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Public or private? How a new San Luis Obispo city policy will influence elected officials' social media

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Posted at 7:12 PM, Apr 05, 2021
and last updated 2021-04-06 01:35:23-04

The City of San Luis Obispo is reviewing how government officials are using professional and personal social media accounts after Mayor Heidi Harmon's online behavior was called into question by some community members.

On Tuesday, the San Luis Obispo City Council will discuss a proposed social media policy to clarify what elected officials should expect when posting official business to their personal accounts.

In the proposed policy, the city is advising elected officials from "mixing" city business on private social media accounts, saying it "risks transforming those accounts into public forums and portions of their content into public records."

This comes after some residents said their First Amendment rights were violated when Mayor Harmon blocked them from her social media accounts.

In response to a batch of public records requests made in December, Mayor Heidi Harmon submitted screenshots that show 58 accounts were completely blocked from her Facebook page, at least 25 accounts were blocked from her Instagram account and only people she followed on Instagram were allowed to comment on her posts.

She has since restored full access to blocked accounts and reactivated her Instagram account @heidiismighty after a social media hiatus.

The new policy also states that social media should be treated like a written document and "public officials should avoid deleting comments or blocking individuals on official pages or sites they maintain."

“Sounds like the proposed policy is doing the right thing. I have run into this issue with other elected officials before," said employment attorney Marilyn Rossa.

Rossa was once blocked from Mayor Harmon's Facebook Page.

She hopes for transparency moving forward.

“When there is transparency, those hearing you are able to agree or disagree. A lot of people base who they are going to vote for based or partially based on what they see online so it needs to be open,” Rossa said.

What defines a public record in a social media environment is still unclear.

In the case of the City of San Jose v. The Superior Court, the California Supreme Court held in 2017 that communications conducted on private networks, accounts, and devices about public business may be considered public records under the California Public Records Act.

“The policy attempts to strike that balance between free speech of elected council members and the public and then establish clear guidelines and requirements to make it clear when public office holders are not speaking for the city and when they need to preserve those records,” said San Luis Obispo City Manager Derek Johnson.

Agencies are looking at four things to determine if something on social media is public or private: content, context, audience, and scope.

SLO City will consider:

“We want to make sure that any sort of private account doesn't have any sort of insignia, emblems, or imagery from their role as an elected official that would somehow give the impression to someone to looking at it that it's an official site or social media site or associated with the business of the public,” Johnson said.

Staff is looking at policies followed by other cities. For example, the City of Santa Barbara instructs employees to disclose that they do not represent the city when stating a personal opinion about city activities.

The City of Morro Bay also says a council member should copy a post or electronic message about official business to their official city account for transparency.

In Oakland, city officials should assume all use of social media is public.

“This is an evolving space for both policy and law. The state legislature has increasingly recognized that social media and conduct of public officials on social media has a place in free speech, “ Johnson said. “Our interests are accuracy, transparency and making sure we are providing timely information to the public."

To add to all of this, the Brown Act now prohibits social media interactions between council members about city business including liking a post about policy.

The city council will review the recommended policy during its meeting on Tuesday, April 6. Community members can voice their opinion before the meeting or during the public hearing portion.