2020 annual government and administrative practice seminar · 2020-07-31 · 2020 annual government...

2020 Annual Government and Administrative Practice Seminar

Friday, July 31, 2020

WEBCAST

Ryan Post, Civil Litigation Bureau Chief, Nebraska Attorney General’s Office

Danielle Conrad, Executive Director, ACLU of Nebraska

Christy Abraham, Legal Counsel, League of Nebraska Municipalities

Lash Chaffin, Utilities Section Director, League of Nebraska Municipalities

The NSBA’s Government and Administrative Practice Section presents:

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AGENDA


The impacts of COVID-19 have been felt by all levels of government, resulting in new challenges and

unique legal issues. This seminar will discuss some of those legal issues, including powers of

governments during an emergency, first amendment issues, and how the pandemic has impacted

municipalities.

2:00 pm Governmental Powers in an Emergency, Ryan Post, Civil Litigation Bureau

Chief, Nebraska Attorney General’s Office

The COVID-19 pandemic has highlighted the emergency authority of state and local

governments like never before. This session will review the powers of state and local

governments during a pandemic or other declared emergency.

2:45 pm BREAK

2:55 pm Can I Block Cranky Constituents? First Amendment Issues in Social Media,

Danielle Conrad, Executive Director, ACLU of Nebraska

Even before COVID-19, state and local governments and elected officials were relying on

social media platforms like Facebook and Twitter to communicate with the public. This

session will focus on a variety of first amendment issues associated with social media use

by governments and elected officials.

3:25 pm BREAK

3:35 pm Municipalities in the Pandemic, Christy Abraham, Legal Counsel, League of

Nebraska Municipalities/ Lash Chaffin, Utilities Section Director, League of Nebraska

Municipalities

The COVID-19 crisis has impacted seemingly every aspect of state and local government.

This session will look as some of the major legal issues facing municipal governments as a

result of the pandemic, from closing parks and swimming pools to utility shut-offs and

essential municipal workers.

SPEAKER BIOS

Ryan Post currently serves as the Chief of Civil Litigation for the Nebraska Department of Justice. The Civil Litigation Bureau serves as trial and appellate counsel in most civil suits filed in state or federal court against the State, its agencies, and State officials and employees. Ryan is a graduate of the University of Nebraska College of Law.

Danielle Conrad became Executive Director of the ACLU of Nebraska in 2014 after serving two terms in the Nebraska Legislature. Danielle’s professional career has also included working as a staff attorney at the Nebraska Appleseed Center for Law in the Public Interest and serving as a member of the Board of Directors of Legal Aid of Nebraska. She earned her Juris Doctor from the University of Nebraska College of Law.

Christy Abraham is the legal counsel for the League of Nebraska Municipalities, where she provides assistance to municipalities on issues such as budget concerns, economic development, and open meetings and public records. Before joining the League in 2016, Christy worked for 16 years in the Nebraska Legislature as legal counsel for the Government, Military and Veterans Affairs Committee as well as the Revisor of Statutes office. She graduated from the University of Nebraska College of Law in 1996.

Lash Chaffin is the utilities section director for the League of Nebraska Municipalities, where he advises municipalities on a variety of utility-related issues. Before joining the League in 1987, Lash served as a staffer in the Nebraska Legislature. He earned his Juris Doctor from the University of Nebraska College of Law.


Governmental Powers in an Emergency

Ryan Post Nebraska Attorney General’s Office


Webcast

7/27/2020

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Governmental Powers in an Emergency

Ryan Post – Civil Litigation Bureau Chief

Nebraska Department of Justice

Nebraska Emergency Management Act

What is an emergency?

• “Any event or the imminent threat thereof causing serious damage, injury, or loss of life or property resulting from any natural or manmade cause which, in the determination of the Governor or the principal executive officer of a local government, requires immediate action to accomplish the purposes of the Emergency Management Act and to effectively respond to the event or threat of the event.”

− Neb. Rev. Stat. § 81-829.39(3).

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Who can declare an emergency?

• Governor

− Neb. Rev. Stat. § 81-829.40(3)

• Mayor in a city of any class or the elected chairperson of the governing body of a village or county

OR

• A person who by resolution has been authorized and designated by the governing board of a local government to determine that an emergency within the scope of his or her authorization exists

− Neb. Rev. Stat. § 81-829.50

How long does a Governor emergency proclamation last?

• Until the Governor finds that the threat or danger has passed;

• The emergency has been dealt with to the extent that the conditions no longer exist; or

• The Legislature, by resolution, terminates the state of emergency proclamation.

− Neb. Rev. Stat. § 81-829.40(3)

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How long does a local emergency proclamation last?

• The emergency has been dealt with to the extent that the conditions no longer exist; or

• The local governing body, by resolution, terminates the local state of emergency proclamation.

− Neb. Rev. Stat. § 81-829.50

In an emergency, the Governor is:

• Authorized to issue proclamations and make, amend, and rescind orders, rules, and regulations to carry out the act.

• The commander in chief of the militia and all other forces available for emergency management duty.

• Authorized to expend funds to deal with the emergency, including “furnishing medical services and supplies to prevent the spread of disease and epidemics.”

− Neb. Rev. Stat. §§ 81-829.40 and 81-829.42

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Additional powers of the Governor in an emergency:

• Suspend statutes, rules and regulations, and orders prescribing procedures for the conduct of state business.

• Transfer state agencies’ personnel and functions for the purpose of performing or facilitating emergency management.

• Commandeer or utilize any private property if necessary to cope with the emergency (subject to compensation under § 81-829.57).

• Make provisions for the availability and use of temporary emergency housing.

− Neb. Rev. Stat. § 81-829.40

Recent executive orders from the Governor:

• 20-01: Suspension of motor carrier length and weight hauling requirements .

• 20-02: Ban on state agency out-of-state travel.

• 20-13: Immediate implementation of Online Notary Act.

• 20-20: Waiver of state educational assessments.

• 20-27: Waiver of certain credentialing requirements for health care professionals responding to COVID-19.

− https://govdocs.nebraska.gov/docs/pilot/pubs/eoindex.html

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In an emergency, a local government may:

• Make provisions for temporary emergency housing;

• Make emergency expenditures;

• Enter into contracts; and

• Incur obligations for emergency management purposes regardless of existing statutory limitations and requirements pertaining to appropriation, budgeting, levies, or the manner of entering into contracts.

− Neb. Rev. Stat. §§ 81-829.51 and 81-829.70

Recent emergency orders from local government:

• City of Lincoln COVID-19 emergency declaration.

− https://lincoln.ne.gov/city/mayor/media/2020/031620a.htm

• City of Lincoln civil disturbance emergency declaration.

− https://lincoln.ne.gov/city/mayor/pdf/Emergency%20Declaration%20Civil%20Disorder.053120.pdf

• City of Omaha COVID-19 continuity of operations.

− https://hr.cityofomaha.org/public-documents/executive-orders

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• But if the Governor determines an emergency is beyond local control, he or she may assume direct operational control over all or any part of the emergency management functions within this state.

• The Governor may also utilize all available resources of the state government and of each political subdivision of the state as are reasonably necessary to cope with the emergency.

− Neb. Rev. Stat. § 81-829.40

Directed Health Measures

• The Department of Health and Human Services shall have supervision and control of all matters relating to necessary communicable disease control.

− Neb. Rev. Stat. § 81-829.40

• DHHS regulations on Directed Health Measures.

− 173 Neb. Admin. Code, ch. 6.

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What is a directed health measure?

• Any measure, whether prophylactic or remedial, intended and directed to prevent or limit the spread of communicable disease or to prevent or limit public exposure to or spread of biological, chemical, radiological, or nuclear agents.

− 173 NAC 6-002

Who can issue a directed health measure?

• DHHS Chief Medical Officer.

− 173 NAC 6-004

• County board of health, with the approval of the Department of Health and Human Services.

− Neb. Rev. Stat. § 71-1631(10), but see Neb. Rev. Stat. § 71-1630(4)

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Types of directed health measures:

• Quarantine of individuals, defined populations, premises, or animals.

• Isolation of individuals at home, in a health care facility, or in another designated area.

• Decontamination.

• Other measures identified as effective by the American Public Health Association and the United States Department of Health and Human Services Centers for Disease Control and Prevention or other similar public health authority.

Examples from recent directed health measures:

• Restrictions of gatherings.

• Local public health department preapproval required for large public gatherings.

• Closure of certain business such as bars and bottle clubs.

• Elective surgery or procedure restrictions.

• Quarantine for individuals testing positive.

• Quarantine upon return from international travel.

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• Procedures for issuing a DHM are at 173 NAC 6-005.

• The findings required to issue a DHM are at 173 NAC 6-006.

• Notice provisions for specific DHMs are at 173 NAC 6-007.

• Process for requesting a hearing to contest a DHM and for appeal is at 173 NAC 6-008.

Enforcement of a directed health measure:

• If noncompliance, law enforcement and other municipal and local public health department personnel will be required to aid DHHS in enforcement of the DHM.

− 173 NAC 6-009

• A violation of a state DHM is a Class V misdemeanor.

• The Attorney General or county attorney may seek an injunction against a person or entity in violation of a DHM.

− Neb. Rev. Stat. § 71-506

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Constitutional Issues

• Fourth Amendment – Searches and Seizures

• Takings

• Habeas Corpus

• Right to Counsel

• First Amendment

− https://supremecourt.nebraska.gov/sites/default/files/Intranet/court/benchbook/pandemic.pdf

Jacobson v. Massachusetts• State law allowed cities to require residents to be vaccinated

against smallpox. Cambridge adopted ordinance, with exceptions.

• Jacobson refused to comply and was fined five dollars.

• Did law violate Jacobson’s Fourteenth Amendment right to liberty?

• Supreme Court held that the law was a legitimate exercise of the state’s police power to protect the public health and safety. Local boards of health determined when vaccinations were needed, thus the requirement was not unreasonable nor arbitrarily imposed.

− 197 U.S. 11 (1905)

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South Bay United Pentecostal Church v. Newsom

• California order limiting attendance at religious worship services to 25% of building capacity or 100 attendees, whichever is lower.

• Secular businesses not subject to same occupancy cap, including factories, offices, supermarkets, shopping malls, and hair salons.

• If the Church agrees to abide by other restrictions placed on secular businesses, does the occupancy cap violate the First Amendment?

• In a 5-4 decision the Supreme Court said no.

• Secular activities did not involve people who “congregate in large groups” or “remain in close proximity for extended periods.”

• “The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement.

• Public health officials should be afforded “especially broad” latitude in these areas.

• “Where those broad limits are not exceeded, they should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”

− 140 S.Ct. 1613 (2020)

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Calvary Chapel Dayton Valley v. Sisolak• Nevada order limiting religious services to 50 persons.

• Casinos and other facilities may admit 50% of maximum capacity.

• If the Church agrees to abide by other restrictions placed on secular businesses, does the 50 person cap violate the First Amendment?

• In a 5-4 decision the Supreme Court said no.

• Dissent: “At the outset of an emergency, it may be appropriate for courts to tolerate very blunt rules.” “But an emergency does not give officials carte blanche to disregard the Constitution . . .”

− https://www.supremecourt.gov/opinions/19pdf/19a1070_08l1.pdf

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Can I Block Cranky Constituents? First Amendment Issues in Social Media

Danielle Conrad ACLU of Nebraska


Webcast

Can I Block Cranky Constituents? First Amendment Issues in Social Media

Nebraska State Bar AssociationGovernment Practice Section

CLE July 2020

Danielle Conrad, J.D.ACLU of Nebraska, Executive Director

Even before COVID-19, state and local governments and elected officials were relying on social media platforms like Facebook and Twitter to communicate with the public.This session will focus on a variety of First amendment issues associated with social media use by governments and elected officials.

What Do These Elected Officials Have In Common?

Typical ACLU Social Media Blocking Intakes & Responses

• Omaha to Alliance

• Democrats, Republicans, Nonpartisan Elected Officials

• US Senators, Mayors, Legislators, Sheriffs, Official City or School Account

• Complaints Increase Annually

• Viral Moment & Breaking News

• Garden Variety Disagreements

• Legal and Policy Guidance Letter

• Voluntary Resolution, Establish/Update Policy, Enforce Equitably, Unblock

United States Constitution

• First Amendment “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

• Incorporation Due Process Clause 14th Amendment Gitlow v. New York, 268 U.S. 652 (1925)

Nebraska Constitution• I-5. Freedom of speech and press.

• Every person may freely speak, write and publish on all subjects, beingresponsible for the abuse of that liberty; and in all trials for libel, bothcivil and criminal, the truth when published with good motives, and forjustifiable ends, shall be a sufficient defense.

• The parameters of the constitutional right to freedom of speech are thesame under the Nebraska and U.S. Constitutions. Village of Winslow v.Sheets, 261 Neb. 203, 622 N.W.2d 595 (2001).

Forum Analysis• 1st Amendment's protections varies based on the speakers’ chosen forum. Types of

forums traditional, designated, nonpublic. Perry Education Assn 460 U.S. 37 (1983)• Elected official's social media pages are traditional public forum for purposes of the

1st Amendment (parks streets sidewalks)• Compare to limited public forums (municipal meeting rooms) and nonpublic forums

(airport, polling place,)• Any exclusions or restrictions must be content/viewpoint neutral Pleasant Grove, 555

U.S and Cornelius,473 U.S• Minds are not changed in streets and parks as they once were . . . [Instead], the more

significant interchanges of ideas and shaping of public consciousness occur in mass and electronic media. Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996)

Knight First Amendment Inst. at Columbia Univ. v. Trump, No. 1:17-cv-5205 (S.D.N.Y.), No. 18-1691 (2d Cir.).

• [T]he First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open online dialogue because they expressed views with which the official disagrees.

• [W]e remind the litigants and the public that if the First Amendment means anything, it means that the best response to disfavored speech on matters of public concern is more speech, not less.

• President Trump can not block access to his social media account which is open to public at large because he disagrees with their speech.

• Right to speak & Right to receive information

Limitations, Murky Areas, Open Questions• Not every social media account operated by a public official is a

government account. Whether First Amendment concerns are triggered when a public official uses his account in ways that differ from those presented on appeal will in most instances be a fact‐specific inquiry. (Knight)

• Factors to Consider- time account established, registration, use for official business or announcements, limits on functionality-government speech versus private speech

• Personal Accounts• Campaign Accounts

Additional CasesQuick v. City of Beech Grove, No. 16-1709 (S.D. Ind. 2016), Plaintiff's posts to the Beech Grove Police Department's Facebook page were deleted. The department agreed to create a new social media use policy, and no longer block users nor delete comments except after three warnings.

Karras v. Gore, No. 14-2564 (S.D. Cal. Jan. 5, 2015), Plaintiff's posts to the San Diego Sheriff's Department's Facebook page were deleted. The City of San Diego agreed to pay his attorneys fees.

Hawaii Defense Foundation v. City and County of Honolulu, No. 12-00469 (D. Haw. Jun. 19, 2014), Plaintiff's posts to the Honolulu Police Department's Facebook page were removed. The Defendant City agreed to work with the ACLU to develop a policy governing publicpostings on their Facebook page." Shikha Parikh, Your Right to Speak on Government Sponsored Social Media Sites, 50 MDBJ 14, 21 (Jul. 2017).

Davison v. Randall, 912 F.3d 666 (4th Cir. 2019) Citizen brought free speech claims against both the County's Board of Supervisors and against the Chair of the Board in their official capacity. The Chair, Phyllis Randall, was the one who actually blocked the citizen from her Facebook under account name "Chair Phyllis J. Randall." Relevant Holdings: (1) The Facebook page was a public forum; (2) The Chair violated citizen's first amendment rights by blocking him; (3) The district court appropriately dismissed the § 1983 claims against the County/Board of Supervisors on summary judgment because the Chair's "one-off, unilateral decision" to block this citizen does not create liability on behalf of the County.

Robinson v. Hunt County, Texas, 921 F.3d 440 (5th Cir. 2019)Citizen social media user was blocked from the Hunt County Sheriff's Office Facebook page. Citizen brought § 1983 claims against the County and Sheriff's Office, among others. The district court upheld the County's motion to dismiss for failure to state a claim. Appellate court reversed the district court on the County's motion to dismiss, stating Robinson's allegations against the County were plausible. Turn on 5th Cir. standard for determining municipal liability under §1983.

Best Practices• Decision to Establish a Social Media Account

• Establish a Viewpoint Neutral Policy (Factors: general purpose of account, limitation on posts/functionality, how limitations are appealed, and enforced, can most likely limit speech outside the First Amendment i.e. true threats but be clear not vague and discuss with counsel, can most likely et reasonable time place manner restrictions)

• Enforce Policy Equitably

Other Legal Issues Regarding Social Media Beyond This Presentation

• Open Records

• Open Meetings

• Libel

• Copyright

• Defamation

• Student Privacy

• Employee Privacy

• Government Employees

Questions & Contact InformationDanielle Conrad, J.D.

Executive Director ACLU of Nebraska

134 South 13th Street #1010

Lincoln NE 68508

Phone: 402-476-8091

Email: dconrad@aclunebraska

Website: www.aclunebraska.org

Social Media: Facebook, Twitter, Instagram, YouTube

http://www.aclunebraska.org/

134 S. 13th St. #1010 Lincoln, NE 68508 (402) 476‐8091 aclunebraska.org

January 31, 2020 The Honorable Herbie Husker Mayor of Huskerville Memorial Stadium Lincoln, NE RE: Social Media Blocking Dear Mayor Husker, For over 50 years in Nebraska, the ACLU has worked in courts, legislatures, and communities to protect the constitutional and individual rights of all people. With a nationwide network of offices and millions of members and supporters, we take up the toughest civil liberties fights. Beyond one person, party, or side — we the people dare to create a more perfect union.

I am writing in regard to complaints our office has received regarding Nebraskans who have been blocked from your social media account(s). We understand it is possible that one of your staff may have been responsible for the improper blocking and we also understand the lines can sometimes be blurry between individual accounts, campaign accounts, and official accounts. Nevertheless, we write to request you carefully reexamine your polices and practices surrounding your social media accounts that further your public duties and further public dialogue, update and align your policies and practices to meet the spirit and intent of the law, and provide guidance to those who may help manage your social media accounts to ensure there are no future incidents, given the clear state of the law that prohibits such blocking. Legal framework The First Amendment protects the right to petition the government for redress of grievances, and also protects our right to receive information and ideas. The U.S. Supreme Court has held that “It is now well established that the Constitution protects the right to receive information and ideas…this right to receive information and ideas, regardless of their social worth, is fundamental to our free society.” Stanley v. Georgia, 394 U.S. 557, 564 (1969). When a government official or municipality blocks members of the public from social media, it implicates not only the citizen’s right to speech but their right to receive information that is otherwise made available to the public at large. When a government official or municipality creates an official page designed to share information with constituents that becomes a public forum. Government officials and municipalities cannot block those who disagree with their positions; doing so violates the First Amendment. Social media such as Facebook and Twitter are a public forum just as a bulletin board or an open comment period in a public hearing. See Packingham v. North Carolina, 582 U.S. ___, 137 S.Ct. 1730, 1735 (2017) (comparing social media to traditional public fora such as parks and streets). In the same way that a city council cannot refuse

to allow critical testimony while permitting approving testimony, your official social media pages must be open to all equally--even those who disagree with you. As you may be aware, there are already dozens of lawsuits pending against elected officials and municipalities who blocked voters from their social media in states as diverse as Kentucky, Maine, Maryland, and Texas. In the first reported court decision, the federal court agreed that the government official violated the First Amendment when she blocked a critic from her social media. See Davison v. Loudoun Cty. Bd. of Supervisors, 2017 U.S. Dist. LEXIS 116208 (E.D. Va. 2017). The court ultimately held that the government official acted under the color of state law when she decided to delete the plaintiff’s comments and block his access from her page, thereby engaging in viewpoint discrimination and violating the First Amendment. The facts the court found important included the fact the defendant used her official title on the page, included her official capacity address as contact information, her invitation for constituents to engage in dialogue on her page, and the fact she was sharing updates and press releases from the county on the page. Since criticism of officials is “not just protected speech, but lies at the very heart of the First Amendment,” the plaintiff’s speech was protected. The trial court’s holding was upheld by the 4th Circuit Court of Appeals, see Davison v. Randall, 912 F.3d 666 (4th Cir. 2019). Similarly, courts have upheld the rights of members of the press and public to criticize government officials and municipalities on social media without censorship in Robinson v. Hunt Cty., 921 F.3d 440 (5th Cir. 2019), One Wis. Now v. Kremer, 354 F.Supp. 3d 940 (W.D. Wis. 2019). Just earlier today, the 2nd Circuit Court of Appeals found President Donald Trump violated the Constitution when he blocked critics on Twitter. Knight First Amendment Institute v. Donald J. Trump, 302 F. Supp. 3d. 541 (S.D. NY 2018), affirmed by Case 18-1691 (2nd Cir. 2019). This is an emerging area of law, but rulings in the 8th Circuit, which governs Nebraska, has also allowed social media censorship cases to proceed. See Tanner v. Ziegenhorn, 2019 U.S. Dist. LEXIS 96395 (E.D. Ark. 2019), Hyman v. Kirksey, 2019 U.S. Dist. LEXIS 90509 (E.D. Ark. 2019), Campbell v. Reisch, 367 F.Supp. 3d 987 (W.D. Mo. 2019). Conclusion Given the case law cited above, it is clear that it is unconstitutional for you and or your city to block, edit, delete or censor critical posts on your social media accounts regarding public matters. If we receive written assurance that (1) you have reviewed those who have been blocked in the past and restored their access, (2) provided guidance to your staff that no one should be blocked in the future for simply being critical, and (3) developed a written social media policy for the future, we will close our file.

Alternatively, there is no requirement that any municipality or elected official have a social media presence; you may delete your social media accounts or your city’s official Facebook and Twitter accounts and any other social media platform. If the city continues to maintain an official social media platform, though, you must ensure that our democratic principles and constitutional rights are respected so that all have equal access, regardless of whether they agree with you or not. Please advise us of your intentions by February 28, 2020. If you have any questions, you can reach me at 402-476-8091 extension 102 or by email at [email protected]. In closing, thank you for your time and consideration of this matter and for your ongoing commitment to public service….and GO BIG RED! Best,

Danielle Conrad, J.D. Executive Director

QUICK GUIDE

Social Media for Public Officials 101Government officials are increasingly using social media to share information with the public, and to allow members of the public to communicate with them about matters relating to government. In a recent case, the Supreme Court described social media platforms as “the modern public square,” noting that these platforms afford users the opportunity to “petition their elected representatives and otherwise engage with them in a direct manner.”

Government officials who use social media accounts to carry out their official duties are engaged in “state action” and are therefore bound by the First Amendment. Thus, one federal appeals court recently held that President Trump’s Twitter account is a “public forum” for First Amendment purposes, and that the president’s practice of blocking users from the account on the basis of viewpoint is unconstitutional. Another federal appeals court reached essentially the same conclusions in a case involving a county official’s Facebook page. Almost all of the courts that have addressed the issue have relied on the same basic analytical framework.

In this document, we offer some guidance to public officials who use, or want to use, social media in connection with their official duties. What we offer here isn’t legal advice—if you’re a public official, you should read our guidance, but you should also consult your own attorney. The guidance we provide here is meant to help public offi-cials derive the benefits of social media, and navigate some of the challenges associated with social media, without running afoul of the First Amendment.

Our guidance is informed by settled legal principles as well as recent court decisions. This said, it’s important to note that the technology of social media is new and evolving, that many questions about how the First Amendment should apply to this technology have yet to be resolved by the courts, and that some of these questions are genuinely difficult. We anticipate amending this guidance as the law, technology, and our own thinking evolve.

https://www.supremecourt.gov/opinions/16pdf/15-1194_08l1.pdf

https://knightcolumbia.org/documents/a07ecc2a26/2019.07.09_ECF-141-1_Opinion.pdf

https://knightcolumbia.org/documents/fafda557f1/2019.01.09_ECF-91_Amended-Fourth-Circuit-Opinion.pdf

KNIGHT FIRST AMENDMENT INSTITUTE

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SOCIAL MEDIA FOR PUBLIC OFFICIALS 101

1. If you want your social media account to remain “personal,” don’t use it for official purposes.

Public officials don’t surrender their First Amendment rights by entering public service. If you’d like to, you can maintain a personal social media account and use it to discuss your family, your golf game, or your thoughts as a citizen about world affairs. And like any other user of social media, you can block followers from a personal account for any reason you want to.

If you use your social media account for official purposes, though, the First Amend-ment restricts you from doing some of the things you could do with a purely personal account. Our advice: If you don’t want to be bound by the First Amendment, don’t use your social media account as an extension of your office. Don’t use it to make announce-ments about your official responsibilities or actions. Don’t use it to solicit the public’s views about what legislation you should introduce or support, or whom you should appoint to an official government post, or whether you should vote to impeach the president. Don’t use it to carry out your duties—to call official meetings, for example, or to issue orders that you have the authority to issue only because of your government position.

In deciding whether you are using your account for official purposes, courts are likely to look to the way you use, administer, and present the account, not just the label you give to it. It’s not enough for you to simply declare that your social media account is “per-sonal” if in fact you use the account to carry out the duties of your office. In assessing whether you are using your account for official purposes, courts are likely to consider:

• How you use the account. Do you use your account to communicate informa-tion about your official duties and to solicit information from constituents and the general public related to those duties?

• Whether you use government resources in connection with your account. Does your staff help you with your account by, for example, drafting, reviewing, or posting social media messages, or otherwise managing the account? Do you use government equipment or other government resources in operating your account? Do you use your account while carrying out your official responsibili-ties—for example, while attending events in your official capacity?

• How you present the account. Do you associate the account with your official position by, for example, including your official title in your account descrip-tion, or using a profile picture that shows you acting in your official capacity? Do you refer to the account as “official,” or direct constituents or others to it in a way that suggests that the account is an extension of your office?


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Courts are likely to evaluate whether your account reflects state action by looking to the totality of the circumstances—that is, by looking to all of these factors, and perhaps others. If you want to maintain both a personal account and an official one, you should maintain a clear separation between the two.

2. Don’t block users or delete comments just because they criticize you.

If you use your account as an extension of your office, the First Amendment prohibits you from blocking people from the account—or suppressing or deleting their comments, or otherwise penalizing them—because of their viewpoints.

Multiple courts have held that social media accounts used for official purposes are “public forums” within the meaning of the First Amendment. A “public forum” is established when the government invites members of the public to speak in a space that the government owns or controls. Courts have held that the interactive features of social media accounts used for official purposes make those accounts public forums for First Amendment purposes because they enable members of the public to speak by, for example, replying to tweets or posting comments.

While there are different kinds of forums—including public forums in which all top-ics and speakers are allowed, and “limited” public forums, in which the government restricts which speakers can participate or which topics can be addressed—one rule that applies to all First Amendment forums is that the government may not stop people from speaking in them on the basis of their viewpoints. The rule against viewpoint dis-crimination ensures that people aren’t excluded from public discourse simply because their views are controversial or disagreeable to others. It also helps ensure that govern-ment officials don’t insulate themselves from the opinions of the people whom they are supposed to represent. One related point is worth making here. Social media companies sometimes remove speech from their platforms that you, as a public official, couldn’t lawfully suppress or block. Because the companies are private actors, their conduct is generally not subject to First Amendment limitations. But your conduct is. In our view, the First Amendment bars public officials from directing or encouraging platforms to take down speech that the officials couldn’t constitutionally take down themselves. If the First Amendment bars you from suppressing speech directly, it bars you from suppressing it indirectly, too.

Our advice: If you use your account for official purposes, don’t discriminate on the basis of viewpoint. It’s undemocratic and unconstitutional.


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3. Have a social media policy, make it public, and follow it.

If you use your social media account for official purposes, you should adopt policies for the account and post those policies publicly. Posting your policies publicly will let your followers (and others) know how you intend to use the account, and how you hope others will use the forum established by the account. Your policies should explain:

• The general purposes you hope the account will serve;

• Any limitations on what users may post in the comment threads; and

• How you will address violations of those limitations.

Make your policies as clear as possible. Be especially careful with the words you use to describe any limitations on what users may post in the comment threads. Policies that use words or phrases susceptible to multiple interpretations don’t give users sufficient notice of what speech is allowed and what speech is disallowed, and those policies will be vul-nerable to constitutional challenge. More on this below. It’s important to understand that the rule against viewpoint discrimination applies not just to your policies but also to your enforcement of those policies. In other words, the First Amendment prohibits you from adopting a policy that discriminates on the basis of viewpoint, but it also prohibits you from enforcing a non-discriminatory policy in a way that discriminates on the basis of viewpoint.

4. If you limit what your followers can post, the limits should be reasonable and view-point-neutral, and enforced consistently.

As a public official, you may be subjected to speech that is pointed, disparaging, critical, mocking, unfair, cheap, dishonest, false, abusive, outrageous, and offensive. You can of course call out this speech and respond to it. As a general matter, though, you can’t suppress it. For good reasons, the First Amendment provides very broad protection to political speech, and the courts have been especially protective of speech directed at public officials.

This said, there’s no question that some kinds of speech can be disruptive, discourage civic participation that’s important to our democracy, and make a public forum less useful than it might otherwise be. On social media, abuse and harassment are signifi-


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cant problems, especially for women and minorities. There are measures you can take to address some categories of speech that can be especially disruptive.

• You can disallow content that falls outside the protection of the First Amendment—for example, “true threats” and “obscenity.” These are narrow categories, but they are broad enough to encompass some forms of abusive and harassing speech. (“Abusive speech” and “harassing speech” are not themselves well-defined categories, and a prohibition that relied on those phrases would likely be struck down as unconstitutionally vague.)

• You can impose reasonable and viewpoint-neutral rules relating to the “time, place, or manner” of speech. Though no court has addressed the issue, we think that the First Amendment would permit you to place a reasonable limit on the number of times any given user can comment on one of your posts. A restriction like this might help ensure that a comment thread doesn’t get hijacked by a single speaker.

• You can impose limitations on the topics that can be addressed in the forum, so long as the limitations are viewpoint-neutral and reasonable in light of the purpose of the forum. We think that the First Amendment would allow you to restrict people from posting advertisements, promotions, and solici-tations of commercial products and services. And we think it would allow you to require users to stay “on topic” on a post-by-post basis, so long as you enforce the limitation consistently and in a viewpoint-neutral way. An “on-topic” requirement may give you a tool for addressing at least some kinds of abusive and harassing speech.

• You may also be able to limit who can speak in the forum, so long as the limitations are viewpoint-neutral and reasonable in light of the purpose of the forum. For example, if you have a reliable way of differentiating constituents from others, the First Amendment might permit you to restrict the forum to your constituents.

We believe that the kinds of restrictions described above could be defended against a First Amendment challenge—assuming (yet again) that you enforce them consistently and in a viewpoint-neutral manner. Still, you should think carefully before adopting any of these restrictions. Consider whether the restriction you have in mind could sup-press speech that is important, even if it’s inconvenient or offensive. Consider whether the restrictions would insulate you or your followers from views you should hear, or deprive you of information that you or your followers should know. Also consider whether you have the time and resources to enforce the restrictions. If you have millions of followers and no social-media staff, it may not be feasible for you to enforce these kinds of restrictions consistently, and inconsistent enforcement will be vulnerable to First Amendment challenge.


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knightcolumbia.org @knightcolumbia [email protected]

5. If you moderate speech on your account, don’t forget due process.

If you restrict the kind of content that can be posted by others in the comment threads associated with your account, you should make clear in your publicly posted social media policy that you will notify users if you determine they have violated your policies. When you provide notice, the notice should:

• Specify the provision of your policy you believe the user has violated;

• Include a copy of the content you believe violated the policy;

• If it isn’t readily apparent, explain why the content violated the provisions you’ve cited;

• Explain what measures you’ve taken, or will take, in response to the viola-tion; and

• Explain how the user can challenge your decision.

The consequence for violating the terms of your social media use policy should be tailored to the violation, taking into account whether the user can correct the issue, and whether the user has violated the same policy in the past.

You should block users only as a last resort, because blocking prevents the blocked users from speaking at all in the forum. You should consider whether less severe restric-tions—like “muting” users, or “hiding” replies, both of which are possible on Twitter—would achieve what you want to accomplish. We recommend that, if you block people from your account for violation of your policies, you block them for only brief periods. You should block people for longer periods only if they violate your policies repeatedly. * * *

Again, we anticipate updating this document as technology evolves and the courts con-sider questions they haven’t yet addressed. If you have questions about, or reactions to, anything we’ve written here, we’d like to hear from you. You can write to us [email protected].

Building Local Government

Social Media Policies

Social media is a new world of opportunity for local governments to communicate with citizens and receive feedback. Its risks are similar in nature to those of other types of communication, but with a different twist because material circulates so widely and there are many potential contributors. One recommended tool for addressing these risks is to adopt a social media policy. But what should be in that policy? It is not an easy question to answer. Many local government social media policies are posted online, but this is an area where one size definitely does not fit all. Social media policies do not stand in isolation. They usually incorporate related policies by reference, and policies that address other issues are often amended to include social media specific provisions. Thus, social media policies are often a web of interrelated policies. Each government must take an individual approach to ensure that all these diverse parts come together to meet its unique needs. Pools have a strong interest in their membersʼ management of social media risks. They can help their members develop a social media policy by providing suggestions about what a social media policy should do. To assist RISC member pools in this outreach, NLC-RISC has prepared these recommendations about the building blocks for a social media policy. This resource can be used by the pool as a starting point for preparing its own guidelines or can be distributed to pool members under its name. Control and structure of the governmentʼs official social media Failure to control when and how social media sites are being created and used on behalf of the government sets the stage for losses. The first task for a social media policy is to establish the control structure for the governmentʼs official social media program. Three major issues are who has the authority to:

• Establish and terminate official social media accounts. • Develop and implement the governmentʼs social media strategy. • Develop and enforce a social media policy.

Some governments centralize control over their official social media presence. Centralized programs restrict who can establish an account and require prior review by an identified authority for all posts or comments on behalf of the government. Centralized control has an advantage from the risk control

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perspective. It establishes authority and accountability and reduces the chances of a deviation from policy that results in liability. Other governments decentralize control over their official social media presence to accommodate their operationsʼ different goals and objectives. For example, emergency management may want to tweet alerts and recreation may want to post its activities on a Facebook page. A government might give those operations significant control over their social media presence so they can more nimbly accomplish their goals. Not all decentralization is the same. The most decentralized approach is a policy that gives some guidelines about acceptable and prohibited use but otherwise allows agencies the freedom to establish social media accounts and pursue their own strategies. A more conservative approach would be a policy that decentralizes day-to-day control subject to general guidelines, but requires prior approval to establish a social media site and designates someone to monitor all the governmentʼs social media resources and order necessary changes. For risk control purposes, the more conservative approach offers the advantage of consistent oversight to ensure compliance with policy, combined with a degree of freedom to allow operations to take full advantage of the real-time nature of social media. Small governments that plan relatively limited use of social media – for example a single Facebook page for the city – will probably use centralized control. Larger governments are likely to have a more decentralized social media program. Both will benefit from a social media policy that outlines the governmentʼs official position on social media, identifies who is authorized to participate in the governmentʼs official social media sites, and guides them on its implementation. Most of the approaches outlined below are consistent with either a centralized or decentralized approach. Public records One of the most difficult issues in local government use of social media is how to comply with the stateʼs public records laws. Some social media posts are akin to casual conversation, but others pertain to official government business. Even comments posted by members of the public may qualify as public records, including those that have been removed as violating the public comment policy. How to draw the line between social media content that does and does not qualify as public records, identify the content that must be retained, and develop an archiving system are all issues of concern to governments using social media. Many social media policies simply require compliance with the local governmentʼs existing public records policy. Three specific social media policy

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provisions that an government can consider to facilitate compliance with public records laws are:

• Post all original content to the governmentʼs website and use the social media site as a secondary outlet.

• Link back to the official government website for additional information. • Require employees who post public records to a social media site to

ensure that the original document is retained in a manner that complies public record policy.

Guidelines for employee use of the governmentʼs official social media Guidelines for employee use of the governmentʼs official social media are a critical part of a social media policy. Even if only one employee posts and responds to comments, that employee must know what is expected and the government must have some way of holding the employee accountable. The guidelines for use derive from what can go wrong in a social media environment. Some of the major concerns are the following:

• Bad information that misleads the public and causes harm • Violation of intellectual property rights • Disclosure of private or confidential information • Harassment • Defamation

Any of these can lead to claims and lawsuits. The goal of guidelines is to prevent adverse outcomes. Guidelines for employee use of the governmentʼs official social media encourage some conduct and prohibit other conduct. Some examples of useful positive requirements include:

• Be honest and transparent. • Post only within oneʼs area of expertise. • Post only useful information. • Keep it professional - avoid confrontation. • Be accurate. • Correct errors, and if modifying an earlier post, identify the change. • Be responsive to citizen concerns. • Adopt a user name that follows a standard format and clearly identifies the

user as a city employee. Employees should be prohibited from posting:

• Information about actual or potential claims and litigation involving the government.

• The intellectual property of others, without written permission.

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• Photographs of employees or members of the public, without written permission.

• Defamatory material. • Any personal, sensitive or confidential information about anyone. • Obscene, pornographic or other offensive/illegal materials or links. • Racist, sexist, and other disparaging language about a group of people. • Sexual comments about, or directed to, anyone. • Political campaign materials or comments. • Threatening or harassing comments. • Other information that is not public in nature.

The policy should also address the sanctions that will be imposed for breach of the policy. Be consistent with, or simply incorporate by reference, the employee discipline policy. Many of these issues may already be addressed in other policies that can be incorporated by reference or used as a resource. In particular, any code of conduct or ethics should be incorporated by reference. Be consistent with or incorporate by reference website, information technology, communication, media relations, public information and privacy and confidentiality policies should also be considered. Guidelines for employee use of other social media Many employees already have purely personal social media accounts they use to interact with friends and family. They also may participate in “professional” social media that are related to their work or profession, but are not their employerʼs official site and usually are not a part of their job. An example of professional social media is GovLoop, a social networking site for government workers. Another example is LinkedIn. An employee also might establish a page on what is traditionally a personal social media site, such as a Facebook, for purposes of networking with professional colleagues. Active participants in professional social networks can gain useful information that will help them do their jobs better, but they may also be more likely to discuss the details of their job on those sites. Their identification with a specific employer means that their posts can easily reflect upon the employer. Personal and professional social media sites pose risks to the government even if employees access them when they are off-duty and using their own personal devices. Major risks include:

• Disclosure of private or confidential information • Posting photographs of fellow employees or citizens without their

permission

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• Harassment • Retaliation • Defamation

Looking first at purely personal social media, the entity has little control over employeesʼ actions in their free time using their own personal social media accounts and their own devices. Despite this lack of control, the exposures for the government are very real. Employees sometimes use their personal social media to discuss their jobs and post work-related photographs or information that expose the government to liability or compromise its confidential information. Many interact with co-workers, even with their supervisors/subordinates, and real or perceived slights, harassment, retaliation or discrimination can follow them into the workplace. Many employees also use personal social media during work hours, either through the governmentʼs or the employeeʼs personal technology, such as a smart phone. Personal use of social media through government technology has all the same risks identified above, as well as:

• Reduced work performance • Downloading to government servers and distributing the same

inappropriate content that may be accessed through the Internet. • Inappropriate use of government property for political, commercial or

criminal activity.

A government can prohibit social media at work and adopt blocking and/or monitoring programs for its own technology equipment. These techniques likely will not eliminate the use of personal social media at work, as many employees now have access to social media through their smart phones. However, they will help keep inappropriate content off government servers. Monitoring employee use of social media and disciplining employees for violating a no-use policy have their own risks. Employees may claim that monitoring invades their privacy and constitutes an unreasonable search. Whether or not the government routinely monitors employees, notify employees in writing that they have no expectation of privacy in their use of government technology. Include the notice in the governmentʼs technology policy. If the government needs to access the employeeʼs computer, the notice provides a defense. Also avoid taking job action against an employee based solely on monitoring results. Other factors, such as performance, should be considered. Professional media sites pose many of the same risks as purely personal sites. They are also more likely to be accessed during work time using the governmentʼs technology, often with the governmentʼs explicit approval or encouragement. Because professional social media specifically relates to

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professional interests, the employee is more likely to be identified with the government and discuss its business than on a purely personal social media site. Disclosing confidential information, casting the government it in an unfavorable light, and misrepresenting the governmentʼs position are all risks. To address these risks, consider including in the social media policy:

• A requirement that employees include in any post related to the government or their job on a personal or professional site a disclaimer that the posting reflects their own opinion, and not that of the government.

• By reference, policies that relate to conduct and ethics, privacy and confidentiality, harassment, retaliation and other relevant conduct.

• If monitoring employee use of social media at work, written notice of the nature and scope of monitoring.

• Notice that employees have no reasonable expectation of privacy when using government technology.

• If access of personal social media through government technology is permitted, notice that employee use of personal social media at work must be brief, not interfere with performance of the employeeʼs duties or with the workplace, and not involve commercial, political or other prohibited activities.

Guidelines for elected official use of social media Elected officialsʼ use of the governmentʼs official social media or their personal or professional social media can raise many of the same risks just discussed with regard to employees. Elected officials who use the cityʼs official social media should be subject to the same requirements as employees. (For open meetings purposes, discussed below, they may not want to use the official social media.) Many local governments have codes of ethics for elected officials, sometimes combined with the code for employees, which can be adopted by reference into the social media policy. A risk that is different for elected officials is possible violation of the stateʼs open meetings laws through the use of social media. A quorum of lawmakers holding a discussion about public business through social media may constitute a meeting that is subject to the open meetings law. This could happen through the official government social media, and some governments consequently prohibit elected officials from participating in their official social media. Equally problematic is elected officialsʼ use of their own social media to communicate in their official capacity with members of the public. Informal communication with constituents is generally acceptable, but discussion of public business is risky, especially if it involves other elected officials. The dynamic nature of social media and the sheer volume of posts may make it difficult to track who is involved in the discussion and detect when the open meetings line has been crossed.

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Another potential risk associated with elected official use of social media is use of government resources for political purposes. Elected officials are increasingly using social media for campaign purposes. Elected officials who use the same social media for communicating with constituents as they do to campaign risk violating the law against using government resources for political purposes. To address these risks, consider including in the social media policy:

• Recognition that elected official use of social media to discuss public business may violate the open meetings law.

• A prohibition against elected officials using any social media (personal, professional or the governmentʼs official social media) to discuss public business.

• A requirement that a social media site used by an elected official to communicate with constituents include a link back to the cityʼs official website for detailed information.

• A requirement that elected officials who use social media for campaigning establish separate social media for that purpose and not access that social media through government technology.

Public comment on the governmentʼs official social media Some governments use their social media as a one-way communication tool to flow information to members of the public. Those governments disable comment features on their social media. Others view social media as an opportunity to receive information and feedback from the public and enhance operations. For example, members of the public might be encouraged to post a report of potholes, rather than calling. The benefits of public comments have accompanying risks. A member of the public may post content that is inappropriate by being off-topic, defamatory, harassing, obscene or pornographic, criminal, or commercial. Or a citizen may just post an opinion that is critical about some aspect of the local government. The risks of permitting public comments include:

• Failure to act on information reported by a member of the public resulting in harm to someone. If a member of the public posts a comment about a dangerous condition on public property, the government has notice. If it does not take action to address the dangerous condition and someone is injured or killed, a lawsuit may result.

• Although it would seem obvious that posts to social media are not private, members of the public who post may be disturbed if their comments are disclosed as public records under the stateʼs open records law.

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Other significant risks associated with public comment arise from what the government does (or does not do) to manage it. These include:

• Failing to monitor and remove inappropriate comment. • Government employees responding inappropriately (in a harassing

manner) to public comments. • Violating the free speech rights of members of the public by removing

comment based on the viewpoint or opinion expressed. To address these risks, consider including in the social media policy:

• A public comment policy for posting on the social media site that does the following:

o Identifies viewpoint neutral criteria that will be used to determine when a comment or link posted by a member of the public will be removed, which can include comments that are off-topic, obscene or pornographic, defamatory, harassing, commercial, criminal, political, or that violate the intellectual property rights of others.

o Reserves the right to remove posts that violate the policy. o Gives notice that the comments are monitored only during business

hours, and thus information conveyed after hours will not be received until the next business day.

o Gives notice that comments are subject to disclosure as public records.

• Procedures and responsibility for monitoring of public comments and removal of inappropriate comments in accordance with the public comment policy.

• Procedures and responsibility for monitoring, responding to, and taking timely action to act upon information conveyed via public comments.

Conclusion There are risks to undertaking any new activity, but social media is a powerful tool for local governments looking for new and cost-effective ways to engage their citizens. Just be sure to adopt social media with due consideration and planning. This means having clear objectives, knowing the target audience, selecting the right social media for the task, and taking the time to develop the right policy. Social media evolves quickly, so it is a good practice for the social media policy to remain platform neutral, and to review and revise it frequently to meet the changing environment.


Municipalities in the Pandemic

Christy Abraham League of Nebraska Municipalities

Lash Chaffin

League of Nebraska Municipalities


Webcast

7/28/2020

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Top Ten Questions Asked of League Staff

COVID-19 EDITION

Emergency Proclamations Question

What is the purpose of an emergency proclamation?

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Emergency Proclamations Answer

▪State law 84-812.50 allows mayors to declare emergency proclamations

▪May help with funding tied to emergency proclamations

Pool Question

▪When can municipalities open their pools?

▪ If pools are not open, can lifeguards get unemployment benefits?

▪Can municipalities limit pools to residents only?

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Pool Answer

▪Pools allowed to open June 1 under DHM

▪Lifeguards may be able to receive unemployment

▪Municipalities may be able to limit based on residency but not other protected classes

Authority of Municipalities During Pandemic Question

What authority do municipalities have to close businesses?

To limit door to door salespersons?

To close parks?

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Authority of Municipalities During Pandemic Answer

▪ Every municipality has board of health

▪ Board of health has authority to enact rules that have the force and effect of law to protect health of municipality

▪ It may regulate nuisances and enforce all laws of the state and ordinances of the city relating to nuisances or sanitation of such city.

▪ Municipality also has general powers to change/enact ordinances

Utility Disconnect Question

Are municipalities required to suspend utility disconnects during the pandemic?

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Utility Disconnect Answer

No DHM or Executive Order requires municipalities to suspend disconnects

Many municipalities decided to which included repayment plans

Flushing Bad Things Question

What remedies do municipalities have when residents flush bad things down the toilet?

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Flushing Bad Things Answer

▪Most cities and villages have the ordinances on this issue▪Flushing bad things could be a violation of a municipal ordinance with accompanying penalties. ▪No state or federal funds specifically designated for this issue.

Powers of Mayor/Village Board Chair During Pandemic Question

What are the powers of the mayor/village board chair during a pandemic?

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Powers of Mayor/Village Board Chair During Pandemic Answer

▪Power to declare emergency

▪General powers

▪Sit on Board of Health

▪Lincoln and Omaha mayors have more authority

Allowing Employees Time Off for COVID-19-related Issues Question

When do municipalities have to allow municipal employees time off work for COVID-19-related issues?

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Allowing Employees Time Off for COVID-19-related Issues Answer

The Families First Coronavirus Response Act (FFCRA) creates 2 new types of paid leave for workers impacted by COVID-19:

1. Emergency Paid Sick Leave: Employees receive 2 weeks of full paid time off to self-quarantine, seek a diagnosis or preventative care, or receive treatment for COVID-19. 2 weeks at 2/3rd pay to care for family member or child.

2. Emergency Family and Medical Leave: Employees receive up to 12 weeks of job-protected leave to take care of children for school or childcare closure. Includes 2 weeks of unpaid leave, followed by 10 weeks of paid leave.

Gatherings Question

What is the definition of a gathering?

Where can I find the definition for my municipality?

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Gatherings Answer

▪All DHMs can be found on the DHHS website

▪Definition of Gathering is constantly changing

▪Different on May 1, June 1, June 22, July 6, July 24

Using LB 840 Funds in a Pandemic Question

How can a municipality help local businesses struggling during the shut-down using LB 840 funds?

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Using LB 840 Funds in a Pandemic Answer

Funds being used in multiple ways including:

▪ Grants for Digital Development to help business owners enhance their e-commerce platforms.

▪ Forgivable and no-interest loans to existing businesses in the area.

▪ Emergency grants and micro-grants for qualifying businesses effected by the pandemic.

▪ Gift Card program to stimulate retail sales by matching the value of any gift card purchased from a municipal qualifying business.

Open Meetings Act Question

What is the status of the law now that the Governor’s Executive Order regarding the Open Meetings Act has expired?

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Open Meetings Act Answer

▪Current law allows for emergency meetings

▪Can only discuss the emergency, not conduct any other business such as approving payroll

Questions?

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2020 annual government and administrative practice seminar · 2020-07-31 · 2020 annual government...

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