Legally Speaking: Can I Participate in Social Media as a Board Member?

Although board members may participate in social media, they must be mindful of the provisions of the School Ethics Act and the advisory opinions issued by the School Ethics Commission when doing so. 

In A02-22, which was made public  Feb. 21, 2023, the SEC acknowledged that “board members do not abdicate their fundamental rights as citizens after they become members of a board of education, and this necessarily includes the sacrosanct rights to freedom of speech and freedom of expression. However, board members, unlike most other individuals, are also public school officials subject to the provisions of the act and, therefore must exercise certain precautions to avoid violating, or being accused of violating the act. In this regard, when making comments or statements at a time and/or place other than at a public board meeting, you must ensure that the views expressed and/or information shared do not appear to be written on behalf of, or with the authorization of the board. Unlike most other citizens, a board member must also ensure that they are complying with any local board policies/bylaws concerning their participation in social media.

Even if appropriate precautions are taken, social media activity may be so intertwined with board membership that it can viewed as a violation of the act. For instance, in A02-22, a board member had a webpage called “[School District] Q&A between Parents & the BOE.” The board member asked the SEC whether he could maintain this page, which had questions and answers about the board and where the member would answer additional questions about board procedure. The SEC said, “Although you want to provide information to the public that stakeholders (and you) feel would be useful and beneficial, because you would be providing information relating to the Board and/or your official duties and responsibilities, any attempt to disclaim your speech (as being in your personal or private capacity) would likely be futile. People in your community are aware of your status as a Board member and would likely attribute any statement from you as being from you in your capacity as a Board member, and/or on behalf of the Board.” The SEC continued, “Although the catalyst for creating and maintaining a social media page has laudable intentions, it will be difficult, if not impossible for you to avoid conduct that is violative of the Act (whether actual, or perceived), particularly in light of the fact that the Facebook group you would be commenting on is entitled “[School District] Q&A between Parents & the BOE” and you are currently a member of the Board.”

What is an appropriate disclaimer?

The SEC first discussed what an appropriate disclaimer might look like in C64-18. In that decision, the SEC said, “A prominent disclaimer (caps/bold), such as, ‘THE FOLLOWING STATEMENTS ARE MADE IN MY CAPACITY AS A PRIVATE CITIZEN, AND NOT IN MY CAPACITY AS A BOARD MEMBER. THESE STATEMENTS ARE ALSO NOT REPRESENTATIVE OF THE BOARD OR ITS INDIVIDUAL MEMBERS, AND SOLELY REPRESENT MY OWN PERSONAL OPINIONS,’” may have avoided the appearance – actual or perceived – that the statements were made in the respondent’s capacity as a board member. The [SEC] additionally notes that, even if an appropriate disclaimer is used, the substance of a post/statement can, nevertheless, render the disclaimer meaningless.” The SEC further discussed the importance of the disclaimer in C71-18, a decision adopted in 2021. In that case, a board member sought to endorse some of his fellow board members for election without a sufficient disclaimer. The endorsing board member also disparaged another board member whom he said the voters should not reelect. In doing so, the endorsing board member spoke about board business in a way that gave the impression that he was speaking for the board. The SEC noted that “the use of a disclaimer does not give a school official carte blanche to then discuss Board business and/or matters in a way that is, or appears to be, on behalf of the Board. In this way, it is the substance of the writing, and not the disclaimer itself, that will dictate whether the school official has rendered a disclaimer meaningless.” 

Have I committed a violation if I do not use the precise wording of the disclaimer used by the SEC?

No. In C56-22, the SEC said, “The failure of a school official to parrot the exact language recommended by the [SEC] will not mean, without more, that he or she did not use an appropriate disclaimer. In addition, if a school official utilizes an appropriate disclaimer, but the content or substance of the statements would still lead a reasonable member of the public to believe that the school official is speaking in his or her official capacity or pursuant to his or her official duties, then the disclaimer will be inadequate and of no force or effect, and the social media activity could violate the Act.”

If I use social media, do I always need to include a disclaimer even if I am not speaking as a board member?

No. In C103-22, the SEC stated that just as the inclusion of a disclaimer is not dispositive, neither is its omission. Whether a board member’s social media activity may violate the Act will always depend on whether, based on the substance of the speech, a reasonable member of the public could perceive that the board member is speaking in their official capacity as a board member. If your social media activity cannot be viewed as being offered in an official capacity, or on behalf of the board, then a disclaimer is not required. However, if a reasonable member of the public could perceive that your social media activity is offered in an official capacity or pursuant to your official duties, a violation(s) of the act may be established if the filing party can prove the allegations asserted. In other words, board members must always consider the public lens through which their social media activity will be viewed, and consider whether, despite their intention, it might be viewed as being offered in an official capacity.

I used social media when I was a candidate for the board. May I continue to use that webpage now that I am a board member?

No. In C106-22, the SEC “advises Respondents, and other board of education members alike, that once elected to a seat on the board, it is no longer prudent or appropriate to use one’s campaign page to post statements or comments on social media. Continued use of a campaign page following election can only … cause confusion as to the capacity in which one is speaking, and this will invariably lead to the filing of ethics complaints. Transparency in communication cannot be overstated, and continued use of one’s campaign page unnecessarily obfuscates the public’s understanding of the capacity in which one is speaking on social media.” 

If I have additional questions about board member use of social media, where can I go for answers?

Board members may contact the NJSBA‘s Legal and Labor Relations Department at 609-278-5279 for information and resources. You should always seek the advice of your board attorney for official legal advice on your specific situation. If you have further questions about your prospective conduct on your board of education, you may want to seek an advisory opinion from the SEC. Instructions for seeking an advisory opinion can be found at www.nj.gov/education/ethics/advisory.shtml. 

Kathleen Asher is NJSBA senior manager of legal and labor relations; John Burns is NJSBA senior legislative counsel; and Kathryn Whalen is NJSBA legal counsel/HR.