AB 992

In a world that communicates with posting, reposting, texting, screenshotting, tweeting, liking, disliking, happy or sad emojis and commenting on posts, it was inevitable that public officials would enter onto that internet “platform” and communicate their thoughts and ideas to anyone who had access to a computer. Instead of stepping into the local town square, government officials could now enter onto a “communication platform” like Facebook, Snapchat, Instagram, TikTok, Reddit or any social media platform to express their views. However, whenever a public official expresses her views upon certain matters, there was the possibility of implicating the Brown Act, as we have regularly pointed out in our AB 1234 training. AB 992 takes effect on January 1, 2021 and remains in effect until January 1, 2026. It addresses these forms of electronic communications and amends the Brown Act (Government Code Section 54952.2) to regulate any officials who want to utilize a social media platform to communicate with members of their own body and to members of the public when communicating about any issues within the subject matter jurisdiction of their legislative body.

As you know, the Brown Act requires that local government business be conducted in open and public meetings with few exceptions. The Act also regulates meetings among certain officials and their communications among parties. With the rise of the social media communication platform, there were too many opportunities for government officials to run afoul of the Brown Act by having unauthorized meetings and communications via the electronic platform. AB 992 addresses this concern.

AB 992 amends Government Code Section 54952.2 to provide that members of a legislative body can engage:

“in separate conversations or communications 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 provided that a majority of the members of the legislative body do not use the internet-based social media platform to discuss among themselves business of a specific nature that is within the subject matter jurisdiction of the legislative body.”

AB 992 amends the Brown Act to prohibit certain types of communications by officials on social media platforms that are “open and accessible to the general public.” It also clarifies the types of communications which will not run afoul of the Act.

Public officials may utilize social media platforms to communicate with their constituents about topics within their legislative body’s jurisdiction. These communications may be as simple as soliciting opinions from their communities or answering a person’s question about a matter that is within the official’s subject matter jurisdiction. The law recognizes and encourages the use of social networking when communicating with members of the public.

The prohibitions of AB 992 regard communications among the members of a legislative body. The new law prohibits officials that sit on the same legislative body from “discussing among themselves” official business on social networking platforms. These types of “discussions” can be as simple as posting a comment on a social media site in response to another member’s post or even an “emoji” (ideograms or smileys used in electronic communications). As minor as an emoji response may be, it will soon be a violation of the Brown Act if two officials are “communicating” on a social media platform regarding matters within their legislative body’s jurisdiction.

Conclusion

AB 992 has a sunset clause that repeals these new rules on January 1, 2026. Until that time, agencies should ensure that members of its legislative body are aware of these new social media rules so they do not inadvertently violate the Brown Act.

Information on www.jones-mayer.com is for general use and is not legal advice. The posting of this Municipal Law Update is not intended to create, and receipt of it does not constitute, an attorney-client-relationship. Should you have any questions or require further clarification of the above, please contact Keith F. Collins at our office at (714) 446-1400, or by email kfc@jones-mayer.com.