Digital Imagery and Facebook Question: Off Duty
I received a digital imagery/social media question from a fire chief that has an interesting twist.
QUESTION:
A member of my department recently posted several photos from the scene of a fatal accident in my jurisdiction on his Facebook page. The member was not working for my department at the time the pictures were taken, but rather was working as a police officer. I understand the pictures were taken as part of the accident investigation. However I feel that posting the pictures on a social network page is very unprofessional and morally wrong. We currently have a policy limiting on-duty photo taking, but nothing that directly prohibits this kind of action. What would be the best way to handle the situation? As of right now I have not received any complaints from any family members of the deceased or from the public. The pictures and caption were e-mailed to me, and am concerned if I ignore the situation it may come back to haunt me.
RESPONSE:
Questions like this raise two different sets of issues in my mind. One is legal and we will discuss those at length below. The second is leadership. It would be a mistake to focus only on the legal implications of this problem. Perhaps the best way to address this problem is simply to have a sit down with the member involved to express your concerns that his conduct raises for him, for you, and for both organizations. Incidentally, you may want to suggest he check out https://firelawblog.com/category/you-cant-make-this-stuff-up/ if he has a tough time understanding where you are coming from.
From the legal perspective, my first analysis would look at what your policies say. Two policies are implicated: (1) the digital imagery/photography policy and (2) the social media policy.
Does the digital imagery policy address on-duty photo taking only, or does it extend to off-duty photo taking of job related activities? Does the social media policy restrict the posting of job-related content? Does it have a code of conduct component that applies to all social media activities?
I am a proponent of clear rules. There are two reasons for this. First, it is a legal requirement. Due process prohibits us from disciplining a member for violating vague or ambiguous rules. Second – it is a leadership responsibility. We owe a responsibility to our personnel to provide clear and unambiguous direction. It serves no purpose to discipline a member for doing something that is not clearly a rule violation.
Remember, the purpose of discipline is to change behavior, not to punish. Leadership by sneak-attack upon unsuspecting employees serves no purpose. In my experience when officers try to discipline personnel for borderline misconduct it is more often about the officer feeling pressure to “do something”, and less about a sincere effort to “change behavior”.
Consider the following “code of conduct” provision I use in my social media policies:
When engaging in social media or social networking activities, all personnel will maintain a level of professionalism in both on-duty and off-duty conduct that is consistent with the honorable mission of our department. The publication of any statement, comment, imagery, or information through any medium of communication indicated herein, which is potentially adverse to the operation, morale, or efficiency of this department, will be deemed to be a violation of this policy.
Even this rule applied to the facts is not 100% clear and unambiguous. However, at a minimum, it allows for an opportunity to discuss the situation with the employee and perhaps “change behavior” – not through discipline but through leadership. The employee can also be cautioned about the behavior using this rule as a basis with the understanding that any further posting of a similar nature will be considered to be a violation. In addition, the offending photos can be ordered to be removed as violating the policy.
Another angle on this case, we are struggling with this issue because another organization apparently does not have any policies on digital imagery or social media. Perhaps a sit down with the police chief may be in order as well.
Finally, unusual situations like this are helpful because they force us to evaluate the soundness of our policies and the need to update them. The facts here speak to the need to extend the scope of your policies to regulate this type of conduct.
Outstanding as usual Curt. I really appreciate that you didn’t stop at the water’s edge pertaining to the law and hit on the leadership implications as well.
I’m a firm believer in intent when it comes to actions and discipline. Many leaders either don’t get it or choose to ignore it. Many I’ve dealt with seem so happy to use punishment as a tool to feel superior instead of truly making themselves superior through effective communication, leadership, and coaching.
Thanks Shane
I think that aspect of providing “counsel” to fire chiefs is sadly lacking when many lawyers give advice – and the chiefs do not realize it. They consider an attorney’s legal advice to be leadership advice instead of simply the expert opinion of a legal technician.
Leaders need to lead. They need to incorporate legal issues into their decisionmaking – but they cannot abdicate their leadership responsibility to the lawyers. Just because something is legal doesn’t mean it is advisable from a leadership perspective.
As for discipline – you are 100% right, way too many leaders focus on “punishment”. Funny thing is, if you ask them in a classroom “What is the purpose of discipline?”, they can give you the right answer “to change behavior”. But in real life they view their role as being the heavy handed disciplinarian.
Curt,
Very good column.
One other factor to consider in rules for off-duty picture taking or posting (not necessarily related to the police officer case) is something I ran into a lot in my career. It is off-duty personnel gaining special access to the scene based on their affiliation. I imagine from a legal/liability standpoint an off-duty person taking pictures from where the general public is located would be looked at differently than if they were allowed behind the lines to shoot.
The first of many times I dealt with this was about 30 years ago, when I was chairman of the Washington Metropolitan Area Public Safety Media Relations Council. I had to go to bat for a freelance videographer who was not allowed anywhere near the scene of a fatal drunk driving crash involving a well known public figure. But a volunteer member of a local FD had up close and personal photos o the crash scene that were sold to the local news media. Both the FD and police department realized the error of their ways and changed some policies after I sat down with them and explained the situation.
Statter
Dave
Excellent point – on two levels. First – an off duty firefighter who is allowed access to a location because of his status as a firefighter that the public does not enjoy, is not in the same position as a member of the public when it comes to the rights to that photo. Ownership questions arise as do ethics questions (ie. if the firefighter sells or profits from the photo there could be a state/local ethics violation). Second – it raises an implication for drafting digital imagery policies broadly enough to address this potential problem area.
Ok, I’ll ask the dirty question. What right does any organization have to limit what they’re employees do when off duty?
Can an employee be disciplined because they take a negative view on the union (hurting morale)?
Can an employee be disciplined because they have strong views regarding the state of their profession that clash with other members of the organization?
I too am a proponent of clear rules and agree that the use of social media and regarding media (social or otherwise) issues encountered on duty (taking pictures of an accident while on duty is a different situation than taking pictures while off duty), however I question the ability of any employer to take direct action based solely on off duty action, as well as the slippery slope it represents.
I think I also need to add a little clarification regarding what is off duty (along with the disclaimer that IANAL).
When dealing with off duty actions, I think the important question is, “Is this connected in any way with on duty conduct, be it past conduct or potential future conduct?” An EMT who, while off duty, out of uniform, and operating in a non-restricted place (say a non-blocked off street corner at an accident) should be free to take pictures of the accident and should bear no legal or employment duty to sanitize the pictures of identifying marks. “Should he?” Yes. “Does he?” No, including under threat from his department.
In contrast is the social media nightmare faced by the East Palo Alto police department where an officer issued an apparent threat against law abiding citizens (1). Since that case included a message relating to potential future on duty conduct, I think it would be reasonable not to view it as being entirely off duty, such as an EMT taking pictures of a random accident scene.
1: http://www.mercurynews.com/breaking-news/ci_14361484
I have always wondered what is the difference of a FF or EMS employee taking a picture and posting and a free lance or professional media employee? Through out my career the fire/ems service has always had to keep the media from getting the “money shots”. However when they do I have never heard of them being sued, disciplined, arrested etc.
Legally, morally, ethically, let’s just take this into consideration: if you are using an image for a genuine means of sharing ideas or information is one thing. I would bet that many of these photos are posted for the sole purpose of “bragging rights” though. The whole, “Look at this really bad situation I saw” phenomenon. In that case, they should just keep it to themselves. Just as any of us would be upset by seeing a picture of our loved ones hurt splashed all over the internet (and anywhere else, for that matter), unless your photo has some redeeming educational quality to it, save it for your shoebox.
Joe
Were you a reporter in a previous life – “I have one question… in five parts…”
I’ll do my best.
When it comes to regulating off duty conduct – there are 2 important questions – what is legal (ie what can an employer regulate) and what should an employer regulate.
When it comes to what should an employer regulate, I am with you – limit as little as possible – only things that impact the fire department’s operations, morale or effeciency.
What is legal to regulate? An employer cannot violate an employee’s Constitution rights, civil rights, Federal and state law employment rights, collective bargaining rights, local ordinances or local charter provisions. Other than that an employer can regulate pretty much regulate what ever they want…. in other words… there’s alot of restrictions on what an employer can regulate.
I really think your question goes to – is it wise to even go there?… why try to regulate off duty conduct at all? My sense is limit the regulations to what is necessary to (a) warn the firefighters and try to keep them from pulling a career ending stunt, and (b) protect the department from complaints/allegations of wrongdoing.
Andrew
Most FFs and EMS personnel (those who work for a municipal employer) are subject to ethics laws that prohibit them from profiting personally from their employment beyond their normal compensation and benefits. Getting paid for that “money shot” could be an ethics violation.
Also – in many cases an employee who takes photos while on duty – is not the lawful owner of the photos. The employer owns the photos. I have an article coming out in Firehouse on this very topic. So a firefighter taking an on-duty photo and selling it could be guilty of an ethics violation (misdemeanor) and selling a photo he doesn’t actually own (copyright violation)….
Finally – we have no business trying to keep the media from taking photos unless they are (a) interfering with our operations or (b) not respecting the privacy rights of patients. There are way too many examples of police and firefighters being way out of line when it comes to photo/video-graphers. Take a look at Statter911: http://statter911.com/2011/08/02/must-see-video-it-aint-all-bad-out-there-statter-look-how-this-police-officer-handles-one-man-armed-with-a-camera-a-gun-plus-charges-to-be-dropped-against-man-with-camera-in-suffolk-county-ne/
thank you for the reply. I wasn’t implying a selling of the photo just the posting. However the statement “employer owns the photo” answers a lot. Also the reply by Mick Mayers about the “bragging rights” makes a good point. But one other thought, taking the money and bragging rights out of the equation, should it and is it still wrong, unlawful, unethical to post on social network or network such as fire nation to other fire service groups to get discussion points?
Andrew
That is the dilemna – because we all learn so much from watching the videos, seeing the pictures, and reading the first hand descriptions.
In my policies I make sure there is a way for firefighters to (1) take photos/videos, and (2) secure permission to use/share them appropriately. That second step “legitimizes” the use and release of the photos. As Mick says – it shouldn’t be a “hey look at me” kind of use, but an educational/news worthy use.
Some chiefs find it to be too much work (or perhaps too risky) and simply ban all photo taking/use. Others have their heads buried in the sand. Like most things – we need to find the balance. It is more work to find and maintain that balance – and there is some risk of mistakes being made. But its worth it.
Thanks for the information. Very much appreicated.
Curt,
You mention “In my policies I make sure there is a way for firefighters to (1) take photos/videos, and (2) secure permission to use/share them appropriately.” What would be an example of an excerpt from one of your policies if one department wishes to acknowledge this issue in the way you mention here? I would be more than happy to address this issue in our Department in the way you mention with appropriate policies. I do not want to appear to infringe on our firefighters, but rather give them some guidelines and rules to help them understand the ethical and legal issues involved.
Thanks
Mark
Great question. I think we HAVE TO find a way to allow firefighters to take photos – and we need to make the process for firefighters to obtain permission to use the photos easy – and relatively quick – so firefighters are not tempted to take photos under the radar…. That is the philosophy.
I have a list of policy bullet points I can share with you – it is the outline for a policy but should have what you need. What it does not have is the philosophy: make it easy…
Email me at jcatlaw@aol.com and I’ll send you the bullet points.