Davis City Attorney Issues Guidance to Commissioners on Brown Act and Social Media in Light of AB 992

By David M. Greenwald

Davis, CA – Last year the California legislature updated the Brown Act with AB 992 to create guidance for local legislative bodies with regard to the use of social media by their members.

Naturally, prior to the passage of this legislation, the Brown Act—which requires public meetings, thereby governing communications and preventing members from holding non-public or quasi-non-public meetings—“was silent regarding social media and its use by members of a legislative body.

“This led to uncertainty as to whether certain uses of social media could result in unintended violations of the Brown Act,” City Attorney Inder Khalsa explained in a letter to City Commissioners.  “The new bill clarifies certain allowable uses of social media and provides guidance for applying the principles of the Brown Act to social media.”

At the same time, she said, it “also raises some new questions regarding what constitutes an ‘internet-based social media platform.’”

She said she is hopeful there will be additional guidance in terms of the application of the law within the next few years.

Under the Brown Act, meetings of legislative bodies must be open and sufficiently noticed.  The Brown Act defines a meeting as any sort of communication between a majority of members of the legislative body where they hear, discuss, deliberate or take action on an item before them.

In addition, “Members are also prohibited from using a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that
is within the subject matter jurisdiction of the legislative body. These types of interactions are often referred to as ‘serial meetings.’”

“As use of social media has grown more prevalent as a way of communicating with constituents and sharing information, we have been concerned that some social media interactions could be considered an illegal or serial meeting if multiple members are ‘interacting,’” Khalsa explained in the letter.  “The difficulty came with determining what could be considered a ‘communication’ for purposes of complying with the Brown Act.”

AB 992 creates more defined but also more stringent requirements.

Under the new law, the Brown Act is amended to specify “a member of a legislative body may engage in separate conversations or communications on an internet-based social media platform to answer questions, provide information to the public, or to solicit information from the public regarding a matter that is within the subject matter jurisdiction of the legislative body.”

However, two members of the legislative body “are prohibited from using an internet-based social media platform to discuss among themselves their public agency’s business.”

Khalsa directs: “You are now prohibited from responding directly to any communication on an internet-based social media platform regarding a matter that is within the subject matter jurisdiction of your Commission that is made, posted, or shared by any other member of your Commission.”

That means that “Commissioners cannot ‘like,’ ‘retweet,’ ‘share’ or otherwise react to a post made by another Commissioner that touches on topics within the subject matter jurisdiction of their Commission.”

She adds, “This prohibition applies to interactions between just two Commissioners, which is a unique element since an interaction between two Commissioners in person (or through another medium) would not otherwise be prohibited under the Brown Act.”

While this seems clear with regard to platforms such as Facebook and Twitter, she notes there are “some interpretative questions” as well.

“Internet-based social media platform” is defined by the bill to include any “online service that is open and accessible to the public.”

“Open and accessible to the public” is further defined to mean that “members of the general public have the ability to access and participate, free of charge, in the social media platform,” with the only requirement for entry or membership being compliance with platform protocols and rules.

She says, “The bill was clearly intended to include Facebook, Twitter, LinkedIn, and other platforms commonly referred to as ‘social media.’ It also includes forums and chatrooms that are accessible to members of the public.”

She does not believe, however, it applies to sites like NextDoor “that impose additional requirements (residency) on participants, private Facebook ‘groups,’ closed chat areas, or other internet sites that are not open to the public free of charge.”

She further notes that “the bill prohibits ‘responding directly’ to a post by another Commissioner or engaging in ‘discussion’ on a topic that relates to the subject matter jurisdiction of the Commission.”

But she said, “It does not appear to expressly prohibit Commissioners from separately responding to a communication regarding the Commission’s subject matter jurisdiction that was posted by someone who is not a Commissioner as long as they avoid any ‘discussion’ with each other.”

The question is whether local internet news sites or blogs constitute “internet-based social media platforms.”

She writes, “Generally speaking, a news site that allows a member of the public to read a certain number of posts for free before ‘paywalling’ additional content probably would not be considered ‘free of charge’ or subject to AB 992.

“Blogs are more difficult to analyze, as they do offer their content for free,” she said.

She writes, “Without additional guidance from the legislature, Attorney General, or courts on this point, it would be best to assume that the ‘comments’ fields on news sites or blogs could be considered ‘social media’ for the purposes of AB 992.”

Bottom line, she says, “the main takeaway for Commissioners is that while social media posting is allowed, Commissioners cannot interact with the posts of other members on topics within the subject matter jurisdiction of their respective Commissions.”

—David M. Greenwald reporting

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