Monday, April 12, 2021

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Legislative bodies warned of social media dangers

Members of local legislative bodies, including school boards and city councils, are finding out that violations to California’s open meeting requirements can happen with just a simple click of a button. 

A change to the Ralph M. Brown Act, which went into effect on Jan. 1, permits members of legislative bodies to use social media to provide or solicit information from the public regarding matters within the board’s jurisdiction, but only as long as they don’t communicate directly with each other or respond to another member’s social media post, including the use of a digital icon if the post is regarding business of the legislative body. 

The amendment is in recognition of issues that have developed regarding “serial meetings” through social media, in which members of boards and councils have easily – with just a click of an emoji – reached a consensus on matters before the legislative body prior to taking formal action in meetings that are required to be open to the public. 

The Colusa County Office of Education was one of the first agencies to instruct their elected officials on the new hazards of navigating social media platforms, which, prior to Jan. 1, were not explicitly addressed by California law. The Colusa City Council, whose members have violated the new provisions of the Brown Act by “liking, sharing, and commenting on each others’ posts on matters before the legislative body, is expected to receive legal guidance at their March 16 meeting, city officials said. The Colusa Unified School District received the information about AB 992, which the governor signed last year, at their regular meeting on Monday.

The Brown Act prohibition also extends to communications by board members on posts originating from their agency’s official social media accounts. 

Tina Maxwell, executive administrative assistant to Superintendent Mike West, on Feb. 10, presented the Colusa County Board of Education with information that was prepared by their general counsel, Addison Covert, of Parker & Covert, of Sacramento, warning board members to use caution in responding to, commenting about, or even liking their agency’s or another member’s post or comment when that post involves district-related business. The Brown Act specifically prohibits “serial” meetings in which members of a legislative body communicate indirectly or through a chain of communications, ultimately involving a majority of a legislative body. For a legislative body of five members, for example, AB 992 lowers the threshold for a “serial meeting” on social media from three members to two members, including just the use of digital icons to express an opinion on matters within the subject matter of the agency.

“The intent of the law was to give boards and Brown Act participants an opportunity to communicate with their public on social media, but then it became an issue if another board member decided to respond to some of these conversations, even with a ‘like’ or something in text,” Maxwell said. “This Brown Act cleans that up.”

Because of the new legislation regarding social media posts, CCOE board members last week were encouraged not to use their personal social media accounts or cell phones to communicate with the public on district-related business, as the new provision of the Brown Act could ultimately raise questions about whether social media posts and comments by members of a legislative body are subject to disclosure under the California Public Records Act. 

“It’s a very slippery slope, and I would just advise not using personal email, personal phones, or personal social media to discuss board business,” Maxwell said. 

While West also recommended board members not use personal devices to engage the public on district business, he added that it was probably not prudent “or wise” to engage on social media regarding matters before the board in the first place.

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