Item will go to governance manual
SPOKANE VALLEY – An ongoing discussion regarding city council members use of social media was moved to be discussed under the city governance manual with five votes for the action.
City Manager John Hohman brought a discussion about social media use, how it ties to city government, and effective ways for council members to utilize it.
“There’s been a lot of information, emails and discussion this last week on this particular item,” Hohman said.
“I wanted to note that to my understanding and my observation that none of the council are trying to prevent councilmember Merkel from utilizing his First Amendment rights to free speech,” Hohman said. “The big question is, how do you utilize social media in a way that makes it clear when you’re utilizing a personal account versus an official city account?”
“Social media use for the city is still relatively new.”
Hohman said the city has been minimally active through social media channels for multiple reasons, but one major reason is that they have a high turnover rate for communications staff.
According to Hohman, several council members reached out to him because of concerns about a social media account started by Councilman Al Merkel.
Hohman said the account appeared to be an official city run account, and had utilized the city logo and other pieces that made it hard for the city to decipher whether or not the account was official or personal.
Merkel removed the city logo, and also showed Hohman a disclaimer that said the account is a personal account, and not directly tied to the city.
City Attorney Kelly Konkright discussed how the city logo is part of the city code language, and he said it authorizes the city to use the logo for official city business.
He said the logo is official city property, and is thus, a city resource. That prohibits the use of the logo for any campaign purposes.
Konkright said council adopted terms for council member social media use in Dec.
“The council member use of social media from a legal perspective presents challenges,” Konkright said. “They are manageable challenges but they’re challenges nonetheless that needs to be aware of.”
“Those pitfalls come in the form of the public record act, the public meetings act, the public disclosure commission as well as agency principles.”
He said this prevents one council member from binding the city to certain representation.
Konkright also explained that the public records act also applies to writings made through social media.
“Social media posts are writings,” Konkright said. “They are considered a record under the public records act.”
“So, if a council member is making posts that relate to the conduct of government or the performance of their office it can be considered a public record.”
According to Konkright, this applies regardless of whether posts are made on personal or official accounts, and regardless of whether they are made on a city owned computer verses a personal computer.
Konkright said this can be extremely important in terms of pubic record requests received by the city.
He also said that one major issue with council members using personal pages, is that those public records are not automatically archived into the city’s public records system.
If the city implements a policy system, it could allow council to create official pages for council members that could be directly tied to the archiving system. That way, if they would receive a public records request regarding posted information, the city would have a direct line to archiving and retrieving that information.
The Open Public Meetings Act can also be affected because, according to Konkright, if council members begin following each other’s posts and accounts it can violate the meetings act.
Konkright said, even if the violation is unintentional.
“The Open Public Meetings Act is another strict liability statute,” Konkright said. “Doesn’t matter if you intended to have a meeting that violated the law or that was impermissible, or if you knew it would be impermissible.”
“But if a meeting occurred that’s what the courts would be looking at.”
After some discussion, council presented some questions and Councilman Merkel presented several. He also said he realizes this whole discussion arose from the account he made.
“I have a lot of questions,” Merkel said. “Mostly because this is very apparently about me.”
Merkel cited a federal trademark law that said the logo should be permissible, so long as there is no commercial use behind it.
Merkel also said the language states the logo can also be used by media outlets. He said he is a news media publisher and the account he set up is to help distribute news, so he should be allowed to have the logo in place.
He also alluded to the idea that city staff prioritized time for this conversation over other topics such as public safety.
Hohman said he wasn’t going to debate how much time was used in preparing the documentation, but there was not a lot of city resources that went into the process.
A point of order was called by Councilman Rod Higgins, and Mayor Pam Haley told him to speak on the point.
“Mr. Merkel is turning this into a circus,” Higgins said. “We’re trying to conduct business here, and I think this isn’t a debate society but that’s exactly where we’re going.”
“We need to put this in the governance manual committee and deal with it there.”
Councilwoman Jessica Yaeger stepped in and said this whole process could have been simplified if procedure had been followed initially, as she went back to the city code section that mentions the logo could be used with proper permissions.
“Mr. Merkel could have saved all of us a lot of time and efforts in our emails and staff time since that’s what we are talking about,” Yaeger said. “If would have simply asked to use the logo and been guided appropriately.”
“Am I being interrupted here or what’s going on?” Merkel asked.
“Do you have questions or are you just trying to debate?” Haley responded.
Merkel then directed a question to Higgins, and asked if this was most efficient way for this issue to be handled.
“Considering from what I’ve heard tonight this has been discussed with the city manager, with the city attorney, with a number of people,” Higgins said. “And you’re going to bring it out here and extend this meeting God knows how long for your self-gratification.”
“Point of order, I take offense to that comment,” Merkel replied.
“Good, it was intended that way,” Higgins said.
“Point of order, intending offense is against our ethics code in the governance manual,” Merkel replied.
“Ok, listen, listen,” Haley said. “And we are supposed to be conducting business.”
“That does not appear to be what we are doing.”
Haley then immediately closed time for council comments and questions and asked for consensus in moving the item to the governance manual.
Matthew graduated from West Virginia University-Parkersburg in 2011 with a journalism degree. He's an award-winning photographer and enjoys writing stories about people.
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