It is an election year and we expect social media to again play a significant role in campaign efforts for 2022 candidates. But before you send that tweet or like that post, California public officials should be cognizant of the potential Brown Act implications of their communications on Internet-based social media platforms.
Whether it be Twitter, Facebook, YouTube, Instagram, or Tik Tok, the public forum has gone digital. And while the actual names and platforms may come and go (e.g. myspace.com (R.I.P)), the consensus is that social media is here to stay and our public institutions and laws have to adapt to the changing world.
That includes, of course, the Ralph M. Brown Act of 1953. For nearly seventy years, the Brown Act has articulated the ground rules for public official communications in order to ensure the meetings of California’s legislative bodies are open and public. The Act pursued this end by prohibiting communications that allow the majority of the body to “discuss, deliberate or take action” on a matter “within the subject matter of the legislative body.” But as our modes of communication changed, it became clear that the Brown Act also needed to adapt in order to reflect the public’s growing reliance on social media forums.
Last year, Assembly Bill 992 became law as the California Legislature acknowledged and attempted to respond to the digital communication revolution. AB 992 amended Government Code section 54952.2 to attempt to clarify which online communications involving a legislative body’s members do and do not constitute public meetings.
Permissible Communications. A public official subject to the Brown Act (such as a City Council member or Park District Board Member) may use social media to engage in separate communications in order to:
- Answer questions from the public (but not from other council or board members);
- Provide information to the public; and
- Solicit information from the public regarding a matter that is within the legislative body’s subject matter jurisdiction.
Prohibited Communications. While affording officials a forum to communicate with their constituents, AB 992 also placed significant constraints on officials’ ability to communicate with their colleagues on social media platforms. Government Code section 54952.2(b)(3)(A) now specifically prohibits:
- Direct responses to any communication on an internet-based social media platform regarding a matter that is within the legislative body’s subject matter jurisdiction that is made, posted, or shared by any other member of the legislative body.
Effectively, the Brown Act now prohibits Board Members from responding to social media posts by their fellow Board Members that may concern District business. The prohibition includes comments or the use of “digital icons” (e.g., Facebook’s like, love, haha, wow, sad, and angry reactions) to express a reaction to a communication from another member of that legislative body. Interestingly, because this amendment applies specifically to social media platforms, public officials can continue to engage in individual contacts with the public and their colleagues without violating the Act — just not via social media. One errant click can find a public official afoul of the law, so CARPD Members should be mindful of these Brown Act revisions as campaign season heats up. And good luck to all those on the ballot this election year!
CARPD Executive Director