Chicago Issues Opinion on Social Media Use of City Officials and Employees
On January 8, 2019, the City of Chicago Board of Ethics issued an advisory opinion addressing the use of social media accounts by City of Chicago elected officials, Chicago Police Department personnel in particular, and other City employees and officials regarding what content can be posted to social media accounts under the City's Governmental Ethics Ordinance. The opinion covers three types of social media accounts or websites: official, political/campaign, and personal.
Under certain conditions, City elected officials’ political/campaign or personal websites and social media accounts may include (i) content regarding City or ward business and (ii) political or electioneering content, including commentary on other politicians or their policies, campaign donation links, etc. To do so, the website or social media account cannot be funded or maintained with City resources or appear to be an official City site or account by containing items such as the City seal. In addition, the site or account must contain appropriate disclaimer language.
If an elected official’s official or personal website or social media account does appear to be an official City site, it must remain free of electioneering content, such as “Reelect me for the following reasons.” It also cannot link to any political committee or contain links for making campaign donations, even if the sites or accounts are funded fully with political or campaign funds.
If an elected official’s personal social media account includes political content or postings commenting on public affairs or matters involving City government, the official should not block or delete followers or delete critical or negative comments. The opinion includes an exception for comments that are obscene, profane, libelous or defamatory, or are commercial and posted to sell goods or services.
The opinion also specifically provides that Chicago Police Department personnel are prohibited from posting intellectual property of the CPD or the City of Chicago, such as badges and logos, on their personal social media accounts.
Post authored by David Warner, Ancel Glink.
Denial of Request for Body Camera Video Violated FOIA
As we noted yesterday, the PAC has already issued two binding opinions this year. We reported on one of them yesterday, and here is the other:
In PAC Op. 19-001
, a law firm requested a copy of a body-camera recording of a traffic incident in which the law firm's client was involved. The Chicago Police Department denied the request, citing the Law Enforcement Officer-Worn Body Camera Act. Specifically, the CPD stated that the Body Camera Act prohibited release of body camera recordings unless the recording had been previously "flagged." The requester appealed the denial to the PAC, arguing that the Act does not require prior flagging when the request for release of the recording is the subject or the subject's attorney.
The PAC agreed with the requester, and found CPD in violation of FOIA for not releasing the recording. Specifically, the PAC noted that the Body Camera Act allows disclosure of recordings under FOIA in certain limited circumstances. First, a recording can be released if it is "flagged" because of a complaint, discharge of a firearm, use of force, arrest or detention, or resulting death or body harm. Second, a recording can be released to the subject, the subject's attorney, the officer, or the officer's representative. The PAC rejected CPD's argument that the latter exception also required prior "flagging," finding that the statute did not include that language when allowing release to certain individuals. As a result, the PAC found CPD in violation of FOIA for not releasing the video recording to the subject's attorney.
15 Minute Limit on Public Comment Violated OMA
The Public Access Counselor (PAC) Office of the Illinois Attorney General has been busy this January, already issuing 2 binding opinions just this week. We'll report on one of those opinions today, and another tomorrow.
In PAC 19-002
, the PAC found a school district in violation of the Open Meetings Act when it restricted the public comment period at a school board meeting to 15 minutes without having an established and recorded public comment rule to that effect.
The school board conducted a meeting October 22, 2018, at which approximately 100 members of the public attended. At the meeting, the school board announced that members of the public would be permitted to speak for 3 minutes each, for a total of 15 minutes for all speakers. The board noted that these limits were in accordance with board rules that had been used before. A member of the public filed a complaint with the PAC after the meeting arguing that the board violated the OMA by imposing the 15 minute limit.
The PAC reviewed the District's "Board Policy Manual" which did include a limit on public comment at meetings of 3 minutes per person. However, the PAC noted in its opinion that the school board's manual did not include a reference to a 15 minute total cap on public comment. The school board argued that it also had adopted a "Board's Welcome Handout" that specifically included a reference to time limits for public comment as follows: "3 minutes per speaker, with a maximum of 15 minutes, per topic, per speaker." The board noted that the Welcome Handout is placed on a table next to the agendas and sign in sheet at every board meeting, and had been the past practice of the board for at least 10 years.
The PAC reviewed section 2.06(g) of the OMA which allows a public body to adopt rules for public comment. The PAC noted that those rules must be "established," which the PAC interpreted to mean adopted by the board and "recorded" by the public body. The PAC accepted the "Board Policy Manual" as an established and recorded policy on public comment within the meaning of the OMA. However, since the school board had not taken any action to formally adopt the Welcome Handout, the board could not rely on the 15 minute cap on public comment in an "unestablished and unrecorded rule." As a result, the PAC found the board in violation of the OMA for imposing the 15 minute cap on public comment.
Although the PAC found the 15 minute cap to be a violation of OMA because the board had not formally adopted that rule in an established and recorded policy, it did not opine that a cap on the total time for public comment would be unreasonable. In fact, the PAC acknowledged that a public body does have the inherent authority to conduct its meeting in an efficient manner, and that section 2.06(g) does not require public comment to be allowed to continue indefinitely. However, in a footnote, the PAC noted that there may be circumstances where the application of such a cap might unreasonably restrict the right to address public officials, particularly at a meeting with only one, highly controversial subject on the agenda. The PAC has, in a previous opinion, upheld a 30 minute cap on public comment that was in a formally adopted and recorded policy.
This opinion is another reminder to public bodies of the importance of ensuring that any limitations on public comment, whether they be time limits, rules on decorum , or any other rules on public comment, must be formally adopted by the public body. A public body cannot simply rely on "past practices" or on language in a handout or on an agenda.
Two Final Binding PAC Opinions for 2018
Earlier this month, we reported on 2018 binding PAC opinions. To our surprise, the PAC issued two last minute binding opinions for 2018 on December 31. Both involved FOIA complaints. In it’s 17th binding opinion of the year, the PAC again found a public body in violation of FOIA for failing to respond to a FOIA request. PAC Op. 18-017. In the 18th and final binding decision of 2018, the PAC found a public body in violation of FOIA for withholding two complaints against a police officer under 7(1)(c) as an invasion of personal privacy. The PAC found that because the complaints related to an employee’s public duties, the disclosure of the complaints would not constitute an unwarranted invasion of the employee’s personal privacy. That ruling is consistent with other PAC decisions that deal with complaints about public employees -- the PAC has consistently determined these complaints are not exempt under 7(c) of FOIA because that section says that “the disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.” However, the PAC did note that names and other discrete information identifying the complainants would be exempt under 7(1)(c). PAC Op. 18-018.
The opinion did not address whether the complaints might have been exempt under another FOIA exemption. For example, depending on whether or not an administrative hearing or investigative process was ongoing, the complaints may have been exempt under FOIA.
Post Authored by Erin Pell, Ancel Glink
County Official's Facebook Page a "Public Forum"
In August of 2017, we reported
on a case out of Virginia involving a claim of First Amendment violations against an elected official who had deleted critical posts and blocked a poster from her Facebook page. In that case, the district court found that the county official had violated the First Amendment rights of the poster because (1) the official used her Facebook page as a "tool of governance" for keeping constituents informed of county activities and to solicit feedback from constituents; (2) the official used county resources to support her page because county staff had access to post on the page; (3) the county's official newsletters promoted the elected official's Facebook page; and (4) the official's Facebook page included numerous references to the official's position, linked to the county's website, and the majority of the posts related to county business. Because the county official was acting in her official capacity when she engaged in these Facebook activities, the court found she had engaged in viewpoint discrimination in violation of the Firsts Amendment when she banned a user from her page.
The county official appealed the decision to the Fourth Circuit Court of Appeals, which issued its opinion on January 7, 2019. In short, the Court of Appeals upheld the ruling that the county official's Facebook page was a "public forum" and that she had violated the First Amendment when she deleted critical posts and banned a user. The Fourth Circuit rejected the official's and county's argument that the Facebook site was not a public forum because it was "private property." The Court also rejected the argument that the official's Facebook page was "government speech" because the site was an interactive space where comments could be posted by others.
Although this case is not binding outside of the Fourth Circuit, it is still an important one for government officials and employees because there are so very few cases that address government use of social media and its effect on First Amendment rights and protections. To the extent a government official establishes a Facebook, Twitter or other social media presence to communicate about government issues, a court could find that the sites are considered a "public forum." That means that censorship of those sites (i.e., deleting or hiding posts or blocking or banning users) could rise to the level of a First Amendment violation. It's important to note that this ruling was not restricted to only the "official" pages or sites of the government entity, but could include even personal social media sites or pages used by an official to communicate about government issues or activities.