Facing the Book: My Personal Social Media Policy

Several people (none of whom are attorneys) have told me that I "should" post city information and answer city-related questions on the Rowlett TX "big group" on Facebook. Here's why I don't: Three city attorneys - two Rowlett's attorneys and one at a Texas Municipal League conference - have told me I shouldn't. 

When it comes to legal advice, I'm going with the folks who have the J.D. after their names. But although it's the most important reason, legalities aren't the only reasons I made the decision not to post on the groups.

City officials posting on social media groups: what could possibly go wrong? Let me count the ways:

• Facebook groups are notorious time-wasters. The main Rowlett group has over 20,000 members. Some posts receive hundreds of comments. Attempting to respond to every city-related post would constitute 3 full-time jobs. Citizens deserve elected officials who are tending to real city business, not playing the role of "help desk" on social media. 
• It's impossible to give equal attention to all. No matter how much time s/he spends fielding group questions, a councilmember will inevitably answer some people's questions and not others'. I can promise I'll answer everyone who emails me with a question. I can't promise that with social media groups. 
• Many group members don't live in Rowlett. That doesn't mean they shouldn't be in the group, but it does mean councilmembers don't know which ones are our constituents and which aren't. When it comes to city decisions, I want to know it's Rowlett citizens I'm listening to.
• A councilmember's answer or opinion can be seen as representing that of the city or the council as a whole. That's especially true when the councilmember is the mayor.
• The "mob mentality" in large social media groups increases the chance of misunderstandings and misinterpretations. There are many good people in the groups. There are also many trolls who will twist your words and try to engage you in arguments. 

Those are good reasons not to post or comment in the large social groups, but here are the much more important ones:

• Posting in social media groups runs the risk of creating an illegal quorum. Under the Texas Open Meetings Act, councilmembers must not deliberate on city business outside a public meeting in numbers constituting a quorum (more than three in our case). "Deliberate" has been broadly defined; it includes most any discussion of city matters that could ever possibly come before the council. If Member A comments on a post, then 3 days and 30 comments later Member B comments on that same subject, then on the 4th day Members C and D add their comments, now we have a quorum and a criminal violation. 
  
  One might say well, just don't comment on a post that three councilmembers have already commented on. Oh, but it's not that easy. The other members' comments don't have to be in that same thread - they just have to be on the same subject. Are you going to read through every comment on every post in the group to make sure more than three haven't said anything about the topic? 
  
  Well, then, you say: only three councilmembers should be allowed to be members of the group and that would solve the problem. How fair would that be to the councilmembers who aren't allowed to participate because others got there first? But even if you think that's okay, here's another problem:
  
  
• Posting in social media groups runs the risk of non-compliance with the Public Information Act. All written communications made by city officials about city business is subject to open records requirements. That means it must be preserved and produced if someone makes a Public Information Act request for "all email, text messages, and social media posts about [for example] the Miller Road Bridge." That includes all those comments that were made on all those posts in the group. But how do we ensure they were all saved? A moderator can delete any posts or comments. The original poster can delete the post, which automatically deletes the comments made by the councilmember on it. Not producing those comments is a violation of the law.
  
  In fact, courts have ruled that an elected official can't block members of the public from his/her official pages or delete comments made on the page by members of the public. Most of the social media groups are private, which means they aren't open to everyone. People can be removed or banned by administrators and moderators. 
  
  If an elected official is an administrator or moderator, it's even worse, because now s/he has the power to remove and ban members, delete comments, not approve comments for publication, or even prevent fellow officials from posting. 

The law is complex. Many people, including councilmembers, don't understand it. Some of our councilmembers continued to post about city business in the groups or moderate groups after I tried to point all this out in a work session.  I didn't do that in order to "violate their freedom of speech" as I was accused of doing. I brought it to their attention in an attempt to protect them from unknowingly risking a violation of the law. 

We know when we run for office (because it's one of the first things we're told in candidate orientation) that if we're elected, we will be giving up some of our rights, including restrictions on our freedom of speech. I don't like it either, but I believe it's important for elected officials to abide by the laws, even those we don't like. 

If I'm elected mayor, I will continue to post information on my city official page, where I don't have to worry about any other councilmembers posting, and which is monitored and archived by the city IT staff so it can be searched for open records requests. I will reach out and communicate with citizens in every way that I can without putting myself and others at legal risk.