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HomeMy WebLinkAboutItem 15 - Amendments to Council Policies and ProceduresItem 15 GtT Y O fiCouncil Agenda Report ti Department Name: Cost Center: For Agenda of: Placement: Estimated Time: FROM: Christine Dietrick, City Attorney Prepared By: Teresa Purrington, City Clerk City Attorney/Administration 1500/1021 April 6, 2021 Business 30 minutes SUBJECT: APPROVE AMENDMENTS TO COUNCIL POLICIES AND PROCEDURES REGARDING ORDER OF BUSINESS AND ADDING A POLICY REGARDING SOCIAL MEDIA RECOMMENDATION Adopt a Resolution (Attachment A) amending Council Policies and Procedures regarding the Order of Business, adding City Manager's Report, and moving appointments under consent; and adding new section 4.5 regarding parameters for City Council members related to public, private and campaign related digital and social media communications and records in compliance with the California Public Records Act and Brown Act. DISCUSSION Order of Business Amendments During the pandemic, adding a City Manager/Emergency Services Director Report to the City Council agenda was an effective way of keeping Council and the public up to date on the rapidly changing conditions associated with the pandemic and changes to City programs and projects. Staff recommends that City Manager Reports be formally added at the beginning of the meeting before the Presentations section on the City Council agenda to continue to provide another opportunity to keep the City Council and public informed of projects and programs happening in the City. The City Manager's Report is generally 10-15 minutes long. An additional modification made to the City Council agenda during the pandemic was to move Appointments to the Consent Agenda. Appointments to the City's Advisory Bodies are very important, but are rarely controversial and meet the definition of items on Consent as indicated below: The Consent Agenda is generally first on the Council agenda and is provided to expedite the meeting. Therefore, only items that are routine, relate to implementation of approved budget items or to City operations, are second readings of ordinances, or are items to be later set for public hearing are to be placed on the Consent Agenda. As with other Consent items, Council or the public can request that the appointment be removed from the Consent Agenda to provide comment, ask clarifying questions or for full discussion. Packet Page 73 Item 15 The draft resolution (Attachment A) amends Section 1.2.7 ORDER OF BUSINESS of the Council Policies and Procedures as follows: 1.2.7.1 Call to Order 1.2.7.2 Roll Call 1.2.7.3 Pledge of Allegiance 1.2.7.4 Closed Session Report (if any) 1.2.7.4 City Manager Reports 1.2.7.5 Presentations 1.2.7.6 Public Comment 1.2.7.7 Consent Agenda 1.2.7.8 Public Hearings and Business Items 1.2.7.9 Liaison Reports and Communications Council Social Media Policy Amendments The City supports a variety of social media accounts through which the City conveys a great deal of information to the public regarding City sponsored activities, information, updates, and actions. Those City maintained accounts are managed by City staff and the contents of those accounts are retained and made accessible to the public pursuant to City's social media policies and records retention policies, first amendment requirements, and in accordance with the California Public Records Act (CPRA). The City does not create, provide content for, or support social media accounts for individual Councilmembers, staff, or advisory body members, nor does the City monitor or have access to private or campaign accounts maintained by those individuals. City staff has consistently advised elected officials against "mixing" City and private content and discussion of City business (i.e., reposting City social media posts or discussing topics that are within the subject matter and jurisdiction of the City) on privately held accounts because doing so risks transforming those accounts into public forums and portions of their content into public records. However, the City Council Policies and Procedures do not currently include express provisions governing the online activities of Councilmembers on their privately held accounts. The City has recently experienced an increase in CPRA requests for records from privately held social media accounts on which Councilmembers have posted and/or received comments on matters of City business. Addressing those requests has proven challenging and time consuming because of mixed public and private content included on the accounts and the fact that the records of such accounts are not held by or independently and comprehensively accessible to staff and access to such accounts once deactivated are governed by the policies of the private social media account holder and the platform host. The law surrounding social media and its interplay with public transparency and public records retention and production laws governing public officials and public agencies, as well as the intersection with First Amendment rights is a complex, emerging and continually evolving area of law. The issue of social media has received the most legal attention nationally in the context of the first amendment rights of members of the public to access and interact with public officials' "private" social media accounts. Packet Page 74 Item 15 The overwhelming majority of cases decided across the country, from the district court to the federal circuit court levels, and now pending before the U.S. Supreme Court, have held, or at least suggested, that the posting and discussion of public information and issues by high level public officials on privately held social media accounts creates a public forum for first amendment purposes. As a result, several courts have found constitutional violations where members of the public have been blocked from interacting with such accounts or public comments posted to such accounts have been blocked or deleted! In addition to First Amendment considerations, the conduct of public business via private social media accounts has public records implications. The California Supreme Court in the City of San Jose v. Superior Court held in 2017 that the communications regarding public business conducted on private networks, accounts and devices may be considered public records for purposes of the CPRA. Although the San Jose case did not deal specifically with social media account communications, it clearly established that records of public business conducted by public officials, no matter the digital platform or program used or location, may be public records subject to disclosure under public records with few exceptions. There is little reason to believe conclude that the reasoning of the case as to other electronic records would not extend to records of public business conducted via social media accounts. While the first amendment parameters around the internet as the "new public square" are becoming clearer, what is less clear is what precisely constitutes a public record in a social media environment. For instance, the current case law, the League of California Cities (now CalCities) interpretation of the decision, and the policies of various cities on social media use, are still not entirely clear whether blocked, restricted, or muted individuals would qualify for disclosure under the CPRA. Similarly, no case to date has directly addressed the question of whether the records of social media statements or opinions of a single elected official who has no independent authority to act on behalf of the City, or social media statements of an incumbent candidate/officeholder regarding public business, can or should be viewed as records of official business subject to applicable records laws2. The cautious approach consistent with the analysis in the first amendment context, is to assume that any record of discussion by any public official of an issue that is within the subject matter or jurisdiction may be determined to constitute a public record, whether conducted, created, or maintained on public or private accounts, networks or devices. This is the approach that City staff and officials consistently have been advised to follow both before and after the San Jose case. 1 It is important to note there are likely exceptions for harassing, threatening, or violent posts, although that has not yet been affirmatively ruled upon by any court of precedent thus far, and also that not all content on a privately held account will necessarily be deemed to be public information by virtue of the use of an account for discussion of public business. 2 California law prohibits the use of public resources for campaign purposes, which would seem to compel the conclusion that social media campaign commentary by a candidate or the public on matters relevant to the office sought could not be official City business. Packet Page 75 Item 15 In the San Jose decision, the court outlined factors that a local agency should consider when deciding whether a record is public or private. These factors include content, context, audience, and scope. We must consider: (1) whether the content of messages relate in some substantive way to the conduct of the public, (2) what reasons an official uses a private account, (3) who is the intended audience of her account, and (4) does she use the account in the capacity of her official duties, or as a private individual [or political candidate]. There is no California law that requires public officials or employees to use only their government accounts to conduct public business. The court in San Jose was very clear that public officials have the right to use their personal accounts to exchange information that relates to their official roles and public business but doing so complicates compliance with public records laws and risks turning one's private accounts into public forums. For this reason, many public agencies have enacted policies to provide guidance in this arena. A common requirement is that officials should forward or copy messages and posts from private accounts to official accounts. Other agencies try to separate public and personal by advising that employees cannot or should not use personal accounts for public business or that by doing so they may subject their private accounts to CPRA requests. Many local agencies and federal laws require that employees copy their government accounts for all communications that could relate to public business. For instance, United States Code §2911 (a) prohibits the use of personal electronic accounts for official business unless messages are copied or forwarded to an official account. The City of Morro Bay also states that "if a council member receives or posts an electronic message regarding city business, they should copy that information to their official city account for transparency and ease of access to public records requests." Finally, the City of San Jose has a similar policy stating that city employees should forward information from personal accounts to work accounts to comply with CPRA requests. Additionally, consistent with the holding in the City's case, the city specifies that communications are personal if they make no more than incidental mention of agency business. On the other hand, the City of Santa Barbara has a social media policy that expressly "instructs employees to disclose that they do not represent the City when stating a personal opinion about City activities [and] restricts the use of City email accounts and the City seal for personal social media activity." Similar to Santa Barbara, the County of Ventura also advises that employees use county electronic messaging systems to conduct county business instead of personal messaging accounts. Ventura states that officials who use their personal accounts are required to search through their messages in response to CPRA requests. Finally, the City of Oakland has a very robust social media presence and outlines, in detail, the procedure for official social media usage and personal usage. In Oakland, city officials are to recognize that there is no expectation of privacy on social media. Employees of the city should not imply affiliations with the city, should avoid handles that make such implications, and need approval before using an employee title on social media. Packet Page 76 Item 15 The policy proposed in the draft resolution incorporates the most common elements of the several policies reviewed and also addresses new provisions of the Brown Act that prohibit online social media interactions between any Councilmembers on matters within City jurisdiction to preclude concurrence on matters within the subject matter or jurisdiction of the City. Policy Context The City Council has adopted "Council Policies and Procedure" to define and ensure the proper conduct of the City's business by the City Council and in compliance with State law and the City's Charter and Ordinances. The Council periodically revises its Council Policies and Procedures Manual to ensure clarity and to reflect changes in the law or practice. Public Engagement At the April 6, 2021 City Council meeting, the public had the opportunity to provide comment as part of the item regarding changes to the Order of Business and the addition of the social media policies. The public will also have an opportunity to submit letters or speak during Public Comment for this agenda item. ENVIRONMENTAL REVIEW The California Environmental Quality Act does not apply to the recommended action in this report, because the action does not constitute a "Project" under CEQA Guidelines Sec. 15378. FISCAL IMPACT Budgeted: N/A Funding Identified: N/A Fiscal Analysis: Budget Year: 2020-21 Funding Sources Total Budget Available Current Funding Request Remaining Balance Annual Ongoing Cost General Fund N/A State Federal Fees Other: Total There are no direct fiscal impacts associated with these changes to the Council Policies and Procedures, but there are unquantified and potentially significant fiscal impacts related to staff time to gather, review and retain records relating to public business from privately held social media accounts. Packet Page 77 Item 15 ALTERNATIVES Council may decide to not adopt the Resolution amending the Council Policies and Procedure or direct staff to make additional changes. Attachments: a - Draft Resolution Packet Page 78 Item 15 RESOLUTION NO. (2021 SERIES) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO, CALIFORNIA, AMENDING ITS COUNCIL POLICIES AND PROCEDURE MANUAL WHEREAS, the City Council has adopted a certain manual entitled "Council Policies and Procedures" to define and ensure the proper conduct of the City's business by the City Council and in compliance with State law and the City's Charter and Ordinances; and WHEREAS, the Council periodically revises its Council Policies and Procedures Manual to ensure clarity, consistency with State law, and conformity with the City Charter and Ordinances. NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis Obispo as follows: SECTION 1. Section 1.2.7 of Council Policies and Procedures Manual ORDER OF BUSINESS shall be amended as follows: 1.2.7.1 Call to Order 1.2.7.2 Roll Call 1.2.7.3 Pledge of Allegiance 1.2.7.4 Closed Session Report (if any) 1.2.7.4 City Manager's Report 1.2.7.5 Presentations 1.2.7.6 Public Comment 1.2.7.7 Consent Agenda 1.2.7.8 Public Hearings and Business Items 1.2.7.9 Liaison Reports and Communications SECTION 2. Section 4.5 Council Policies and Procedures Manual (ELECTRONIC MAIL (EMAIL), THE PUBLIC RECORDS ACT AND THE BROWN ACT) is amended to read as follows: 4.5 ELECTRONIC MAIL (EMAIL), SOCIAL MEDIA POLICY AND THE PUBLIC RECORDS ACT AND THE BROWN ACT 4.5.1 City Email. City email is no less a part of "official city business" than any other written correspondence, and there is no expectation of privacy for City email messages. Good judgment and common sense should therefore prevail at all times regarding its appropriate use. For further detail, please see the City's "Electronic Mail Policy" and Chapter 5 of this manual. 17 Packet Page 79 Item 15 Resolution No. (2021 Series) Page 2 City email is subject to disclosure under the Public Records Act and is subject to the requirements of the Brown Act. While the Brown Act does not prohibit the use of email to make individual contacts between members of the Council, or the public or staff, great care should be taken to avoid the use of email to contact a majority of the Council, either individually or serially, "in a connected plan to engage in collective deliberation on public business." 4.5.2 Private Social Media and Digital Communications. The City does not provide or support individual social media accounts for Councilmembers. Councilmembers that maintain personal social and other digital media accounts should be aware that, similar to City email or any other written or recorded communication related to the official conduct of city business, digital communications, social media posts and messages by public officials regarding matters that are before the City for action or within City jurisdiction can be "official city business" subject to laws and policies regarding freedom of speech, records retention and production, and public transparency. Those laws and policies include, but are not necessarily limited to, the California and United States Constitution, the California Public Records Act, the Ralph M. Brown Act, and the City's records retention regulations. It is the intent of this policy to ensure that Councilmembers are aware that digital and social media communications regarding public business that are conducted using private networks, accounts or devices may be subject to the same laws as other records of public business and that mishandling of such communications in violation of applicable laws may subject to councilmembers and the city to liability under applicable laws and may result in censure of a violating councilmember. This policy is intended to establish parameters for the management of public, private and political digital and social media accounts in compliance with applicable laws and in a manner that avoids the potential for public confusion regarding public, private and campaign related digital and social media activities of councilmembers. A Council member or Mayor participating in digital or social media communications shall maintain and clearly delineate between separate accounts for official, and personal or campaign statements, taking precaution not to convey personal or campaign communications in a manner that suggests such communications represent the position of the City or the City Council as a whole. To avoid ambiguity, all statements, headings, profile pictures, or biographies on personal or campaign accounts shall not be made in the name of the position to which the Council Member or Mayor was elected, shall clearly reflect that content on such accounts does not represent the official positions of the City or the City Council, and shall not display the City logo or any other official City mark or title. There is no California law requiring public officials to use only government accounts to conduct public business, but there should be no expectation of privacy if personal accounts are used to conduct public business. 17 Packet Page 80 Item 15 Resolution No. (2021 Series) Page 3 Statements on official sites and accounts shall contain only official City positions, policies, or announcements, and all contents and messages communicated on such accounts are subject to the California Public Records Act. If a council member receives an electronic communication regarding city business on a personal account, they should copy that information to their official city account for transparency and ease of access for public records requests. Digital records relating to public business are required to be in a manner capable of maintaining the record for the applicable retention period, including through the use of highlights, bins, or archives for temporary and disappearing stories, reels, posts, or otherwise. Likewise, public officials should avoid deleting comments or blocking individuals on official pages or sites they maintain. Social media content should be treated the same as any written document and retained in accordance with the City retention schedules or the minimum two-year period required under California Government Code. 4.5.3 Social Media and Brown Act Compliance. To avoid any violations of the Brown Act, consistent with the update provided by AB 992, Council Members are permitted to use a social media platform to engage in conversations or communications on matters within the subject matter jurisdiction of the Board: (a) to answer questions; (b) to provide information to the public, and (c) to solicit information from the public. However, a majority of Council members may not use social media to "discuss among themselves" official business. AB 992 broadly defines the meaning of "discuss among themselves" to include any "communications made, posted, or shared on an internet-based social media platform between members of a legislative body, including comments or use of digital icons that express reactions to communications made by other members of the legislative body." AB 992 prohibits a Board member from communicating directly with the social media of any other member on a subject within the jurisdiction of the board. 17 Packet Page 81 Item 15 Resolution No. (2021 Series) Page 4 This social media guidance applies to all internet based social media platforms that are "open and accessible to the public," including, but not limited to, blogs, podcasts, Snapchat, Instagram, Facebook, Twitter, Nextdoor, and Reddit. Upon motion of , seconded by , and on the following roll call vote: AYES: NOES: ABSENT: The foregoing resolution was adopted this day of Mayor Heidi Harmon ATTEST: Teresa Purrington City Clerk APPROVED AS TO FORM: J. Christine Dietrick City Attorney 2021. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Luis Obispo, California, on Teresa Purrington City Clerk 17 Packet Page 82 Amendments to the Council lob Policies and Procedures Recommendation ■ Adopt a Resolution amending Council Policies and Procedures regarding the Order of Business, adding City Manager's Report, and moving appointments under consent; and adding new section 4.5 regarding parameters for City Council members related to public, private and campaign related digital and social media communications and records in compliance with the California Public Records Act and Brown Act. Order of Business Changes ■ Adding City Manager / Emergency Services Director Report ■ Moving Appointments under Consent Council Social Media Policy Amendments Legal Background ■ The relationship between public officials' usage and regulation of internet-based social media accounts and the First Amendment is a complex and developing area of the law. ■ The vast majority of cases have held that the posting and discussion of public information and issues by high level public officials on privately held social media accounts creates a public forum for First Amendment purposes. Council Social Media Policy Amendments Legal Background for Private Accounts ■ City of San Jose v. Superior Court (2017) held that communications regarding public business conducted on private networks, accounts, or devices may be considered public records under the CPRA. ■ Knight First Amendment Institute v. Trump (2019) held that an account is open for public discussion when a government official, upon assuming office, repeatedly uses the account as an official vehicle for governance and makes the interactive features accessible to the public without limitation. Council Social Media Policy Amendments Legal Background for Public Accounts ■ Robinson v. Hunt County, Texas (2019) held that a policy of deleting "inappropriate" comments on an official public account is viewpoint discrimination. ■ Matal v. Tam, U.S. (2017) held that official censorship based on a state actor's subjective judgment that the content of protected speech is offensive or inappropriate is viewpoint discrimination. Council Social Media Policy Amendments ■ Section 4.5 of the Council Policies and Procedures Manual titled "Electronic Mail (Email), the Public Records Act and the Brown Act" governs the appropriate usage of email in compliance with the California Public Records Act and the Brown Act. ■ Section 4.5 (previously, Electronic Mail) is now renamed (Electronic Mail (Email), Social Media Policy And The Public Records Act And The Brown Act) and is amended to include: ■ Section 4.5.2 "Private Social Media and Digital Communications" Council Social Media Policy Amendments ■ Intent of social media changes ■ Ensure councilmembers are aware that digital and social media communications regarding public business using private networks, accounts, or devices, may be subject to laws regarding freedom of speech, records retention and production, and public transparency. ■ Establish parameters for the management of public, private, and political digital and social media accounts in compliance with applicable laws to avoid liability and the potential for public confusion regarding public, private, and campaign related uses. Council Social Media Policy Amendments ■ The City does not provide or support individual social media accounts for councilmembers. ■ While there is no California law requiring public officials to use only government accounts to conduct public business, there should be no expectation of privacy if personal accounts are used to conduct public business. Council Social Media Policy Amendments ■ A councilmember or Mayor participating in digital or social media shall maintain and clearly delineate between separate accounts for official, and personal or campaign statements. Council Social Media Policy Amendments Personal and campaign accounts ■ To avoid ambiguity, statements, headings, profile pictures, or biographies shall not be made in the name of the position to which the councilmember or Mayor was elected. ■ Councilmembers shall not display the City logo or any other official City mark or title on private or campaign accounts. Council Social Media Policy Amendments Official public accounts ■ Statements on official sites and accounts shall contain only official City positions, policies, or announcements, and all content or communications are subject to the California Public Records Act. ■ If a councilmember receives an electronic communication regarding city business on a personal account, they should forward that information to their official City account for transparency. Council Social Media Policy Amendments ■ Digital records that relate to public business are required to be saved in a manner capable of being maintained for the applicable retention period. ■ This can be done using highlights, bins, or archives for temporary and disappearing stories, reels, posts, or otherwise. ■ Public officials should avoid deleting comments or blocking individuals on official pages or sites they maintain. Council Social Media Policy Amendments Brown Act ■ "Paragraph (1) shall not be construed as preventing a member of the legislative body from engaging in separate conversations or communications on an internet-based social media platform (1) to answer questions, (2) provide information to the public, or (3) to solicit information from the public regarding a matter that is within the subject matter jurisdiction of the legislative body provided that a majority of the members of the legislative body do not use the internet-based social media platform to discuss among themselves business of a specific nature that is within the subject matter jurisdiction of the legislative body. A member of the legislative body shall not respond directly to any communication on an internet-based social media platform regarding a matter that is within the subject matter jurisdiction of the legislative body that is made, posted, or shared by any other member of the legislative body." ■ "Discuss among themselves" means communications made, posted, or shared on an internet-based social media platform between members of a legislative body, including comments or use of digital icons that express reactions to communications made by other members of the legislative body. Council Social Media Policy Amendments Brown Act ■ AB 992 clarified the boundaries of social media usage in compliance with the Ralph M. Brown Act. ■ Councilmembers can use social media to engage in conversations with constituents regarding issues within the subject matter jurisdiction of the Council: ■ To answer questions ■ To provide information to the public ■ To solicit information from the public Council Social Media Policy Amendments Brown Act ■ Councilmembers may not use internet-based social media to discuss official business with any other councilmember. ■ This includes private messages, comments, likes, shares, or other digital icons that express reactions to communications made by another member of the council. ■ AB 992 prohibits councilmembers from communicating directly with the social media of any other member on a subject within the jurisdiction of the Council.