the message that it displays, a city can be selective in which commemorative flags are flown on its own flagpoles. In other words, a city can select flags based on the viewpoints those flags relay because those are the viewpoints the city wishes to specifically endorse as its own speech.
With this in mind, to ensure that the raising of commemorative flags remains an act of official government speech, the City’s current policy is structured to require the request to display the flag be made by a Councilmember, that the item be agendized in accordance with current policy, and that the approval be made via a resolution approved by a majority of the City Council. This ensures that the City retains the discretion to refuse to fly a commemorative flag because it disagrees with the viewpoint of the flag.
In addition to the purpose and declaration addressed above, some of the key aspects of the policy are outlined below:
Agenda
To ensure that the authorized flag raisings are speech by the City Council on behalf of the City, the policy provides that the City Council shall only consider a request to display a Commemorative Flag if the request is made by a member of the Stockton City Council. The approval of such a request must be made by the City Council during a properly agendized meeting.
Currently, the Flag Display Policy requires the request for the display to be agendized consistent with City Council Policy Manual Chapter 4.02 (Attachment C). Section 4.02.010, subsection 6 of this policy provides:
“The Mayor and City Manager will decide what items to place on the Council’s regular meeting agenda. Any Councilmember may request the Mayor to place an item on the agenda. If the Mayor does not agree to do so, the item will nevertheless be placed on a future agenda if, during an open session, the requesting Councilmember and at least one other Councilmember makes the request.”
This reference was added for consistency with the other Council Policy Manual procedures. However, for the purposes of ensuring that the raising of the commemorative flag remains government speech, the only necessary component is that the request be initiated by members of the City Council-not the public. The agendizing process, therefore, is a matter of City Council discretion.
Time Limitation
The policy provides: “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 seven continuous days.” This seven (7) day restriction stems from the direction provided at the September 30, 2019, Committee meeting. No time restriction is required. Thus, this is a matter of discretion on the part of the City Council.
Location Restrictions
Under the policy, commemorative flags may only be displayed on the flagpole outside of City Hall. The policy does not permit the flying of commemorative flags on any other City flagpoles. The policy does contemplate there being additional flags outside of City Hall in the event another is raised, or the flagpoles are structured differently at the new City Hall building. Additionally, the policy does allow for Sister City Flags to be displayed in the lobby of City Hall. Like the time restrictions, the location restrictions were added consistent with direction provided at the September 30, 2019, Committee meeting, and may be changed at the discretion of the Committee.
Annual Flag Raising
Members of the City Council inquired if revisions to the policy could be made to allow the City to display a commemorative flag on an annual basis. No amendment to current policy is needed to approve such an annual flag raising as there is nothing in the current policy that would prevent the City Council from approving a resolution that directed City staff to raise a flag annually. Instead, City Council could approve such a resolution provided the action was appropriately agendized, approved by City Council, and the display did not exceed the location and time restrictions.
Attached as Attachment D is a sample proposed resolution for consideration of this Committee which, if approved by City Council, could authorize the annual display of the Pride Flag in the month of June. Similarly structured resolutions could be utilized for any annual displays.
NEXT STEPS
Staff seeks clarification on what additional information and/or changes the committee would like made, if any, to the policy
Attachment A - CPM Chapter 2.07 Flag Display Policy
Attachment B - Resolution 2019-11-05-1103
Attachment C - CPM Chapter 4.02, Agendas
Attachment D - Proposed Resolution for Annual Display of Pride Flag