Codes of ethics lack social media language guidance
By Heather Graves
BROWN COUNTY – It’s easy to see the heightened scrutiny in recent years of social media usage by local elected officials – at all levels of government.
Locally, there’s been a state representative, county supervisor and city alderperson who’ve found themselves in hot water for their social media usage.
The state code of ethics for local government officials took effect in 1992 and addresses conduct expectations.
Some municipalities and counties have enacted their own ethics codes, or code of conduct ordinances, in addition to the state code.
The majority of the content included in these ethics codes, however, focuses mostly on conflicts of interest.
No local codes include language directly addressing social media, or the potential misuse of it.
This begs the question – why not?
Daniel Carlton, the administrator of the Wisconsin Ethics Commission, said codes of ethics are narrower in scope than people think.
“They do not encompass all conduct that one might deem unethical,” Carlton said. “Generally speaking, they prohibit officials from using their position to reap financial gain or some other substantial benefit.”
In the context of social media and communication, he said the First Amendment and Wisconsin’s State Constitution guarantee the right to free speech.
“Drafting laws limiting or restricting speech, especially of a political nature, that would pass constitutional muster that limits or restrict speech can be very difficult,” Carlton said. “The further you get away from a real, demonstrable benefit or financial gain, the less likely the courts are to uphold those types of restrictions.”
In 2020, two ethics complaints were filed against City of Green Bay District 11 Alderperson John VanderLeest for deleting comments and blocking constituents from his official alderperson Facebook page.
After hours of testimony, research and discussion, the Ethics Board concluded nothing in the city’s current code of ethics regulates the social media use of council members, therefore, both complaints were dismissed.
When asked whether he thinks ethics codes should include language addressing social media usage, and if the same weight should be given to what is said by an elected official on social media as it would be if it was said at a meeting, or in public, VanderLeest responded, “I’m not really going to comment on that.”
He said, “social media is just hearsay. Social media is just what it is – social. A lot of the stuff on social media has no merit whatsoever.”
VanderLeest stressed the need for proof when it comes to allegations.
“It needs to be factual and truthful,” he said. “That is some of the problem. (Those bringing forward accusations) just ruin your reputation. You really have to have the proper facts. And if they are bringing a violation against you, they better have something to back it up.”
In early March of this year, an ethics complaint was filed against Brown County District 15 Supervisor James Murphy for social media posts regarding election fraud, inciting violence and showing his ties to white supremacy groups.
According to a report released in late March, the complaint was analyzed by the county’s corporation counsel office and outside legal counsel, and both concluded the allegations in the complaint, if true, did not violate the Brown County Code of Ethics.
The report further stated the allegations related to Murphy’s personal and political positions and did not amount to prohibited conduct under state law or the ethics code.
It also said while Murphy is “clearly outspoken in his personal political views and may be considered by some to hold extreme political views, disagreeing with one’s political views (even if that individual’s views may hold greater weight as an elected official) do not constitute a violation of the ethics code.”
Multiple attempts to contact Murphy by phone and email for comment on this story went unanswered.
While no formal complaint was filed, State Rep. Shae Sortwell (R-Gibson) has received public backlash for recent social media activity, specifically posts he made about a children’s museum’s mask policy and references to the secret police of Nazi Germany.
Sortwell did not respond to phone or email requests for comment on this story.
Kerry Kuenzi, assistant professor of public and environmental affairs at the University of Wisconsin-Green Bay, said social media usage by elected officials is a tricky topic.
“An elected official’s private page is typically protected by free speech with the caveat that some speech is not protected, such as speech that incites imminent lawless action, defamation and things like that,” Kuenzi said. “Further complicating this issue is whether the social media page is an elected official’s private page in contrast to a sponsored or official page for them in their elected capacity.”
She said social media accounts are subject to open records laws and requests.
“The courts have even said that a private page at one point in time becomes public when an official uses it to engage dialogue around public issues in any capacity – blocking individuals from accounts would prevent them from meaningfully engaging,” she said.
Kuenzi said compartmentalizing public and private spheres further complicate the issue because it isn’t always easy to do.
“So it’s important to consider the ethics of this issue in that context: What is public vs. private and what speech is not protected generally?” she said.
Kuenzi said different levels of government have their own ethics codes which outline what an elected official should and should not do in their official capacities.
“This can become messy,” she said. “Government entities have been hesitant to regulate the social media usage through codes because of free speech issues, but in some instances have put some regulations in place when it can be perceived that an individual is communicating with their constituents.”
Kuenzi said this behavior could be considered public when making those statements or posts, so “their behavior could be subject to ethics policies if their posts could at all be construed as engaging with constituents.”
But it’s a gray area.
She said social media has changed the way the world communicates – with emails, texts, Facebook, Instagram, TikTok, Twitter and Snapchat checked several times a day.
So, Kuenzi said, it shouldn’t come as a surprise that elected officials have jumped on the bandwagon.
From the president of the United States to the mayor of Green Bay, social media has become the newest form of constituent outreach.
“Social media was created to bring people together, yet we often find that it is divisive,” Kuenzi said. “Social media organizations have very sophisticated data capabilities that often keep individuals in silos, sow dissent and can be manipulative, especially to the most vulnerable. While they are a fast and affordable way for governments to communicate with their citizens, they have created a lot of complications as well.”
Kuenzi said ethics codes and other standards of behavior should be reviewed and updated regularly.
“If a code was written in 1992 and hasn’t been revisited, it should be, in order to reflect current realities,” she said.
Kuenzi said it also falls on the shoulders of the state and local municipalities to educate elected officials on how current codes could apply to personal social media accounts.
“They should also include high road tenants within their codes that encourage individuals towards behavior that is becoming of a public official that applies broadly to their personal and professional lives,” she said.
Green Bay has taken steps toward updating its ethics code, which could possibly include social media language.
“At that time (when the ethics code was written), social media wasn’t at the level it is now,” Green Bay District 4 Alderperson Bill Galvin said. “So that is being addressed by the city. We are taking a look at our complete code and are in the process of starting to rewrite it. As much as you are responsible for maintaining (your social media accounts), you also have to be held responsible for what you are saying.”
As far as freedom of speech – VanderLeest said the city hasn’t addressed that.
“If you are doing something in the office that is illegal, or if you are trying to benefit financially – those would be ethics violations,” he said. “(Staff hasn’t addressed) what is considered a violation and what’s not. I think that is the first step that they have to do. How they are really going to define what really is an ethics violation?”
When changes will come to Green Bay’s ordinance remains unclear due to staffing issues in the city attorney’s office, which has prompted the move to outsource the work.
City Attorney Vanessa Chavez said the updated city ordinance will combine the current ethics code and the city’s current code of conduct, and could include language regarding social media usage.
“To be clear, there is nothing wrong with our ethics ordinance,” Chavez said. “It is how it interacts with the code of conduct that is really the problem. So we’d be creating a unified, codified ethics ordinance to apply to everything rather than having a separate code of conduct and a separate ethics code. This would be taking what exists and turning it into something better.”
Staff has not released any specifics on what the updated ordinance might look like, but Chavez said work will begin soon, now that the city council approved outside help for the work.
“We’ll have to see what (they) come up with and make our decisions going forward from there,” Galvin said.
Content vs. context
Brown County Corporation Counsel David Hemery said when looking at alleged violations of the ethics code, it’s the alleged content that is relevant, opposed to the medium that it allegedly occurred in.
“Conduct that violates our ethics code is conduct that violates our ethics code, regardless of the medium in which the conduct occurred,” Hemery said.
The same statement came from De Pere City Attorney Judy Schmidt-Lehman.
“You will note, the ethics code describes behaviors or actions to delineate what behaviors may be considered a code of ethics violation for elected officials,” Schmidt-Lehman said. “It is the actions that form the basis for determining if an ethical violation may have occurred, not how that action is communicated.”
Ashwaubenon Village President Mary Kardoskee said the village has a section pertaining to social media for its employees, but nothing in the public officials’ and employees’ code of ethics.
“As of right now, there has not (been any discussion about adding it), but it will be a good point to bring up at our discussions,” she said.
Bill authored to tighten social media scrutiny
By Press Times Staff
MADISON – Four Wisconsin Republicans are currently backing a newly-unveiled bill to require social media companies to provide reasons why they censor, ban and deplatform users.
Sen. Julian Bradley (R-Franklin) authored the bill in an effort to find out why big tech companies are removing certain people’s social media posts.
The language of LRB-3397/1 states “a social media platform must publish the standards it uses for determining how to censor, deplatform, and shadow ban users on the platform. A social media platform must apply censorship, de-platforming and shadow banning standards in a consistent manner among its users on the platform.”
“It’s time to ensure that Mark Zuckerberg and his Silicon Valley liberal allies cannot restrict Wisconsinites’ political speech,” Bradley said to Jay Weber of WISN on Monday, July 12. “Free expression is one of the most vital components of our democratic republic. We must ensure our citizens can engage in political speech unfiltered and uncensored by big tech. It’s time for Facebook and Twitter to consistently and fairly enforce their own rules.”
The bill, however, contains language that would remove social media advertising from any of the bill’s requirements.
“Post prioritization of certain content or material from or about a candidate or elected official based on payments to the social media platform by such candidate or elected official or by a 3rd party is not a violation of this paragraph,” it reads.
It would also give users the ability to receive damages for any violations set forth in the bill.
• $250,000 for each proven claim involving statewide candidates and elected officials.
• $200,000 for each proven claim involving other candidates and elected officials.
• $100,000 for each proven claim involving other users.
Co-sponsors include state Reps. Cody Horlacher (R-Mukwonago) Calvin Callahan (R-Tomahawk) and Sen. Steve Nass (R-Whitewater).
Sen. Bradley’s office said it is currently seeking additional cosponsors before the bill is formally introduced, at which point it would be assigned to a committee.