March 19, 2011

Politicians' Facebook posts raise legal worry

Politicians' Facebook discussions are blurring the lines between official business and personal opinions, which has experts concerned that elected officials may run afoul of Arizona's Public Records Law and the Open Meeting Law.

In city councils across the Valley, many members designate constituents and fellow elected officials as "friends" on the popular social-media site, then engage in fragmented debates on local issues between postings about festivals and family outings. In the southeast Valley, a Chandler councilman's personal Facebook page even led to informal budget-brainstorming discussions with elected officials from Tempe, Mesa and Gilbert.

Although no official decisions are being made on Facebook, the informal discussions could lead to breaches of local government regulations.

Under state law, electronic communications made or received "in pursuance of law or in connection with the transaction of public business" must be preserved as a public record. But most local governments have no means to screen and preserve Facebook discussions on officials' personal pages, which often are open to their online "friends" but not to the rest of the public.

It's also a violation of Arizona's Open Meeting Law when a majority of a city council holds an electronic discussion that hasn't been posted as a public meeting. In municipalities like Chandler and Gilbert, the majority of council members are Facebook friends who could easily hold impromptu electronic discussions, although there is no evidence they have done so.

Matt Lore, spokesman for the League of Arizona Cities and Towns, said the organization is scrambling to develop guidelines and educate municipal officials prone to engage constituents on a personal level. "Where's the line drawn between just being 'Bob' and being 'Bob the mayor'?"

Media-law attorney Dan Barr said that when an elected official's Facebook page contains an official photo or reference to the person's public post and invites interaction with constituents, "it comes closer to coverage of public-records law than a Facebook page mostly dealing with his or her personal life."

And if a city council member is communicating with a quorum of other members outside of a posted public meeting, the official could breaking the Open Meeting Law.

"The same principles apply no matter what the technology," Barr said.

Jerry Kirkpatrick, records manager for the state archives, said the agency has been inundated with social-media questions from local government officials. He also is grappling with the daunting prospect of having to retain unprecedented volumes of social-media dialog as "permanent public records." Because there is no policy for archivists to cull what state law considers "public record" from a social-media dialog, Kirkpatrick advises officials not to put unique information in social-media communications.

As many elected officials accumulate hundreds or thousands of Facebook "friends," it's unclear how much of the chatter must be retained as public records. Nor is it clear who, if anyone, is going to read through postings to separate "what I ate for lunch" from "let's talk about the new zoning rules."

"If they invite the public to talk about issues that may come up at a meeting or about new policies," that could be considered a permanent public record, Kirkpatrick said. "This is a conundrum public agencies are under in the changing communications world we live in. Our laws are archaic."

Legal advice to city officials about social-media use has been spotty, but municipal lawyers across the state are talking about the issue, Chandler City Attorney Mary Wade said.

"The world is spinning so fast that departments everywhere are freaking out about the sheer volume of records retention," she said. "We're talking to the state and trying to catch up."

Several city officials said that when a policy discussion or constituent complaint surfaces on Facebook, they ask the individuals to send their comments to the city e-mail system, which is archived as a public record. But others use the page as a virtual "town hall" and welcome such discussions.

Phoenix spokeswoman Margaret Shalley said the city is working on a social-media policy that will likely include council members' personal pages. "It's very, very tricky, and we're being very careful how we're approaching this," she said, adding that Phoenix will likely advise elected officials not to discuss any public-policy issues on Facebook.

Political consultant David Leibowitz operates Phoenix Mayor Phil Gordon's Facebook page and said it is used to repeat civic announcements and share news links, not to engage in policy discussions. With 5,000 "friends," Gordon does not have time to engage with all of them, Leibowitz said.

In contrast, Tempe Councilwoman Onnie Shekerjian gets personal on her page, where she also talks about city business. "I don't post press releases; I use Facebook so people know who I am. . . . I am more than a public official."

Her family, vegetable-gardening hobby, and a former insomnia problem were on Shekerjian's page beside chats about "positive" city issues, she said.

Mesa Mayor Scott Smith said he was "very well-schooled by the city attorney" on Facebook use and uses it only to disseminate city news and photos.

But Chandler Councilman Jeff Weninger considers his Facebook page an electronic town hall and personal "branding" medium. He posts constantly, links to video chats and hosts public surveys. Weninger doesn't duck political dialog and controversy. Among recent posts about his wife's birthday and the Chandler Ostrich Festival was one in which he called on state Sen. Scott Bundgaard to resign his leadership position amid a domestic-violence investigation.

"I don't shy away from issues; it's all about having a conversation," he said. "I talk about decisions at work, the council, what movie I'm going to see."

Weninger said that he would resist any ruling that muzzles policy talk on Facebook and that he has those same conversations over the counter at restaurants he owns.

Shekerjian said a political conversation on Weninger's Facebook page recently brought a few elected leaders from Tempe, Chandler, Mesa and Gilbert together for informal meetings about budget challenges. Barr, the lawyer, said that so long as there was not a quorum from any of the council members, the gatherings did not violate the state's Open Meeting Law.

Weninger said he is careful not to skirt the meeting law and doesn't simultaneously discuss city policies with the four other Chandler council members who are his Facebook friends.

John Allcott, a Chandler school-bus driver and retired postal carrier, is a frequent poster on Weninger's Facebook wall. He regularly weighs in on city issues, especially involving public money. Allcott, 49, said he didn't know the exchange could be considered public record but said it doesn't bother him "because I know anything I write on the Internet is public."

Glendale Councilman Phil Lieberman considers his Facebook page an extension of his open political persona.

"I'm listed in the phone book," he said. "I attempt to make myself as available as I possibly can in any form of media. I have nothing to hide."

by Edythe Jensen The Arizona Republic Mar. 17, 2011 12:00 AM

Politicians' Facebook posts raise legal worry

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