Q&A of the Day – Is an Ad Supporting Florida’s Amendment 3 Illegal?
Each day I feature a listener question sent by one of these methods.
Email: brianmudd@iheartmedia.com
Social: @brianmuddradio
iHeartRadio: Use the Talkback feature – the microphone button on our station’s page in the iHeart app.
Today’s Entry: Hi Brian, How can Sheriff Morris Young of Gadsden County appear in uniform in support of the marijuana initiative?
Bottom Line: By now there’s a good chance that every Floridian of voting and non-voting age has come across an ad supporting Florida’s Amendment 3, the recreational marijuana amendment, featuring Gadsden’s Sheriff in the ad talking up his support of the proposal. The ad was produced and is being paid for by the PAC backing the amendment, Smart & Safe Florida. The PAC has been advertising on-air and online non-stop in the leadup to November’s election due to extensive resources provided to the PAC by its backers. Smart & Safe Florida has brought in over $100 million to date led by the greater than $92 million donated to the cause by top marijuana company Trulieve. Now, with Gadsden being one of the smallest counties in the state of Florida, it’s a certainty that the use of its sheriff Morris Young, who is an unknown outside of his home county, in the pro recreational marijuana ad isn’t really about Morris but rather his badge. And that takes us to today’s question. How is it legal for a uniformed sheriff to appear in an ad supporting a proposed constitutional amendment?
This isn’t the first time this question has come up and it actually isn’t the first cycle Florida sheriffs have appeared in uniform in political ads. It’s become increasingly common in recent years and there’s one very specific reason. A 2012 legal decision. But before getting into that legal matter let’s take a closer look at the law that’s called into question here. It’s the Hatch Act. As noted by the Department of Justice:
- The Hatch Act, a federal law passed in 1939, limits certain political activities of federal employees, as well as some state, D.C., and local government employees who work in connection with federally funded programs. The law’s purposes are to ensure that federal programs are administered in a nonpartisan fashion, to protect federal employees from political coercion in the workplace, and to ensure that federal employees are advanced based on merit and not based on political affiliation.
For that reason, it’s long been believed that a government employee may not use their official capacity and likeness in the furtherance of a political campaign. Now the first key to the Hatch Act being relevant is that federal funding must be involved since it’s a federal law. In the instance of Sheriff Young, federal funding to his agency is involved as every sheriff’s office in the state of Florida receives some federal funding. So back to today’s question. How then could this be legal?
In 2012, an advisory opinion of the Justice Department was sought by a local government to clarify whether: An incumbent sheriff may wear his uniform to political events such as rallies, fundraisers, and campaign booths or in printed and/or electronic campaign materials. You also ask whether a sheriff may use his title in political correspondence or in connection with fundraising activities. Finally, you ask if it makes a difference whether the sheriff engages in these activities while running for reelection, running for another elected office, or while campaigning for another candidate altogether. For purposes of this opinion, you ask OSC (Office of Special Counsel) to assume that the sheriff is subject to the Hatch Act’s restrictions.
In the ruling it is stated: OSC generally concludes that state and local employees violate the Hatch Act when they use their official titles, or otherwise trade on the influence of their positions by, for example, wearing their official uniforms, while engaged in political activity. As it applies to elected officials who are covered by the Hatch Act. Specifically, in recognition of the fact that they hold partisan political office, OSC reasoned that they would not violate the Hatch Act by wearing their uniforms or using their titles while campaigning for reelection. OSC took into account the fact that Congress gave greater latitude to individuals who are covered by the Hatch Act due to their elected positions when it exempted them from the candidacy prohibition to which other state and local employees are subject. OSC’s reasoning also extends to an elected official’s other political activities, i.e., activities not in furtherance of his own reelection. Indeed, in allowing these elected officials to run as representatives of political parties, Congress presumably anticipated that they would endorse other candidates running under their political party’s banner. If these elected officials are permitted to use their official titles in their own partisan campaigns, OSC can identify no unique harm that would result if they do the same when endorsing other partisan candidates.
So, there’s the distinction. If the government official is an elected partisan official, they may advocate for political causes in their official capacity provided that it’s not being done “on the job”. In other words, Sheriff Young can endorse Amendment 3 in ads while in uniform, however he may not, for example, post campaign materials within the sheriff's office or pressure his employees to vote for the proposal. Similar actions have been undertaken by Florida’s sheriffs following the 2012 ruling. That’s included sheriffs within the state campaigning for and with Donald Trump and Ron DeSantis previously. Notably, in DeSantis’ 2022 reelection bid 54 of Florida’s 67 sheriffs endorsed DeSantis and campaigned in some capacity in uniform with him...No Gadsden’s Morris Young wasn’t one of them.