Let the Tweeter beware

The newspaper stories are cringe-worthy. A New Mexico police officer shot and killed a gang suspect earlier this year and described his job on Facebook as a “human waste disposal.” In Massachusetts, a veteran firefighter was fired for Facebook posts that were critical of a supervisor and town officials and contained foul language and anti-gay slurs. And do we even need to mention a certain Congressional representative who sent sexy-time photos of himself via Twitter to various female admirers, all the while claiming someone had hacked his account?
    Given the sometimes dire consequences of such indiscretion, it would do us all good to be reminded that social media, as fun, enlightening, and helpful as it can sometimes be, is also fraught with traps for the unwary. We know how incriminating these sites can be—what prosecutor doesn’t check defendants’ online profiles for signs of drug use, weapons possession, or gang affiliation to sweeten the State’s arsenal of evidence in court?—yet we ourselves still sometimes post things that are inappropriate at best or, at worst, worthy of termination.
    We at TDCAA talked to several prosecutors across the state, in offices large and small, to find out what these supervisors say about their employees’ online presence and how it can affect a person’s reputation and livelihood. Not every office has a policy on using such social media, but everyone noted that those who work in a prosecutor’s office must be especially careful with what information they put out there for public consumption. What might be a normal work-related gripe for someone in another profession can result in big trouble—even legal trouble—for those in a prosecutor’s office. Rules 5.02 and 5.03 of the Disciplinary Rules of Professional Conduct, as well as the criminal offense provisions of the Public Information Act, state that disclosing any information concerning a legal matter being handled by the office is grounds for immediate discipline, up to and including discharge, and potential criminal prosecution. This rule applies during the workday as well as after hours.
    “Employees of prosecutors’ offices do not have the luxury of leaving work at the office,” says Jay Johannes, an assistant county and district attorney in Colorado County. “We need a certain moral authority to do our jobs effectively, and imprudent use of social media undercuts that moral authority.”
    Some bosses check their employees’ Facebook or Twitter accounts for a wide array of purposes: what time of day people are posting (i.e., during the workday and/or on county computers); whether any legal matters are discussed; if excessive drinking, drug use, or criminal activity is mentioned; or if anything reflecting poorly on the office is posted. Even stating one’s professional position is forbidden in at least one jurisdiction, the Harris County DA’s office, as it may imply an official statement of the office as a whole.
    Lest you think that such strictness is an overreaction, consider the permanence of online information and lightning-fast speed with which that information spreads. What you write today is immediately available to countless people, including the defense bar, victims’ families, and journalists, within moments.
    “I’ve been an attorney for 16 years and a prosecutor for 11—it’s hard to surprise me,” Johannes says. “While I do not have a Facebook account, my wife does and I am amazed by the web of connections through our county. There truly are fewer than three degrees of separation, and news travels fast.”
    The rule of thumb that almost every prosecutor mentioned is to never post anything on the Internet that you would not want to see on the front page of tomorrow’s newspaper—along with your name, title, office, and county. If you must gripe about something work-related, pick up the phone rather than dashing off a hasty tweet. “Electronic is forever; a phone call isn’t,” says C. Scott Brumley, county attorney in Potter County. “Always remember that distinction.”
    Note, too, that inappropriate or unprofessional online commentary can follow a person even after she leaves a job and seeks a new one. Several prosecutors mentioned that they check potential employees’ Facebook profiles before extending job offers to see “whether representations of responsibility made during the interview are consistent with the image they broadcast to their friends and the public,” Brumley explains, “and whether the applicant is dumb enough to publish their salacious or sophomoric behavior to the world. Also, it is not unheard of to find disparaging remarks about the office after a job interview. It’s better to know whether you’re poisoning the well [by hiring such an employee] before you actually do it.”
    Lee Hon, the district attorney in Polk County, also does a little Facebook reconnaissance when he’s interviewing people for open positions. “Just looking for potential red flags, i.e., pictures or comments indicating the applicant may not exercise good judgment in their personal affairs or conduct themselves in a way consistent with the image of my office,” he says. Bosses may be surprised by what they find.
    Folks at TDCAA went through just such a situation a few years ago. After a solid in-person interview with an applicant, we offered the job, which was accepted. Meanwhile, we hunted around on MySpace (remember MySpace?) for this person’s profile page and were shocked to discover ugly words about the job at TDCAA and even uglier words about a crumbling home life. The job offer was subsequently withdrawn.
    “Review of her comments made it clear that the applicant was not someone who truly held herself to the standards required of those earnestly engaged in prosecution,” Brumley explains.
    Those who work in prosecutor’s offices are wise to remember that their bosses are elected officials—politicians—who are public figures as much as they are prosecutors. What they and their staffs put out there for the world (wide web) to see reflects on them as public servants and as professional attorneys for the State. “Social media can be an effective networking tool,” Hon says. “I use mine mainly for friend, family, professional, and political networking. As a public figure and representative of an elected public office, you just have to be extra sensitive to the things you post.” And so do those who call these public figures “boss.”