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PHOTO CREDIT: AIX BLDG POST USING ONLINE
ENGAGEMENT TO DELEGATE SALES TAX DOLLARS
"People are engaged in the
community in different ways.
They are connected, just not
always to us. HOW do We tap into
people, where they are already
engaged, about the things that
they've already shown are
important to them?"
Maureen Tobin
Communications and Engagement
Manager, City of Morgan Hill
The vast majority of local agencies in California use
their websites to inform residents about upcoming
public decisions. More agencies are also adding social
media to their engagement tools. Now a growing
number also are experimenting with online tools that
facilitate two-way communications with residents.
These tools present an important opportunity to expand
the number and diversity of voices providing input to
city or county decision-making.
As context, a common challenge facing local
government agencies is the sense that they are only
hearing from a narrow cross-section of their
communities on local policy decisions. Some believe
that this is because residents lack the time,
transportation or inclination to get involved (!I
research among city and county officials about put
participation in decision making). However, other
research shows that 35% of U.S. adults have worked
with fellow residents to "solve a problem in your
community" (the Pew Research Center's Internet &
America Life Project Summer 2012 Tracking Survey).
A growing number of "online public participation
platforms" provide software that local governments are
using to invite input from residents about upcoming
policy decisions. Most jurisdictions are not assuming
that online engagement replaces in-person contact, but
is instead an important complement at the beginning,
Broadening Public Participation Using Online Engagement Tools
alongside or after face-to-face communications with residents. Many cities and counties are in
the early stages of adoption and experimentation with these tools and have yet to realize their
full potential. The intent of this paper is to provide examples and guidance to local governments
interested in enhancing public participation outcomes with these online engagement tools.
I. The Potential Benefits of Online Public Engagement
Providing ways for community members to learn about and express their views on local agency
issues and decisions digitally, as well as in person, has the potential to dramatically affect the
who, when, where and how of public engagement. Positive changes in scale, tone and impact
are part of the appeal. Many cities and counties are pursuing online engagement to meet
residents' expectations for digital communications. Some have larger goals of achieving staff
efficiencies and/or increasing public trust. The field is still too young to have a large body of
concrete evidence about the cost and benefits achieved or changes in public attitudes as a
result of introducing online engagement. However, the following are examples of the more
immediate benefits that are being reported:
Reaching More Diverse Residents
• Increase methods to provide input: any time of day, with less participant time required, no
need for childcare or transportation; some processes are accessible via mobile or text
• Address evolving communication modes of those more oriented to online tools and
residents' expectations of how they get information
• Allow use as a prelude or follow-up, or a real time complement, to in-person engagement
Generating more informed pnrtir►innfinn
• Provide essential background information with varying levels of detail for different issues
and audiences
• Make responses only after a resident has viewed the background data if desired
• Modify information more easily, keep it current; and respond to questions as they arise
Inviting d uilvaaer rdiigoa of perspectives
Welcome community members fearful of public meeting format (due to personality style or
tone of discourse)
Present opportunities to include broader and possibly more moderate perspectives than
public meetings/hearings often attended primarily by passionate advocates
Offer many more ways to participate than a few minutes at a microphone; such as the
ability to post a comment, upload photo or video, place a pin on a map and invite others
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Broadening Public Participation Using Online Engagement Tools
Producing concrete data for reporting and evaluation
Make public input visible and transparent to all; some services offer geographic analysis
and other ways to allow participants, decision -makers and the broader community to
assess the representativeness of online participants
• Set and evaluate measures of success
• Aggregate and analyze input more easily than with many face to face processes
Setting the ctanp fnr -[;,Stained participation
Create a transparent repository of all public input which can also be drawn on
for later use
Develop an audience of informed and interested residents across issues and agency
departments; a ready group to invite to participate in future engagement opportunities
Foster collaborative problem solving by making connections between community members
and identifying resources from the community
While these benefits may be compelling, often agencies have limited staff time to devote to
choosing and implementing public engagement software (or public engagement in general).
Many local agencies have expressed hopes or expectations that the vendor can take on the
bulk of the work because they have not yet developed the practices that will help them realize
the full range of possible benefits.
11. Local Government Examples of Online Engage,
Over the past few years, an increasing number of local governments have experimented with
different ways of conducting online public engagement and some with multiple formats and
vendors. These examples were chosen to highlight a range of the most common topics and
tools rather than specific impacts on decision-making. Within a given public consultation, some
jurisdictions are combining different digital engagement tools, such as using a text -based
invitation for residents who only want to comment in a quick way complemented by a more
information -rich online platform that can provide various ways to participate.
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Planning/Land Use/Transit
• City of Malibu — Pacific Coast
Highway Safety Study;
• Marin County — Housing Element
• City of Morgan Hill — Planning options;
• City of Los Angeles — Transit Planning
IMPROVE TRANSPORTATION IN LA
Milk OUR CIi111MUNITT
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Defininglimplementing Specific
Policies or Quality of Life Issues
• Humboldt Coun — Community Forest;
IQ What are your thoughts and concerns about
the proposed community forest? I
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• City of Garden Grove — Reimagine
Downtown;
• City of Ranch Cordova — Policy about
backyard chickens;
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Broadening Public Participation Using Online Engagement Tools
Strategic Planning/Budgeting
• San Mateo County — Allocating
Tax Dollars;
• City of El t — Five Year
Strategic Plan Process;
• City of Salinas — $500
Budget Challenge;
• City of Lona Bea, — Budget
Challenge;
How Will You Balance the City of
Long Beach Budget?
4
Broadening Public Participation Using Online Engagement Tools
Some jurisdictions choose to have their first online public engagement effort focus on relatively
less contentious issues, such as the City of San Ramon's request for Community feedback
about how to celebrate Independence D Others use a topic that is just for the jurisdiction's
employees so that staff members have an opportunity to familiarize themselves with the
platform.
Some agencies have decided to invest in and maintain a broad engagement platform that
accommodates input on many different features of city or county life, such as "Improve San
Francisco" tWWw.lMProvesr.com!] or "Speak Out San Mateo County"( *vv.,,,,,t.,z)tjeaKout.com).
III.Selecting Online Tools and Features
A first planning step is to make sure to select an issue that lends itself to public input and that the
policy decision makers and key community partners are ready to support the online engagement
effort. The Institute for Local Government has a set of key questions that can help: Planning
Public Engagement: Key Questions for Local Officials. Once the issue is defined, the International
Association of Public Practitioners (IAP2) has developed a spectrum of public engagement that is
a common reference point for gauging the role of the public in a given decision. To help local
agencies consider how to select and combine various online engagement approaches based on
their purposes, below is a simplified version of the IAP2 spectrum. This diagram is intended as a
starting point rather than a limit on other ways to apply any of these tools.
Inform Consult Involve Collaborate
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Involve the
Work with
Present information.
Ask for input on
community to
community
that makes sense
a defined issue.
help define the
I
members to help
for all audiences.
issue with the' .
decide and/or
input
implement
Introductory web
Survey or poll
Ideation. invite
Interactive community
pages with links
Invite comments
suggestions
planning ptafforms
to go deeper
and questions
Prioritization/
Citizen reporting
Issue -specific
Vote on others
trade-off exercises
apps/ joint data
newsletters: e-
commentsgeneration
Mapping
Notifications:
blogs
Budget Challenge
Online forum
Collaborative writing/
hacking
Info -graphics/
Videos/Podcasts/
Neighbor to
Live streaming
neighbor apps
Visual summaries:
Simulations
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Broadening Public Participation Using Online Engagement Tools
Within this broad overview, these are some basic planning questions to help choose online
public participation technology and features within a given tool:
• Would quantitative closed-end answers or more open-ended qualitative input be more
helpful?
• Is the agency inviting new ideas or gathering input on a specific proposal?
• Should people to be able to interact with what others share and/or direct their input to just
the agency?
• How early in the decision making process is the public is being asked to provide input?
• What other types of public engagement are being conducted and what other input will be
combined with the online results for use in the ultimate decision making?
Early in most processes, agencies tend to ask for more open-ended values oriented input.
Digital interfaces allow people to upload photos or videos as well comments if the discussion
centers around some aspect of the community that people want to keep — or change. If a
survey is used at this stage, it may ask about general attitudes that will then inform later stages
of policy development.
As the issue progresses, an agency may consider letting people "like" or comment on others'
comments. However, experienced users of these tools caution against automatically equating the
highest number of votes with something that genuinely represents the community's preference. It
may be appropriate to ask people to answer more structured questions or participate in
prioritization exercises to help look at trade-offs or hold an online forum to flesh out perspectives.
As an agency moves toward a final decision, the online tools can also provide a way to assess
how representative of the community participation has or has not been. As with face-to-face
engagement, most often multiple approaches are combined to create a strategic sequence that
cumulatively builds public understanding and constructive input. Most effective engagement
efforts make clear where an issue is in the process and how public input is being used in interim
and final decisions.
IV. Choosing Online Engagement Software and
Suppliers
The marketplace of online public engagement is still in its early stages; however, many options
for achieving desired goals already exist. An agency may already have public engagement
functionality with tools in hand that they have not fully explored. For example, some agencies
have used features on their websites or blogs to invite feedback or comments on proposed
policies. Others may choose to use an off the shelf online survey tool with the link announced
on the website or newsletter.
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Broadening Public Participation Using Online Engagement Tools
There are also dedicated Software as Service (SaS) suppliers creating online tools with a range
of features designed specifically for local governments. Other vendors that are already helping
agencies manage records and video of their governing body meetings, are expanding into the
public input space. The range of suppliers and features they are each providing represent a
dynamic situation. As one engagement manager said:
"You have the power to help shape the field.
Ask tough questions about track records."
Nole Walkingshaw
Institutional Engagement Manager, Salt Lake City
Technical Considerations:
These are some of the main criteria local government agencies are using when considering a
software service for online engagement:
• The range of tools/features for public input and how the functionality of each fits
anticipated public engagement purposes;
• Attractive, clean design with intuitive interface for the public;
• Technical interface with the local agency's website and any other relevant IT assets;
• Ease of use for local agency administrator(s) and the ability to coordinate the
administrative function across departments (if needed);
• Reporting and export capabilities;
• The system's flexibility and ability to adapt to changing public engagement needs;
• What, if any, supplemental services are provided that match desired needs (e.g., graphic
support, content production, survey design, etc.);
• Level of staff training required and anticipated amount of staff time for successful
implementation.
Design Considerations:
As an agency gets into the design of the actual online engagement experience, there will be
choices to make about the public participants' experience. Some software may have preferred
features, depending on your agency's public engagement goals and capacities. For example:
• How much, if any, participant registration and information is required? Less means it's
easier for people to participate, but more information facilitates a richer understanding of
who is participating.
• Is there a limit on how many times people can participate? Controls can prevent
spamming and enhance civility; on the other hand, less control may encourage continuous
engagement.
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Broadening Public Participation Using Online Engagement Tools
What kind of facilitation is needed and will be provided? To what extent will the host
agency intervene and under what circumstances?
What, if any, kinds of incentives do participants receive to provide input? Points or other
kinds of "gamification" can build traffic, but others question if this dilutes the quality of the
input.
Many of the suppliers are constantly updating features, so agency officials and staff can ask
whether and how soon they will be adding a particular functionality.
Cost Considerations
The most popular software services in this field typically charge an annual subscription fee that
allows for use across an unlimited number of topics throughout the entire agency. The amount
of the fee will vary based on size of the jurisdiction and some suppliers will provide a discount
for a multi-year agreement. As a rough benchmark, a city with a population of about 50,000
might pay a $5,000 annual fee while a county with a population of a half million might pay
around $20,000. The subscription is likely to include both in person and online support to help
with design and the post participation process. The providers will often offer consulting services
for additional cost if desired. It is important to be clear about what level of support is in the
contract.
V. Framework for Successful Implementation
Whichever supplier or software is selected, the local agency is responsible for the overall
strategy and staff follow through that will be essential in achieving the potential benefits of online
engagement as a means to more inclusive, informed and effective public decision-making.
Interviews with city and county officials and leading suppliers yielded the following framework for
effective implementation:
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Step 1
Define the purpose of the engagement
and how the input will be used
Set clear roles and expectations for staff,
Step 2
elected officials and suppliers
Identify the desired audiences and associated
Step 3
communication strategies
Develop and present community -oriented
Step 4
questions and information
Step 5
Establish and analyze success criteria
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Broadening Public Participation Using Online Engagement Tools
These are some of their specific points of guidance:
Step 1 Define the purpose of the online engagement and how the
input will be used
• Match the specific online tool(s) to a specific purpose(s)
• Integrate the digital invitation for input with other planned public engagement and
public meetings to help build awareness and context
• Establish clear expectations for what role this public input will have in the policy
development process
• Prepare elected or appointed decision -makers to be able to use and understand
online public input in their decision making process
Step 2 Set clear roles and expectations for staff, elected officials and
suppliers
• Identify the formal and informal "listeners"
• Assign online engagement administrator(s) that develop and oversee the
audience outreach strategies, monitor public input, facilitate where needed and
are responsible for efforts to encourage a range of resident responses and timely
follow-up
• Set clear parameters for the role of the supplier and define the scope and
timeframe for any support
• Determine how other staff at the agency will be brought on board
Step 3 Identify the desired audiences and associated communication
strategies
• Offer the digital input interface on multiple platforms if possible — e.g., website,
mobile, kiosks and in person meetings where possible
• Announce the link through all relevant agency communication channels — e.g.
email listservs, press releases, newsletters, social media, neighborhood
networking platforms, staff email signature blocks and flyers
• Seek partnerships with other groups and organizations to help promote, or in
some cases perhaps co -host, the online process
• Invite the relevant leaders and members to help develop online audiences and to
participate in getting a robust online conversation started
• Continue communicating before, during and after public input has been received;
follow up with residents to explain what happened with the decision and keep
building an informed and engaged community
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Broadening Public Participation Using Online Engagement Tools
Step 4 Develop and present community -oriented questions and
information
• Assess if the background information is easy to understand for newcomers to the
issue and/or people of different educational backgrounds. Is it provided in
languages other than English if appropriate to local demographics?
• Identify what questions would work well. Make them specific enough for people
to focus but open enough to get new perspectives; this will vary by stage in the
decision process; see simple opener asking people what they love about
OUMMust Long Beach.
• Do not underestimate the power of visuals; use faces/graphs/photos/maps as
well as text to help meet different learning styles and enhance appeal.
• Use videos to help make dense information more accessible. Alameda County's
L,udget info video is one example.
• Explain where an agency is in the decision-making process, how public input has
been used to date and how current input being requested will be used.
• Create modularized excerpts to extend the reach of in person meetings and
workshops. For every one of the meeting segments, community members can
listen to a recorded video clip, view the slides, and then enter comments and
questions. Contra Costa County is one example Trilink Virtual Meeting.
and anal sures of success
• Determine if the participant input is presented in a way that's easy for the public
to follow. For example, are comments nested? Can survey responses be viewed
in different formats?
• Identify what metrics are going to be tracked and reported. In addition to
participation numbers, measures could include:
- Frequency of participation
- Diversity of participants; how many are new to city/county discussions
- Number and/or quality of ideas
- If the public reports enhanced comprehension, feeling more informed
- Amount of new connections established between community members
- Number or quality of new engagement champions/networks
• Share findings as appropriate across the agency's leadership and departments.
• Create a "learning community" within the agency to examine what worked well
and what can be improved for next time.
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Broadening Public Participation Using Online Engagement Tools
NOTE: The Institute for Local Government does not endorse specific software or technology
suppliers. Examples provided here are for illustration purposes only. To learn more about
different online participation platforms, Engaging Cities editor and Wise Economy blogger Della
Rucker wrote a helpful overview: Online Platforms for Public Engagement.
Other resources of interest include:
• A Local Official's Guide to Online Public Engagement
Prepared by Institute for Local Government staff and consultants.
• Public Pathways: A Guide to Online Engagement Tools for Local Governments
An overview of digital engagement from the California Civic Innovation Project
• Engagement Tech for All: Best Practices in the Use of Technology in
Engagement of Underrepresented Communities in Planning
Prepared by PlaceMlatters for the Ford Foundation
• The Sustainable Cities Institute Guide to Engaging Residents Online
ILG is the nonprofit 501(c)(3) research and education affiliate of the League of California Cities and
the California State Association of Counties. For more information and to access the Institute's
resources on Public Engagement visit www.ca-ilq.orq/public-engagement. To access this resource
directly, go to www.ca-ilg.org/post/broadeningpublicnarticipation.
The Institute welcomes feedback on this resource:
• Email. publicengagement0ca-i1g.org, Subject: Broadening Participation via Online Tools
• Mail. 1400 K Street, Suite 205 • Sacramento, CA ■ 95814
Acknowledgements
Primary Author:
• Susan Stuart Clark, Civic Engagement Consultant
The Institute is grateful to the following reviewers:
• Mike Huggins, International City/County Manager's Association Center for Management
Strategies
• Karen Thoreson, Alliance for Innovation
• Alissa Black, California Civic Innovation Proiect of the New America Foundation
• Tim Bonnemann, Founder and CEO, Intellitics. Inc.
• Sandy Heierbacher, National Coalition for Dialogue and Deliberation
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CITY CLERK
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Good Government at the Local Level
PUBLIC ENGAGEMENT & PUBLIC SERVICE ETHICS
Social Media and Public Agencies: Legal Issues
www.ca-ill;.org/SocialMediaLegalIs.--.
2010/Updated October 2013
Related Resources
from the Institute
The Institute's website offers the
following additional resources
relating to technology, social
media, and transparency:
• "Local Agency Website
Transparency Opportunities"
available at: www.ca-ilg.org_
WebsiteTransparency
• "Meetings and Technology:
Finding the Right Balance"
available at: www.ca-
ilg.ors/technology-and-
meetings
• "Taking the Bite Out of Blogs:
Ethics in Cyberspace"
available at:
www.ca-ilb.on_,- dealink-
blogosphere
Introduction
Social media has transformed communication through
Internet technologies that allow users to communicate
directly with each other. A key consequence of this is that
traditional institutions (for example, the mainstream media,
corporations and public agencies) no longer play a
controlling role in information flows.
This shift in the balance of power is illustrated by such
phenomena as the viral "United Breaks Guitars" video on
YouTube. l Millions viewed with the airline traveler's
consumer complaint delivered by song. The post resonated
with every consumer that identified with the frustration of
not having companies take responsibility for their actions.
Another implication of social media is that conversations are
occurring in different places and among different people. No
longer is the concept of a "community" something that is
defined by location.2
There are a number of implications—both positive and
negative --for public officials. The legal issues represent one
such set of implications. Issues to be aware of include:
1) First Amendment issues relating to government restrictions on speech,
2) Use of public resource issues,
3) Employee use of social media, both on behalf of the agency and personally,
4) Other employment-related social media issues,
5) Open meeting law issues,
6) Public records retention and disclosure issues,
7) Procurement, gift and contract issues, and
8) Equal access/Section 508 (disability access) issues.
1400 K Street, Suite 205 • Sacramento, CA 95814 • 916.658.8208 F 916.444.7535 • www.ca-ilg.org
Social Media and Public Agencies: Legal Issues October 2013 (originally June 2010
In some cases, the task for agency attorneys is to determine what the law requires in a given
situation. When that is the case, this paper identifies the law that exists on the point and how
some agencies have approached the issue. In other cases, the task is to assess the agency's
practices against local requirements. In such instances, this paper merely endeavors to flag the
issue as one that needs to be analyzed.
First Amendment Issues
Public Forum Issues for Blogs, Facebook
and Interactive Sites
One motivation for public agencies to use social media is
that they can be effective mechanisms for sharing
important information. However, part of their popularity
lies in their interactive capabilities: indeed, the ability to
get feedback and energize online communities is one of
the emerging powers of Web 2.0 applications.3
Thus, while a public agency can control what its part of
the conversation says, there are limited options for
managing what others might say. Moreover, trying to so
do may risk litigation under the civil rights laws.4
The degree to which public agencies can control what
gets posted on a website, blog or social media site turns
on what courts call a "public forum" analysis. The first
question is what kind of public forum has a public agency
created? There are three possible answers:
1) A traditional public forum,
2) A designated public forum, and
3) A nonpublic forums
What Is Social Media?
Social media integrates technology,
social interaction and content creation
to collaboratively create online
information.
Through social media, people or
groups can create, organize, edit,
comment on, combine and share
content. In the process, this can help
public agencies better achieve their
communications and public
engagement goals.
Some of the most commonly -used
types of social media by public
agencies include:
• Blogs (example: WordPress)
• Social Network- (example:
Facebook)
• Microblogs (example: Twitter)
• Wikis (example: Wikipedia)
• Video (example:YouTube)
• Podcasts
• Discussion Forums
• RSS Feeds
• Photo Sharing (example: Flickr)
Source: www.howto.gov/social-media
"Traditional public forums" are places like streets, I
sidewalks, and parks which have been by tradition or public agency action been devoted to
assembly and debate. A nonpublic forum is a place that is not by tradition or designation a forum
for members of the public to communicate with each other.
A "designated public forum" involves a situation in which a public agency intentionally opens a
nonpublic forum for public discourse. There is a subcategory of a designated public forum that
is called a "limited public forum" that refers to a type of nonpublic forum that the public agencies
have intentionally opened to certain groups or to certain topics.6
Institute for Local Government www.ca-ilg.org
Social Media and Public Agencies: Legal Issues October 2013 (originally June 2010)
Public agency meetings are considered limited public
forums. Courts have upheld rules of decorum when
necessary to prevent a speaker from disrupting a
meeting in a way that prevents or impedes the
accomplishment of the meeting's purpose. 7
A threshold issue is whether a public agency has
opened its website or other communications vehicle to
others to post materials of their choosing. If not, then
the website is not a public forum and the agency does
not violate First Amendment rights when it excludes
content. $
If a public agency does allow others to post materials
of their choosing on a website, blog or social media
site, then a credible argument can be made that the
agency has created a designated public forum. This
would mean that the agency cannot exclude (or delete)
material based on its content unless that restriction
served a compelling state interest that is narrowly
tailored to achieving that interest.9 Even if the agency
created only a "limited public forum" for certain
groups or to certain topics, it cannot delete posts
simply because they are critical of the agency, its
officials or employees or the agency otherwise dislikes
what the posts say.
Strategies to Minimize First
Amendment Missteps
Accidental Tweets by
Authorized Employees
Inappropriate social media postings
can come from employees as well as
those outside the organization.
In 2011, an employee of the American
Red Cross accidentally posted a tweet
from the @RedCross Twitter account
which was meant to be posted from
the employee's personal Twitter
account.
The tweet suggested that @RedCross
was drinking beer. The Red Cross
responded within an hour by deleting
the post and following-up with a tweet
humorously acknowledging the rogue
tweet.
What could have been a public
relations disaster ended up being
positive publicity when the brewery
mentioned in the tweet encouraged
their Twitter followers to donate to the
Red Cross.
Source:
hQ: //redcrosscha t. or,&z/2011 /02/16/tw
itter faux 1aas/
Social media site settings are another opportunity to minimize missteps. On Facebook, for
example, a public agency has choices on how to set its page up. On a "fan page," an agency may
select settings so that only authorized staff can start a new topic. This helps limit topics to ones
that are related to agency business.
There is, however, no way to turn off "comments" on a Facebook wall page - even if one restricts
the other settings.10 You can delete any comment on a page, remove someone who "likes" your
pager I and can permanently ban someone from the page 12 if you feel that is necessary.
Although factually and technically a public agency could take these actions to "control"
comments posted, the question is under what circumstances it would be lawful to do so.
A potential example is deleting comments because they contain profanity. The United States
Supreme Court has recognized that some forms of profanity are protected speech. 13 Even though
a public agency might properly ban profanity on certain communications media (as happened in
the case involving George Carlin's words that can't be used on the radio), 14 the court has also
Institute for Local Government www.ca-ilg.org
Social Media and Public Agencies: Legal Issues October 2013 (originally June 2010+
concluded that the Internet is different than television
or the radio. 1 5
Note that Facebook offers a tool that allows page
administrators to block postings and comments that
contain profanity16 but the terms of use do not seem
to specifically prohibit profanity. They do prohibit
"content that is "hate speech, threatening, or
pornographic; incites violence; or contains nudity or
graphic or gratuitous violence." Also prohibited is
bullying, intimidating or harassing any user. 17
Given the limitations on how a social media page can
be set up, it's important to consider other strategies.
One is to adopt a social medial policy. Such policies,
among other things, provide an opportunity to define
and limit the scope of its own and others' activities as
they relate to the agency's social media site.
For example, the City of Seattle's social media
policy says:
1) Users and visitors to social media sites shall be
notified that the intended purpose of the site is to
Do's and Don'ts
Do adopt and publicize a social media
policy that limits the purpose of the
site to serve as a mechanism for
communication between the agency
and the public.
Do define what kinds of content fall
outside that purpose (including
commercial, campaign, discriminatory
or profane postings) and include a
warning that content outside the
purpose are subject to removal.
Do advise staff that they may not
delete postings simply because they
may be critical of the agency or
agency officials.
Do respond with a sense of common
humanity and humor if the agency
makes a mistake in a social media
serve as a mechanism for communication
between City departments and members of the public. City of Seattle social media site
articles and comments containing any of the following forms of content shall not be allowed:
a. Comments not topically related to the particular social medium article being commented
upon;
b. Comments in support of or opposition to political campaigns or ballot measures;
c. Profane language or content;
d. Content that promotes, fosters, or perpetuates discrimination on the basis of race, creed,
color, age, religion, gender, marital status, status with regard to public assistance, national
origin, physical or mental disability or sexual orientation;
e. Sexual content or links to sexual content;
f. Solicitations of commerce;
g. Conduct or encouragement of illegal activity;
h. Information that may tend to compromise the safety or security of the public or public
systems; or
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Social Media and Public Agencies: Legal Issues October 2013 (originally June 2010)
i. Content that violates a legal ownership interest of any other party.
These guidelines must be displayed to users or made available by hyperlink. Any content
removed based on these guidelines must be retained, including the time, date and identity of the
poster when available (see the City of Seattle Twitter, Facebook and Ci Link standards)."
The policy reserves the city's right to restrict or
remove any content that is deemed in violation of its
policy or any applicable law; it also indicates its goal
of approaching the use of social media tools as
consistently as possible, enterprise wide. 19
Seattle also has a specific Facebook policy. 20 That
policy requires its staff to post the following warning
on its pages:
Comments posted to this page will be monitored.
Under the City of Seattle blogging policy, the City
reserves the right to remove inappropriate comments
including those that have obscene language or sexual
content, threaten or defame any person or
organization, violate the legal ownership interest of
another party, support or oppose political candidates or
ballot propositions, promote illegal activity, promote
commercial services or products or are not topically
related to the particular posting.
Do's and Don'ts
Do take advantage of social media site
options specifically designed for
government.
Do address campaign advocacy in the
agency's social media policy by
prohibiting it and publicizing the
prohibition.
Do provide employees responsible for
managing the agency's social media
activities clear guidelines.
Do periodically remind (through AB
1234 training and other mechanisms)
local officials and staff of the
prohibitions against personal and
political use of public resources.
The State of Utah's social media policy21 gives the following direction to its staff regarding
moderating comments:
In some social media formats such as Facebook, Blogs, Twitter responses, etc., you may
encounter comments which cause your concern as a moderator or responsible party. If
user content is positive or negative and in context to the conversation, then the content
should be allowed to remain, regardless of whether it is favorable or unfavorable to the
State. If the content is ugly, offensive, denigrating and completely out of context, then
the content should be rejected and removed.
Note the use of the word "and" instead of "or" in the last sentence. The content has to be ugly,
offensive, denigrating AND completely out of context in order to be rejected.
Bottom Line
In short, if an agency participates in social media, it's safe to assume that inappropriate posts will
occur ("trolls" whose goal it is to disrupt discussions and elicit emotional responses abound on
the Internet, just as gadflys seem to flock to public agency public comment periods at meetings).
The legally conservative response is to not delete such posts. Correct any misinformation in an
even -toned manner and let others evaluate the information as presented.
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Social Media and RuNic Agencies: Legal Issues October 2013 (originally June 2010
Use -of -Public -Resources Issues
and Social Media
Public officials are aware of the restrictions of using
public resources for either personal or political
purposes.22 State law says that elected officials and staff
may not use public resources for personal or campaign
purposes (or other purposes not authorized by law).2
Personal Activities
"Personal purpose" means those activities which are for
personal enjoyment, private gain or advantage, or an
outside endeavor not related to the public's business.
"Personal purpose" does not include the incidental and
minimal use of public resources, such as an occasional
telephone call .24
This section suggests that an occasional personal
"tweet" or visit to one's personal Facebook page on
agency time might not be a violation of the law.
Employees should be reminded, however, that it's
important to keep in mind public perceptions (and the
"public" includes one's friends and family). It should
never appear public servants are spending their time at
work doing anything other than the public's business.
And, of course, YouTube makes it possible for the
public to record, post and publicize public servants'
actions while on duty on the internet. The admonition
"don't do anything you don't want to read about on the
front page of the newspaper" needs to be updated to
include "Don't do anything you don't want to see
posted on YouTube." As part of the public agency's
overall social media or ethics training, it may be helpful
to remind employees of this new reality.
Political Activities
Campaign activities and agency use of social media
also present issues. Social media tends to be a hotbed of
olitical ex ression Accordin to the Pew Internet and
FPPC Tackles
Internet Political Activity
The Fair Political Practices
Commission is considering how to
achieve greater transparency in paid
online communications involving
social media.
"Traditional" campaign media like
slate mailers, direct mail flyers and
advertisements - all must include
disclosures of their source and
financing. This traditional media has
increasingly been supplemented, if not
supplanted, by communications
through social media (for example,
email, tweets, websites and YouTube
videos).
In 2010, the FPPC created a
subcommittee to brief the full
commission about the current state of
the disclosure of the sources and
financing of Internet political activity;
whether voters are subject to false or
misleading information regarding the
source and funding of Internet
political activities; the need, if any, to
enhance and protect political activity
on the Internet; and the need, if any,
for legislative or regulatory actions.
The 2010 subcommittee report is
available at:
www. t ppc.ca.gov/agendas/08-
10/SubCommReport.p-df .
In the fall of 2013, the FPPC adopted
a new regulation (18421.5) that
requires political committees to
include paid Internet communications
on their Form 460 activity reports!
p P g
American Life study,25 the internet is now roughly equal to newspapers and nearly twice as
important as radio as a source of election news and information.
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Social Media and Public Agencies: Legal Issues October 2013 (originally June 2010)
Not surprisingly, political advisers and consultants
have noticed this phenomenon. As a result, local
agencies should be alert to activities occurring which
make it appear that the agency is using public
resources for political activities, whether candidate
campaigns or ballot measure advocacy. 26
For example, a potential concern is paid political
advertising appearing adjacent to a public agency's
Facebook page: page visitors may not necessarily be
aware that the public agency doesn't control a social
media provider's advertising placements. One step is
to investigate whether a given social media provider
makes options available that limit adjacent political
advertising.
Just as candidates and others sometimes try to use
public comment periods to air their views and
positions, one can also imagine scenarios in which
candidates for local office might want to post content
on the agency's Facebook page or some similar
venue. For this reason, Seattle and West Hollywood
have social media policies that prohibit comments in
support of or opp2osition to political campaigns or
ballot measures.
Do's and Don'ts
Do advise employees that social
media activities can form the basis of
adverse employment activities (for
example, conduct unbecoming an
officer).
Do advise employees that the same
restrictions on employee activities that
occur with respect to traditional
communications channels (for
example, restrictions against sexual
harassment and discrimination) also
apply to social media channels.
Don't take adverse employment
actions in response to an employee's
exercise of protected activity (for
example, speech concerning public
concern, whistle -blowing and
participating in union activities) via
social medial sites (just as an agency
shouldn't take adverse action based on
the employee's protected expression
through other channels).
The strongest position from which to enforce such a policy is for a public agency not to not post
content relating to candidate or ballot measure advocacy on the agency's site (including not
becoming a fan of candidate or ballot measure advocacy sites). Of course, the usual restrictions
on using public resources for campaign activities also apply when posting content to the
agency's website or social media outlets.28
Restrictions on Employee
Postings and Tweets
Another issue for local agencies to be aware of as they contemplate the world of Web 2.0 is the
degree to which employees can speak their minds on the Internet. In a 2009 Deloitte LLP
Survey on Ethics in the Workplace, 74 percent of those responding employees readily agreed
that use of social media can harm their employers' reputation.29
Employers have adopted a number of policies to guide (or restrict) employees' use of social
media. Perhaps the most succinct come from the "Gruntled Employees"
(www.gruntledemployees.com) blog:
• Blogging Policy: Be professional. so
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Social Media and Public Aqencies: Leqal issues October 2013 (originally June 2010
• Twitter Policy: Be professional, kind, discreet, authentic. Represent us well. Remember that
you can't control it once you hit "Tweet."31
Some public agencies have found it helpful to adopt more extensive policies and guidelines:
samples can be found at www.ca-ilg.org/socialmediapolicies.
There is legitimate room for debate on whether additional guidance will help avoid embarrassing
posts. The Deloitte study notes that nearly half of the respondents said that their employers'
policies don't change their behavior in cyberspace. It may be useful, however, to remind
employees that standards for employee conduct (for example, conduct unbecoming a police
officer) also apply in cyberspace.
Whether or not policies help, it's important for public employers to keep in mind that public
agencies may not restrict their employees' First Amendment rights to comment on matters of
public interest.32 In fashioning the law in this area, courts have endeavored to strike a balance
between the interests of employees as citizens and the interests of public agency employers in
efficiently providing public services through their employees. 33
Public agencies find themselves litigating these issues when an employee claims that an agency
"retaliated" (typically by firing or adverse employment action) against the employee for the
employee's exercise of his or her First Amendment rights.
In evaluating such claims, the courts ask a series of questions. 34 The first and perhaps most
important relates to the nature of the topic that the employee spoke (or tweeted) about. The
question is whether the employee's speech involved issues of "�ublic concern" relating to
matters of political, social or other concern to the community.3 Analysis of public concern is
not an exact science. 36 One test is whether the information shared by an employee helps
community members make informed decisions about the operation of their government. 37
"Unlawful conduct by a government employee or illegal activity within a government agency is
a matter of public concern."38 Furthermore, "misuse of public funds, wastefulness, and
inefficiency in managing and operating government entities are matters of inherent public
concern."39 Note that the whistleblower protection laws also protect employees who express
concern about these kinds of issues.ao
What are not issues of public concern? Individual personnel disputes and grievances that are not
relevant to the evaluating public agency performance. 41
Other Employment -Related Social Media Issues
A number of employers use Internet research and social media to find and screen potential
employees. One thing for employers to keep in mind is that information (both positive and
negative) posted on social media sites can be misleading or downright false. A good practice is
to verify information received through social media to maximize the likelihood that agencies are
acting on reliable information when making hiring decisions.
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Social Media and Public Agencies: Legal Issues October 2013 (originally June 2010)
In addition, the same requirements relating to
fairness (non-discrimination) and privacy (for
example, credit checks), apply to online activities.
For example, those engaged in hiring activities
should be reminded that adverse employment
decisions based on religion, race or sexual
orientation are just as unlawful if the information is
acquired through social media as through other
means.
Beginning in 2013, California employers face
limitations on accessing employees' (or prospective
employees') personal social media activities.
Employers may not require or request an employee's
or job candidate's social media username or
password. Also prohibited is requesting someone to
access personal social media in the employer's
presence or divulge personal social media. az
Another good practice is to be clear on what social
media strategies the agency supports as an
appropriate and helpful use of public resources on
agency time versus what activities are personal in
nature. An agency's discussions relating to social
media use can be a useful opportunity to remind
Dos and Don'ts
Do consider something like Twitter
for periodic, brief updates on issues of
interest from the agency.
Do advise members of decision-
making bodies that texting, tweeting
and other forms of communications
on issues within an agency's subject
matter jurisdiction can present open
meeting law and common law bias
issues both before and during
meetings.
Do consider how social media and the
internet can foster public engagement
in the agency's decision-making
process.
employees and officials about proscriptions against
personal use of public resources, whether such use involves personal internet surfing or personal
use of social networking sites.43
Open Meeting Laws
For some, the Internet is the ultimate meeting place. Everything is fairly public (the qualifier
"fairly" has to be inserted because the extensive use of pseudonyms that make it difficult
sometimes to determine who is doing the speaking; see also sidebar on page 14 regarding the
digital divide).
Unlawful Meetings via Technology
That having been said, conversations on the Internet among public officials can constitute an
unlawful "meeting" within the meaning of open meeting laws. For example, California's open
meeting law prohibits decision -makers from:
Using a series of communications of any kind, directly or through intermediaries, to
discuss, deliberate or take action on any item of business that is within the subject matter
jurisdiction of the legislative body.aa
The Attorney General has opined that this section prohibits officials from using email to develop
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Social Media and Public Agencies: Legal Issues October 2013 (originally June 2010
a collective concurrence as to an action to be taken, even if the emails are posted on the Internet
and distributed at the next public meeting of the body.45 This is consistent with the open meeting
law's underlying purpose of requiring that people be able to observe decision -maker
deliberations.46
Electronic Postings of Agendas
The question arises whether simply posting an agenda on a website or through social media
satisfies open meeting agenda posting requirements. The answer is no. California law has been
amended to add a requirement that agendas must be posted on a local agency's website, if the
agency has one. 47 However, the original language that an agenda should be posted in a location
that is freely accessible to the public remains.
The Attorney General has opined that posting agendas to electronic kiosks that are accessible
24/7 is an acceptable alternative in lieu of a paper posting,ag the concern would be that the
Internet may not meet the requirement that agendas be posted in a location that is "freely"
accessible to members of the public.49
Thus, while an agency must post agendas and supporting materials on one's website and may do
so through social media outlets, a paper copy (or its equivalent) must still be posted.
Online Teleconferencing?
Finally, the only reference in California's open meeting law relating to the use of technology to
have meetings relates to teleconferencing. For purposes of the Brown Act, "teleconference"
means a meeting of a legislative body, the members of which are in different locations,
connected by electronic means, through either audio or video or both.50 Special posting
requirements app 1y51 and each teleconference location must be accessible to the public. 52 The
public must have the opportunity to address decision -makers at each location. 53
These requirements can be satisfied using webcams and other technologies allow decision -
makers to be connected through either audio or video (for example, through Skype, Google+ or
similar online video -conferencing applications).
However, the typewritten modes of communication (the communication that predominates on
blogs, Facebook, LinkedIn and similar social media sites) tends not to involve audio or video.
Communications among a quorum of governing body members using these channels therefore
would not satisfy California's open meeting requirements. Moreover, text -based communications
tend to occur sequentially over time as opposed to simultaneously. Nor do text -based Internet
communications typically involve allowing the public to be present with decision -makers at the
teleconference location as required under California's exception for teleconferencing.
Using Technology to Foster Public Engagement
A key purpose of California's open meeting law is to foster public participation in the decision-
making process. 54 There are ways that Web 2.0 technology can support this goal, including the
law's requirement that the public have an opportunity to address decision -makers prior to an item
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Social Media and Public Agencies: Legal Issues October 2013(originally June 2010
being decided.55 Such technologies supplement, but do not supplant, the requirement that
communications opportunities also be offered at meetings.
For example, local agencies and individual decision -makers can offer residents the opportunity
to weigh in on issues pending decision through web forums and similar mechanisms, in addition
to at meetings. Of course, whenever and however public input is solicited, it is important to
show that decision -makers received and considered such input when making a decision. As
discussed previously, it's also important to understand the First Amendment implications to
creating such forums.
Public Records/Disclosure Issues
Another question is whether public agency postings on
third -party social media sites are public records for
purposes of records retention or records production
requirements.
Records Retention
In California, records retention is governed by a separate
statute than public records production. Local agencies
generally must retain public records for a minimum of
two years, although some records may be destroyed
sooner. 56 Most local agencies adopt record retention
schedules as part of their records management system.
The Secretary of State provides local agencies with
record management guidelines. 57
There is no definition of the "public records" subject to
state records retention statutes.58 The California
Attorney General says that a "public record" for
purposes of records retention laws is "a thing which
constitutes an objective lasting indication of a writing,
event or other information, which is in the custody of a
public officer and is kept either (1) because a law
requires it to be kept or (2) because it is necessary or
convenient to the discharge of the public officer's duties
and was made or retained for the purpose of preserving
its informational content for future reference."59
Under this definition, local agency officials retain some
discretion concerning what agency records must be kept
pursuant to state records retention laws. Similarly, the
Public Records Act allows for local agency discretion
concerning what preliminary drafts, notes or interagency
or intra -agency memoranda are retained in the ordinary
course of business. 60
Do's and Don'ts
Do address social media content in
one's records retention policies as not
a public record to be retained.
Do use privacy settings that allow the
public to access information on the
agency's page without having to
become a fan or friend.
Do think of social media as a way of
driving people to the agency's website
for substantive information as
opposed to social media being a place
where important public information is
posted.
Do post a caution to those who might
want to become friends or fans of an
agency page that their information
may become a disclosable public
record.
Do endeavor to make information
made available online also available
through alternative channels.
Do harmonize the agency's posture on
records production and retention with
the agency's posted privacy policies
so as not to inadvertently send mixed
messages.
Do encourage visitors to social media
sites to review the site's privacy
policy.
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Social Media and Public Agencies: Legal Issues October 2013 [originally June 2010]
It would seem that California local agencies can
make a strong argument that social media site
content is not 1) "kept", 2) required to be kept by
law, and 3) is not necessary to be kept in discharge
of a public official's duties or made/retained for
the purposes of preserving content for future
reference. Stating as much in their records
retention schedules would seem to be sufficient.
On the other hand, if a public agency is using
social media for public input (for example, to
solicit public input on planning issues), the agency
will want to capture the input provided for the
administrative record.
Records Production
The second question is whether content posted on
third -party social media sites are public records
which an agency is obliged to produce in response
to a California Public Records Act request.
In some ways, analyzing the status of content a
public agency may post on social media sites may
seem a bit paradoxical. The key purpose of
California's Public Records Act is to provide the
public with access to information that enables
them to monitor the functioning of the
government;61 a similar purpose may be ascribed
to state constitutional requirements that public
official and public agency writings be open to
public scrutiny.62 Using social media to share
information with the public accomplishes that very
purpose, without putting the public to the trouble
of making records requests and asking for copies
of requested documents.
Of course, not everyone has access to the Internet
and it is conceivable that someone who doesn't
would ask a public agency to provide a copy of
posted information on third party social media
sites. This may not be a big deal if the post still is
displayed on the social media site, but what if it
has been deleted? Agencies are not required to
reconstruct electronic copies of records no longer
available to the agency in electronic format.63 This
makes it unlikely an agency will have to recreate
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Agency Postings Are
Public Records in Florida
In 2009, the Florida Attorney General
determined that a city Facebook page falls
within Florida's definition of public records
which includes all "material" "made or
received ...in connection with the
transaction of official business by any
agency." The AG concluded that the city
therefore needed to include such information
in its retention policies.
Another issue the AG addressed is whether
the city's Facebook friends' information
might become a public record. The AG said
it couldn't reach a "categorical" conclusion,
but suggested that the city include a warning
regarding the application of Florida's public
records laws. This is the warning the city
uses:
Disclosure
The City of Coral Springs Facebook Fan
page is informational only. Should you
require a response from the City or wish to
request City services, you must go to
coralsnrings. org/heI
Under Florida law, all content on the City's
Facebook page is subject to the public
records law, Chapter 119, Florida Statutes.
By becoming a fan of the City of Coral
Springs and/or posting on the City's wall,
your information will be a matter of public
record. The City is required to retain this
information in accordance with the State of
Florida retention schedule. This may include
information on your own Facebook page. All
comments will be maintained for a minimum
of 30 days after a forum has ended.
In the city attorney's analysis of the AG
opinion, he noted that there is an ancillary
issue whether the city has the technological
capability to retain Facebook content. He
also noted that, under an AG opinion
interpreting Florida law, it may be Facebook
that is responsible for retaining the content.
These materials are available at www.ca-
ilp-.orL,sociahnediaFloridalaw.
12
Social Media and Public Agencies: Legal Issues October 2013 !originally June 2010)
or archive its postings on social media sites. Another concern that has been expressed is what if
the agency can see information on agency "friends"' sites that others cannot? If the agency
receives a request for information on an agency's "friend's" page, what would an agency's legal
obligations be in these situations?
Access to Technology in California
A June 2013 study by the Public Policy Institute of California reveals interesting trends:
• 82 percent of Californians have access to the Internet at home (69 percent have broadband
access);
• Californians in the San Francisco Bay Area, Orange County, and San Diego are more likely to
have broadband internet at home that those in the Inland Empire, Los Angeles, or the Central
Valley;
• Latinos are less likely to use information technology than whites, blacks, and Asian Pacific
Islanders;
+ Internet access at home decreases with age; and
• Access varies by income and education as well.
www.ppic.orz/content/pubs/survev/S w.ppic.orz/content/pubs/survev/S_613MBS.pdf
Under the Public Records Act, "public records" include "any writing containing information
relating to the conduct of the public's business prepared, owned, used or retained by any state or
local agency regardless of physical form or characteristics.i64 Records include records in any
media, including electronic media, in which public agencies may store such records. 65
The challenge is that agency posts on social media may not, strictly speaking, be held in the
possession of public agencies. For example, although Facebook's terms of use indicate that
users "own" their information, 66 the terms of use also explain that postings occur to the
Facebook "platform"67 and that such postings give Facebook a non-exclusive and transferable
license to that content. 68 The company also reserves the right to make Facebook inaccessible to
someone who violates its terms of use. 69 The company also explains that deleting content occurs
in a manner similar to emptying the recycle bin on a computer --removed content may persist in
Facebook's backup copies for a reasonable period of time (but will not be available to others). 70
There are a variety of cases that indicate that the status of public records is tied to writings that
are maintained or in the possession of public agencies." (Although being in the possession of a
public agency does not in and of itself make a writing a public record .72) Although postings on
social media sites are "prepared," "owned" and "used" by local agencies, they are not arguably
retained by the agency (particularly if the agency's retention and/or social media policy exclude
them from retention schedules).
However, there are two trial court decisions that have taken a more expansive view of the
records subject to disclosure under the Public Records Act, one decision holding that emails sent
and received on officials personal (non -agency) email accounts are subject to disclosure.73 In
terms of the agency having to disclose information to which it has access through the equivalent
of fans or friending, such information arguably does not relate to the "conduct of the public's
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Social Media and Public Agencies: Legal Issues October 2013 foriginally June 2010
business." Moreover, there is a privacy argument that people shouldn't have to consent to
disclosure of personal information in order to obtain public agency information (for example, if a
site user otherwise only makes certain information accessible to those they select --in Facebook
parlance, to "friends").
To err on the side of caution, a public agency may want to use a variation on the warning used on
the Florida city's page (see sidebar on page 13):
This [insert agency name]'s 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
[insert name of agency website, if appropriate] or call the agency at [insert telephone
number].
Please also be aware that, under certain circumstance, content appearing on this page may
be subject to California's public records laws and subject to disclosure by the agency if
requested. This may include information about you that you make available through your
privacy settings on this site on your own pages.
Social media mavens may have a different theory, but it may be wise—both operationally and
legally --to set the agency's privacy settings to "public" as opposed to "friends" or "friends of
friends" so that everyone can see content the agency posts. This avoids putting people in the
position of potentially having to reveal personal information (that they prefer to only reveal to
"real" friends) in order to access the agency's content.
Alternatively, one can err on the side of caution and take steps to preserve postings on social
media as public records. This is how the City of Palo Alto's social media policy 74 addresses this
issue:
1) The City's social media sites are subject to the California Public Records Act and
Proposition 59, amending Article 1, Section 3 of the California Constitution. Any content
maintained in a social media format that is related to City business, including a list of
subscribers and posted communication (with certain exceptions), is a public record. The
Department maintaining the site is responsible for responding completely and accurately
to any public records request for public records on social media; provided, however, such
requests shall be handled in collaboration with the City Attorney's Office. Content
related to City business shall be maintained in an accessible format and so that it can be
produced in response to a request (see the City's Twitter, Facebook and Video Posting
standards). Wherever possible, such sites shall clearly indicate that any articles and any
other content posted or submitted for posting may be or are subject to public disclosure
upon request. Users shall be notified that public disclosure requests must be directed to
the relevant department's director or designee.
2) California law and relevant City records retention schedules apply to social media
formats and social media content. Unless otherwise addressed in a specific social media
standards document, the department maintaining a site shall preserve records required to
be maintained pursuant to a relevant records retention schedule for the required retention
period on a City server in a format that preserves the integrity of the original record and
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Social Media and Public Agencies: Legal Issues October 2013 (originally June 2010)
is easily accessible. Appropriate retention formats for specific social media tools are
detailed in the City's Twitter, Facebook and Video Posting standards.
If a local agency decides to preserve postings on social media as public records, the agency
should develop a strategy for capturing and archiving social media content. The National
Archives and Records Administration (NARA) Guidance on Managing Records in Web
2.0/Social Media Platforms for federal agencies suggests several strategies including:
Using web crawling and software to store content or take snapshots of record content
• Using web capture tools to create local versions of sites and migrate content to other
formats
• Using platform specific application programming interfaces (API) to pull record
content as identified in the schedule 75
In addition, keep in mind that not all members of a community have access to the internet or the
same quality internet (see sidebar on page 14 on the digital divide). Adopt a practice of
endeavoring to make the information one makes available through the internet available through
other means. Below is an excerpt, for example, of the federal government's social media
policy. 76
1. Requirement: Agencies are required to provide members of the public who do not have
internet connectivity with timely and equitable access to information, for example, by
providing hard copies of reports and forms. For the most part, using social media
technologies as an exclusive channel for information distribution would prevent users without
internet access from receiving such information. In addition, some social media services
require high speed internet access and high bandwidth to be effectively utilized, which may
not be available in rural areas or may be unaffordable. In general, this requirement is no
different for social media implementations than it is for other electronic service offerings.
Programs must simply make alternative, non -electronic, forms of information dissemination
available upon request. Resources: OMB Circular A-130 section 8 (See a5(d)) and Appendix
IV
Privacy Policies
The overlay of public records and retention requirements creates interesting issues relating to
privacy policies posted on sites. Such policies became mandatory for commercial sites in 2004
after the state enacted the California Online Privacy Protection Act of 2003.77 That act requires
commercial websites and online service providers that collect personal information (as defined,
which includes such information as names and email addresses 78) on California consumers to
conspicuously post and comply with a privacy policy. Even though the requirement applies to
commercial sites and services, 79 privacy policies have become a standard element of most
websites, including public agency websites.
As a result, it seems important to make sure that the agency's privacy policy on its site is
consistent with the agency's analysis of and approach to public records retention and production.
Institute for Local Government www.ca-ilg.org 15
Social Media and Public Agencies: Legal Issues October 2013 (originally June 2010
For purposes of using third party social media applications, another issue for public agencies is
alerting the public that the information they are sharing is subject to the social media site's
privacy policies (in addition to the public agency's analysis of its obligations under the Public
Records Act and the agency's own privacy practices). S0 A good practice is to provide a link to
the site's policy, as well as any information about the public agency's policy.
Procurement, Gift and Contract Issues
Procurement Issues
Most social media sites are offered for free and the agency's process for selecting one kind of
social media outlet may or may not involve a comparative analysis of terms or capabilities.
Public agencies (particularly larger ones with more complex procurement regulations) will want
to make sure that the decision to use any given social media service complies with the agency's
rules.
Gift Issues
When the federal government started examining social media issues, there was a concern that
accepting free services might run afoul of some agencies' gift rules. In California, the Political
Reform Act defines a "gift" as "any payment that confers a personal benefit on the recipient, to
the extent that consideration of equal or greater value is not received and includes a rebate or
discount in the price of anything of value unless the rebate or discount is made in the regular
course of business to members of the public without regard to official status. 81
The Fair Political Practices Commission's regulations relating to gifts to public agencies 82 tie to
this definition of gift. 83
One would assume that a free service that is not tied to official status would fall outside the
Political Reform Act's definition of gifts. However, the regulations interpreting the act define
"payment" as including the provision of goods or services to an agency, 84 although the
regulation only applies to a payment "that is otherwise a gift to a public official." 85 As long as
the agency is accessing social media services that are free or offered at the same rates to
everyone, it would seem that such services would not be reportable 86 as a gift to the agency.
Indemnification and Other Terms of Use Issues
Most online sites require users to agree to terms of service that include such provisions as:
1. Indemnification and Defense. When a public agency creates an account on a social media
site, it typically must agree not to sue the site, nor allow the site to be included in suits
against the agency. Many sites also require the account owner to pay the site's legal costs
arising from such suits.
2. Applicable Law and Venue. Most terms of service also assert that a certain state's laws
(usually California, but not necessarily always) apply to the terms of use and that the state's
courts will adjudicate disputes.
Institute for Local Government www.ca-ilg.org 16
Social Media and Public Agencies: Le_gal Issues October 2013 {originally June 2010
The terms of service represent a binding contract; public agencies should assure that they have
taken the steps necessary to bind the agency to such an agreement. 87
Some companies are willing to negotiate on the substantive provisions in the terms of use, but
they may be hesitant to negotiate separate agreements with dozens of different agencies. After
individual negotiations with the National Association of State Chief Information Officers
(NASCIO) Social Media Workgroup, Facebook and YouTube have revised their general terms
of use agreements to address legal issues unique to official state and local government agency
use, particularly related to indemnification, jurisdiction, and venue. 88
Equal Access/Section 508 Issues
California and the federal government have each committed to make their electronic and
information technology accessible to people with disabilities.89 The requirement applies to those
who receive funding from these entities.
Among other things, this means using code that works with readers and other such devices that
makes information available on the internet to those with disabilities. The goal is to make sure
that disabled employees and members of the public access to information that is comparable to
the access available to others.
Some social sites are automatically accessible because they are primarily text (for example,
blogs). Others have taken steps to address this issue (see, for example, Facebook's instructions
on accessing its site with screen readers at _www.facebook.com/help/141636465971794/}. The
concern is that some multimedia sites may not provide the opportunity to include transcripts or
captioning. The federal government is working on this issue, but local agencies using social
media may want to make sure the social media tools they use are Section 508 compliant. In
addition, a good practice is to post information on Section 508 compliant sites (such as one's
own website), so people with disabilities always have an accessible version of the content, and
that the official version of content is located on a government website.
Conclusion
Social media offers a variety of tools to connect with the public. As with any communications
tool, the key is to think about how the tool fits in with an overall strategy and what resources will
be needed to use the tool effectively. It is also important to understand what role the law plays in
their use so no missteps occur.
Institute for Local Government www.ca-ilg.org 27
Social Media and Public Agencies: Legal Issues October 2013 Joriginally June 2010
About the Institute for Local Government
This resource is a service of the histitute for Local Government (ILG) whose mission is to
promote good government at the local level with practical, impartial, and easy-to-use resources
for California communities. ILG is the nonprofit 501(c)(3) research and education affiliate of the
League of California Cities and the California State Association of Counties.
For more information and to access the Institute's resources on ethics visit www.ca-ilg.oreltrust.
The Institute welcomes feedback on this resource:
• Email: ethicsmailboxAca-ilg ore I Subject: Social Media and Public Agencies: Legal Issues
• Mail: 1400 K Street, Suite 205 • Sacramento, CA • 95814
(',:',,INS I I It I I IAAhicsvFthics Uolunw�20101 3- Social Media Paper No%emberSI I R 13
References and Resources for Further Information
Note: Sections in the California Code are accessible at http://leginfo.legislature.ca.v-ov//. Fair Political Practices
Commission regulations are accessible at www.fppc.ca.gov/index.php?id=52. A source for case law information
www.findlaw.com/cacases/ (requires registration).
' The first in the "United Breaks Guitars Series" series is available
http://www.youtube.com/watch?v=5YGc4zOgozo . As of this writing, it has been viewed over 13.5 million times.
2 See, for example, the first two definitions of the word "community" on Dictionary.com:
1. A social group of any size whose members reside in a specific locality, share government, and often
have a common cultural and historical heritage.
2. A locality inhabited by such a group.
3 See, for example, Charlene Li and Josh Bernoff, Groundswell: Winning in a World Transformed by Social
Technologies (Harvard Press: 2008).
4 Typically such suits are brought under 42 USC § 1983, the Civil Rights Act of 1871, which provides individuals a
way to seek redress of claimed deprivations of constitutionally protected rights.
5 See Perry Educ. Assn v. Perry Local Educators'Ass'n, 460 U.S. 37, 45 (1983).
6 Flint v. Dennison, 488 F.3d 816, 831 (9th Cir. 2007).
7 White v. City of Norwalk, 900 F.2d 1421, 1425-26 (9t'' Cir. 1990) (upholding presiding official's ejection of a
person who was disrupting a public meeting and rejecting First Amendment challenge). See also Norse v. City of
Santa Cruz, 629 F.3d 966, 976 (01 Cir. 2010) (reaffirming the standard outlined by the court in the City of Norwalk
case, while reversing the lower court summary judgment in favor of the city). See also Acosta v. City of Costa
Mesa, 694 F.3d 960 (9t'' Cir. 2012) (finding city's rules of decorum prohibiting "insolent" conduct unconstitutionally
overbroad as unnecessarily sweeping substantial amount of non -disruptive, protected speech and conduct).
8 See Vargas v. City of Salinas, 46 CalAth 1, 37 n. 18 (2009) (finding city had no obligation to provide those with a
different point of view access to the city's website), citing United States v. Am. Library Assn, Inc., 539 U.S. 194,
204-206 (2003); Arkansas Educ. TV. v. Forbes, 523 U.S. 666, 673-677 (1998); Cornelius v. NAACP Legal Defense
& Ed. Fund, 473 U.S. 788 (1985); Perry Ed. Assn. v. Perry Local Educators'Assn., 460 U.S. 37, 46 (1983); Clark
v. Burleigh, 4 CalAth 474, 482-491 (1992)) See also Sutliffe v. Epping School Dist., 584 F.3d 314, 334-335, (1st
Cir. 2009) (noting that it is possible there may be cases in which a government entity might open its website to
private speech in such a way that its decisions on which links to allow on its website would be more aptly analyzed
as government regulation of private speech); Hogan v. Township of Haddon, 278 Fed.Appx. 98, 101-02 (3d Cir
2008) (rejecting elected official's claim that she had a First Amendment right to publish articles in the town
Institute for Local Government www.ca-ilg.org 18
Social Media and Public Agencies: Leval Issues October 2013 (originally June 201
newsletter and to post on the town's website and cable channel because these communications vehicles were local
government-owned and sponsored, and as such are not public or limited public forums); Page v. Lexington County
School Dist. One, 531 F.3d 275, 284-85 (4a' Cir. 2008) (rejecting claims that links to other websites did not vitiate
school district's retention of complete control over its website or create a limited public forum, but noting that had a
linked website somehow transformed the website into a type of "chat room" or "bulletin board" in which private
viewers could express opinions or post information, the issue would, of course, be different).
9 Perry Educ. Assn, 460 U.S. at 45.
10 Page administrators can proactively block comments or postings that contain certain words or phrases from being
published on their page through the use of Facebook's moderation blocklist tool. See
http://www.facebook.com/help/131671940241729/.
11 See Facebook Help Center topic "How do I remove someone who is connected to my Page?" at
htt://www.facebook.com/hel /?/hel /?fa =16082#!/hel /222702104422027.
12 See Facebook Help Center topic "How do I ban someone from my page?"
athtt ://www.facebook.com/hel /www/185897171460026?rdncc#!/hel /www/185897171460026.
13 Cohen v. California, 403 U.S. 15 (1971) (finding that a state may not, consistently with the First and Fourteenth
Amendments, make the simple public display a single four-letter expletive a criminal offense).
14 Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978) (emphasizing the sometimes
captive nature of the audience for broadcast media).
15 Reno v. ACLU, 521 U.S. 844 (1997) (finding that case law provides no basis for qualifying the level of First
Amendment scrutiny that should be applied to the Internet).
16 Page administrators can block comments containing profanity from being published to their page through the use
of Facebook's profanity blocklist tool. See http://www.facebook.com/help/131671940241729/.
17 See Facebook Terms of Use, Section 3 (Safety), items 6 and 7, available at www.facebook.com/Ifgal/terms .
18 Seattle Social Media Policy, Section 8, available at http://www.seattle.p-oy/Ran/SocialMediaPoligy.ht .
19 Seattle Social Media Policy, Sections 9 and 10, available at http://www.seattle.goy/pan/SocialMediaPolicy.htm .
20 Available at http://www.seattle.pov/pan/SocialMedia Facebook.htm .
21 Available at http://www.utahta.wikispaces.net/file/view/State+of+Utah+Social+Media+Guidelines+9.29.pdf .
22 See Stanson v. Mott, 17 Cal. 3d 206, 210-11 (referring to expenditure of staff "time and state resources" to
promote passage of bond act); Vargas v. City of Salinas, 46 Cal. 4th 1, 31-32 (2009). See also People v. Battin, 77
Cal. App. 3d 635, 650 (4th Dist. 1978) (county supervisor's diversion of county staff time for improper political
purposes constituted criminal misuse of public monies under Penal Code section 424), cert. denied, 439 U.S. 862
(1978), superseded on othergrounds by People v. Conner, 34 Cal. 3d 141 (1983); Cal. Gov't Code § 8314.
23 Cal. Gov't Code § 8314(a).
24 Cal. Gov't Code § 8314(b)(1).
25 Smith, Aaron, The Internet's Role in Campaign 2010 (Mar. 17, 2011), available at
http://p ewintemet.org/Reports/2011 /The -Internet -and -Camp aign-2010. asDx.
26 See Stanson v. Mott, 17 Cal. 3d 206,210-11 (referring to expenditure of staff "time and state resources" to
promote passage of bond act); Vargas v. City of Salinas, 46 Cal. 4th 1, 31-32 (2009). See also People v. Battin, 77
Cal. App. 3d 635, 650 (4th Dist. 1978) (county supervisor's diversion of county staff time for improper political
purposes constituted criminal misuse of public monies under Penal Code section 424), cert. denied, 439 U.S. 862
(1978), superseded on other grounds by People v. Conner, 34 Cal. 3d 141 (1983); Cal. Gov't Code § 8314.
27 Seattle Social Media Policy, Section 8(b), available at http://www.seattle.goy/pan/SocialMediaPolicy.htm. West
Hollywood Social Media Policy, Section 4.9.2, available at
htt://www.weho.o odules/ShowDocument.a5 x?documentid=10054.
28 See Vargas v. City of Salinas, 46 Cal. 4th 1, 31-32 (2009). Stanson v. Mott, 17 Cal. 3d 206 (1976). See also
People v. Battin, 77 Cal. App. 3d 635, 650 (4th Dist. 1978) (county supervisor's diversion of county staff time for
improper political purposes constituted criminal misuse of public monies under Penal Code section 424), cert.
denied, 439 U.S. 862 (1978), superseded on other grounds by People v. Conner, 34 Cal. 3d 141 (1983). But see
DiQuisto v. County of Santa Clara, 181 Cal. App. 4' 236 (2010) (majority found that sending an editorial against a
ballot measure via email on one's lunch hour constituted advocacy, but involved a minimal use of public
resources—note dissenting opinion disagreeing with majority's minimal -use -of -public -resources conclusion).
29 http://www.deloitte.com/assets/Dcom-
UnitedStatesfLocal%20Assets/Documents/us 2009 ethics_ workplace survey 220509.pdf
30 http://www. gruntledemployees.com/gruntled employees/2007/02/a twoword corpo.html
31 hitp:Hiayshei3.com/a-twitterable-twitteLpolicy-updated/
Institute for Local Government www.ca-ila.org 19
Social Media and Public Agencies: Legal Issues October 2013 (originally June 2010]
32 Eng V. Cooley, 552 F.3d 1062, 1070 (9th Cir.2009); Pickering v. Bd. of Educ., 391 U.S. 563, 568(1968).
33 Pickering, 391 U.S. at 568.
34 See Desrochers v. City of San Bernardino, 572 F.3d 703, 708-09 (9th Cir. 2009), The questions probe whether
(1) The employee spoke on a matter of public concern;
(2) The employee spoke as a private citizen or public employee;
(3) The employee's protected speech was a substantial or motivating factor in the adverse employment action;
(4) The public agency had an adequate justification for treating the employee differently from other members of
the general public; and
(5) The public agency would have taken the adverse employment action even absent the protected speech.
The first two prongs of this inquiry address whether the speech should be protected under the First Amendment,
while the last three address whether that protected speech caused some retaliatory response. Huppert v. City of
Pittsburg, 574 F.3d 696, 703 (9th Cir. 2009).
35 Gibson v. Office ofAtty. Gen., State of Cal., 561 F.3d 920, 925 (9th Cir. 2009) (quoting Connick v. Myers, 461
U.S. 138, 146 (1983)).
36 Weeks v. Bayer, 246 F.3d 1231, 1234 (9th Cir. 2001).
37 Desrochers, 572 F.3d at 710.
38 Thomas v. City of Beaverton, 379 F.3d 802, 809 (9th Cir.2004).
39 Johnson v. Multnomah County, 48 F.3d 420, 425 (9th Cir. 1995).
40 Cal. Gov't Code §§ 8547-8547.12.
41 See Connick v. Myers, 461 U.S. 138, 146 (1983).
42 Cal. Lab. Code § 980; A.B. 1844, 2011-2012 Sess. (Cal. 2012) effective Jan, 1, 2013, adding Chapter 2.5,
commencing with Section 980, to Part 3 of Division 2 of the California Labor Code, (Labor Code does not define
"employer" under this section of the code though based on legislative history it is likely that this law is intended to
affect both public and private employers. See S. Floor Analyses of A.B. 1844, 2011-2012 Sess. (Cal. 2012), Aug.
29, 2012, available at http://Ieginfo.legislature.ca.gov/).
43 See Cal. Gov't Code § 8314.
44 Cal. Gov't Code § 54952.2(b).
45 84 Ops. Cal. Att'y Gen. 30 (200 1) available at http://ag.ca.gov/opinions/pdfs/00-906.pdf. See also Wood v. Battle
Ground School District, 107 Wash. App. 550 (200 1) (email exchange among school board members amounted to
illegal meeting under Washington's open meetings law).
46 Coalition of Labor, Agriculture and Business v. County of Santa Barbara Board of Supervisors, 129 Cal. App.
205 (2d Dist. 2005).
47 Cal. Gov't Code § 54954.2(a)(1) ("The agenda ... shall be posted in a location that is freely accessible to
members of the public and on the local agency's Internet Web site, if the local agency has one.").
48 88 Ops. Cal. Att'y Gen. 218 (2005).
49 id.
so Cal. Gov't Code § 54953(b)(4).
51 Cal. Gov't Code § 54953(b)(3) ("If the legislative body of a local agency elects to use teleconferencing, it shall
post agendas at all teleconference locations ... ").
52 Cal. Gov't Code § 54953(b)(3) ("Each teleconference local shall be identified in the notice and agenda of the
meeting or proceeding, and each teleconference location shall be accessible to the public. ").
53 Cal. Gov't Code § 54953(b)(3) ("The agenda shall provide an opportunity for members of the public to address
the legislative body directly pursuant to Section 54954.3 at each teleconference location.")
54 Coalition of Labor, Agriculture and Business v. County of Santa Barbara Board of Supervisors, 129 Cal. App. 4"'
205 (2d Dist. 2005).
55 Cal. Gov't Code § 54954.3(a) ("Every agenda for regular meetings shall provide an opportunity for members of
the public to directly address the legislative body on any items of interest to the public, before or during the
legislative body's consideration of the item, that is within the subject matter jurisdiction of the legislative body,
provided that no action shall be taken on any item not appearing on the agenda ... ").
56 Cal. Gov't Code § 34090(d). Note that in California, the Public Records Act is not a records retention statute. See
Los Angeles Police Dept. v. Superior Court, 65 Cal. App. 3d 661 (1977).
57 The Secretary of State's Local Government Records Management Guidelines may be viewed at
http://www. sos. ca.pov/archives/local-gov-progrgmlpdf/records-management-8.i)df
Institute for Local Government www.ca-ilg.ora 20
Social Media and Public Agencies: Legal Issues October 2013 (originally June 2010)
58 64 Cal. Ops. Att'y Gen. 317 (1981).
59 64 Cal. Ops. Att'y Gen. 317 (1981).
60 Cal. Gov't Code § 6254 (a).
61 U.S. Dept. of Justice v. Reporters Com. for Freedom of Press, 489 U.S. 749 (1989); CBS, Inc. v. Bloch 42 Cal.3d
646 (1986); Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325 (1991). Note that California's Public Records Act
provides for two types of access. One is a right to inspect public records. See Cal. Gov't Code § 6253(a). The other
is a right to prompt availability of copies of those records. See Cal. Gov't Code § 6253(b).
62 See Cal. Const., art. I, § 3(b)(1) ("The people have the right of access to information concerning the conduct of the
people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall
be open to public scrutiny.").
63 Cal. Gov't Code § 6253.9(c).
64 Cal. Gov't Code § 6252(e).
65 The definition of "writings" includes any "transmitting by electronic mail or facsimile, and every other means of
recording upon any tangible thing any form of communication or representation, including letters, words, pictures,
sounds, or symbols or combinations thereof, and any record thereby created, regardless of the manner in which the
record has been stored." Cal. Gov't Code § 6252(g). Note too that some provisions of the Act deal explicitly with
electronic records.
66 See December 11, 2012 Facebook Terms of Use Policy, #2:
2. Sharing Your Content and Information
You own all of the content and information you post on Facebook, and you can control how it is shared
through your privacy and application settings. In addition:
1. For content that is covered by intellectual property rights, like photos and videos (IP content), you
specifically give us the following permission, subject to your privacy and application settings: you
grant us a non-exclusive, transferable, sub -licensable, royalty -free, worldwide license to use any IP
content that you post on or in connection with Facebook (IP License). This IP License ends when you
delete your IP content or your account unless your content has been shared with others, and they have
not deleted it.
2. When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a
computer. However, you understand that removed content may persist in backup copies for a
reasonable period of time (but will not be available to others).
3. When you use an application, the application may ask for your permission to access your content and
information as well as content and information that others have shared with you. We require
applications to respect your privacy, and your agreement with that application will control how the
application can use, store, and transfer that content and information. (To learn more about Platform,
including how you can control what information other people may share with applications, read our
Data Use Policy and Platform Page.)
4. When you publish content or information using the Public setting, it means that you are allowing
everyone, including people off of Facebook, to access and use that information, and to associate it with
you (i.e., your name and profile picture).
5. We always appreciate your feedback or other suggestions about Facebook, but you understand that we
may use them without any obligation to compensate you for them (just as you have no obligation to
offer them).
67 See Facebook Terms of Use, #18 (Definitions):
18. Definitions
1. By "Facebook" we mean the features and services we make available, including through (a) our
website at www.facebook.com and any other Facebook branded or co -branded websites (including
sub -domains, international versions, widgets, and mobile versions); (b) our Platform; (c) social plugins
such as the Like button, the Share button and other similar offerings and (d) other media, software
(such as a toolbar), devices, or networks now existing or later developed.
2. By "Platform" we mean a set of APIs and services (such as content) that enable others, including
application developers and website operators, to retrieve data from Facebook or provide data to us.
Institute for Local Government www.ca-ilg.org 23.
Social Media and Public Agencies: Le al Issues October 2013 (originally June 2010
3. By "information" we mean facts and other information about you, including actions taken by users and
non-users who interact with Facebook.
4. By "content" we mean anything you or other users post on Facebook that would not be included in the
definition of information.
5. By "data" or "user data" or "user's data" we mean any data, including a user's content or information
that you or third parties can retrieve from Facebook or provide to Facebook through Platform.
6. By "post" we mean post on Facebook or otherwise make available by using Facebook.
7. By "use" we mean use, copy, publicly perform or display, distribute, modify, translate, and create
derivative works of.
8. By "active registered user" we mean a user who has logged into Facebook at least once in the previous
30 days.
9. By "application" we mean any application or website that uses or accesses Platform, as well as
anything else that receives or has received data from us. If you no longer access Platform but have not
deleted all data from us, the term application will apply until you delete the data.
68 See Facebook Terms of Use, #2(1) (above).
69 See Facebook Terms of Use, #15 (Termination) (" If you violate the letter or spirit of this Statement, or otherwise
create possible legal exposure for us, we can stop providing all or part of Facebook to you.")
70 See Facebook Terms of Use, #2(2) (above).
71 See Gilbert v. City of San Jose, 114 Cal. App. 4th 606, 610 (60i Dist. 2003) (noting the Public Records Act
"provides for the inspection of public records maintained by state and local agencies" and noting the Records Act's
purpose was "to give the public access to information in possession ofTublic agencies ..."), citing California State
University, Fresno Association, Inc. v. Superior Court, 90 Cal. App. 4 810,822 (5h Dist. 2001), and CBS, Inc. v.
Block, 42 Cal.3d 646 (1986). This language is quoted in BRV, Inc. v. Superior Court, 143 Cal. App. 4th 742, 750
(3d Dist., 2006) and Versaci v. Superior Court, 127 Cal. App. 4th 805, 813 (4th Dist., 2005).
72 See Braun v. City of Taft, 154 Cal. App. 3d 332, 340 (1984) ("The mere custody of a writing by a public agency
does not make it a public record, but if a record is kept by an officer because it is necessary or convenient to the
discharge of his official duty, it is a public record."), also quoted in California State University v. Superior Court, 90
Cal. App. 0 at 810.
73 See Smith v. City of San Jose, No. 1 -09 -CV -150427 (March 19, 2013) (finding that emails sent from an official's
personal email account are "retained" by public agency because they are retained by public officials; in addition,
such emails are also "prepared" and "used" by such officials); Tracy Press, Inc. v. Superior Court of San Joaquin
County (City of Tracy), 164 Cal. App. 0 1290, 80 Cal. Rptr. 3d 464 (2008) (the trial court finding that emails sent
by public officials from their personal email accounts are not public records subject to disclosure, the appellate court
dismissed on technical grounds, but recognized that the question of whether the emails sent from the city council
member's private email account are public records is a novel question they would not address in the appeal).
74 Available at htIR://www.cit-of aloalto.o Icivicax/filebank/documents/21779.
75 NARA Bulletin, Guidance on Managing Records in Web 2.0/Social Media Platforms (Oct. 20, 2010)(available at:
http://www. archives.gov/records-mgmt/bulletins/2011 /2011-02.htm1].
76 See General Services Administration, Social Media Handbook, Chapter 8, available at
http://www.gsa.gov/grgphics/staffoffices/socialmediahandbook.pdf
77 See Cal. Bus. & Prof. Code §§ 22575-22579.
78 Cal. Bus. & Prof. Code § 22577. The full definition reads:
For the purposes of this chapter, the following definitions apply:
(a) The term "personally identifiable information" means individually identifiable information about an
individual consumer collected online by the operator from that individual and maintained by the operator in an
accessible form, including any of the following:
(1) A first and last name.
(2) A home or other physical address, including street name and name of a city or town.
(3) An e-mail address.
(4) A telephone number.
(5) A social security number.
(6) Any other identifier that permits the physical or online contacting of a specific individual.
Institute for Local Government www.ca-ilg.org 22
Social Media and Public Agencies: Legal Issues _ _ October 2013 (originally June 2010)
(7) Information concerning a user that the Web site or online service collects online from the user and
maintains in personally identifiable form in combination with an identifier described in this subdivision.
79 Cal. Bus. & Prof. Code § 22577. The full definition reads:
(c) The term "operator" means any person or entity that owns a Web site located on the Internet or an online
service that collects and maintains personally identifiable information from a consumer
residing in California who uses or visits the Web site or online service if the Web site or online service is
operated for commercial purposes. It does not include any third party that operates, hosts, or manages, but does
not own, a Web site or online service on the owner's behalf or by processing information on behalf of the owner.
(d) The term "consumer" means any individual who seeks or acquires, by purchase or lease, any goods, services,
money, or credit for personal, family, or household purposes.
80 For more on the Online Privacy Protection Act and best practice recommendations on online and off-line privacy
policies, see our Recommended Practices on California Information -Sharing Disclosures and Privacy Policy
Statements, available at www.privacy.ca.Qov (specifically at hitp://www.privac).ca.izov/business/info shari dl).
81 See Cal. Gov't Code § 82028. See also Cal. Gov't Code § 82044 ("'Payment' means a payment, distribution,
transfer, loan, advance, deposit, gift or rendering of money, property, services or anything else of value, whether
tangible or intangible.")
82 See 2 Cal. Code of Regs. § 18944.
83 See 2 Cal. Code of Regs. § 18944(c) ("A payment, that is otherwise a gift to a public official, as defined in Section
82028, shall be considered a gift to the public official's agency and not a gift to the public official if all of the
following requirements are met ... ").
84 See 2 Cal. Code of Regs. § 18944(b)(1).
85 See 2 Cal. Code of Regs. § 18944(c). The full language reads: "A payment, that is otherwise a gift to a public
official, as defined in Section 82028, shall be considered a gift to the public official's agency and not a gift to the
public official if all the following requirements are met:...").
86 See 2 Cal. Code of Regs. § 18944(c)(3) (requiring agencies to report gifts received within 30days of receipt).
87 In fact, the City of Palo Alto's Social Media Policy contains "A Note about Indemnity" alerting users to this issue,
available at http://www.citvoihaloalto.orWcivicax/filebank/documents/21779.
88 Press Release, National Association of State Chief Information Officers, NASCIO and Attorneys General
Negotiate Model Facebook Agreement for State Government Use (Jan, 5, 2011), available at
hrtp://www.nascio.orWnewsroom/pressRelease.cfm?id=93. (Facebook Government Terms can be found at
htips://www.facebook.com/terms Rgges gov.vhol; Press Release, National Association of State Chief Information
Officers, YouTube Agrees to Modified Terms of Service after Negotiations with NASCIO (Jan. 17, 2012), available
at hq2://www.nascio.org,newsroomh)ressRelease.cfm?id=119.
" See 29 U.S.C. § 794d (often known as "Section 508" for its number in the Rehabilitation Act). The procurement
standards from Section 508 of the Rehabilitation Act are referred to in California Government Code Section 11135-
11139.8, which provides protection from discrimination from any program or activity that is conducted, funded
directly by, or receives any financial assistance from the state. This section brings into state law the protection of
Title H of the ADA which ensures accessibility to government programs and also requires state government to
follow accessibility requirements standards of Section 508 of the Rehabilitation Act, which ensures the accessibility
of electronic and information technology. For more information on these issues, see
hitp://www.disabilitti-accessinfo.ca.L,ov,
Institute for Local Government www.ca-ilo.org 23
s July 2017 Dr. Laura Whtsler
The Right Solutions Person
A Path to the Future
Position: San Bernardino City Manager
I've got what it will take to make San Bernardino a Great American City again!
1 was born and raised In San Bernardino! Valedictorian! Grades 7-12 straight A's!
10 reasons why Dr. Whisler is #1 for the Job!
1. Beat Watson on 2"' try!!!
... first time ever tried ... totally amazing what I did!
2. Research Scientist... Von Humboldt style researcher, big picture and details, multi -disciplinary, multi-
dimensional, multi -cultural, multi -mapping, multi -conservational, multi -health promotional
3. Doctorate of Public Health (DrPH) in Health Promotion and Education
a. DrPH with Cognates in Business Administration & Epidemiology
1. Doctoral coursework with Peter Drucker included
b. Master of Public Health (double) - Public Health Nutrition & Health Education
c. B.S. in the Nutritional Sciences - UC Davis
4. Enterprise Architecture (Leader and Solutions Business Engineer
a. Peter Drucker, Claremont Graduate School of Business, labeled me a very creative leader, system
designer, a solutions expert [one of a handful of As in a class of almost 300, he personally
recognized my business acumen]
b. U.S. Public Health Service [US PHS]- Commissioned Officer in position of GS -15 [top GS level],
Officer 6 [ 1 rank below Admiral] as a Research Scientist Manager Branch Chief
designing/developing the Surgeon General's Health Promotion Initiative for our nation
L Nutritionist for the office of the Surgeon General
ii. Resident nutritionist for the Bureau of Primary Health Care, Including Nutritionist to the
Institute of Medicine - Nutrition
5. Data Scientist
Designed, developed, coded, got Federal MOB approval + Institution Research Approval for new
national DHHS Health Care Data Surveillance System - DoD took and implemented worldwide
6. State Champs - Rugby at the Rose Bowl
Played on University California San Diego team 2 seasons, other teams never scored one point against
us, took State Champs at game played at Rose Bowl [Brookside Park], LA Times Sports Section front
page full length color photo of me - I got the ball!
7. Horse whisperer
100% Arabian horses, ground trained and saddle broke, when worked abroad
S. World Traveler - studying different cultures, their health & education
a. Grew up camping, hiking, exploring, including wilderness
b. Passionate about the outdoors as well as historical sites, museums, art galleries, geological sites,
geography, people and places...
9. Educator
a. Family of educators, making a difference, each an amazing legacy of sharing
b. Co-author college math text book
10. Professional, Leader
a. Known for integrity, creativity, visionary, common-sense, logical, analytical, entrepreneurial, CA
Veteran [US PHS], federal policy creator & advisor, public service, scientific solutions
b. Diplomat, Negotiator, Healer, Calmer [including conflict resolution], Happy, Helper, Healthier,
Health Promotion, Peace Maker, Laugh & Live Expert
- Thank you
Please contact:
Dr. Laura Whisler 1911 1 Street, Sacramento, CA 95811-3111
916.320.5990 [cell] drlwhislerftmail.corn or work 916-322-1600 Iwhisler@dhcs.ca.gov