In Lindke v. Freed, a unanimous U.S. Supreme Court established a test or factors to consider when determining if a public official had a right to block critics on social media accounts. The record of the case showed that Freed maintained a private Facebook account, which was updated to include his appointment to city manager of Port Huron, Michigan in 2014. He utilized his Facebook account to post about his personal life, information related to his job, soliciting feedback on issues of concern, and communicating matters from other areas of the city. Freed would comment to posts on his account and occasionally deleted posts he considered “derogatory” or “stupid.”
During the COVID-19 pandemic, community member Lindke posted his displeasure with how the city was handling the pandemic on Freed’s Facebook page. Freed deleted these posts and eventually blocked Lindke from commenting on Freed’s Facebook page. Lindke sued alleging Freed violated his First Amendment Rights.

In its decision, the U.S. Supreme Court set a standard that a public official’s social media activity could be considered state action only if the official:
(1) possessed actual authority to speak on the State’s behalf, and
(2) purported to exercise that authority when he spoke on social media.

The Court clearly indicated “[w]hile public officials can act on behalf of the State, they are also private citizens with their own constitutional rights.” The Court provided guidance on what public officials could do to do to avoid having their social media pages, and the actions on the same, called into legal question.

Board of Education members and other public employees can assist by making matters clear to the community and courts (if challenged) through:
1. Considering single-use social media (only an official page and only a personal page). The Court highlighted the concern with “mixed-use” social media.
2. Clearly designating social media pages as personal or official.
3. Consider a disclaimer (e.g., “the views expressed are strictly my own”) to create a presumption that posts are personal.
4. Review of policies and actions (i.e. past practice) to consider who is responsible for the official messaging of the board of education.

On January 16, 2024, the Eleventh District Court of Appeals decided the appeal of a frequent litigant and once again weighed in on the Ohio Open Meetings Act. In State of Ohio ex rel. Ames v. Portage Cty. Bd. of Commrs., 2024-Ohio-146, the court affirmed the granting of summary judgment in favor of the Portage County Board of Commissioners (“Board”) and dismissed the case. In the case, Ames alleged that the Board committed numerous violations of R.C. 121.22, the Ohio Open Meetings Act (“OMA”).

Among other things, the court made it clear that not every conversation constitutes a meeting subject to the OMA. In his Complaint, Ames alleged that a majority of the Board, two members, discussed the employment of the county’s director of budget and finance prior to the meeting. The two commissioners admitted to having an impromptu, brief discussion prior to the meeting.

The court highlighted that the OMA defined “meeting” as “any prearranged discussion of the public business of the public body by a majority of its members.” R.C. 121.22(B)(2). In affirming the granting of the motion for summary judgment, the court stressed that the meeting was not “prearranged.” The court held that the OMA does not prohibit impromptu discussions between a majority of board members.

Additionally, the court provided guidance on permitted procedures for executive session. Ames alleged that the Board violated the OMA by deciding to discharge the director of budget and finance during executive session. To support his allegation, Ames relied upon a commissioner’s statement, immediately after executive session, that the Board was dismissing the director. Ames concluded that the statement showed that the Board reached an impermissible collective decision during executive session.

Rejecting this contention and affirming the granting of the motion for summary judgment, the court of appeals noted that the OMA does not preclude the Board from reaching an informal consensus during executive session. So long as formal action is taken in an open meeting of the public body, no violation of the OMA occurs.

The case underscores two points. First, caution must be exercised to comply with the OMA. Activist litigants may put your processes to the test. Secondly, if caution is exercised and the procedures are followed, public entities can successfully defend against such claims.