Member Article

Key Points

• Governor Newsom signed a new law establishing Brown Act rules for social media communications.

• Members of a legislative body may communicate on social media without fear of creating a serial meeting in violation of the Brown Act.

• Members of a legislative body may not respond directly on social media to other members of the same legislative body.

On Sept.18, 2020, Governor Newson signed Assembly Bill (AB) 992 into law. AB 992 modernizes the Brown Act's provisions concerning serial meetings by addressing, for the first time, the use of social media by members of a legislative body. While it does not change the basic understanding of the Brown Act, AB 992 provides helpful clarification for public officials who use social media platforms yet need to avoid participating in a serial meeting.

The Brown Act prohibits a majority of members of a legislative body from meeting outside a properly noticed public meeting to “discuss, deliberate, or take action on an item” that is within the legislative body’s subject matter jurisdiction. (Government Code section 54952.2) This restriction includes "serial" meetings in which members of a legislative body communicate indirectly through the use of intermediaries or through a chain of communications, ultimately involving a majority of a legislative body.

It has long been a question of the extent to which technology impacts the Brown Act's restrictions. In particular, the rise of social media has increased the ways in which members of a legislative body could, unintentionally, engage in a prohibited serial meeting – posting a councilmember's tweet on a Facebook page, which is then commented on by another councilmember. A serial meeting can happen in seconds with a push of a few buttons. The Brown Act has mostly been silent on this technological reality, until now.

AB 992 addresses the reality of social media's pervasive role in our society. It amends Government Code section 54952.2 to clarify that most communications on social media are permissible.

AB 992 defines an "internet based social media platform" and allows communication on such platforms without constituting a serial meeting. AB 992's definitional scheme includes the following new key terms:

• An "internet-based social media platform" is any online service that is open and accessible to the public.
  
  
• "Open and accessible to the public" means that "members of the general public have the ability to access and participate, free of charge, in the social media platform without the approval by the social media platform or a person or entity other than the social media platform, including any forum and chatroom, and cannot be blocked from doing so, except when the internet-based social media platform determines that an individual violated its protocols or rules."
  
  

AB 992 clarifies that it ordinarily does not violate the Brown Act to participate in social media. Interestingly, AB 992 specifically allows the use of "digital icons," i.e., emojis, in discussions on social media.

However, AB 992 also creates a bright-line rule that members of a legislative body may not respond directly to any communications posted on the internet by other members of the same legislative body regarding a matter within the jurisdiction of the legislative body.

In sum, under AB 992, a member of a legislative body may participate freely in open and public social media platforms so long as they do not respond directly to a fellow member of their legislative body. Presumably, given the definitional scheme of AB 992, this means that a member of a legislative body may post a "smiley face" emoji in response to a constituent's Facebook post, but may not post a "thumbs up" emoji if the post is from a fellow member of the legislative body.

AB 992 provides some much needed clarity to the Brown Act, but some questions remain. First, under AB 992, Director A's single "thumbs up" in response to Director B's post may be prohibited. But such a communication would not previously have constituted a serial meeting as it did not involve a majority of the board. Second, the same director's "thumbs up" emoji in direct response to Board Member B's tweet is prohibited. But it is less clear under what circumstances a more attenuated response—for instance posting a "thumbs up" to a retweeted communication—is a direct communication implicating the Brown Act under AB 992. Finally, AB 992 may raise the complicated question of whether social media posts by public officials are public records under the California Public Records Act.