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Home My WebLink AboutSocial Media- Pt Arthur (Nov 30 2023) for Public Officials LAW MEDIA SOCIAL City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 1 Alan Bojorquez Municipal Attorney based in Austin, TX Manage statewide Municipal Law firm (since 2002) Texas Tech University: JD, MPA, BA Former Staff Lawyer, Texas Municipal League Past-President, Texas City Attorney Assn Board Member, International Municipal Lawyers Assn Honorary Member, International City Mgt Assn Honorary Member, Texas Muni Clerk Assn Ambassador Award, Texas Tech Univ School of Law Author, Tex Muni Law & Proc Manual (7th Ed.) City of Port Arthur November 30, 2023 November 30, 2023 2 WHAT WERE THEY THINKING? City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 3 REALLY? City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 4 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 5 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 6 HOT OFF THE PRESSES! City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 7 WHAT DOES IT ALL MEAN FOR YOU? Online activity can have Real-World repercussions What you do in Cyber Space can impact your office & the City “Freedom of Speech” “Freedom from Consequences” City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 8 PROS / CONS PROS Timely Direct Personal Unfiltered Widely Distributed Inexpensive CONS Impulsive Unvetted Unfiltered Derogatory Inaccurate Viral, Forever! City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 9 AGENDA Open Government Human Resources Blocking / Removing City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 10 PART 1. OPEN GOVERNMENT City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 11 RECORDS RETENTION Texas State Library & Archives Commission Retain social media records based on content & function. Check your records retention schedule for the minimum duration. When faced with potential social media records, ask yourself: Is this doc government business or evidence of an important action? Is this a unique record? Does the info exist elsewhere in a different record or format? Does it fit into my government’s definition of a social media record? https://www.tsl.texas.gov/slrm/blog/2016/03/faq-when-is-social-media-a-record/ Tx Loc Gov’t Code Chs. 201-205 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 12 OPEN RECORDS Duty to provide data posted on websites. All data collected, assembled, or maintained by the City regarding transaction of official business. All data collected, assembled, or maintained for the City – the City owns the data or has a right of access. Regardless of format: Paper Film Digital media Tx Govt Code Code Ch. 552 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 13 OPEN MEETINGS Public business should be conducted in public A “Meeting” is: Deliberations (talking and/or voting) Gathering Quorum (majority) Governing Body City business Action without Meetings Digital Exchange can = “Deliberation” Tx Govt Code Ch. 551 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 14 PART 2. HUMAN RESOURCES City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 15 NO PRIVACY! Employers can conduct work-related audits of pager text messages and discipline employees for inappropriate content. Police officers can be disciplined for sending sexually-explicit material via city-issued devices. No 4th Amendment Search problems. Employer won! City of Ontario v. Quon (USSC 2010) City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 16 DISCIPLINARY ACTION FOR POSTS? 2018: Houston Community College System trustee made accusations against board members on his website & in interviews w/ the news media Was censured by the board Asserted HCC violated 1st Amdt when Board censured him 2020: 5th Circuit Ct App agreed 1st Amdt rights were implicated 2022: USSC: Purely verbal censure did not violate the free speech of an elected official because there was no adverse action. City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 17 DISCIPLINARY ACTION FOR POSTS? On Duty or Off Duty? City Device (Phone / Computer / Pad)? Posted to Public or in Private? Generate Controversy & Disruption? Affects Working Relationships? Impedes Proper Functioning? Interfers w/ Maintenance of Discipline? Disrupts Harmony among Coworkers? Hinders Performance of Duties? Undermined Agency’s mission? Abused Authority? Harm is Actual (Not Anticipated) Bland v. Roberts (4th Cir. 2013) Graziosi v. City of Greenville (5th Cir. 2015) City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 18 BALANCING PUBLIC’S / EMPLOYER’S INTERESTS Curran v Cousins (1st Cir. 2007) Officer posted on a union website that was open to the public Compared current sheriff to Hitler and the Nazis Officer was fired (in part) because of his posts Most of the comments were not of Public Concern But some was Employer (and court) had to balance Court found Employer justified in terminating “speech done in a vulgar, insulting, and defiant manner is entitled to less weight….” City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 19 PART 3. BLOCKING FROM OFFICIAL SITES City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 20 BLOCKING FROM OFFICIAL SITES City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 21 BLOCKING FROM OFFICIAL SITES Appellate Court: President Trump acts in his official capacity when he tweets President Trump violated 1st Amendment rights: by blocking their accounts on Twitter; the interactive space created through posting a “tweet” was a designated public forum; by blocking individual users Trump impeded political speech highly protected 1st Amendment. Knight First Amendment Institute v. Donald J. Trump (2nd Cir. July 2019) City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 22 MORE ON BLOCKING Portions of Personal / Private Social Media pages can become “Public Forums”. Elements Courts look for: Related to Duties; Used as Tool of Governance; Informed about Official Activities; Solicited Input on Policy Issues; and Shared alerts and warnings. Viewpoint Discrimination (not just Subject Matter). Unconstitutional to Block or Ban (or Remove comments). Davison v Randall (4th Cir. Jan. 2019) City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 23 DELETING & BLOCKING In response to post by Chair of the Loudoun County Board of Supervisors a citizen posted comments about unethical expenditures and accusations of corruption The Chair deleted the comments and blocked the citizen Davidson v Randall, (4th Cir. 2019) Fundamental Principle: Government Officials Can’t Retaliate against speech they dislike by suppressing expression on social media City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 24 “It’s In The Way That You Use It”- Eric Clapton Randall Created “Chair Phyllis Randall” Facebook Account Chair’s FB page identified as a government page Chair posted about official duties and responsibilities Chair used FB page to notify public about official actions of the Loudoun County Board City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 25 BLOCKING “ANY post filled with foul language, hate speech of all types and comments that are considered inappropriate will be removed and the user banned.” - Sheriff Robinson v Hunt County. TX (5th Cir. 2019) Resident of Hunt County commented that policy censored lawful speech and challenged Sheriff’s right to censor comments on a government social media page. In response, Sheriff’s Office removed her comment and banned her from the Facebook page City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 26 BLOCKING “Official censorship based on a state actor’s subjective judgment that the content of protected speech is offensive or inappropriate is viewpoint discrimination,” said the Court Robinson v Hunt County, TX (5th Cir. 2019) City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 27 HOT OFF THE PRESSES! 1ST case: 2 public school board trustees in CA who blocked parents from officials’ personal accounts 2nd case: Michigan city official blocked a man City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 28 Be Mindful. Be Deliberate. Be Smart. City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 29