On Wednesday, I interviewed Fred Chang, administrator of the Port Orchard Facebook group, about a face-to-face meet-and-greet of group members on Saturday at the Port Orchard Public Market.
The same day, a flap within the group unrelated to the meet-and-greet or the interview was stirring.
Bruce Beckman set off a lengthy thread by posting a comment in the main group about a spin-off that Fred started in December called Port Orchard Religious Rants and Raves group. Fred mentioned the group during our interview, saying the idea was to give group members a place to discuss religion. Early in the religious group’s existence, Fred turned active administration over to another member and didn’t pay much attention to the discussion thereafter, he said. What Fred hadn’t noticed was the snarky tone — my description — of the more recent posts, that some members objected to.
Bruce, in the main group post, wrote, “It’s unacceptable for someone in public office to have a bigoted Facebook group with the town’s name on it. Most people will agree that mocking someone for their religious beliefs is just as bigoted as mocking someone for skin color or sexual orientation.”
Bruce accused the group of censoring people of religious faith and called on Fred to, “explain his position publicly on this issue since he is a member of the Port Orchard City Council.”
Chang, in a separate post that showed a screen shot of Bruce’s comments, said he disagreed with Bruce’s characterization of the religious discussion group. Fred added that had he seen posts that appeared to be mocking, he would have removed them.
Chang on Friday told me he had a private message conversation with Kathryn Simpson, who was also unhappy with Fred about his involvement with the group. On Thursday, Chang took the group down. A separate group with the same name, administered by someone else, appeared shortly afterward.
I’m pursuing the issue here not to settle whether the group was mocking of people of faith but to address public records issues that Bruce alluded to in his post. Should a city resident who is also a city councilman maintain an active private profile on Facebook? Does the use of the term “Port Orchard” in the title of a group administered by someone who is a city councilman constitute a public record?
First, let’s note that other Port Orchard City Council members have Facebook pages. Like Chang’s account, the content is mostly about sunsets, pets and the like, nothing racy, very little city related. Cindy Lucarelli has made a couple of upbeat posts about city cleanup day and the like.
According to Pat Mason, legal consultant for the Municipal Resources Service Center, there is nothing that precludes elected officials having personal social media accounts or private devices, but as we learned from Hillary Clinton, issues arise when you conduct public business on a private account. Mason says there’s nothing that prohibits this, “Our concern would be, if they do, are those records being retained?” Because, as in the case on Bainbridge Island, people can make public records requests for those documents, and if the city or county or water district drags its feet in any way (as defined under public records laws) it runs the risk of a lawsuit. Bainbridge ended up settling a public records suit for $500,000 in late 2014.
In short, according to Mason, elected officials can conduct public business on private accounts, but they had better be able to quickly produce those records.
Chang occasionally will give information about the city on Facebook, such as the date of a city council meeting. When he does, he takes a screenshot and sends it to his city email to create a record. Chang, as far as I can tell, stayed out of a recent heated discussion about city zoning regulations and one business owner’s display of a large American flag. He said he purposely avoids posting in discussions where it might be construed that he was making a position statement on behalf of the city.
So back to the Port Orchard Religious Rants and Raves group, was it a good idea for Chang to start the group then turn administration over to someone else? Maybe not. But was it city business? No, said City Clerk Brandy Rinearson. At least not because of the name. “We can’t regulate what people call their Facebook groups,” Rinearson said. “I would say it’s not a public record unless the content is about city business posted by and elected official or (city) employee.”
And there’s another side to the coin. “He’s an elected official, but he has a right to his free speech,” Rinearson said. “Where there’s a grey line is if he makes a statement that has to do with city business.”
Mason concurs. “They don’t give up their free speech rights,” he said.
But the issue is far from cut and dried. The sheer volume of material to be sifted through and the possibility of deleted posts could raise questions about whether a search for public records has been satisfied.
The rules are being hashed out in the courts, as on Bainbridge and elsewhere.
“To me this is an evolving area,” said Mason. “This is not a settled area of the law in my mind.”
Some jurisdictions limit the use of private accounts for public business. Port Orchard this year implemented software that allows elected officials access to their city email on private devices. And the city has a policy saying social media sites of city departments are to be one-way only for giving out information not for engaging in public debate. But there is nothing in the city policy that speaks to elected officials’ private use of social media.
As it stands now there is some degree of conflict between
privacy rights of public officials and public records requests,
Should elected officials have personal social media accounts?
- It's OK, as long as they archive any discussion that could be
seen construed as public business. (47%, 61 Votes)
- It's OK, as long as they never discuss public business on
personal accounts. (42%, 55 Votes)
- No. Public officials with personal accounts present too much of
a risk to the jurisdiction. (11%, 14 Votes)
Total Voters: 130