Social Media Issues in Law Enforcement

1. Social Media Issues in Law Enforcement • Panel Discussion • January 10, 2010

2. Captain Frank GrgurinaFremont Police Department • Background • Format of discussion • Panel member introductions

3. SURVEY HIGHLIGHTS 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. SEPTEMBER 2010

4. TOP 10 SECTORS BY SHARE OF U.S. INTERNET TIME Source: The Nielsen Company

5. Captain Richard LuceroFremont Police Department • Continuing role of policy • Summary of expressive rights • Continuing role of policy and trends in employment issues

7. Captain Richard LuceroFremont Police Department Visibility Accessibility

8. Captain Richard LuceroFremont Police Department Competing Priorities in Regulating Speech of Public Employees: Expressive rights of the individual The need for public entities to fulfill their purpose without disruption Public policy of informing citizens about the functioning of their government

9. Captain Richard LuceroFremont 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

11. Captain Richard LuceroFremont 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

12. Melanie Poturica, Attorney at LawLiebert Cassidy and Whitmore • Personal Devices • Fair Labor Standards Act (FLSA) • Personal Devices (Privacy and Evidence)

13. Handheld Personal Digital Assistants An electronic communications resource with mass communication capability Email Blogging Instant Messaging Video/Photo Sharing Social Networking Twitter GPS Texting

14. 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?

15. 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?

16. 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.”

17. 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.

18. 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.

19. 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?

20. Case Study Was the Department reasonable in the request to see Miriam’s Facebook page? Most likely: Yes

21. Case Study Were there alternatives to reviewing the page? Yes

22. 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

23. 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

24. 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)

25. Personnel Rules Drug and Alcohol Policy Job Descriptions Anti Harassment Discrimination policies Workplace Violence Prevention policies Electronic Communications Use Policy Department Rules/ Procedures Collective Bargaining Agreements Written Orders Other Policies Social Networking: Nexus/Disciplinary Grounds

26. 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

27. 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.

28. 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.

29. 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

30. 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

31. Chief Tim JackmanSanta Monica Police Department Department perspective and impacts • Softball analogy • UC • Officer Safety? • Defense Attorneys • Personal viewpoints? • Some positives too…

32. Chief Tim JackmanSanta Monica Police Department Employee Interests and Impacts • Officer Involved Shooting – Facebook Retirees

33. Chief Tim JackmanSanta Monica Police Department Celebrity and Sensational Cases • Lindsey Lohan • UCLA Medical Center • Privacy issues??

34. Chief Tim JackmanSanta Monica Police Department Catsouras vs. CHP

35. 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

36. Open Discussion

37. 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 Whitmoreis 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.

38. 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.