Unique Issues for Local Government in the Information Age

Issues involving Social Media have reached critical mass for local governments. Since 2017, the Plain View Project has searched and posted over 5,000 social media accounts of public officials and employees from communities across the country. The Project’s goal was to determine if those public employees/officials’ personal Facebook posts would “undermine public trust and confidence in police.” These public social media accounts were from Dallas, St. Louis, Phoenix, York (Pennsylvania), Twin Falls (Idaho), Denison (Texas), and Lake County (Florida). In Philadelphia public searches of social media accounts of police officers led to 72 officers being placed on probation, with 13 officers ultimately terminated from the Police Department for racist and/or offensive comments.

The importance of a public entity adopting a Social Media Policy, then conducting training to achieve heightened awareness was recently demonstrated in Lake County, Florida. Searches of their sheriff’s office employees’ public social media accounts led to investigations of four former deputy sheriffs and 16 current deputies. While no disciplinary action was ultimately taken against the current Deputies, the former deputies’ accounts would have violated the Department’s Social Media policy and would have resulted in discipline. The Sheriff’s Department was “embarrassed” by the incident; however the Department was likely spared more embarrassment and disciplinary actions as it had already adopted a Social Media Policy and had trained for heightened awareness throughout the Department.

How would your public entity fare if its employees’ and officials’ Social Networking accounts were subjected to this public review? The first step is to adopt or continue to adhere to a Social Media Policy for your organization. The SDPAA has an updated Model Social Media Policy, along with other related model policies for use by our Members. SDPAA Members may also consult with an expert attorney through our Employment Practices or Government Practices Hotlines to determine which provisions should be placed in any policy. The Hotlines’ phone number is 1-888-313-0839. Please contact the SDPAA for a copy of these Model Policies or to request a seminar for your officials and employees at 800-658-3633 option 2 or by email at sdpaa@sdmunicipalleague.org.

Anything we employees say or do could reflect on our employers. In the private sector, the employer is given more latitude in adopting policies that regulate their employee’s communications. We public employees enjoy freedom of speech rights when expressing views as private citizens on matters of public concern. However, the United States Supreme Court has recognized that public employers have an interest in managing their operations so that the First Amendment “does not require a public office to be run as a roundtable for employee complaints over internal office affairs.” Connick v. Myers, 461 U.S. 138, 149 (1983).

If a public employee is speaking as a private citizen on a matter of public concern, then the courts will balance “the interests of the employee as a citizen in commenting upon matters of public concern and the interests of the [government], as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Bd. Of Educ., 391 U.S. 563, 568 (1968). The so-called “Pickering balancing test” yields unique decisions as each case rests upon its own facts.

Your organization should consult with its own legal advisor to draft or review your Social Media Policy so that it is specifically tailored for your unique needs. Some common policy elements for you to discuss with your attorney include, but are not limited to the following:

  1. Recognizes that Social Networking can be used by public employees for personal as well as business purposes. A public employee should first seek permission from the public employer before establishing a social media account or website on behalf of the public entity.
  2. Recognizes that Social Networking by public employees shapes how the public views the public entity’s products and services, employees, vendors, partners and clients. Encourages employees to use proper “business etiquette” in all posts and to not violate any applicable laws, regulations or policies while engaging in such activity.
  3. Prohibits social media usage during work hours, unless part of the employee’s job duties. A model policy from the Minnesota League of Cities states that the public entity’s social media accounts should not be used for any private or personal purposes or for purposes of expressing private or personal views on personal, political, or policy issues or to express personal views or concerns pertaining to public entity employment relations matters.
  4. If the employee posts something on personal social media that mentions the public entity, or could be reasonably inferred to come from the public entity, then the public employee should post a disclaimer that they are speaking personally and not on behalf of the public entity.
  5. Policies sometimes prohibit public employees from soliciting public entity customers, vendors or clients to be “friends” or contacts on any social networking sites.
  6. No copyrighted or plagiarized material should be posted on a public entity’s social media accounts.
  7. States clearly that any Social Media accounts owned and operated by the public entity are the property of the public entity.
  8. The Minnesota League of Cities model policy recognizes that public employees have the right to “post and maintain personal websites, blogs and social media pages and to use and enjoy social media on their own personal devices during non-work hours.” However, the public entity reserves the right to monitor all public blogs and social networking forums for the purpose of protecting its interests and monitoring compliance with the public entity’s Social Media Policy.

In light of increasing public scrutiny, law enforcement agencies are adopting more stringent guidelines to govern their officers’ Social Networking, including any electronic communications during their off-duty time. These policies warn that their conduct should not be detrimental to the mission and function of their law enforcement agency. They prohibit law enforcement officers from using their public job title or referencing the public employer in their private Social Networking activities. A growing number of agencies now demand access to applicants’ Social Networking sites and also warn that current officers may be subject to investigation of those sites in certain circumstances.

Any current or aspiring public employees should be mindful of their private Social Networking activities, both past and present. Over the years, I have repeatedly reminded myself and advised my clients that when composing any communication that we should assume our mother and our clergy will read it. The ten-second rule is also good to follow: if you type something in the heat of the moment, then give it ten seconds and read it again before sending or posting it.

David Pfeifle

SDPAA Executive Director