Social Media Issues in
Law Enforcement
Panel Discussion
January 10, 2010
Captain Frank Grgurina
Fremont Police Department
• Background
• Format of discussion
• Panel member introductions
728 Law Enforcement Agencies
from 48 States and D.C.
• 81% of agencies surveyed use of social media.
• 66.8% of agencies surveyed have a Facebook page.
• 35.2% of agencies surveyed have a social media policy
and an additional 23.2% are in the process of crafting a
policy.
• Of the agencies not currently using social media,
61.6% are considering its adoption.
• Resource constraints (time and personnel) were the most
cited barrier to social media use by surveyed agencies.
TOP 10 SECTORS BY SHARE OF U.S. INTERNET TIME
Share of Time Share of Time % Change in
June 2010
June 2009
Share of Time
Rank
SubCategory
1
2
3
4
5
6
7
8
9
10
Social Networks
Online Games
Email
Portals
Instant Messaging
Videos/Movies
Search
Software Manufactures
Multi-category Enter.
Classifieds/Auctions
Other
22%
10.2%
8.3%
4.4%
4.0%
3.9%
3.5%
3.3%
2.8%
2.7%
34.3%
Source: The Nielsen Company
15%
9.3 %
11.5%
5.5%
4.7%
3.5%
3.4%
3.3%
3.0%
2.7%
67.3%
43%
10%
-28%
-19%
-15%
12%
1%
-0%
-7%
-2%
-8%
Captain Richard Lucero
Fremont Police Department
• Continuing role of policy
• Summary of expressive rights
• Continuing role of policy and trends in
employment issues
Captain Richard Lucero
Fremont Police Department
• Visibility
• Accessibility
Captain Richard Lucero
Fremont Police Department
Competing Priorities in Regulating Speech of Public
Employees:
1. Expressive rights of the individual
2. The need for public entities to fulfill their purpose
without disruption
3. Public policy of informing citizens about the
functioning of their government
Captain Richard Lucero
Fremont Police Department
Significant Supreme Court Decisions:
•
Pickering v. Board of Education (1968) 391 U.S.
563
•
Connick v. Myers (1983) 461 U.S. 138
•
Garcetti v. Ceballos (2006) 547 U.S. 410
Captain Richard Lucero
Fremont Police Department
The Future Role of Policy:
•
City of Ontario v. Quon (2010) 130 S. Ct. 2619
•
Discrimination Avoidance
•
Labor Activities
•
Associative Issues
•
Passwords and Deception
Melanie Poturica, Attorney at Law
Liebert Cassidy and Whitmore
• Personal Devices
• Fair Labor Standards Act (FLSA)
• Personal Devices (Privacy and Evidence)
Handheld Personal Digital Assistants
An electronic communications resource with
mass communication capability
•Email
•Blogging
•Instant Messaging
•Video/Photo Sharing
•Social Networking
•Twitter
•GPS
•Texting
PDAs and FLSA ISSUES
• For nonexempt employees who do use PDAs, instruct them to
report any work time spent using PDAs; or
• Consider placing limitations on when PDAs can be used after
hours.
• Evaluate requests for time off or for
leaves of absence due to medical conditions.
If your employee takes protected time off,
are they still performing work from home?
Are you paying them to do that work?
• Major train wreck, and your employee
shot pictures and video of the wreck on
his city issued PDA (iphone) and sent
the pictures via text to the hospital and
the paramedics so that they can
prepare for the victims. He also posted
updates on his Facebook and Twitter
account using the iphone. Is any of this
subject to PRA? If victims file lawsuits,
are these records subject to discovery?
Case Study:
Community Services Officer Miriam has a
Facebook page and she “friended” several
coworkers. She has recently posted comments
about male coworkers whom she finds
attractive. She doesn’t use his name but calls
him “Officer Cutie-Boy.”
• Case Study:
Several of Miriam’s coworkers have now added to her
Facebook page in discussing “Officer Cutie-Boy.” One
coworker shows the male employee the Facebook comments.
•Case Study:
The male employee complains to his supervisor about the
Facebook comment and states that he feels harassed by this
behavior. The Chief initiates an investigation and IA asks that
Miriam’s coworker show him the Facebook page.
Case Study
IA completes the investigation and the Chief serves
Miriam with a Notice to Intent to Suspend for
violation of the City’s anti-harassment policy.
Does Miriam have a reasonable
expectation of privacy in the
contents of the Facebook page?
Case Study
Was the Department reasonable in the request to
see Miriam’s Facebook page?
Most likely: Yes
Case Study
Were there alternatives to reviewing the page?
Yes
Case Study
Can the Chief discipline Miriam if all of her
comments were made on her personal time and
on her personal iphone?
Most likely: yes
REGULATING EMPLOYEE SOCIAL NETWORKING
CONDUCT
• Situation Where Social Networking May Give Rise
to Discipline
• Harassment Claims
• Cyber-bullying/stalking
• Improper or Illegal Use (e.g.. release of
confidential information)
• Conduct that reflects badly on the agency
• Safety concerns
• Violation of law
• Agency liability
• Disrupting agency mission
Monitoring Internet Usage
• Off Duty Conduct
• Job Nexus
• Type of off duty conduct
• Type of job duties
• Effect on the employer (undermines employer
mission, purpose, and credibility with the
public)
Social Networking: Nexus/Disciplinary Grounds
• Personnel Rules
• Electronic Communications
Use Policy
• Drug and Alcohol Policy
• Job Descriptions
• Department Rules/
Procedures
• Anti Harassment
Discrimination policies
• Collective Bargaining
Agreements
• Workplace Violence
Prevention policies
• Written Orders
• Other Policies
SOCIAL NETWORKING
GUIDELINES FOR EMPLOYEES
Employees MUST NOT:
 Access personal social networking pages during
work hours
 Post false or confidential information about the
agency, employees, or clients
 Post agency logos on their personal social
networking pages
 Use agency email address to register personal
social networking page
SOCIAL NETWORKING
GUIDELINES FOR EMPLOYEES
Employees SHOULD NOT:
 Give others their passwords
 Post personal confidential information (may be
stolen for identity theft reasons)
 Invite or accept the invitation of anyone who may
not be an appropriate contact
 Ignore their pages: audit, be proactive, delete
content or links others post to your page that you
do not approve of; contact service administrator
for remedies re harassment, etc.
SOCIAL NETWORKING
GUIDELINES FOR EMPLOYEES
• Employee’s speaking about the agency online
should disclose that they do not represent the
agency
• Keep profiles private to avoid unwelcome contact
from members of the public or co-workers.
SOCIAL NETWORKING
GUIDELINES FOR EMPLOYEES
• Employees expose themselves to liability if their
conduct violates the law (defamation, harassment,
etc.)
• Information posted is permanent and easily
disseminated: employees should use good
judgment regarding content and communications
on personal sites
BEST PRACTICES
• “Never put in electronic form anything that you
wouldn't want viewed by a million people,
including your colleagues…, and
supervisors─and your mother.“
• Michael Simpson, National Education Association
Chief Tim Jackman
Santa Monica Police Department
Department perspective and impacts
• Softball analogy
• UC
• Officer Safety?
• Defense Attorneys
• Personal viewpoints?
• Some positives too…
Chief Tim Jackman
Santa Monica Police Department
Employee Interests and Impacts
• Officer Involved Shooting – Facebook Retirees
Chief Tim Jackman
Santa Monica Police Department
Celebrity and Sensational Cases
• Lindsey Lohan
• UCLA Medical Center
• Privacy issues??
Chief Tim Jackman
Santa Monica Police Department
Catsouras vs. CHP
Grieving parents Jeff
and Lucretia Kempson
October 19, 2010
Firefighter’s video of crash victim shocks
grieving parents
He distributed graphic images of mother of two
killed in tragic accident
Open Discussion
http://connectedcops.net/
ConnectedCOPS vision is to promote the insightful thoughts of the law
enforcement social media visionaries by providing them a voice on this blog.
http://www.nlrb.gov/
The National Labor Relations Board is an independent federal agency
vested with the power to safeguard employees' rights to organize and to
determine whether to have unions as their bargaining representative.
http://www.lcwlegal.com/
The firm of Liebert Cassidy Whitmore is focused on the representation of
management in the area of labor, employment and education law, and
also includes representation of public and private education institutions in
the area of business, construction, and facilities.
http://www.ca-ilg.org/socialmediapolicies
The Institute for Local Government promotes good government at the
local level with practical, impartial, and easy-to-use resources for
California communities.
http://www.iacpsocialmedia.org/
IACP’s Social Media Center serves no-cost resources to help law
enforcement personnel to develop or enhance their agency’s use of
social media and integrate Web 2.0 tools into agency operations.
http://www.dfeh.ca.gov/DFEH/default/
the Division of Fair Employment Practices was established as an
independent department charged with enforcing California's employment,
housing, public accommodations and public service non-discrimination
laws, as well as the State's bias-related hate violence law.
http://www.eeoc.gov/eeoc/index.cfm
The U.S. Equal Employment Opportunity Commission (EEOC) is
responsible for enforcing federal laws that make it illegal to discriminate
against a job applicant or an employee because of the person's race,
color, religion, sex (including pregnancy), national origin, age (40 or
older), disability or genetic information.