A PowerPoint presentation from NACo presenter and San Mateo County Deputy County Counsel Glenn Levy, which highlights some legal issues that county officials should assess before delving into social media.

1. San Mateo
County, CA
 FAST FACTS:
 Founded: 1856
 Size: 455 sq miles
 Coastline: 57 miles
 Population: 718,451
 Cities: 20
 County Employees:
more than 5,300
SMCGOV.org

2. Our Social Media Policy
 A committee developed our social
medial policy over about six months
 Reps from County Counsel, HR, and
County Manager (the County Executive)
 Reps from departments
wanting to use social media
SMCGOV.org

3. Our Social Media Policy
 Created a set of resources available on
the County intranet
 A one-page policy with key issues
 A 39-page toolkit with detailed policies and
procedures
 A “work plan” template departments fill in to
start the process
 Four “terms and conditions” templates
 Reviewed by County Counsel
 Address key legal issues. Which are…
SMCGOV.org

4. Six Key Legal Issues
1. Freedom of Speech
2. Public Meeting Laws
3. Public Records Laws & Document
Retention
4. Confidentiality (HIPAA, Privacy,
Consent)
5. Labor / Employment Issues
6. Copyright / Intellectual Property
SMCGOV.org

5. Key Challenge
 The law is not fully developed here,
meaning some guess work involved
 Social media, and related issues,
evolve quickly
 Becomes a balance:
RISK
vs.
INNOVATION
SMCGOV.org

6. 1 - Freedom of Speech
 Government cannot create a public
forum and then selectively decide based
on content what speech to allow
 You do have some ability to restrict
content in advance
 Content restrictions must be clear,
objective, set in advance, and enforced
uniformly
SMCGOV.org

7. 1 - Freedom of Speech
 Four types of forums created by social
media use – The department picks
which to use:
Information
Sharing Only
Non-public
Forum
Limited Public
Forum
(Restricted
Access)
(Restricted Topic(s))
Speech Continuum
SMCGOV.org
Designated
Public Forum

8. 1 - Freedom of Speech
 Make sure your policy is clear and is
available on the site
 Make sure you enforce it uniformly
across individuals and across time
 If you opt to open a forum, know the
consequences:
 You cannot remove speech you don’t like if it
is on-topic (e.g., unpleasant criticism of a
program or Board member)
SMCGOV.org

9. 2 - Public Meeting Laws
 Public meeting laws (in CA) prohibit
members of a public Board (County Board
of Supervisors, school board, etc.) from
discussing issues outside public meetings
 Meetings can occur ―serially‖, meaning
communications on issues over time
(e.g., by email or even facebook posts)
 You may need to caution Board members
not to participate in your use of social
media
SMCGOV.org

10. 3 - Public Records Laws
 In CA, Public Records Act makes nearly
all ―documents‖—including electronic
documents—public record open to
inspection
 Social media can be hard to archive
 There are tools you can use to archive
items:
 For example, on facebook, apps that send
you an email with each comment – easy to
save
SMCGOV.org

11. 4 - Confidentiality
(HIPAA, Privacy, Consent)
 Social media turns everyone into a
publisher of content
 Makes it very easy to violate
confidentiality/privacy protections
 Examples of problems:
 Protected Health Information (PHI)
 Employment issues
 Photos (patients, kids at the library)
 Have a policy and consent forms
SMCGOV.org

12. 5 – Labor / Employment
 Examples of issues/problems:
 Employees commenting on work conditions
 Employees commenting on discipline
 Anonymous comments by employees
 Personal use by employees during work
 Should make sure your policy works
within the confines of your HR policies
 Don’t be overly restrictive in some areas
– for example, employees have a right
to talk about workplace conditions
SMCGOV.org

13. 6 – Copyright / IP Issues
 Becoming a publisher makes it easy to
infringe on intellectual property rights
 Examples of problems:
 Songs used in the background
 Quoting too much of copy-written articles
 Using logos, symbols, photos, etc.
 Best to educate to prevent problems
SMCGOV.org

14. Take-Away Messages
 Be aware of these issues before you




implement a policy
Let departments know what steps to take
(e.g., review general principles, draft
workplan, and then finalize policy)
Contact your counsel with any and all
questions that come up, both during and
after setting up social media use
Follow the policies you adopt – be uniform
Lots is unclear and changing, so be flexible
and stay tuned…
SMCGOV.org