New Jersey State League of Municipalities Annual Conference Local Government Communications in a Digital World Atlantic City November 19, 2014 Kenneth S. Fellman, Esq. Kissinger & Fellman, P.C

How Are We Communicating Digitally? Cable Television Access Channels Municipal Websites Social Media

Government Access Channel Policies - Purpose Government access channel intended to strengthen the City’s community outreach program by providing information to citizens about city issues, services, programs, and activities involving or affecting local government and the community Establish guidelines for the use of access channel Policies are intended to guide the City Manager or designee in decisions regarding authorized use of the access channel

Policies - Purpose Designated government access channel to be used for matters directly related to City issues, services, programs, and activities involving or affecting local government and the community, and directly impacting or benefiting citizens of the City Channel is not a public or education access channel Not intended to create a public forum, or limited public forum, for purposes of First Amendment rights under the US or State Constitutions Channel under the authority of City Manager (if you have a council – manager form of government)

Prioritization of Programming Emergency / public health / safety Broadcast of government meetings or hearings Programming of City departments, services or issues Bulletin board content which meets the criteria established to be aired on channel

Prioritization of Programming Programming of County, State, Federal government and/or City or County boards, commissions and authorities and/or agencies that use public dollars Programs which feature governmental information or services, cultural, historic or educational material, related to government services or departments Programs produced by other organizations or persons which meet the criteria established to be aired on the channels and approved by the manager or designee

Other Issues to Address Scheduling How programming requests will be evaluated Bulletin board and public service announcements Disclaimers Prohibitions – obscenity; discriminatory/slanderous; religious; anything that would violate FCC regs CopyrightSponsorships/underwriting Election programming Studio rental by outside parties Grievance process

Social Media – Why Use It? Because your public expects it!

Social Media - Benefits Timely information Increase public participation, especially with people who haven’t felt part of the process Public safety information Marketing Almost instant feedback Greater transparency You can say whatever you want!

Social Media - Detriments You can say whatever you want

Social Media - Detriments Potential for errors/inaccurate information Questionable sources of information Easier to inadvertently violate open meetings laws Personal sites may become government records Bad info that gets into cyberspace, stays in cyberspace … forever!

Evolution: Law and Social Media Image courtesy of Time Line of Life: Law for social media technologies Social Media Technologies

Some Positive Uses of Social Media

Stay tuned for the stuff that can get you into big trouble!

Social Media – Good Planning Requires That You Address … Legal Issues –With the social media sites you use – With open records/open meetings – With retention policies – Security issues –Employment terms/conditions –Copyright –Litigation holds and discovery

Social Media – Good Planning Requires That You Address … Legal Issues: First Amendment (is your site a traditional public forum or a limited public forum?)

Social Media – Good Planning Requires That You Address … Legal Issues: Training of staff and elected officials –Electeds should not use site (government or personal/political) to discuss government business with each other –IS YOUR FACEBOOK PAGE A PUBLIC RECORD? avoid making comments or engaging in conversations on personal sites about government issues

Minimize Risk for Your Personal Site Include disclaimer: “this is not a city record” Don’t use your official title Don’t solicit “friends” or use contacts gained through your duties at the city Don’t reference your site at public meetings or in official city documents

Minimize Risk for Your Personal Site Don’t access your site from city-provided computers Don’t use your site to gain or disseminate information about official city business If the site is a campaign site, only use it to discuss campaign issues, future promises and past achievements...not for the implementation of those issues, policies or achievements Always keep your expectations of privacy low!

Best Use (and arguably most legally risky) use of Social Media by a Politician

Social Media – Good Planning Requires That You Address … Legal Issues: Discrimination –Required to provide disabled individuals with equal access to information –Unless it would pose an “undue burden” So … be prepared to provide information through alternative means when requested

What Kind of Policies Do You Need? Social media management Employees Public use

Social Media Management Policy Internal Policy – address relationship between your government’s various social media sites Administration of each site Who maintains the site? Restrictions on who can post Restrictions on who can post Restrictions on what is posted Restrictions on what is posted Do you link or post to other gov’t sites? Do you link or post to other gov’t sites? How are records maintained? How are records maintained?

Social Media Management - Records Be prepared to treat all posts, comments, photos, videos as public records Set up forwarding system of posts, people who join the site, etc., to organizational account Periodically save a screen shot to a server and archive comments and posts

Employee Use Policy Be consistent with government’s social media policy (if any) Be consistent with broader employee policies (harassment, discrimination, computer usage, etc.) Privacy/Confidential information Supervisors may monitor social media use on government computers No expectation of privacy for employees

Employee Use Policy

Employers Be careful how you use it Discipline decisions Hiring decisions Supervisors may monitor social media use on government computers … but tell them you’re going to monitor

Public Social Media Use Policy The purpose and mission of the pages Definitions and scope of policy Disclaimers related to comments and links Restrictions related to access, content and commercial speech Explanation of open records implications

Public Social Media Use Policy How do you manage comments? –Require comments relevant to the purpose of the site –Encourage public comments that are respectful, and not offensive, degrading, obscene, etc. –Critical comments should not be removed, just because they are critical Key Issue in management: must be viewpoint neutral

Examples of Social Media Fiascos

Social Media Policy Checklist PurposeDefinitionsAdministration Scope and coverage of policy Authorized users Type of Forum – 1 st Amendment rights – public comment policy Employee usage policy – rules/expectations No expectation of privacy Acknowledgement of receipt/acceptance of policy Open records/open meetings law Internal site management Compliance with laws

Kenneth S. Fellman Kissinger & Fellman, P.C