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 online comments.

Discussion in Oakley this week was limited, but at an earlier workshop, the city attorney said if a city were sued because a councilmember 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 posts on private social media pages.

“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 councilmember social media accounts — such as “blocking” or deleting comments — also could be construed as a violation of First Amendment rights, he said in his staff report.

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