The Ethics Advisor – June 2015

¡Aguas con el Tech! – The Ethical Use of Technology in Your Role as a Public Official

By Ruben Duran – The Ethics Advisor

ethics wordle-juneWhile the use of technology by elected officials in California may not exactly be cause for a three-alarm fire, there still are a few things to watch out for when using the power of the internet and other tech-based tools ubiquitous in today’s society.

Participants at the Southern California Latino Policy Center’s recent Policy Forum learned about the various technology tools cities and school districts can use to assess and improve service levels. But while the latest gadgets, programs and apps might present wonderful opportunities to connect with constituents and even to help your government run more efficiently, there are some landmines to avoid to ensure you are using tech tools ethically under California law.

Illegal Use of Public Resources

First, be wary of using public resources for private or personal use, and understand that practically any use of a public agency’s assets (such as computers, servers, phone lines, printers) for campaigning purposes is strictly prohibited. Anything beyond mere incidental and minimal use of public resources for political or personal purposes is a no-no. For example, responding once to an email from a constituent asking about a political event over city email likely will not trigger an ethics violation. On the other hand, including a link to a campaign Facebook page, Twitter account or other campaign web site on every email sent from your city or district email account would likely get you in trouble. Accordingly, your email “signature” (the text and other information that automatically gets included on emails) should not include anything that could be considered campaigning, even a non-descript link to a campaign page.

Brown Act Concerns

Second, while blogs, Facebook pages and tweets can facilitate communication with the public, elected officials should remember that questioning, commenting and responding to comments on these media is a dangerously easy way to violate the Brown Act (Gov’t Code § 54950 et seq.). Anytime a majority or more of a legislative body uses technology to communicate among themselves “to hear, discuss, deliberate, or take action” on an issue within the body’s jurisdiction, they very well may have broken the law. This applies whether the communications are made by email, tweets, Facebook pages, blogs, comment sections or chat rooms.

Public Records Act Issues

Finally, elected officials should remember that electronic and technological devices, while working mainly in the ether of the World Wide Web, nonetheless can create public records open to inspection and copying by any member of the public for any reason or no reason at all. This is because the definition of “record” in the Public Records Act (Gov’t Code § 6250 et seq.) is broad and specifically includes electronic records such as emails, video, pictures, etc. created or maintained by a local public agency in the ordinary course of business.

And, it might even include records and files stored on your own personal cell phone or mobile device. The California Supreme Court is currently reviewing a case out of the City of San Jose that had previously held that these records stored on a public official’s private technological device (texts, emails, etc. discussing city business) were not public records. Now that the highest court in the State is reviewing the case, the holding in San Jose is suspended, and the Court could reverse, uphold or modify the rule. In the meantime, the safest approach is to assume that if you are using a private device to conduct public business, that device might be open to public inspection – at least partially – at some point in the future.

Conclusion

While the use of technology tools can be an important and useful part of your outreach to the people you serve, it can also present circumstances in which you can easily and unwittingly get into ethical hot water. The three examples discussed above are only the most common situations that can arise. Remember to check with your legal counsel if you have questions about the proper and ethical use of technology in your role as an elected official.

As always, the Ethics Advisor is intended to alert you to potential issues in your day-to-day activities as a public servant. It is not intended, and should not be taken, as legal advice, as each person’s situation may be different and legal conclusions will vary according to the specific facts at hand.

Additional Resources:
Social Media and Public Agencies: Legal Issues
Institute for Local Government (ILG)

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Ruben Duran
ruben.duran@bbklaw.com
(213) 787-2569

About our blogger: Ruben Duran is a partner in Best Best & Krieger LLP’s Los Angeles office. He has counseled elected officials for nearly 17 years and offers training throughout California on good governance and ethics. A former city attorney, he is a regular speaker for the California Institute for Local Government and serves as the general counsel to the Oxnard Harbor District, which owns and operates the commercial Port of Hueneme.

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