Social Media Pitfalls for Municipalities: Addressing First Amendment, Document Retention, Employment Issues and More Drafting Policies for Local Government Officials and Employees on Using Twitter, Facebook and Blogs

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THURSDAY, JANUARY 23, 2014

Presenting a live 90-minute webinar with interactive Q&A

Alan J. Bojorquez, Principal, Bojorquez Law Firm, Austin, Texas

Brian J. Lamoureux, Partner, Pannone Lopes Devereaux & West, Providence, R.I.

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Social Media

& Government Agencies

Alan J. Bojorquez

January 23, 2014

Agenda

1. Uses for Social Media

2. Open Government Concerns

a. Open Records

b. Open Meetings

c. Records Retention

3. Human Resources Concerns

6

Social Networking

• My Face? Spacebook?

• Facebook

• Twitter

• MySpace

• Linkedin

• Blogs

7

Social Media

• Create online using highly accessible publishing

technology

• Shift in how people discover, read & share

information

• Fusion of sociology & technology, transforming

monologues into dialogues

• Democratization of information – transforming

people from content readers into publishers

• Allows people to connect in online world to form

relationships for personal, political & business use

8

Share Content

• Photos

• Videos

• Notes

• Blogs

• Web links

• News stories

• Diaries

• Recipies 9

Employers’ Use of Social Media

A. Marketing & Communications

B. Provide Services

C. Engage Customers & Citizens

10

3 Types of Use

A. Agency Use

B. Professional Use

C. Personal Use

11

City Use of Sites

• Blogs

• Official City Website

• Departmental Websites

• Individual Employee Profiles on Facebook

• Department Profiles on MySpace

12

Duty to Provide Data

• Give any existing data ever posted on websites

• Can’t simply refer to website

13

Right to Privacy?

• Password ≠ Private

• Social Media is only “Semi-Private”

• Personal v. Official:

– Who paid for it?

– Who has access?

– What is content?

– How is it used?

• Anonymous

– Delaware Case of Mayor “Proud Citizen” 14

Think Before You Post

• What happens in Vegas stays on YouTube, Flickr,

Twitter, Facebook…

• Does this reveal any potentially embarrassing private

information?

• Am I discussing official city business?

• Is this information subject to Open Meetings?

• Is this information subject to Open Records?

• How long must this information be kept?

• What will current or future employers think?

• Who will be able to view the information I post? 15

Records Retention

Texas State Library and Archives Commission

Electronic Records

• The retention period for a record applies to the record

regardless of the medium in which it is maintained.

This includes electronic mail (e-mail), websites, and

electronic publications.

• The use of social media applications may create

public records. Any content (messages, posts,

photographs, videos, etc.) created or received using a

social media application may be considered records

and should be managed appropriately. 16

Records Retention

Texas State Library and Archives Commission

Electronic Records

• The retention of social media records is based on content and function.

Local governments will need to consult the relevant records retention

schedule for the minimum retention periods.

• General e-mail sent or received in the normal conduct of business – 2 years

• Photographs, images, recordings, and other non-textual media – AV (as

long as administratively valuable)

• Internet Cookies – AV

• Website history files – AV

• Bulletin B, Electronic Records Standards and Procedures

17

Public Information Act

• All data collected, assembled, or maintained

by the City in connection with transaction of

official business

• All data collected, assembled, or maintained

for the City – the City owns the data or has a

right of access

• Regardless of format

• Includes paper, film, and digital media

18

Open Meetings

• Public business should be conducted in public

• A “Meeting” is:

1. Deliberations (talking and/or voting)

2. Quorum (majority)

3. Governing body (city council, P&Z)

4. City business

• Action without meetings

• Washington: E-mail Exchange = Meeting

19

Freedom of Speech?

• City of Alpine I & II

• E-mail exchanges by quorum of City Council

• Rangra v. Brown

• Asgeirsson v. Abbott – Vague

– Overbroad

– Suppresses speech

– Discriminates

• TOMA does not censor or prevent speech

• TOMA mandates disclosure 20

Agency Policy

1. Restriction of personal use on City resources

2. Agency business performed on agency resources

3. Apply to computers & phones

4. Clarify Role & Opinions

5. Protect privacy, confidentiality

& privileges

6. Remember respect & safety

7. Work comes first

21

Agency Policy (cont.)

8. Reflection on Agency’s image

9. Caution with trade secrets, competitive info

10. Plagiarism will not be tolerated

11. Honor logos or trademarks

12. Online activities can have job consequences

http://www.texasmunicipallawyers.com/files/

publications/Sample-Social-Media-Policy.pdf

22

Agency Policy

• Mandatory staff meeting

• Distribute agenda to all officials & employees with

discussion of the policy as action item

• Have all officials & employees sign attendance roster

& hand out copies of the policy

• Discuss it & hold a question & answer session

• Pass out copies of policy receipt acknowledgment

forms for everyone to sign

• Collect signed forms before adjourning

23

Reach Beyond Interview Process

• Present Self Professionally?

• Good Fit?

• Qualifications?

• Well-Rounded?

• Creative?

• Communication Skills?

• Reasons Not To Hire? Press Release, CareerBuilder (Apr. 18, 2012)

24

Common Tool in Employment

• 37% of employers in 2012 used Social Media

to screen potential employees

• Of those, 35% have at least once decide not to

make job offer based on content posted online.

• 50% of those attributed decision not to hire on:

– Provocative Photos

– References to Drinking & Drug usage

– Bad mouthing previous employers & colleagues Press Release, CareerBuilder (Apr. 18, 2012)

25

Employer Liability

1. Discrimination

a. Sex, Race, Color, Religion, National Origin,

Pregnancy, Age, Disability, Veteran Status,

Genetic Info

b. Disparate Treatment or Disparate Impact

2. Harassment

3. Retaliation

26

Courtroom Drama

Employee sued Employer after being

terminated upon Employer finding photos

of Employee on Facebook dancing and

playing frisbee while on FMLA leave for a

“serious medical condition” that allegedly

left her “completely incapacitated.” Jaszcyszyn v. Advantage Health Physician Network (2012)

27

Courtroom Drama

• Anonymous caller informed fire department female

firefighter trainee had MySpace account with “fresh

out of the shower” photos posing bare showing

shoulders & backside.

• Department issued oral reprimand.

• When trainee demanded info about the photos, she

was terminated for her “combative tone” and

“disrespect toward administration”.

• Trainee sued alleging disciplined & terminated based

on race & gender. Marshall v. Mayor of Savannah (2010)

28

Courtroom Drama

• Employers can’t retaliate against an employee

because of the employee’s relative’s protected

activity (e.g., Free Speech). Thompson v. North America Stainless (2011)

29

Courtroom Drama

• Male employee posted photo on Facebook of female

co-worker asleep at her desk with thong and buttocks

showing.

• When female employee learned of photo 8 months

later, reported it to H.R. who disciplined the Male

employee.

• Female employee sued Employer alleging sexual

harassment and retaliation after furloughed. She lost. Yancy v. U.S. Airways (2012)

30

Courtroom Drama

• Employee filed suit alleging termination in retaliation

for posting on Facebook, “anyone know a good

EEOC lawyer? I need one.”

• Court found that one-week proximity between

Facebook post and termination, combined with

Employer’s awareness of the post, was sufficient to

make a case.

• Ultimately, Court found for Employer because

employee couldn’t show the Employer’s stated,

legitimate, non-retaliatory reasons were pretext. Deneau v. Orkin (2013)

31

Courtroom Drama

• Teacher friended students on MySpace to

communicate about homework.

• Teacher also posted photos of naked men and

engaged students in “peer-to-peer level exchanges”.

• School didn’t renew teacher’s contract.

• Court upheld:

– Teacher’s behavior was disruptive of school activity, and

– School’s interest in preventing this behavior outweighed

the teacher’s speech protection. Spanierman v. Hughs (2008)

32

Alan J. Bojorquez

Bojorquez Law Firm

512-250-0411

alan@texasmunicipallawyers.com

33

SOCIAL MEDIA PITFALLS FOR MUNICIPALITIES

Brian J. Lamoureux, Esq. Partner

PANNONE LOPES DEVEREAUX & WEST LLC

Providence, RI

@brianattorney

SOCIAL MEDIA POLICIES

• NLRB enforcement

• NLRA doesn’t apply to municipalities

• But many state courts look to NLRB/NLRA for guidance

35

SOCIAL MEDIA POLICIES

• NLRB enforcement

• Most policies struck down

• Breadth = death

• Why? Concerted activity – Section 7 rights

36

SOCIAL MEDIA POLICIES

• courtesy clauses

• general disclaimers or savings clauses

37

POLICY CONTENTS

• State reasons for policy

• Permit employees to speak on social media – But, emphasize common sense/good judgment

• Define off-limits information (social security numbers, confidential health info, etc.)

38

POLICY CONTENTS

• Prohibit disclosure of trade secrets or confidential information

• Tie policy to municipality’s other polices

39

FIRST AMENDMENT/LABOR ISSUES

• Two police officers created website to allow officers to discuss working conditions and to provide comic relief by way of satirical fiction

• Website contained racist and sexist material

• Chief suspended officers after they refused to take down website

40

FIRST AMENDMENT/LABOR ISSUES

• Town firefighter posted messages referring to Deputy Chief as an “xxxhole” and showed another employee image of two animals fornicating and referred to them as the Fire Chief and Town Manager

• Posted highly offensive comments regarding co-workers while on duty

41

DIGITAL DEVICES

• Verizon case (Ohio)

• Line between “personal” and “public” is blurry • Who paid for device? • Who pays bill? • Separate mailboxes on device? • Reasonable expectation of privacy?

• What’s the definition of “public record?”

42

DIGITAL DEVICES

• What do you do when employee returns municipal device after termination?

• Do you have IT protocol to wipe device?

• Do you require employee to reset device?

• Do you require a signed acknowledgement?

43

ELECTION YEAR

Prediction:

Incumbent candidates will get in hot water for using public…

Devices

Platforms Resources

Funds Worker time

Social media accounts

… to campaign

44

ELECTION YEAR

Rhode Island:

• Can’t use public funds to pay for broadcast or distribution of photograph or voice of elected official who is a candidate during 120 days before election

45

ELECTION YEAR

Massachusetts:

• Incumbents can use public resources to respond to opponent’s criticism, but can’t use public resources to attack election opponents

• “Public resources may not be used to prepare or distribute

materials which promote, oppose or otherwise seek to influence a ballot question.”

46

THE SCARIEST FEATURE ON THE INTERNET…

Facebook’s Download Your Information

47

THE SCARIEST FEATURE ON THE INTERNET…

• IP addresses

• Friend requests (sent and received)

• RSVPs/Check-ins

• Likes

• Pokes

• Wall posts

• Searches made within Facebook, etc.

48

LEGITIMATE DISCOVERY

• Harassment cases

• Family law cases

• Access to public records requests (?...)

• Caselaw and sample requests provided

49

THANK YOU

• @brianattorney

• bjl@pldw.com

• LinkedIn: http://www.linkedin.com/in/brianlamoureux

• 401-824-5100

50