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New Law Prohibits Social Media Posts Between Legislative Members

BY BRIAN HEWS • January 23, 2021

Clicking the “like” button has become hazardous to a public officials career.

AB 992, authored by Assemblymember Kevin Mullin (D-South San Francisco), was recently signed by Governor Newsom and enacted substantive changes to the Ralph M. Brown Act, specifically, public official’s using social media to communicate with fellow legislative members.

Under the bill,  public officials could violate the State’s sunshine law if they communicate with legislative members of the same body on social media about matters under the body’s jurisdiction. AB 992 is the first Brown Act amendment to address officials’ social media use.

Simply liking another official’s post on a topic before, or within the jurisdiction of, the governing body could violate the Brown Act.

Amending Government Code section 54952.2, AB 992 clarifies the social media communications a public official may engage in as well as the actions that are prohibited.

AB 992 authorizes individual board and councilmember to communicate “on an internet-based social media platform to answer questions, provide information to the public, or to solicit information from the public regarding a matter that is within the subject matter jurisdiction of the legislative body.”

But AB 992 prohibits the use of social media between board and council members to discuss among themselves business within the subject matter jurisdiction of the legislative body.

In addition, which is the most significant restriction imposed by AB 992, they are prohibited from responding directly to any post and comment that is made, posted, or shared by any other board council member of the same legislative body.

AB 992 defines an “internet-based social media platform” as “an online service that is open and accessible to the public,” which would include platforms such as Facebook, Twitter, Instagram, LinkedIn and similar.

Other communications restricted by AB 992 include not only comments, but also include the “use of digital icons that express reactions to communications made by other members of the legislative body” (i.e., emojis, “like” buttons, reactions).

AB 992 is bound to be problematic for board and councilmembers, with most likely forgoing any comments on subject matter related to their jurisdiction.

For example, while board and councilmembers can communicate with the public on social media, there could be a chance that they violate AB 992 simply because they did not check the comment section on a constituent’s social media post (related to the jurisdiction) that has a comment from a fellow board member.