Post No Evil. Like no evil. Tweet no evil....

#Post No Evil.
#Like No Evil.
#Tweet No Evil.
@Board Member Use of Social

Media!

Presented by:
Cooper Levenson, PA

Attorneys at Law

What is Social Media?

• Social media is:

-Computer-mediated tools that allow people or companies to create,
share, or exchange information, career interests, ideas, and
pictures/videos in virtual communities and networks.

-The many relatively inexpensive and widely accessible electronic tools
that enable anyone to publish and access information, collaborate on a
common effort, or build relationships.

– Wikipedia.org

Social Media Is…

• Social Networks • Photo Sharing
– Facebook
– MySpace – Instagram
– Foursquare
– Edmodo – Flickr
– Kik • Video Sharing

• Social News – YouTube
– Reddit – SnapChat

• Blogs • Podcasts
• Microblogs
• Social Bookmarking
– Twitter
– Tumblr – Pinterest

Who uses Social Media?

• Parents
• Students
• Staff
• Board members

School Use
Social Media
#The Basics

#The Basics

• A school district that sets up a
Facebook page or Twitter account as
a means of communicating news,
events and other issues related to
the school district, i.e. sports, plays,
school closings and when busses
leave.

#The Basics

• A school district that uses social media to
publicly address student or staff
achievements

– Parental or staff consent

– Ensure important identifying information is
kept confidential

• N.J.S.A. 18A:36-35 requires prior written parental

consent before disclosing personally identifiable
information on a district’s website

• Who is the “Administrator?”

@Employees
#Post No Evil!
#Like No Evil!
#Tweet No Evil!

#Employee

• Staff member use of social media

• In Re Tenure Hearing of Jennifer O’Brien

• Teacher posted two statements to Facebook:

“My students are future criminals!”
and

“They had a scared straight program at the school
why couldn’t I bring First graders?”

Cooper Levenson

In Re Tenure Hearing
of Jennifer O’Brien (con’t.)

• The Commissioner found these statements to be personal
statements expressing job dissatisfaction, rather than
addressing genuine public concerns, as was argued by the
teacher.

• 2013 Appellate Court upheld Commissioner’s Decision.
• Teacher had unblemished record and claimed that her

comments were the result of her frustrations with her
students’ behavior and were not intended to be racist.
• School district filed charges of unbecoming conduct against
the teacher.

In Re Tenure Hearing
of Jennifer O’Brien (con’t.)

• School Wins!

• Teacher was dismissed and court affirmed

– Facebook posts were not constitutionally protected, as
they were focused on informing friends about bad time
at work

• “An internet social-networking site such as Facebook
is a questionable place to begin an earnest
conversation about an important school issue such as
classroom discipline.”

– Even if posts were on a matter of public concern,
district’s interest in efficient operation of schools
outweighed teacher’s right to express herself

• “showed a disturbing lack of self-restraint, violated
any notion of good behavior, and [acted in a manner
that was] inimical to her role as a professional
educator.”

Isn’t my Social Media post my
FREE SPEECH?

Not necessarily.

If the person is speaking as a private citizen
on a matter of public concern, the speech is
entitled to protection that balances the
government’s (school/district) interest in
efficiently carrying out the public’s business
against the person’s interest in speaking out.

Garcetti v. Ceballos

547 U.S. 410 (2006)

• Plaintiff was a district attorney who claimed that he had been
passed up for a promotion for criticizing the legitimacy of a
warrant and articulated his position in a work memorandum.

• The Court ruled, in a 5-4 decision, that because his
statements were made pursuant to his position as a public
employee, rather than as a private citizen, his speech had no
First Amendment protection

• First Amendment protects a public employee’s right in certain
circumstances to speak as a citizen addressing matters of
public concern.

• The First Amendment does not prohibit managerial discipline
based on an employee’s expressions.

Did the governmental employee Yes.
speak "pursuant to his official Done.
No. duties"?

Is it a matter of public
concern?

No. Yes, then go to the balancing
Done. test.

Employee’s Favor = Employer’s Favor =
Speech is Done.
protected.

Was the employee's speech a No. Done.
"substantial factor or motivating factor
in a detrimental employment decision"? Yes...Would the employer
have made the same decision
anyway???

#Employee

• S441- Electronic Communication Law

– The law requires school districts to adopt a written
policy concerning electronic communications between
school employees and students. At minimum, the policy
must include provisions governing communication between
school employees and students via email, cell phones,
social networking websites and other Internet-based
social media.

• P.L. 2013, c. 257

– Requires school districts to provide instruction on
responsible use of social media for middle school
students as part of the core curriculum content
standards in technology

@Board Members
#Post No Evil!
#Like No Evil!
#Tweet No Evil!

School Ethics Commission Advisory
Opinion A03-07

• Letter to the Editor

• Determined you must:

– you must identify yourself as a board member

– you must also indicate that the letter is not
authorized by the board

– you must also indicate that the letter is not
written on behalf of the board.

• The information in the letter must not contain
confidential information and it must be accurate.

• You must ensure that your private action does not
compromise the board.

School Ethics Commission Advisory
Opinion A36-14

• Can Board Members Endorse political candidates? YES

• Can Board Members utilize lawn signs, publications and social
media to endorse political candidates?

– Generic party-created lawn signs placed at Board Member’s
private residence are allowed

– Any endorsement pamphlets, publications or signs created by the
Board Member must include a disclaimer.

• Disclaimer: Endorsement is as a private citizen and not as
a member of the local Board of Education nor is the
endorsement on behalf of the entire Board.

– Must be clear and visible

– Endorsements using social media websites and apps like Facebook,
Twitter, and Instagram would also require a disclaimer.

• May only be published on your own personal social media
accounts and not one representing the Board or you as a
Board Member. Any account that inherently indicates your
position as a Board Member can’t be used.

• Example: Can’t issue endorsement on account called “name,
local board of education member”

#Board Member

• Board Member use of social media

• Bey v. Brown, C#25-11

• A member of a board of education made a
number of statements on his Facebook page,
including a statement that read:

“Now if we could only do something about our
local terrorists that destroy dreams and burn
features,”•under which he posted a picture of

the district’s Superintendent.

Bey vs. Brown (con.’t.)

• School Ethics Commission found a violation of the School
Ethics Act.

• Comparing the Superintendent to a terrorist, on a social
media outlet which allowed for access by many people, was
an intentionally confrontational act.

• Because Members of the community may assume that Board
members have insight that others do not have, when a
sitting Board member makes such a judgment proclamation,
it is likely to be credited far more than a statement
offered by an ordinary citizen.

• The statement may reasonably be considered as
undermining, opposing, compromising or harming the
Superintendent in the proper performance of her duties.

#Board Member
Davison v. Loudoun County Board

of Supervisors (E.D. Va. 2017)

Pro Se Plaintiff files suit against Phyllis J. Randall,
Chair of the Loudoun County Board of Supervisors.

Randall deleted Plaintiff’s comment on her “Chair
Phyllis J. Randall” Facebook page and banned him from
the Facebook page for 12 hours.

Plaintiff alleged that his rights to Free Speech and
due Process under the US and Virginia Constitutions
were violated.

Loudoun County Board of Supervisors
(con’t.)

• Randall creates a Facebook page the day before
she is sworn into office.

• Randall participates in a joint town hall discussion
held by the County Board and the local School
Board.

• Plaintiff anonymously submits questions to the
panel and one of his questions is selected.

• The question concerned Randall’s proposal, made
during her campaign, for an ethics pledge for
public servants. Plaintiff asked whether school
board members – who Plaintiff suggested had
acted unethically should be required to take the
pledge.

Loudoun con’t.

• Randall characterized the question “as a set up
question”.

• Plaintiff took issue with Randall’s answer and
used Twitter to send a message to Randall.

• Later, Randall posts about the town hall panel
discussion on her Facebook page.

• Plaintiff comments on Randall’s post, including
posting allegations of corruption among the
school board.

• Randall deletes the post and bans the Plaintiff.
that night. When she awakes, she “unbans” the
Plaintiff from the page.

Loudon (con’t).

• Plaintiff prevails!

• Court finds the Plaintiff's First
Amendment rights were violated.

– Acted under Color of State Law (title, posts on behalf
of County Board, used page to talk to constituents/tool
of governance….);

– Engaged in Viewpoint Discrimination deleting a criticism;
– Facebook/Social Media has no less force than other

forums.

• Court does not find that there was a due
process violation.

#Board Member

• S.L.G. and M.S. obm D.S vs. Charles L. Granata,
Bonnie Granatir and Anotonio Calcado, Livingston
Board of Education

• Board Members violated code of ethics when they
released a press release and a “redacted”
complaint to the media that included confidential
information relative to D.S. a student in the
district.

• Commissioner recommended penalty of censure
for each of the three Board Members.

#Board Member
@policy



What about Privacy????

• Nothing is Private!
• E-mails & OPRA
• Hacking School Website, Facebook Page,

Twitter Account
– Security Plan
– Accountability (Whose Job it is to

Monitor?)

Censorship??

• Who decides what to Post, Tweet, Video?

• Creating Open Forums for people to respond
– Comments
– Retweets
– Who determines if the comment is inappropriate?

• Who Controls the Page?
– Administration? Teachers?

• Full time job??

@Ethical Implications

@BoardMembers #1

A Board Member "likes" a post on a
Facebook page that says something
negative about the district.
• Code of Ethics?
• What is the value of a “Like”?
• Viewpoint?

@BoardMembers #2

Someone running for the Board creates
a Facebook page. When they win the
election, they continue to post things
on the page, even asking the public how
they should vote on upcoming issues
before the Board.

• Code of Ethics?

• Forum/Viewpoint?

@BoardMembers #3

A Board Member is also a parent and
posted a negative comment about a
district program on a closed parents'
Facebook group. Someone in the group
shared the Board Member's comment.

• Code of Ethics?

• Viewpoint?

@BoardMembers #5

After two weeks of reading incendiary
Facebook posts, a Board Member calls
out "certain people in this town" and
chastises them from the dais at a
Board meeting for "spreading rumors
on social media that we don't care
about kids.“

• Code of Ethics?

@BoardMembers #6

Board Member is constantly replying to
and retweeting the Superintendent's
tweets.
• Code of Ethics?
• Viewpoint?

@BoardMembers #7

A Board Member has used some pretty
strong and vulgar language on the social
media sight of a celebrity. Someone
copied the posts and sent them to the
local online newsgroup who contacted
the district for a statement.

• Code of Ethics?

• Censorship?

@BoardMembers #8

A Board Member on their personal
social media page, has some content
that may be viewed as racist.
• Code of Ethics?
• Viewpoint?
• Censorship?

@BoardMembers #9

Board member extensively comments
on an online newspaper article about a
recent Board meeting, fielding and
answering questions from other online
commenters about the Board's actions
and conduct at the meeting.

• Code of Ethics?

@BoardMembers #10

A Board Member, on their social media page,
promotes gun ownership as a right and is an
active member of the NRA. A member of
the public calls him unfit to serve as a Board
Member at a public meeting. The Board
Member wants to respond but was gaveled
down by the board president.

• Code of Ethics?

• “Disruption”

#Post No Evil #Like No Evil

#Tweet No Evil

• “Wind Your Watch”
• When in doubt ~ Don’t
• Nothing is Private!
• And it lasts Forever...
• Everything is Awesome until its not
• You are Responsible for your Actions
•!

#Questions

???