Idaho AG asks Boise mayor to take down flags in violation of new law

Idaho’s chief lawyer has asked the city of Boise to comply with a new law that limits what flags may be flown by government buildings and warned that the state may try to withhold sales tax revenues if the city refuses.

Idaho Attorney General Raúl Labrador wrote a letter to Boise Mayor Lauren McLean on Tuesday requesting that she take down the prohibited flags outside city hall — as of Wednesday morning, the city displayed a Pride flag and a flag honoring organ and tissue donors, along with an American flag, city of Boise flag, state of Idaho flag and POW/MIA flag. Under the new law, the Pride flag and the flag honoring organ and tissue donors are not allowed to be flown outside government buildings.

“Though you are required to govern the city in accordance with the law, you have instead chosen to defy the Legislature — and by extension, the people of Idaho whom the Legislature represents — and to act as though your personal political views exempt you from compliance,” Labrador wrote.

City of Boise spokesperson Emilee Ayers wrote in an emailed response to a request for comment, "We are in receipt of letters from both the Attorney General and the Ada County Sheriff. While we are sorting out the reach and impact of HB 96 — which includes neither definitions nor enforcement mechanisms, we will continue to fly the flags currently on display at City Hall." 

Ada County Sheriff Matthew Clifford also wrote to McLean on Tuesday, saying that the office had been receiving calls to report Boise for its violation of the code. 

"I have discovered that this new state code fails to tell me what the required penalties would be for this unlawful behavior," Clifford wrote. 

He said the office cannot arrest or cite a "government entity," because a criminal statute would usually apply to a specific person. 

"This situation highlights the importance of thoughtful collaboration in the legislative process," Clifford said in an emailed statement. "I strongly urge Idaho legislators to work closely with subject matter experts when drafting legislation to ensure that future statutes are clearly enforceable and contain the necessary legal structure to support their implementation." 

House Bill 96 prohibits government entities from displaying flags on their property that are not the U.S. flag, an official flag of a government entity, flags for military branches, Indian tribes, Idaho colleges, universities and public schools, and from other counties “to commemorate a special occasion.”

The law went into effect upon signature by Gov. Brad Little on April 3, but it does not include an enforcement mechanism. Labrador wrote that legislative leaders intend to “respond next session with strong enforcement tools against those who openly violate the law.”

House Speaker Mike Moyle said Wednesday that the plan at the moment is to come back next year to add a penalty that would withhold the violating entity’s share of sales tax revenue. However, if at least 60% of each chamber's members agree to it, the Legislature could call itself back for a special session to make the change before the next session starts in January.

“I think the support is there to fix the problem and put a penalty in, but as of right now, I don’t know that they want to do it this year,” Moyle said. “I think right now they want to wait, but that could change.”

Moyle said he’s looking to produce a draft that would stipulate if an entity is found to be in violation of the law, the attorney general would notify the State Tax Commission to withhold its sales tax revenue distribution for a quarter. If they comply, the entity would get the distribution the next quarter. If it doesn’t, that money would go toward the state's Tax Relief Fund.

He said this would apply to any taxing district that is in violation, such as school districts or fire districts, all of which receive a distribution of state sales tax revenue.

The House Sponsor on HB 96, Rep. Heather Scott, R-Blanchard, tweeted a spreadsheet showing Boise's sales tax revenue share from the state, which shows the city receiving about $25 million a year.

“Those sure will be expensive flags to fly when the Idaho Legislature decides to put a penalty into code for cities, counties, and districts that break Idaho law,” Scott wrote Monday.