Tribal Council passes ordinance to restrict freedom of speech for employees

The Tribal Governing Board passed an ordinance, Section 8.20, Policy Regarding Use of Social Media by Employees, on February 2 of this year. Many companies have a policy in regards to social media use and the workplace, so there is nothing wrong with the idea, but in this case, our tribal council, an elected body, included themselves in the policy.

I called our chairman, Mic Isham, about this policy and how it prevents any tribal employee from freely expressing themselves when they disagree with actions of the tribal council. Basically, this letter is a violation of everyone’s civil right to free speech. Mic said that it was never their intent, but, regardless, the wording is in the policy and you should all be outraged!

Mic explained that there had been a couple of incidents lately that involve employees who spoke out on Facebook about their workplace, either another employee or a manager, and that it disrupts the workplace, which I agreed with him. Sure, we should have a workplace policy, but for the council to put in the TRIBE as well, as if the tribe is a person and no employee should have anything bad to say about their tribe is flat out wrong!

I’m going to reprint the policy here for you all to see. When I come to parts that I believe are in violation of your federal constitutional rights to free speech, I will show it and you can see if you agree with me or not.

While the Lac Courte Oreilles Band of Lake Superior Chippewa Indians encourages its employees to enjoy and make good use of their off-duty time, certain activities on the part of employees may become a concern if they have the effect of impairing the work of any employee; harassing, demeaning, or creating a hostile working environment for any employee; disrupting the smooth and orderly flow of work within the office; or harming the goodwill and reputation of the Tribe.

Okay, let’s stop right there. That last line…”harming the goodwill and reputation of the Tribe.” So, basically, you can’t say anything that they (the council) don’t agree with. Mic claimed that it wasn’t their intent to restrict anyone’s right of free speech but how does this not restrict free speech? If you, as an employee posted on your Facebook account that you think the council made a bad decision to extend the contract of Lee Harden, casino manager, could this not be construed as trying to hurt the reputation or goodwill of the tribe? Let’s say that you’re not in the good favor of certain leadership, could they not use this statement as a means to fire you at that point? Better yet, it’s election time, so let’s say you, as an employee, posts on your Facebook account just days before the election that you think our leadership are a bunch of idiots. Does that not hurt the reputation of our tribe? Can they not use that to fire you for speaking out during an election? Even though they can claim this isn’t their intent, it’s painfully obvious that the council can use this policy to silence all employees during the election.

Let’s continue on with the policy. This first paragraph continues here and notice how they include print media, such as a newspaper, into the policy as well;

In the area of social media (print, broadcast, digital, and online services such as Facebook, LinkedIn, MySpace, Plaxo, and Twitter, among others), employees may use such media in any way they choose as long as such use does not produce the adverse consequences noted above. For this reason, the following provisions apply regarding an employee’s use of social media, both on and off duty:

a.      An employee shall be subject to disciplinary action, up to and including termination of employment, depending on the severity  and repeat nature of the offense, if an employee publishes any personal information about the employee, another employee of the Tribe, the Tribe and its officials, or a tribal member in any public medium (print, broadcast, digital, or online) that:

There it is again. “If any employee publishes any personal information about the Tribe and its officials.” Really? So what would they consider personal information? This is wide open for a broad interpretation. Once again, if you speak out against your elected official, they can consider it a violation of this policy under this wording. Let’s take a look at this…so if I were an employee and I just posted on my Facebook account that the tribe has $250,000 in overdraft bank fees (which back in November would have been true information), they could fire me because I posted the Tribe’s personal information? LOL, is the tribe a person? As a member of this tribe, regardless whether you are an employee or not, you can discuss any financial issue within the tribe. They have no right to restrict this freedom of yours.

Continuing on…

a.      Online that

1.       Has the potential or effect of involving the employee, their coworkers, tribal members or the Tribe in any kind of dispute or conflict with other employees or third parties;

2.       Interferes with the work of any employee;

3.       Creates a harassing, demeaning, or hostile working environment for any employee;

4.       Disrupts the smooth and orderly flow of work within the office, or the delivery of services to tribal members;

5.       Harms the goodwill and reputation of the Tribe in the community at large; or

6.       Tends to place in doubt the reliability, trustworthiness, or sound judgment of the person who is the subject of the information.

Number 5 above is that same line from above about the reputation of the tribe. I truly wonder about the competence of our Legal Department since it is they that are advising our tribal council this is in any way, shape or form, the right thing to do, or even the slightest bit legal.

b.      No employee may use the Tribe’s equipment or facilities for furtherance of non-work-related social media related activities or relationships without the express advance permission of their program director.

Now this line here states that even if your social media use isn’t to harass or disrupt the work place environment, you still can’t use tribal facilities for accessing social media. It’s once again, very vague. This basically means that you can’t go over to the library computers and post on Facebook, regardless of what you’re posting, if they don’t want you to.

c.       Employees who conduct themselves in such a way that their social media related actions toward and relationships with each other interfere with or damage work relationships, disrupt the flow of work or tribal member relations, or cause unfavorable publicity in the community, should be concerned that their conduct may be inconsistent with one or more of the provisions of this policy. In such a situation, the employees involved should request guidance from their program Director or the Executive Director to discuss the possibility of a resolution that would avoid such problems. Depending upon the circumstances, failure to seek such guidance may be considered evidence of intent to conceal a violation of the policy and to hinder an investigation into the matter.

d.      Use of social media that involves any kind of criminal activity or harms the rights of others may result in criminal prosecution or civil liability to those harmed, or both.

e.       Social media access and use involving Tribal equipment and resources are subject to the Tribe’s computer and internet policy at all times.

f.        The provisions in this policy are not intended to restrict communications regarding the terms and conditions of the workplace.

How an employee uses social media is not a matter of concern as long as it is consistent with the aforementioned provisions on this policy. Employees may address any questions on this policy to their program Director.

And there you have it, the tribe’s policy on social media in the workplace. Whether you agree with it or not, you can’t deny the obvious ability of our tribal leaders to use this policy to intimidate employees into silence, especially during this upcoming election cycle.

And for including themselves (an elected body) and the Tribe as a person into this policy, if it wasn’t their intent silence, then all I can say is what a bunch of control freaks! As elected officials, they should expect criticism, they should have some thick skin, and by passing this ordinance, they don’t want any criticism.

The tribal council should immediately revisit this ordinance and strike any reference to themselves or the Tribe as a whole. You, the members, should expect nothing less. If this law is allowed to stand, then what next from the Hitler playbook?