1 STAFF REPORT
DATE: April 25, 2023
TO: Justin Hess, City Manager
FROM: Judie Wilke, Assistant City Manager
By: Viviana Garzon, MPA, Administrative Analyst II
SUBJECT: Discussion of the City of Burbank’s Flag Policy
RECOMMENDATION
The City Council could:
1) Note and file the report; or
2) Direct staff to return with a draft amendment to the existing City of Burbank Administrative Procedure I-26 – Flag Display and Courtesy.
BACKGROUND
At the March 14 , 2023, City Council meeting, Council Member Takahashi requested a first step report on raising the pride flag at City Hall during the month of June in support of Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex (LGBTQI+) Pride Month (Pride Month). Since 1970, Pride Month is celebrated annually in the United States during the month of June to remember the 1969 Stonewall Uprising in Manhattan, New York and observe the history of gay rights and related civil rights movement s. For the past two years, t he Burbank City Council has presented a proclamation declaring June “Pride Month” in the City of Burbank.
The City follows a current policy through Administrative Procedure I -26 – Flag Display and Courtesy (Attachment 1) to display the National flag of the United States and the State flag of the State of California. The Administrative Procedure includes protoc ols for the handling, care and maintenance of the flags, and procedures for flying the flags at half-staff, as well as their display on the main flagstaff in front of specific buildings throughout the City, including City Hall.
CITY MANAGER’S
OFFICE
2 DISCUSSION
Current Policy
Administrative Procedure I -26 does not include a procedure for the display of non- governmental flags. Non-governmental flags in this report are defined as any flag which is not the United States, State of California, or City of Burbank flag. This current policy does not allow a non-governmental flag, such as the pride flag, to be flown at City Hall.
For the City to fly a non-governmental flag at a City building, Council would have to direct staff to amend the current policy and include procedures for flying non- governmental flags. Without a clear policy, the City could be left in a vulnerable position where the request to display certain non -governmental flags does not support the vision, mission, and values of the Burbank community and the Council. Council must also consider that the display of non-governmental flags should represent government speech, and not be a forum for private speech. Should Council wish to fly non -governmental flags, it should adopt a clear written policy that limits flags to only those directly related to governments, entities, ceremonial events, or occasions officially recognized by the City, and in conjunction with some official action or proclamation of the City.
Shurtleff v. City of Boston
On May 2, 2022, the Supreme Court of the United States unanimously ruled against the City of Boston, citing that Boston violated the free speech rights of Harold Shurtleff when it refused his request to fly a Christian flag on one of the flag poles outside City Hall. The court found that Boston’s flag program did not express government speech and the city’s refusal to let Shurtleff fly the flag based on his religious viewpoint violated the Free Speech Clause of the First Amendment. Boston’s lack of a clear policy and procedure for its flag program led the Court to classify the flags as private speech. Under the government speech doctrine, the City can limit or control flags raised on its flagpoles, provided it adopts and closely manages a clear and concise written flag policy.
Lighting of City Hall and the Burbank Water & Power (BWP) Ron E. Davis Administration Building
The City Council presents approximately 40 proclamations throughout the calendar year that are approved by the Mayor in January . At times, the entities that request the proclamations include a request for the City to light City Hall and the BWP Ron E. Davis Administration Building in specific colors in support of the proclamation. A few examples from the past two years include blue lights for “Denim Day” in April, orange lights during the last week in November for “16 days of Activism Against Gender Violence”, and red, blue, and orange lights for three days for “Armenian Genocide Remembrance Day”.
Currently, City Hall is the only building that has the infrastructure to use multiple-colored lights, however BWP will be updating their system by August.
The lighting of City Hall and the BWP Ron E. Davis Administration Building i n support of approved proclamations has been welcomed and encouraged by the community for many years as it expresses the City’s solidarity with the proclamations. Staff recommends 3 Council continue this process should they choose to leave the current policy as is and fly only the flag of the United States and the flag of the State of California at City buildings.
ENVIRONMENTAL REVIEW
This activity has no potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and as such, is not a “project” subject to the requirements of the California Environmental Quality Act (CEQA) 14 Cal. Code Regs § 15378.
FISCAL IMPACT
There is no fiscal impact associated with this report.
CONCLUSION
Staff respects Council Member Takahashi’s request, but cannot fulfill this request without further discussion and direction on the City’s current policy. Council must consider several factors to ensure the display of any flag presents the City in a positive, professiona l manner and minimizes the risk of legal threat to the City.
ATTACHMENT
Attachment 1 – Administrative Procedure I-26 – Flag Display and Courtesy