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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