The Morning Report
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San Diego City Councilman Carl DeMaio typed away on Twitter from the dais again, posting jabs at political opponents as debate went on around him. The topic this time: the proposed half-cent sales tax hike, which he contemptuously referred to as the Dash for Cash.
On that August day, DeMaio was just one participant in what became a real-time Twitterfest that included prominent city leaders, journalists and other political junkies, many of whom were posting their own snarky comments from the gallery at City Hall.
One development that got a lot of thumbs jumping on tiny keyboards: Representatives from San Diego Regional Chamber of Commerce and San Diego Regional Economic Development Corp. turned heads by testifying in favor of putting the tax proposal to a vote in November.
DeMaio took a subtle swipe at the two groups in a tweet: “Small business and taxpayer groups oppose the Dash for Cash — thank you for actually representing your members at City Hall.”
So did other sales tax opponents in the audience, creating a steady stream of dialogue that wouldn’t have happened at City Hall even two years ago.
Social media has transformed the way people monitor and participate in government, allowing politicians, journalists and regular citizens to communicate directly in an open forum and affording those citizens an insider’s perspective they otherwise would not see.
Yet in a growing number of cities, DeMaio wouldn’t be allowed to use his personal Palm Pre with slide-out keyboard, or any other electronic device, personal or otherwise, to send or receive city-related messages during meetings. That’s because legal and transparency questions have governments at various levels wringing their hands, and, in some cases, retreating.
This is the digital double-edged sword: On one hand, social media has thrown open a wide window into the conversations and debates between public officials, journalists and onlookers. On the other, all the tools available could be just another way to operate under the public’s radar, allowing politicians to secretly exchange private messages with lobbyists about the matter at hand.
There’s another wrinkle, too. The retention of public records in a digital world was already problematic for local governments. The California Public Records Act requires all communications having to do with the public’s business, from handwritten notes to formal documents to e-mails, be made public with some exceptions.
The use of personal e-mail addresses off the city’s servers already complicated the retrieving of those e-mails. Now, the hard-to-track communications of text messages, private Twitter messages and other communications both during council meetings and outside of them raise the specter of whether pieces of the Public Records Act are even enforceable in today’s world.
Among the questions governments are grappling with:
• Whether public agencies must retain tweets, Facebook posts, private messages and user comments under public records laws. Preserving them is highly problematic, if not impossible, due to sheer volume, cost and questions of access. With the relatively recent emergence of these networks in the government realm, no real precedent exists.
• Whether and how to monitor the personal accounts of employees and public officials, including direct messages which are not viewable by all, for posts and messages related to city business. This leaves compliance with public records laws largely up to the honor system.
• How to handle inaccurate, inappropriate or obscene posts from the public on municipal websites and Facebook pages that could fall under constitutional free-speech protections. This is uncharted legal territory.
For example, a government would certainly be inclined to remove a Nazi photo someone uploaded to its website, as the city of San Diego did. But a legal argument could be made that hate speech is protected by the Constitution. And, a city might also be tempted to delete posts that are critical or that contradict the city’s policies. Doing so might invite lawsuits.
• Whether council members who engage in discussions on the same Facebook thread are violating open-meeting laws, which prohibit secret gatherings of legislative bodies and guarantee the public’s right to attend and participate.
The state outlaws any use of direct communication, personal intermediaries or technological devices by a majority of the members of the legislative body to develop a collective concurrence as to action to be taken.
• Whether to crack down on inappropriate lobbying of elected officials via social media or text messages just before voting. Should politicians be required to report such activity?
In San Diego, lobbyists must register with the city and file quarterly reports in which they list all fundraising and lobbying activities. A lobbyist must report the name of the client for whom he or she is lobbying, the municipal decision the lobbyist is attempting to influence, as well as the name and department of each city official who is lobbied and why.
Unscrupulous lobbyists who text or send direct messages via social media or e-mail during meetings could have significant influence, without having to report the contact since it would be done secretly. Not that an unscrupulous lobbyist couldn’t dupe the old system, but the idea of real-time string-pulling seems especially unseemly.
“If you’re sitting in a council meeting and having direct communication with someone who has an item on the agenda at that time and you are having conversations the public is not privy to, that is a concern to me,” said San Diego City Councilwoman Donna Frye, who doesn’t have Twitter or Facebook accounts.
These questions and more are the reason government entities around the nation — from police and fire departments to cities and states — are crafting policies or restrictions as use of social media in government explodes.
The city of San Jose requires its council members to shut down all portable electronic devices during meetings, and officials are required to disclose all discussions of public business, including those conducted on personal cell phones or laptops, according to the Associated Press.
In San Francisco, Mayor Gavin Newsom has said he’s considering a prohibition during public meetings on electronic communication between politicians and lobbyists, according to the AP.
The National Conference of State Legislatures says that more than half of the country’s state legislative chambers restrict the use of electronic devices during meetings because doing so “prevents outside influences during debate and voting, preserves decorum, and encourages respect for the legislative institution and its work.”
The California Assembly prohibits use of electronic devices on the floor; the Senate has no rules governing electronic devices, said Meagan Dorsch, the conference’s spokeswoman.
Steven Clift, an internet strategist, said the key is for the communications to be properly managed.
“The question is, are we doing this in a way that opens up the process, or are we allowing back door deals to happen in plain sight? To be a democracy in the information age means they must engage us on this basis or they’re saying goodbye to democracy,” said Clift, a consultant who will be leading a panel discussion on social media at the League of California Cities’ annual meeting in San Diego in September.
Open government advocate Peter Scheer said the technology can enhance the state’s open-meetings law.
“Frankly I’m much less concerned … when elected representatives communicate in a way that leaves a perfect transcript that is in real time and available to all citizens, than I am when the they don’t use technology and meet in secret in a smoke-filled room,” said Scheer, executive director of the First Amendment Coalition.
He said these are some of the same issues faced when e-mail first emerged as a major form of communication, and e-mail has not been outlawed or curtailed.
DeMaio has more than 9,000 combined Twitter and Facebook followers, fans and friends. He’s one of the few politicians who manages his own accounts. He uses the networks to debate reporters, stump for causes, interact with constituents, thank supporters, and promote his television appearances.
He said he considers all of his social media activity to be part of the public record and would be happy to turn it over if asked.
For him, it’s all about interacting with constituents.
“As an elected official you have to make yourself as accessible as possible,” he said. “A lot of people in elected office are starting to understand why Twitter and Facebook and viral e-mails are so important to use to communicate. The full extent of the impact is not even being seen yet.”