Webinar presenter Rick Hodsdon answered a number of your questions after his presentation, First Amendment, Social Media, and Employee Discipline. Here are just a few of his responses.
Audience Question: Do private sector employers have the ability to regulate posts to social media pages of employees? And how is that different than getting government agencies’ abilities?
Rick Hodsdon: Private sector employers have much greater flexibility in the sense – the First Amendment says Congress shall pass no law and of course over time, the Supreme Court has expanded that to state and local governments as well. First Amendment generally doesn’t apply to the private employer. So the private employer has a lot more ability to take disciplinary consequences or regulate behavior without it being a first amendment issue. Likewise, however, the private employer does have the same obligations that the public sector employer does to protect its employees from being harassed, whether it’s racial or sexual or whatever, by means of social media. So they have the obligation to protect like the public does, but they have far greater discretion in policies and procedures about social media. First Amendment just doesn’t come into play.
Audience Question: During a town hall meeting, issues were raised to the Board of Commissioners about the inadequacy of the equipment that patrol deputies have access to. This is both a personal complaint as well as a matter of public concern. What’s your take on this? Where would this likely fall?
Rick Hodsdon: I think that may depend on the context of town hall meeting and how the individuals identifies themselves. If it’s a town hall meeting in which somebody who’s off duty not in uniform comes forward and says,’ You know, I think that we have major equipment, deficiencies, and the police department, they don’t have this, they don’t have that’. If they’re respectful in their tone and presentation, I think significantly higher that the odds would go up that they are speaking out a matter of public concern and are protected. That’s again, assuming they pretty much keep to the public record, if they’re in charge of department, agency finance, or tactics, and they start revealing things that they would know only by virtue of their employment in that position then since Garcetti, I think they’re getting far closer to the edge of what they could be disciplined for. And particularly if they were to reveal anything that’s not a matter of public record that the general public would not be privy to, then they may be well over the edge.
Audience Question: We had several people asking about using aliases or pseudonyms. Does that have any effect, on in terms of what an employee can post? Does that give somebody more protection? Is it still an issue for employers? What’s your take on that?
Rick Hodsdon: If you use an alias or pseudonym and in the context of social media, I can pretty much figure out who you are, then I don’t know that that’s going to be much help. I have to say we had a case of that sort a year or 2 ago here in Minnesota where there was a protest. Black Lives Matter was blocking one of our bridges across the Mississippi River. Somebody posted a social media post using a pseudonym or an alias, saying, you should just basically run through the crowd, run them over. Despite the fact that an alias or pseudonym was used people, based on the context, put two and two together did some additional research and found out that this post was by a local sergeant in a local police department, one of our larger police departments here. That initiated an internal affairs investigation and the legal issue would have been interesting to see if that was protected speech or not because of that pseudonym issue. We don’t know the answer because somewhere along the way the sergeant said, “You know what, I’ve got my 30 years in, I’m out of here, I retire.” But the moral of that story is, depending on the context, don’t assume your pseudonym is necessarily going to be enough to protect you. If people can figure out who you are, and it traces back and you violating agency policy by pseudonym, then you’re still probably subject to discipline.
Audience Question: We also have several people asking about model or sample or template policies. Do you have a recommendation or do you have sample policies? Or is there some place that you would point them to?
Rick Hodsdon: A couple of potential resources. If you’re an agency that has a social media presence and you want to have rules of engagement, check with San Francisco and go online. Look at the San Francisco Police Department’s social media policy. Last time I looked at it I thought it was pretty solid. The IACP does have a sample of social media policy you may want to take a look at. If any of your agencies are Lexipol jurisdictions which is – I’m not a vendor for Lexipol, but they are a commercial product and does have a specific social media policy as well. And you can find a couple of fairly good ones online. But IACP is often a good starting point for several of these issues. IACP also does a social media survey each year. I haven’t looked to see if they put out the 2019 but they try get a handle on who does social media for what purpose and some of these kinds of questions so they can be a pretty good source for you.
Audience Question: Can police agencies be held responsible for the postings made by their employees on an agency quote-unquote, owned social media platform, as in it’s become a situation where it’s a failure to supervise?
Rick Hodsdon: Oh, Certainly they could. Particularly if it’s an agency owned, agency-run, agency-operated and I think the standard is even higher because at that point, presumably, this is going to be presented as being the agency’s official social media presence. The agency’s social media presence is going to have significantly more implications. So for example, one of the things that in my state, because many of our law enforcement agencies either have or are developing a social media presence the photographic depiction of a government employee in Minnesota, for the most part, is non-public information, we call it private data. So even if I’m going to post you know, Officer Smith gets a police officer of the year and I want to put that on my social media site, which is a positive, great thing to say about Officer Smith we need to get written permission of Smith to do that. If we didn’t have that, we would be using the official website essentially to violate his privacy rights. Absolutely, you have an obligation if you’re an agency with a social media presence because it is your government data. The other thing I would suggest you want to manage to take a look at in that circumstance is it also may be subject to your records retention laws. So depending on how you store it, and how long you store it, and what you store it with, there could be those implications as well.
Audience Question: Are there constraints on public speeches for a person who works for a sheriff’s department and is also running for that office?
Rick Hodsdon: Well, this was a problem even more so prior to 2012 because the Hatch Act often came into play which is a federal law that says if you, at the time, it said, if your salary or even reimbursement, even partial reimbursement anything is from federal money you can’t run for partisan political office and can’t use your authority. That is not as big of a problem now because the Hatch Act has significantly restricted as it applies to local governments so at least that is off the table for the most part. If you are running for the Office of Sheriff, and you are currently Sheriff, then the rules are somewhat different than if you’re not the incumbent. But that’s really going to be more -not so much first amendment issues. That’s going to be agency policy and procedure, because it could be perceived that you are using, for example, you’re going to run in uniform. It could be perceived that you’re violating an agency policy that says you may not use your county resources for private gain or private purposes, so you can be disciplined for violation of that policy. So that’s one thing to be careful about in terms of campaigning in uniform if you are not the incumbent. Now if the incumbent has given you permission to do that and you have that written permission most agencies have will provided in my experiences, will provide some kind of a loophole, you may not use these resources for personal gain or use without the authorization of your supervisor, the sheriff, the boss, whatever. So, look at your policies and see what they say.
Audience Question: With apps like TikTok and Snapchat being not listed as social media but rather messaging apps. Are these still something we have to protect employees from with preventative action? Are they from a policy perspective – are they different than social media?
Rick Hodsdon: I don’t think they’re any different from a legal policy – from a legal operation perspective. They’re not, I don’t see them any different than, and again, I’m applying how courts think, it’s no different than pieces of paper. Back when I was in high school, you passed a note in school and now you send a text message or a Snapchat, but the rules and regulations really aren’t any different. It’s more a matter of proof. A Snapchat is transitory. You can call it a message, but it’s a communication and it’s, so instead of talking about social media, maybe we should have talked about electronic communications today because some of the cases were websites, some of them were blogs, some of them were eBay. The rules don’t seem to make a difference, whether you call it a messaging system or a social media It may be harder to rebuild those transitory Snapchats that come and go very quickly. They’re not around as much but I don’t see the principles are any different. And certainly, we know from criminal prosecution, for example, we have a number of sexting cases involving juvenile victims, in which we’ve been equally successful prosecuting a Snapchat display as anything else.
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