01.21.2021

On October 8, 2020, our firm published an alert relating to Governor Newsom signing Assembly Bill 992 (“AB 992”) into law and the substantive changes to the Ralph M. Brown Act (“Brown Act”) enacted pursuant to AB 992. 

AB 992 amends Government Code section 54952.2 and became operative on January 1, 2021, with the amendments remaining in place until January 1, 2026.   As a reminder, the new law impacts only members of legislative bodies (“Board/Council Members”) and their usage of social media, rather than local agencies, local agency staff and employees, and any of the local agencies’ corresponding social media accounts and/or platforms.

Effective January 1, 2021, the Brown Act authorizes individual Board/Council Members to engage in conversations with the public 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.”  Board/Council Members, however, are not authorized to use social media to discuss among themselves business within the subject matter jurisdiction of the legislative body.  Additionally, Board/Council Members are prohibited from responding directly to any post and/or comment that is made, posted, or shared by any other Board/Council Member of the same legislative body. 

This latter is the most significant restriction imposed by AB 992.

Common questions:

What is an “internet-based social media platform”?

AB 992 defines an “internet-based social media platform” as “an online service that is open and accessible to the public.”  “Open and accessible to the public” generally means a social media platform that the public has the ability to access and participate, free of charge, without approval by the social media platform or person or entity other than the social media platform, and cannot be blocked from doing so, except when the social media platform determines a violation of its rules. 

As written “internet-based social media platform” would include popular social media applications/platforms such as Facebook, Twitter, Instagram, LinkedIn and similar.

What does it mean for Board/Council Members to “discuss among themselves” business within its legislative body’s jurisdiction on an internet-based social media platform?

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).

Example: If Board/Council Member A commented in response to a question posed by the member of the public and Board/Council Member B “liked” Board/Council Member A’s original comment, this interaction would be a violation.  AB 992 is unclear as to whether both Board/Council Member A and Board/Council Member B, or if only Board/Council Member B (who responded directly to Board/Council Member A) would have violated AB 992.

Does the local public agency have to turn off comments on its various social media platforms as a result of the changes of AB 992?

The restrictions on social media usage relates to actions of Board/Council Members, individually, and not the respective local agencies.  Board/Council Members must be made aware of their limitations on how to use ever-changing social media platforms and what they can and cannot do under the legal limitations.  While it is permissible for Board/Council Members to engage with the public on social media, Board/Council Members should avoid interacting with fellow Board/Council Members when discussing matters within its local agency’s jurisdiction.

What if a local public agency posts on its Facebook page with a Board/Council Member statement and a member of the public comments with a question that Board/Council Member A answers?

Board/Council Member A’s response is permissible given these facts. 

Moreover, what if several members of the public comment on the local public agency’s original Facebook post and Board/Council Member B responds to one of the other questions posed by a member of the public?

AB 992 is unclear whether a violation of the Brown Act limitations exists in this scenario.  There is an argument that Board/Council Member A and Board/Council Member B are not communicating directly on Facebook; however, both Board/Council Members are engaging in the same Facebook post.

In light of this ambiguity in the law (as currently worded), we are of the view that it would be advisable for multiple Board/Council Members to not comment and/or communicate within the same post.

Since there are ambiguities within the current wording of AB 992, it is important for Board/Council Members to be aware of what is authorized, what is prohibited and where there are uncertainties pursuant to the Brown Act while using social media.  If you have any questions regarding this Alert, you can contact the authors or your regular attorney at Atkinson, Andelson, Loya, Ruud & Romo.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 

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