Note from LRIS: LRIS Director Will Aitchison is quoted in this article. Mr. Aitchison lives and works in Oregon. He is misidentified as a California attorney in the article.
A growing number of police agencies are implementing policies to guide employees’ on- and off-duty use of social media.
The Mesa Police Department has a work group to explore the issue, and the Maricopa County Sheriff’s Office just widened the scope of its officer-conduct policy to include websites like Facebook, MySpace and Twitter. The Pinal County Sheriff’s Office adopted a social-media policy in November.
As more law-enforcement agencies are using networking websites to engage their communities, departments are weighing in on the role social media play in the personal lives of their employees and warning of the dangers.
Attorneys have used social-media profiles to discredit officer testimony in court. And officer posts are responsible for more than a few public-relations headaches.
“There’s usually a catch-all at most law-enforcement agencies that our conduct, even off duty, needs to be in line with the agency,” said John Ortolano, president of the Arizona Fraternal Order of Police. “They call it the ‘headline test.’ This is a profession that doesn’t end when you take your uniform off.”
To minimize the potential for harm, police agencies are addressing the issue through policies to educate employees about social media, make clear department expectations and outline acceptable and prohibited uses. But labor experts say those standards are likely to change as case law evolves.
When developing social-media guidelines, law-enforcement agencies nationwide have taken their cue from the International Association of Chiefs of Police. The association’s model policy, issued in August 2010, says sworn and civilian employees “should be mindful that their speech becomes part of the worldwide electronic domain.”
The policy defines social media as Internet-based resources that incorporate user participation and user-generated content, such as social-networking sites, microblogging sites, photo- and video-sharing sites, wikis, blogs and news websites.
The association’s position is: What an officer posts online may reflect poorly on the department and the profession, even if the speech was made while the officer was acting as a private citizen. “Therefore, adherence to the department’s code of conduct is required in the personal use of social media,” the policy states.
Stacey Dillon, president of Public Safety Authority Medias, a local public-relations firm specializing in law enforcement, advises police associations and their membership about using social media.
“My advice that I’ve given to the associations really falls in line with some of the case law,” Dillon said. “If you can educate your members not to be on social media, do it. It’s opened up a wealth of investigations that have been unnecessary and have created tremendous issues for the livelihood of front-line officers.”
A Peoria police sergeant was demoted and suspended without pay in February after he posted on his Facebook page a photo of a group of high-schoolers, some posing with guns and one holding a bullet-riddled T-shirt featuring an image of President Barack Obama.
Veteran lawman Pat Shearer, who is appealing the decision, posted the photo days before Obama visited the Valley in January. The Secret Service looked into the issue, but officials deemed it a local police matter and did not pursue it further.
Shearer got into trouble for being identifiable as a Peoria police officer on his personal Facebook page, in violation of the department’s social-media policy.
Police Chief Roy Minter Jr. in February announced that Shearer, who has been with Peoria police for 25 years, would be disciplined with a demotion to the rank of officer and suspended without pay for two weeks.
The Peoria Police Department has not released details of the investigation.
Will Aitchison, a labor lawyer in California for more than 30 years and author of “Rights of Law Enforcement Officers,” explained what factors come into play in similar inquiries.
He said an employee’s social-media conduct can be judged by weighing these elements: Was there any deliberate effort made to link the communication to the job? How much public attention did it get? What was the nature of the communication?
What to do about potential violations of a social-media policy would depend on how clear the rules were, how employees in similar circumstances had been treated and whether the kind of speech had a high or low degree of constitutional protection, Aitchison said.
“I think it’s all a continuum,” he said. “If an off-duty police officer says something like, ‘I hope they kill Obama,’ and they do nothing to associate themselves with the fact they are a police officer, the continuum suggests there’s a far less likelihood an employer can dismiss an employee. Different is if they say it while using their badge and their gun off duty.”
In an appeal notice, Shearer acknowledged that he violated policy when he posted a picture of himself in full uniform, although that was not what sparked his trouble or the internal investigation that followed.
Shearer said he was “embarrassed that the photograph was affiliated with the Peoria Police Department, and I take full responsibility for placing the photograph on my Facebook page along with a photograph portraying me in full uniform.”
“However,” he said, “such actions do not warrant demotion and an 80-hour suspension.”
Shearer said that he agreed that discipline was warranted but that it should be one or the other, not both.
Questionable online activity by law-enforcement officials doesn’t always trigger an inquiry into whether a department’s social-media policies were violated.
Pinal County Sheriff Paul Babeu has admitted posting suggestive photos of himself online and sending naked photos to a former boyfriend. He made the admission after several images appeared in the pages of a weekly publication.
Law-enforcement professionals say that if Babeu were anyone else, he’d likely be questioned about his conduct. But Tim Gaffney, Sheriff’s Office director of communications and grants, said the office will not launch an internal-affairs inquiry while another investigation is taking place. The state’s solicitor general is looking into abuse-of-power allegations against Babeu.
Solicitor General David Cole was asked in late February to look into any civil or criminal violations that may have been committed by Babeu or Jose Orozco, a former Babeu boyfriend and campaign volunteer accused of hacking into the sheriff’s social-media accounts and posting unflattering messages.
“The solicitor general’s investigation will outline many of the facts of this case, which will help better explain why, at this point, an internal-affairs investigation will not be conducted,” Gaffney said.
Babeu’s revealing photos were part of an article about Orozco, a Mexican immigrant who claimed Babeu and his attorney tried to pressure him into keeping quiet about their relationship. One image was a screen grab of Babeu’s profile on a gay dating site where users openly solicit sex and share intimate details. The sheriff posed in his underwear for the profile photo, his face slightly obscured.
The Pinal County Sheriff’s Office social-media policy warns employees that questionable social-networking activity can “reflect poorly” on the profession and cast doubt on a person’s judgment.
Aitchison said Babeu’s online profile “sounds awfully close to constitutionally protected.”
“Elected officials, I think, are held to a completely different standard, and that is the standard set by the electorate,” he said. “There are places in this country where what the sheriff did would be viewed by the electorate as very troublesome. There are other places in this country that people could care less.”
It is unclear from the policy who in the agency would step in to investigate if the department’s top official was suspected of violating the policy, but Aitchison said voters could weigh in.
The Supreme Court has ruled in favor of government employers limiting private speech.
A case often cited by experts is The City of San Diego vs. John Roe, which involved a police officer who claimed his termination violated his First Amendment and 14th Amendment rights to free speech.
Roe was fired for selling videos that showed him engaging in sexually explicit activity. He did not specifically name his employer, but he identified himself as a member of law enforcement on his eBay profile and wore a police uniform in at least two videos.
In its 2004 decision, the high court recognized a government employee’s right to speak on matters of public concern as they relate to governmental policy. A government employee can also expect First Amendment protection for off-duty speech or expression not related to the job, unless the employer can give a reason “far stronger than mere speculation” to justify its regulation, the court declared.
The court sided with the Police Department, saying it “demonstrated legitimate and substantial interests of its own that were compromised” by Roe’s speech.
However, law-enforcement officials don’t need to identify themselves as such in order to impede the department’s mission, said Lt. Brian Lee, a spokesman of the Maricopa County Sheriff’s Office.
“If I have a social-networking site, even if I don’t say I’m a deputy with the Maricopa County Sheriff’s Office, if people recognize me as such, I can be held responsible,” he said.
But that paradigm may not hold true for long as it relates to public officers and the Web. Personnel law in this area is rapidly evolving, Aitchison said.
“I think the way the law on this is going to shake out, employees whether it be you or someone working down at the airport or police or firefighters, they’re going to say things off duty in social media that will make the employer uncomfortable,” he said, “but they’re going to have the right to say them.”
For now, the overall theme found in the social-media policies of the Pinal County Sheriff’s Office and Peoria Police Department is the standard.
Adopted in November, the Sheriff’s Office policy applies to “all forms of communication,” electronic and print. In the section titled “Prohibited speech, expression and conduct,” the policy says that, to meet the organization’s safety, performance and public-trust needs, an employee should refrain from any social-media activity that will “compromise or damage the mission, function, reputation or professionalism of the Pinal County Sheriff’s Office or its employees.”
Gaffney said an employee found to have violated the office’s social-media and Internet policy, “depending on the circumstances or specifics of the instance or situation … may (be) subject to disciplinary action, or no action.”
Sheriff’s officials won’t comment on whether Babeu’s conduct — e-mailing and texting naked photos or his online profile in which he stated he was seeking friendship, a relationship or a sexual encounter — aligned with his office’s policy. Babeu has said the photos were meant to be private.
“These were photographs that are mine that I sent to an individual that was meant only for their observation, not to be splashed on the Internet or on TV or anything like that,” Babeu told reporters after Orozco went public. “And there still needs to be some bounds for privacy. … This is in my private, my personal life. What I do in my private and personal life is my business.”
The Peoria Police Department policy exempts “texts, pictures, video, audio, etc., sent from one consenting adult to another that are intended to be private.” The Pinal County Sheriff’s Office policy does not address the issue.
From The Arizona Republic.