The URL can be used to link to this page

Home My WebLink AboutSocial Media- Handout- Pt Arthur (Nov 30 2023)City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 1 for Public Officials LAW MEDIA SOCIAL 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 1 2 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 2 WHAT WERE THEY THINKING? REALLY? 3 4 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 3 5 6 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 4 HOT OFF THE PRESSES! 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” 7 8 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 5 PROS / CONS PROS •Timely • Direct • Personal • Unfiltered • Widely Distributed • Inexpensive CONS • Impulsive • Unvetted • Unfiltered • Derogatory • Inaccurate •Viral, Forever! AGENDA 1.Open Government 2.Human Resources 3.Blocking / Removing 9 10 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 6 PART 1. OPEN GOVERNMENT 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 11 12 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 7 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 OPEN MEETINGS Public business should be conducted in public A “Meeting” is: 1.Deliberations (talking and/or voting) 2.Gathering 3.Quorum (majority) 4.Governing Body 5.City business Action without Meetings Digital Exchange can = “Deliberation”Tx Govt Code Ch. 551 13 14 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 8 PART 2. HUMAN RESOURCES 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) 15 16 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 9 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. 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) 17 18 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 10 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….” PART 3. BLOCKING FROM OFFICIAL SITES 19 20 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 11 BLOCKING FROM OFFICIAL SITES 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) 21 22 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 12 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) 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 23 24 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 13 “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 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 25 26 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 14 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) 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 27 28 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (C) 2023 15 Be Mindful. Be Deliberate. Be Smart. 29