While the election results may not yet be finalized, Election Day is now over, and the Office of Special Counsel has released an advisory opinion outlining what federal employees are allowed to do (and not do) post-Election Day with respect to the Hatch Act.
Wearing or Displaying Items About Presidential Candidates
OSC said that the Hatch Act generally does not prohibit federal employees from wearing or displaying items related to candidates after Election day.
“With a few exceptions, after Election Day the Hatch Act does not prohibit employees from wearing campaign items, like t-shirts or hats, and displaying candidate photographs while they are on duty, in the federal workplace, wearing an official uniform or insignia, or using a government vehicle,” reads the memo.
The advisory opinion goes into greater detail about what this includes, and also acknowledges the fact that we are currently in a situation where the final outcome of the presidential election may not be known for a while longer. OSC said that, with “rare exception”, wearing these kinds of items is ok after the election.
“OSC has consistently advised that with rare exception, post- Election Day activities showing support for or opposition to a presidential candidate will not affect the result of the election for that office,” reads the memo.
The “rare exception” it notes is detailed in a footnote which reads, “Such exceptions include, but are not limited to, influencing or attempting to influence the results of the popular election, such as through a recount effort, and swaying or attempting to sway the allocation of electoral votes.”
OSC makes clear in its advisory opinion that federal employees are still prohibited by the Hatch Act from “using their official authority or agency resources to affect the outcome of the presidential election” which it says still applies after Election Day.
OSC also said that examples of such activities which would likely be prohibited are “taking part in legal challenges, a recount, or other ballot-related efforts, or attempting to influence electors’ votes…” OSC says that this is “still political activity because it has the potential to affect the outcome of the election.”
OSC also said when it issued the advisory opinion on post-election activities that its opinion only addresses the Hatch Act and that “[federal] employees should consult with their agency ethics officials about any other laws, rules, or regulations that may apply.” In other words, when in doubt, err on the side of caution.
A copy of the advisory opinion is included below.