By James M. Kalny
The universal proliferation of electronic communication has significantly affected the public sector workplace. Most, if not all, administrative municipal employees are provided networked computers with e-mail and internet access to complete their assigned tasks. Public sector employees commonly carry work-issued cell phones or pagers, and most municipalities have websites where they publish agendas and respond to public inquiries electronically. Unfortunately, the rapid growth of electronic communication has, in some respects, outpaced the ability of the legislature and courts to keep up with definitive rules, regulations and decisions to guide employers in managing the rights and obligations created by this new way of doing business. Until recently, the courts and legislature had given little guidance on how the traditional notions of employee privacy and free speech, the open meetings law and the public records law are to apply to the unique issues raised by electronic communication. Thankfully, the courts and the Wisconsin Attorney General’s Office have recently issued decisions and opinions that shed some light on the law regarding electronic communications in the public sector.
Earlier this month two landmark decisions regarding electronic communications by public employees on employer-provided equipment were issued. In City of Ontario v. Quon, the United States Supreme Court addressed the extent of a public sector employee’s personal privacy rights in regard to personal text messages sent on a publicly-issued pager. In Schill v. Wisconsin Rapids School District (a case argued for the district by Bob Burns of the Green Bay office of Davis & Kuelthau, s.c.), the state Supreme Court determined the status of private e-mails of employees on publicly-owned computers in the context of a public records request.
Several months ago the Wisconsin attorney general addressed other issues regarding the use of electronic media for public sector communications in an open meeting and public records context.
In addition to providing some insight on how the courts will apply privacy and public records law principles in the context of electronic communications issues, these decisions serve to remind public sector employers of the need for well-developed employee rules governing electronic communications and prompt the review of existing policies and practices dealing with those matters. This newsletter is intended to raise issues that a well-advised municipal employer should consider when reviewing a company’s electronic communications and social media policies.
It is our hope that this newsletter will assist you in anticipating and addressing issues when you review your electronic media use policies in light of the new law.