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May 17, 2011 By Brian Heaton
Technology outpacing the policy that governs it isn’t a new phenomenon. But as officials in Kent County, Del., are discovering, keeping up with the times in regard to social media can raise some serious questions and public outcry about public employees’ right to free speech.
The county’s Levy Court — the equivalent of a county council — has an existing rule that bars employees from using government equipment for personal social media activity at work. But a recent proposal would extend that ban to include activity during non-work times, specifically as it relates to commentary that disparages co-workers or reflects unfavorably toward the county government.
Local media in Kent County are up in arms over the matter.
“You can’t criticize county government decisions on your own time?” questioned a May 6 editorial on delawareonline.com. “This is a proposal that requires considerable rethinking. Kent County should stick with workplace rules.”
The message was apparently received. When contacted May 16, Bret Scott, a spokesman for Levy Court, explained that the proposal is currently tabled for further discussion and revisions.
Scott said while no date has been set to discuss the revisions, the reasoning behind the initial Levy Court proposal stemmed from ongoing discussions in the legal community about companies needing to protect themselves and have a policy in place that would govern social media use.
But clearly, not everyone in the county is clear on what the policy should be.
“The commissioners asked that our Employee Council have a chance to review the policy,” Scott recalled. “The Employee Council came back with comments that it wasn’t clear to them on what constituted appropriate or inappropriate use of Facebook and other social media sites. I don’t know for certain, but the revisions might better clarify [this].”
The delay hasn’t stopped the legal and IT community from weighing in on the initial proposal.
Phillip Sparkes, assistant law professor and director of the Chase Local Government Law Center at Northern Kentucky University, said that as he understood it, Kent County’s proposal would ban government employees’ right to talk about certain subjects, period.
Sparkes discussed the relationship between Kent County’s proposal and the outcome in Garcetti v. Ceballos, a 2006 Supreme Court case which found that government employers can exercise a level of control over what employees say and do. But Sparkes said that the ruling in that case refers to the “official speech” of an employee, not their personal comments when off the clock.
Using himself in a hypothetical example, the law professor said that while it’s obvious he couldn’t disparage a colleague in a faculty meeting, if his employer adopted Kent County’s proposal, he also couldn’t log in at home to his Facebook account and vent to his family and friends about what was going on at the office, which Sparkes said is a big stretch from the conclusion the Garcetti case came to.
“Kent County has extrapolated that to define official speech in a way much broader than I understood the Garcetti court to be talking about,” Sparkes said. “[The court] described official speech as essentially speech the government paid for,” Sparkes said. “My private [statements] are not speech I was hired to make.”
The topic of social media use has been a hot-button issue for municipal governments for the last few years. In June 2009, citizens throughout Bozeman, Mont., cried foul when the city required the disclosure of and access to a job applicant’s social media profiles.
While the Bozeman policy was quickly rescinded, it’s clear that not everyone is comfortable with the quickly eroding line between business and personal privacy.
The change is happening however and many employers are embracing it. In Arvada, Colo., CIO Michele Hovet, an avid user of Twitter, touted the benefits of social media and changed an employee’s job description in order to use her enthusiasm for Facebook to increase Arvada’s marketing efforts and interactivity with citizens.
The employee was caught several times using her smartphone to access a personal Facebook account, in violation of city policy against personal use of social media.
“It dawned on me that she knows how to do this, she has time to monitor and respond,” said Hovet. “So now I’m trying to capitalize on that. We were looking for someone with the passion and time resources to be proactive on monitoring our social media sites.”
Hovet also revealed that while Arvada’s policy only allows the use of social media for business reasons, she’s hoping to change that in the future.
“I think the world is changing and with newer workers being socially connected, you have to manage that differently and let people use the tools, instead of trying to enforce the rules,” Hovet said. “For social media, I see it no different than a telecommuting employee. I expect a certain amount of productivity, but are they going to pick up a phone when their wife calls? Sure. But I don’t see that being a lot different between them sending a quick tweet or text message.”
As for the line between speech on or off the clock by an employee, Hovet felt that policymakers need to get past the fear factor and let employees be a little more accountable for their own actions.
“I think folks that draw lines as far as what you can and can’t do on your free time are avoiding the inevitable,” she said. “Social media has been here and it’s not going away. Locking it down is just going to create more management headaches in the long run.”
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http://www.govtech.com/policy-management/Social-Media-Free-Speech-Question.html
For some odd reason I believe gov't employees, like all employees else where, should do something different while at work. Namely work. Strange concept I know.
Social networking is a fad based on people who either love to talk, and/or connect with lots of people, it's a popularity contest of sorts. Dave: Something you need to know about government, it's very crony like, and subsequently, has some pretty unproductive areas.
Social networking is a fad? So, people connecting with previous friends, acquaintances, and creating new relationships (personal and professional) is a fad, you say? That's only been occurring since, when, the dawn of civilization? How much more myopic can you be? Sites such as Facebook may or may not be a fad, but networking will be here as long as humans inhabit the Earth.
It is indeed true that we all should be doing our work. But Dave T, you clearly have missed the point--our responsibility to our employers does not give them ownership and the right to control/dictate our thoughts and speech.
Dave T... I believe the point of the article is about this government's attempt to control what an employee is doing OUTSIDE of work, not during work.
An employee's freedom to disparage co-workers while off-duty should be limited by the co-workers' right to be free of a hostile work environment. It is hard to define where that line is, but employees can and should be held accountable when they cross it. It is really no different from other forms of off-duty conduct that damage workplace relationships - courts have long held employers responsible if they fail to take effective action with respect to employees who commit illegal harassment against co-workers, whether the harassment occurs on- or off-duty.
I wonder where our personal integrity might have escaped to when we feel comfortable to speak about others rather than with them in an accountable and interdependent way. It seems that our need to be "authentic" and "real" has overshadowed our responsibility to be a member of a "civil" society. Truth doesn't need to be thoughtless, rude or slanderous to be useful. There is after all a Golden Rule that seems to have been forgotten in our efforts to share with other our thoughts. No one wishes to be treated cruelly, with malice or in a impersonal way...
I do believe that as government employees, we should not rant about work related issues on social media websites. However, it seems too invasive to restrict us from offering constructive criticism or our opinions as private citizens on government matters. I am not speaking of violating work confidences but expressing a generalized opinion as a private citizen.
Apparently every single person missed the fact that the rule was in regards to using GOVERNMENT PROPERTY to do the bad mouthing... 2nd Paragraph... In my opinion you shouldn't be doing anything but government work on government equipment.. How many of you have seen a government tagged vehicle driving around on a sunday afternoon with the kids in the car, pissing you off because you know they are on the way to grandma's house and using taxpayers to foot the bill? How is it any different if you're using a government laptop to take home and surf the web so you don't have to pay for your own computer? Really people? Learn to read.. Or better yet, learn to *comprehend*...
Work often requires finding creative solutions through knowledge transfer and collaboration. For governments, it often requires connecting with the public. Social media sites are some of the most powerful tools an employee can use in this respect. I don't know what you do for work, Dave T, but I bet you could be using social media to do it better.
Dustin and Others: Yes, the article indicated briefly that use of government property was at issue. Later on though, the topic became more generalized and pointed out a phenomenon that many govt. employees experience (off duty govt. employees often give up their rights to free speech out of common sense and necessity) It's employment suicide to express your thoughts as an ordinary citizen would/could. Also, I have never seen government cars out on off duty hours full of family. Only an idiot would commit that other form of employment suicide.
It appears that no one has consulted their attorneys, who could have told them straight off that the policy violates the U. S. Constitution. Only in very limited circumstances may off-work, personal comments be prevented.
Based on this and the other pieces I've read about this situation, I think the Levy Court was wise to send this policy back for additional revisions. Although well intentioned from a risk management perspective, the drafters missed the mark in several key ways. I recently wrote a piece entitled "Social Media Policies: Necessary but not Sufficient" that addresses the subject in a fairly comprehensive manner. It can be accessed via http://tiny.cc/SMinOrgsPolicyPost. Courtney Hunt Founder, Social Media in Organizations (SMinOrgs) Community Principal, Renaissance Strategic Solutions
End Free Speech Now!!
Hey Dustin, Did it ever occur to you that said government worker might be doing government work on the weekend. No of course you wouldn't think that, cause you just wanna be pissed off about something...Woe is you! Perhaps it is a social worker removing a child from a bad situation where they might be injured, or taking them on a day trip out of their dreary existence. On the flip side, maybe you're right and they are using a gov't vehicle for personal use. Perhaps they were a highly skilled business leader that the gov't recruited and whereas they couldn't offer them the direct compensation ($$$) they might be able to earn on the civil side, perhaps they could retain them with a token such as use of a vehicle. But woe is you, you never get to use a government car, so piss on everyone who does, right?