Judging by recent news headlines, school districts are dealing with new forms of personnel issues associated with Facebook and social media. Some recent examples: "NYC Elementary Teacher Admits Being Craigslist Prostitute" (CBS News.com , September 27, 2010; available at http://www.cbsnews.com/8301-504083_162-20017689-504083.html).; "Fired Teacher: Facebook Post Stupid, But I'm Not Sorry" (The Boston Channel.com; August 18, 2010), available at "Former Teacher Sues for Being Fired Over Facebook Pics.

What the articles cited above have in common is they all involved employees who suffered adverse employment action for “speech” that occurred outside of the workplace and on the employees’ own time. Employees believed their social media postings were “private” and unrelated to their employment.

Taking disciplinary action based on an employee’s statement on a social networking site can prompt defenses involving the Constitutional rights of freedom of association (see,Spanierman v. Hughes, 576 F Supp 2d 292 (D. Conn. 2008)) and freedom of speech (see Garcetti v Ceballos, 547 U.S. 410 (2006)). Employees may also claim a violation of privacy rights, although courts seem reluctant to recognize privacy rights for postings shared with others on the Internet (see Guest v. Leis, 255 F.3d 325 (6th Cir. 2001)).

Employees subject to such discipline can sue under Section 1983 of the U.S. Civil Rights Act, which creates a private cause of action for an individual who is deprived of a constitutional right or freedom by an actor operating under color of state law (42 USC § 1983)..

The decision to impose discipline in such cases involves the balancing of the effect of the speech on the employer’s ability to operate effectively versus the employee’s free expression rights. School districts and their attorneys should be aware of the pitfalls that are present when initiating discipline based on an employee’s online activities because it may be more challenging than it seems at first glance to determine whether an employee lawfully may be disciplined for that activity.

I'd also like to welcome the newest members of NYSASA's Board of Directors . Jeffrey F. Swiatek, Esq. of Hodgson Russ LLP was elected in May as our newest Director on the Board for 2011. Kathy A. Ahearn, Esq., with Guercio & Guercio, LLP, was elected as a Director for 2010, as was Joseph G. Shields, of Ferrara, Fiorenza, Larrrison, Barrett and Reitz, PC. Jeff, Joe and Kathy are tremendous assets to the organization, and we are so pleased to have them contributing as members of our Board.

Protected vs. Unprotected Speech
Speech can be classified as “protected” or “unprotected.” An employee can only be disciplined for speech that is “unprotected” by a law or by a right guaranteed by the U.S. Constitution.

The U.S. Supreme Court has held that the First Amendment does not protect a public employee’s speech made pursuant to official duties (Garcetti v. Ceballos, 547 U.S. 410 (2006)). In contrast, employees who make public statements outside their official duties “retain some possibility of First Amendment protection because that is the kind of activity engaged in by citizens who do not work for the government.” ( Id. at 423). The Supreme Court has also held that an employee may not be disciplined for speaking out on any matter of political, social or other concern to the community (Connick v. Meyers, 461 U.S. 138, 147 (1983)).

Therefore, the employer must distinguish between a public statement made in the course of an employee’s duties as opposed to a public statement made in the employee’s capacity as a private citizen. Additionally, the employer must determine if the “speech” is a matter of public, as opposed to only “private” concern. However, a threshold question is, “what constitutes a public statement?”

The medium of the speech involved in the recent highly publicized employee discipline cases is the internet, where what one posts can be instantaneously published around the world, even though one may have thought that what was posted – perhaps in jest, or in haste – could only be seen by one’s closest friends.

Social networking sites create an illusion of privacy through their “permission systems” which allow the user to set access controls to the contents of their personalized page, including the uploaded photos, comments made to their pages, and the users’ affiliations. However, in reality the social networking sites are antithetical to an individual’s expectation of privacy: the purpose of social networking is sharing, not shielding, information. All communications through the Internet to a “personal page” require disclosure to the network itself as a third-party administrator and these sites often reserve the right to use the information entered by participants. Moreover, users of social networking sites lose direct control of what they post, and cannot ensure that their words will not be copied or distributed in another manner. Participants should have no reasonable expectation of privacy in the information shared with the social networking site.

As a best practice, school districts as employers, should communicate the foregoing to their employees in a policy that clearly states that employees should have no expectation of privacy in their web-based postings.

When First Amendment or other statutory issues are involved in a disciplinary matter, it is important to create a record that would aid in the district’s defense should the employee file a lawsuit. The record should establish the district’s rationale for the discipline (most commonly a concern about the disruption of learning atmosphere.

In disciplinary cases, the school board must show a nexus or connection between the off-campus activity and the employee’s ability to perform his or her job (Ellis v Ambach, 124 A.D.2d 854 (3d Dep’t 1986)) Further, social media participation may result in proceedings seeking to revoke, suspend, or limit a teacher’s certification for a criminal conviction or actions which raise a significant question as to the teacher’s moral character under 8 NYCRR section 83 (See Education Law § 305 (7)). The State Education Department has the burden of proof in a Part 83 proceeding, and evidence of a criminal conviction, although admissible, does not, in and of itself, create an irrebuttable presumption that the teacher lacks good moral character.

As more and more speech is transmitted through social media, school districts can expect more instances of “public statements” by school district employees that do not meet with a school district’s expectations of professionalism or thwart the educational process. The district’s expectations should be clearly spelled out through the use of a well-thought-out policy, created by the school board and administration, with the oversight of school district counsel.

This article was written by Gary Steffanetta and Nancy Hark of Guercio & Guercio.