When you see the news at 2pm on a Tuesday that the White House lawn has been turned into a car dealership, it is difficult to not turn to social media and comment. However, when they are not selling cars, they are monitoring employee access and use of email, social media, and the internet.
As a Federal Executive branch employee, your personal social media use is subject to regulation and even potential monitoring by your federal employer. First and foremost, you must ensure that your social media activities comply with the Standards of Conduct and other applicable laws, including agency supplemental regulations or policies. See e.g., 5 CFR Part § 2635. For example, 5 C.F.R. § 2635.705 requires that when you are on duty, you only perform official duties. Further, the Standards of Conduct require that you use government property only to perform official functions, unless otherwise authorized by your agency under a “limited use policy.” (See Office of Government Ethics – Legal Advisory 15-03 (April 9, 2015), “The Standards of Conduct as Applied to Personal Social Media Use”).
Absent your agency having a specific policy allowing for limited personal use of government resources to access your personal social media accounts, you may find yourself subject to a proposed adverse action and charged with “misuse of government property. For your agency to sustain a charge of misuse of government property it simply must show that: (1) you used government equipment (e.g., its Wi-Fi network); and (2) you did so without authorization.” Sternberg v. Department of Defense, 52 M.S.P.R. 547, 558 (1992).
Moreover, even if your agency does allow you limited personal use of government resources to access your personal social media accounts, be forewarned, your federal employer can and may monitor your access. See e.g., City of Ontario, California, et. al. v. Quon et al., 560 U.S. 746 (2010) (holding that when a public employer has a non-investigatory work-related purpose for monitoring employees’ electronic communications, such monitoring does not run afoul of the 4th Amendment). Thus, you have no reasonable expectation of privacy when using government resources to communicate via email, text or telephone, even if such communication is between you and your spouse, your lawyer, or your doctor.
Last, even if your use of social media is on your own time and on your own device, your agency may still discipline you for what you post, your First Amendment rights notwithstanding. For example, in Edward P. McEvoy v. Department of the Navy, 116 LRP 42793 (M.S.P.B. 2016), a U.S. Merit Systems Protection Board administrative judge sustained Mr. McEvoy’s removal based in part on his personal tweets and Facebook postings criticizing the Department of the Navy. In his decision, the administrative judge noted that the U.S. Supreme Court has recognized that public employees, like all citizens, enjoy a constitutionally protected interest in freedom of speech, but that those free speech rights must be balanced against the need of government agencies to exercise “wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.” Mings v. Department of Justice, 813 F.2d 384, 387 (Fed. Cir. 1987) (quoting Connick v. Myers, 461 U.S. 138 at 146 (1983)). Thus, perhaps providing the Department of the Navy the “widest” of latitude in regard to that balance, the administrative judge found that “that the agency’s interest in promoting the efficiency of the service outweighs the employee’s interest as a citizen;” and therefore, did not afford Mr. McEvoy’s tweets criticizing the Department of the Navy, even in matters of public concern, the protection of the First Amendment. See McEvoy v. Department of the Navy.
To be safe, you should never use government resources, even if permitted under your agency’s specific “limited use” policy, to access your personal social media accounts. Also, be mindful, even when using your own personal device not to post to your personal social media accounts while on duty, including while teleworking or on administrative leave. Last, criticize your agency on social media at your own peril.
The legal information contained in this document is of a general nature and is subject to change; it is not meant to serve as legal advice in any particular situation. The law is in a constant state of change as Congress amends or passes new statutes, Federal agencies issue new regulations and courts issue new interpretations of the law. THE JEFFREY LAW GROUP, PLLC does not guarantee the accuracy of the legal information in this document. THE JEFFREY LAW GROUP, PLLC recommends you consult a licensed attorney of the firm who is knowledgeable about the area of law in question before you take action to address a legal matter: www.jeffreylawgroup.com or 202.312.7100.