East Bay city approves social media policy for council members

OAKLEY — A policy to guide council members in their personal social media postings passed its first hurdle Tuesday.

Though Oakley City Attorney Derek Cole cautioned the city cannot control a councilmembers’ speech on personal social media and has “limited ability” to enforce such a policy, council members still wanted to have a policy in place to give to new members at the start of their terms.

Cole explained that private social media accounts belong to the council members and are protected by the First Amendment. As such, the city cannot impose rules that forbid council members from engaging in any type of speech — even if that speech may be perceived as improper.

Most cities have social media policies for official staff communications and city accounts, but fewer try to regulate personal accounts.

In May of 2021 Antioch City Council members concluded they didn’t need a formal policy to regulate their social media posts. Councilwoman Lori Ogorchock had raised the idea, noting the California League of Cities has suggested municipalities consider such a policy as more elected officials and committee members find themselves embroiled in litigation over their comments.

Discussion in Oakley this week was limited, but at an earlier workshop, the city attorney said if a city were sued because a councilman said something defamatory, it would be virtually impossible to hold the city responsible because of its broad state immunities.

At the April 9 workshop, Cole said a proposed social media policy could not include any commands or impose any consequences, so it would not have much “teeth” to it.

Instead, the new policy includes “truisms” or cautions about what a council member could face as a result of his posts on his private social media page.

“So, just to briefly recap, what this does is basically state what all term truisms, which is, if you use social media, you might create a public record, you might engage in a meeting, you might run afoul in certain situations of being deemed to have prejudged a matter, especially if we’re talking about what we what we’ve talked about as a quasi-judicial decision,” Cole said on Tuesday.

In addition, taking adverse actions against individuals who engage with council member social media accounts — such as “blocking” or deleting comments — also could be construed a violation of First Amendment rights, he said in his staff report.

Councilmember Hugh Henderson brought the item forward at an earlier meeting, saying he wanted to see guidelines for what the Brown Act says the council members can do or can’t do on social media.

At the time, Henderson said having guidelines for the current and future City Council will be helpful for both the members and the public to understand what they can or can’t do.

No one spoke on the item on Tuesday except Councilman George Fuller who noted that the council chambers “has not been a comfortable place for free speech” for the past few years. He and a couple of council members have gotten into heated exchanges at times, but Fuller said he takes responsibility for what he says and writes on his personal pages.

He noted, though, that he doesn’t appreciate people telling him to “take that back” or “you’re going to suffer consequences.”

“This council, in the years that have gone by since I’ve sat on the dais, has spent $25,000 on consultants, to find a way to have a social media policy that would quiet certain council members, especially myself that we are saying the wrong things,” he said. “If you add in the fee for bringing together the meetings and Mr. Cole’s expertise in writing the resolutions, it is at least $10,000 more.

“So this council has spent $35,000 on trying to abridge free speech,” he added.

That said, Fuller moved for the new advisory policy to be approved, noting he hopes “this ends the dialogue.” It was approved unanimously.

The policy, which still must be approved on a second reading, applies only to comments and posts on council members’ personal accounts. City staff, including the police department, have their own social media policies that govern city communication through official channels, Cole said.