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Home My WebLink About2023-02-07 Council Mtg MIN Presentation to City of Ashland City Council By Acting City Attorney Douglas M. McGeary & CIS Deputy General Counsel Tamara E. Russell February 7, 2023 The Eight Habits of Highly Effective Councils Legal Issues re City Councilors’ “Scope of Duties” Social Media: Potential Legal Pitfalls Q&A (a.k.a., “Let’s play Stump the City Attorney and CIS Lawyer!”) Eight Habits of Highly Effective Councils (a.k.a., “teams”) But first . . . Principles of a Team Habit #1 Think and act strategically Understand & Demonstrate Teamwork Habit #2: The Three Hallmarks of an Effective Small Group: 1.Interpersonal Skills Ability to Work With Others 2.Task Skills Knowledge to do a Job 3.Rational Skills Ability to Deal with Issues and Problems Rationally Habit #3 Define Roles and Responsibilities City Councils -Generally City Management-Generally What “rules” apply to a City Council? Authority given by Charter, Ordinance & Resolution Authority does not rest with any single elected official but with the majority of the body City business is not an elected official’s business City employees are not elected official’s employees Elected officials can be held responsible for their actions toward city employees and third parties Statements made to the city attorney are not necessarily confidential Habit #4 Consistently Evaluate Policy Implementation Allocate Time Appropriately Habit #5: Habit #6 Follow the Council’s Rules of Procedures AMC 2.04 and City of Ashland Resolution 2020-03 Habit #7 Seek Objective Assessments Habit #8 Never Stop Growing or Learning (continuing education) Example: LOC’s Elected Essentials Training (available on the LOC website) Debate vs. Dialogue Legal Issues re City Councilors’ “Scope of Duties” Claims Against Public Officials “\[E\]very public body is subject to civil action for its torts and those of its officers, employees and agents acting within the , . . . arising out of a scope of their employment or duties governmental or proprietary function . . . .” (ORS 30.265) What isn’t Included? Malfeasance in office; Willful or wanton neglect of duty; Actions outside the scope of duties/employment Social Media: Potential Legal Pitfalls Public Records & Social Media Oregon’s Public Records law applies to cities in two ways: Retention; and Requests Public Records & Social Media What social media content needs to be retained? At a minimum, any records covered by the general retention schedule under OAR, Ch. 166, Div. 200. These regulations do not specify a retention schedule for social media posts. BUT they do specify rules for “communications and distributions” and “complaints” received by the City. Public Records & Social Media What social media content can be requested by the public? Any content that pertains to “the conduct of the public’s business” This would include any content on a City-operated account because it is a product of City resources. –Ex. 1: Social media content that is no longer retained, but still recoverable on the web site. –Ex. 2: Direct messages or posts made on other user’s pages. Types of Accounts For cities, there are two types of social media accounts. 1.City-operated accounts –A city’s main FB page, a police department’s Twitter account, etc. 2.Private accounts –The accounts belonging to city staff and elected officials. –To what extent are these private accounts subject to regulation? Answer: Depends on how they are used! “Private” Accounts th Campbell v. Reisch, 986 F3d 822 (8Cir 2021) (Lawmaker’s Twitter account was found to be a “private” account –lawmaker protected from liability for a First Amendment violation) “Private” Accounts th Davison v. Randall, 912 F3d 666 (4Cir 2019) (County commissioner violated the First Amendment rights of a County resident by banning the resident from her Facebook page.) State of OR Interpretation “Private” Accounts: Social media posts are considered public records if: –Posts are made on an official public agency account or on a private account that is being used to distribute information for that agency to the public . . . . –If a private account is used to conduct government business\[,\] then it becomes public and is subject to the Oregon Public Records Law. . . .” -Oregon State Archives, Record Management Section Key Takeaways Have Two Social Media Accounts: An“official”City Councilor social media page that you oversee and post to. Use this to inform the public about the City’s business. A“personal”social media page. Use this to post stories and pictures about your family and dog, write restaurant reviews, and to address non-City issues. Key Takeaways (1)CIS recommendation: Implement a Policy (2)Professionalism matters on both your “official” and “personal” social media pages. (3)When conducting the City’s business on social media, you have no privacy rights. (4)Visitors to your social media pages have First Amendment rights. There are legal consequences if you don’t honor those rights (and may be coverage issues as well –see next slide). Liability Coverage for Claims Against City Councilors CIS provides coverage for claims against City Councilors who are “authorized to act on behalf of \[the City\], all acting within the scope of their employment or duties. . .” BUT: No coverage for public records/meeting violations If no CIS coverage, attorney fees and damages become the City’s concern and situation If acting outside the scope, personal liability. (ORS 30.265) Questions? Let’s play “Stump the City Attorney and CIS Lawyer”! “... you can either ask the question or experience the answer ...” -Author unknown Thank you, City of Ashland City Council! Douglas M. McGeary Acting City Attorney City of Ashland doug.mcgeary@ashland.or.us (541)488-2107 Carmel Zahran Assistant City Attorney City of Ashland Carmel.Zahran@ashland.or.us Tamara E. Russell Deputy General Counsel Citycounty Ins. Services trussell@cisoregon.org 503-763-3845