Legal Update Memo No. 01-2021 – Social Media and the Brown Act – AB 992 Clarifies Permissible Social Media Use by Public Officials (K-12)

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AB 992 took effect on January 1, 2021 amending the Brown Act with an aim to provide clarity on the actions public officials can and cannot take on social media. As the legislative analysis of the bill noted, whether it will achieve the right balance between constitutional and statutory public access requirements and the free flow of communication remains unclear.

AB 992, codified in Government Code section 54952.2, provides direction on the social media interactions of public officials that do and do not constitute an impermissible meeting. In brief, the Brown Act prohibits a majority of members of a legislative body from engaging in a “series of communications,” directly or through intermediaries, to “discuss, deliberate, or take action on an item” that is within the legislative body’s subject matter jurisdiction.[1] This restriction includes “serial” meetings in which members of a legislative body communicate indirectly or through a chain of communications, ultimately involving a majority of a legislative body.

Under AB 992, a public official may communicate on social media platforms to answer questions, provide information to the public or to solicit information from the public regarding a matter within the legislative body’s subject matter jurisdiction. However, these communications are only allowed as long as a majority of the members of the legislative body do not use any social media platform to “discuss among themselves” official business. Importantly, “discuss among themselves” has been broadly defined and arguably includes making posts, commenting, replying, sharing, reacting (e.g. “liking” a post) or using digital icons that express reactions, i.e., emojis.[2]

Moreover, while a single contact between one public official and another would not normally constitute a prohibited meeting – provided that those officials do not constitute a quorum – AB 992 prohibits such social media interaction entirely. “A member of the legislative body shall not respond directly to any communication on an internet-based social media platform regarding a matter that is within the subject matter jurisdiction of the legislative body that is made, posted, or shared by any other member of the legislative body.”

In other words, AB 992 arguably prohibits a public official posting a comment in response to, liking or sharing another public official’s social media post about an agency issue, even if the content of the post was not created by the public official (e.g., sharing or retweeting an official agency post). Determining whether a particular interaction violates AB 992 will generally be fact specific and require a case-by-case analysis.[3] Local agencies and officials are encouraged to give careful thought whenever engaging in social media interactions involving agency business and remain aware if other public officials have already commented, shared, liked or reacted to a social media post regarding agency-related business.

While AB 992 clarifies certain issues relating to social media, it also raises a host of additional questions. For example, if a public official’s social media comments could lead to Brown Act violations, does that mean that the officials’ posts and comments are now subject to the California Public Records Act and potential disclosure? If a public official discloses on social media how they intend to vote on a particular upcoming issue involving due process considerations, could a party claim that they were denied a fair hearing? Our office will continue to monitor and provide updates as these issues develop further.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

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[1] Gov’t. Code § 54952.2

[2] AB 992 applies to social media platforms that are open and accessible to the public. This includes well known social media platforms such as Facebook, Instagram and Twitter, but could also be interpreted to include any online service that allows for public interaction such as chatrooms and forums, comment sections on blogs and online media.

[3] AB 992 does not include any new or additional enforcement provisions.