Social Networking

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					                  Steven B. Quintanilla
Green, de Bortnowsky & Quintanilla, LLP
THANK YOU TO MY SOURCES
          Facebook
           Twitter
          YouTube
           Google
            Skype
          Wikipedia
More Important Sources
            Institute for Local Government
           “Legal Issues for Local Agencies
             Associated with Social Media”
                    3/23/10 Version
                            &
        Andrew Powers, City of Thousand Oaks
  Asst. to City Manager/Public Information Officer
 Social Media Opportunities and Pitfalls Presentation
What is Social Networking?
 Social structure made up of individuals who are tied
 together by some form of interdependency:
   Friendship
   Beliefs
   Relatives
   Professions
   Dating
Popular Social Networks
          Facebook
           Twitter
          YouTube
            Skype
Significance
 Altered the world in which we work, communicate and
 govern.
Toolbox for Local Government
 Recruitment
 Civic Engagement and Consultation
 Reaching underserved or disengaged audiences
 Promoting awareness campaigns
 Public Relations
 Reputation Management
 Public Accountability
 Open Government
        Risks
 First Amendment
 Use of Public Resources
 Employee Misuse
 Open Meetings Issues (Brown Act)
 Public Records Retention
 Equal Access
First Amendment
 Public Forum Analysis

   Traditional Public Forum
   Designated or Limited Public Forum
   Nonpublic Forum
Traditional Public Forum
 “Place which has by tradition or public agency action
  been devoted to assembly and debate.”
 Examples:
   Streets
   Sidewalks
   Parks
Designated or Limited
Public Forum
 “Place which the public agency has opened to certain
  groups or to certain topics.”
 Examples:
   Board Chambers
   Study Session Room
   Your Office
Nonpublic Forum
 “A place that is not by tradition or designation a forum
  for members of the public to communicate with each
  other.”
 Examples:
   Interior Hallways
   Reception Areas
   Employee Areas
Significance of Type of Public
Forum
 Traditional Public Forum
    Cannot unilaterally exclude or delete material based on
     its content unless there is a compelling governmental
     interest to exclude or delete.
    Examples:
       Agency’s General Comments Website
       Agency’s Facebook Page
Significance of Type of Public
Forum
 Designated or Limited Public Forum
   Cannot delete posts simply because it may be critical of
    the agency or its officials or the agency simply does not
    like what is said.
   But, can delete posts that are irrelevant to the
    discussion.
   Examples:
        Planning Link
        Transportation Commission
Public Forum Ideas
 Social Network Policy
    Purpose
    Space
    Privacy (or lack thereof)
    Retention
    Responses
    Civility
    Disclaimer
City of Seattle
Social Media Policy
 Not Related to Topic
 Political Campaigns or Ballot Measures
 Profane Language or Content
 Discriminatory
 Sexual
 Solicitations
 Illegal Activity
 Safety and Security
 Legal Ownership Issues
“Social Networking Trolls”
 Goal is to disrupt discussions and elicit emotional
 responses.

 Response:
 Don’t automatically delete.
 Correct any misinformation in an even-toned manner.
Use of Public Resources
 May not use public resources for personal and
  campaign purposes.
 Does not include the incidental use and minimal use
  of public resources, such as an occasional or brief
  telephone call.
Personal Use
 Occasional and Brief Tweeting on Twitter is OK
 Occasional Visit to Facebook is OK
 CAUTION!!!
    Public Perception
    YouTube Recording and Publication
Employee Social Media Policies
 Be Professional
 Basis of Adverse Employment Activities
 Same  Restrictions Apply to Social Networking
 Regarding Discrimination and Sexual Harassment
Employee Social Media Policies
 CAUTION!!!
    DON’T take adverse actions in response to protected
     speech:
       Examples:
         Public Concern

         Whistleblowing

         Union Activities
Employment Recruitment
 Screening Prospective Employees

   CAUTION!!!
       Misleading or False
       Not Reliable
       Need to Verify Information
       Discriminatory Issues
Political Activities
 “Internet is now equal to newspapers and twice as
  important as radio as a source of election news and
  information.”
 CAUTION!!!
   Political Campaign Ads
   Limit Adjacent Political Ads
   Social Media Policy
Open Meetings & Social Media
Public Participation
 Limitations:
    Use of Pseudonyms
    Identity of Speaker
    20% Without Internet Access
    Disabilities
    Renters less than Homeowners
    Lower Income Households
    Certain Ethic Groups
Serial Meetings
 Prohibited from using a series of communications to
 discuss, deliberate or take action on any item of
 business that is within the subject matter jurisdiction
 of the legislative body.
Electronic Postings of Agendas
 Good Practice
 BUT not an approved substitute to physical posting in
 location that is freely accessible to the general public.
Online Teleconferencing
 Limitations
    Must be in audio or video or both.
    Most are written
 SKYPE
    Allows users to make voice calls over the Internet
    Popular for instant messaging, file transfer and video
     teleconferencing
Public Engagement
 Useful for soliciting input on certain issues
 Make sure decision-makers are provided with the
  information




 Understand First Amendment Implications
Public Records Issues
 Records Retention
    General Rule – At least two years
    Definition:
        A writing or document
        Custody of a public officer
        Kept either because the law requires it to be kept or it is
         necessary for the discharge of a pubic officer’s duties
        Retained for the purpose of preserving its information content
         for future reference
Social Network Messages
 Policy:
    Not kept or required to be kept
    Not necessary to be kept for discharge of any public
     official’s duties
    No need to retain for future reference
 CAUTION!!!
    Attachments
Proposition 59
Sunshine Amendment
 Amended the State Constitution
 Constitutional right to access writings of government
    officials
   Broadly construes laws providing public access to
    information
   Narrowly construes laws that limit public access to
    information
   Requires actual on-the-record findings demonstrating
    the need for withholding information
   DOES NOT affect rights of privacy
Public Records Act
Records Production
 Definition
   Any writing containing information relating to the
    conduct of the public’s business prepared, owned, used
    or retained by any local agency regardless of form
   Includes any Media Format, including Electronic
    Records
Facebook
 Has a non-exclusive and transferrable license to
  content of postings
 May remove content and not required to release to
  users
 Bottom Line: POSTINGS NOT RETAINED BY
  AGENCY
   CASE LAW -- Must be retained by Agency
Solution
 Retention and Social Media Policy
    Address Postings in Retention Schedules
 Policy:
    Not kept or required to be kept
    Not necessary to be kept for discharge
   of any public official’s duties
    No need to retain for future reference
DO AND DON’TS
 Check out the rules for Government usage
 Treat social network postings as non-public records
 Encourage users to use agency’s website
 Caution users that postings may become public
 records subject to disclosure
      Sample Text

 “This page is for general public information only.
  Should you require a response from the agency or wish
  to request agency services, you must go to the agency’s
  website or call the agency.”
 “Please be aware that, under certain circumstances,
  content appearing on this page may be subject to
  California’s public records law and subject to
  disclosure by the agency if requested.”
REMEMBER!!!
 Preserve any records required to be maintained
 pursuant to a relevant records retention schedule for
 the required retention period in a format that
 preserves the integrity of the original record and is
 easily accessible
Privacy Issues
 Agency’s On Site Privacy Policy should be consistent
 with the Agency’s Records Retention and Production
 Policies
   Personnel Issues
   Social Security Numbers
   Pending Litigation Matters
   Trade Secrets
 Reference Social Website’s Privacy Policies
Procurement Issues
 Choosing a Social Media Outlet should comply with
 agency’s procurement procedures
Gift Issues
 Free to the Public – Not a Reportable Gift
Contract Issues
 Indemnification and Defense


 Applicable Law and Venue
Equal Access Issues
Section 508
 Using devices that makes information available on the
  internet for those with disabilities
 Applies to employees and members of the public
Closing Thoughts
 New tool to connect with the public
 How it works with Agency’s overall strategy
 Necessary resources to make it work effectively
 Understand how applicable laws interact with social
  networking
 Recognize the pitfalls

				
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