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Crafting Social Media Policy a Delicate Balancing Act

It's a challenge to write a fair and legal policy that is as much for a "mouthpiece of the government" as a rank-and-file worker.

(TNS) -- Elizabeth Hart, public information officer for the Shelby County, Tenn., Health Department, spends much of her workday on social media, using Facebook and Twitter to promote Health Department initiatives, share good news, necessary information or to pitch where county residents can get flu shots.

Hart is as active after hours, celebrating the career of her brother, Parker Sawyers, who starred as Barack Obama in the independent film "Southside With You," cheering for her beloved Indianapolis Colts and Indiana Pacers and praising the work at her church, St. Andrew AME.

But never, Hart said, does she forget that she is in a public forum open to the world, that nothing posted online is ever really private.

"I’m always mindful of my employer and my family, and I would never post anything that would jeopardize either of those two," she said.

Across the nation, elected officials, private and public sector employees have felt the bite of public censure, forced resignations and termination over inappropriate posts or tweets on social media that cross racial or religious lines.

Late last month former Shelby County corrections division deputy director David Barber resigned after Facebook posts surfaced that were supportive of the Ku Klux Klan.

Barber's transgression made national news and prompted the county to revisit its employee social media policy, to tighten rules and inform workers of their responsibilities as government employees.

"Some feel that we needed to be a little more restrictive as it relates to our employees using social media in a way that might adversely reflect on county government," said county Mayor Mark Luttrell. "So we’ve pulled together a group to look at that, realizing there are freedom of speech issues, freedom of press issues that have to be recognized."

"It's really going to be a balancing act in having something that does address the changing landscape of social media and the threats it can pose to government and also being cognizant to several rights that we do not want to infringe upon," said David E. McKinney, director of legislative affairs in Luttrell's office.

McKinney, a senior assistant county attorney, is working with the county's Unified Personnel Policy Committee studying a wealth of policies already drafted by governments and private businesses.

"We want to be mindful of what we can recommend, what we can set as a guideline and what we can mandate," McKinney said. "But I don’t think there is one policy out there that we can say is exactly what we want to offer and is reflective of the nuances of recommendations, guidelines and mandates."

For governments, writing social media policies is a tightrope, said Thomas Castelli, legal director with the American Civil Liberties Union of Tennessee.

"Like any employer, the government has got an interest in efficiently running the offices. So what the (U.S.) Supreme Court has said is you have to balance that against the individual's free speech," Castelli said.

It's a challenge to write a fair and legal policy that is as much for a "mouthpiece of the government" as a rank-and-file worker, he said.

Context, Castelli said, is the key.

For example, correctional officers had the right last year to complain about the shortage of officers working in state prisons.

But "those guys couldn’t’ talk about shift change times, how many people were on each floor, those kinds of things that might help somebody break out of prison," he said.

Although many government employees, like Barber who was a mayoral appointee, are forced out over racist comments, there are limits even when that speech can be restricted.

"If you say racist or sexist or anti-Semitic things, then it can call into question your impartiality or the impartiality of the office and it can interfere with the mission," said Steve Mulroy, a professor and associate dean for academic affairs at the University of Memphis' Cecil C. Humphreys School of Law.

The doesn't mean government workers can't express themselves even on touchy topics and the courts have ruled that can be protected speech, Mulroy said.

However, each case must be looked at individually.

"If an employee says something so outrageous that public confidence in the office is being hurt, I think they have more authority to punish that person," Mulroy said.

But, be it abortion, the anti-vaccine movement or Michelle Obama's healthy eating initiative for children, people always have the right to speak freely about issues, Castelli said

"We don’t want to put government in a situation where they’re vetting their employees political ideology," he said.

And these policies can't stifle whistle blowers, said Mulroy, who as a county commissioner helped passed whistle blower legislation.

Once the new policy is drafted it must be approved by the commission.

"We want to make sure that the policy is written with fidelity and that people understand that they do work for Shelby County and have to be careful and for the most part watch what they’re posting out there," Burgess said. "I know there’s freedom of speech, but my goodness, you’re representing county government."

Burgess also hopes that the county will include training classes to make sure employees understand the policy.

The commission made that point clear, McKinney said.

"I certainly believe the committee will come up with that recommendation and also ongoing training in that area," he said.

But with so many variables and so many scenarios, McKinney wouldn't speculate on a timetable on completing their work.

"It's very much so a work in progress," he said.

©2016 The Commercial Appeal (Memphis, Tenn.) Distributed by Tribune Content Agency, LLC.