81.34

OPINION NO. 81-34

An opinion has been requested from the Department of Natural Resources as to whether foresters with the Maryland Forest and Park Services (the Forest Service) may participate in a Tree Farm Inspector Awards program sponsored by the American Forest Institute.

This request is presented by the Personnel Officer for the Department of Natural Resources, on behalf of the Maryland State Forester. It involves an inspector award program sponsored by the American Forest Institute (AFI) in connection with the American Tree Farm System. The AFI is an association of entities involved in the commercial forest and lumber industry, including several Maryland firms. The Tree Farm System is aimed at smaller private woodlands, and is designed, through a public recognition program, to encourage owners of such properties to engage in forest management and planning. Criteria for certification as a tree farm are established by AFI, and require establishment and implementation of forest management plans involving selective cutting of trees, re-foresting and reseeding, as well as reduction of fire hazards and prevention of damage from insects and disease. Though a major goal of the program is directed to the growing and harvesting of trees as crops, it also protects forests as wildlife habitats, watershed areas, and recreational areas. Inspections to determine qualification for the Tree Farm System may be conducted by any registered professional forester.

The Forest Service is a co-sponsor with AFI of the Tree Farm System in Maryland. The system is viewed as fulfilling part of the agency's general objectives, which include commercial use of forest resources as well as substantial concern with good forest management. Maryland foresters include these forest management activities as part of their general responsibilities in managing State forests, implementing the seed tree and conservancy laws, enforcing forest fire protection laws and licensing various forestry-related activities in the State. Management activities regarding non-corporate owners generally result from a request by the land-owner or through contacts made in administration of the forest conservancy laws. Foresters' efforts may include assisting land-owners in developing and implementing management plans, inspecting forest land for insects or disease, and conducting inspections for inclusion of a forest stand in the Tree Farm System.

Conducting tree farm inspections is included as part of the work plan for all foresters, reflecting the Forest Service's estimate of its fair share of the inspection activities based on its employment of approximately 80% of the State's professional foresters. The inspector awards would be based on the number of all such inspections conducted, including inspections conducted by a forester in a private capacity prior to State employment. A stated long term objective of the program is encouragement of foresters to include such inspections in their regular work plan. A more general goal, apparently, is to bring more private woodlands into a forest management system. Forest Service personnel support participation of Maryland foresters in the award program. They indicate that personnel engaged in these activities are expected to have a good working relationship with the industry as well as private land-owners, and that the goal of increasing woodland acreage under forest management is also a Forest Service goal. They do not believe that the award program as now designed would create an improper incentive or adversely impact the Service in carrying out its functions under its enabling laws.

The issue presented here is application of section 3-106 of the Ethics Law (Article 40A, §3-106, Annotated Code of Maryland). This section prohibits State employees from accepting gifts from entities that do business with or are regulated by their agency or whose economic interests could be substantially impacted (in a manner distinguishable from the general public) by the employee. Several exceptions to this rule are established, however, if it is determined that the gift would not impair the employee's impartiality or independence of judgment or, if of significant value, give the appearance of doing so or being intended to do so. One of the exceptions listed in section 3-106(b)(2) excepts "ceremonial gifts or awards which have insignificant monetary value."

It should be noted here that an AFI tree farm inspector award program designed slightly differently from this one was considered by the Board of Ethics (predecessor to the Commission, responsible for implementing the Code of Ethics, Title 19 COMAR) in its Opinion No. 122 (Title 19 COMAR). Applying a different gift prohibition than is set forth in section 3-106 of the Ethics Law, the Board treated the proposed awards as prohibited gifts and considered the program under the waiver provisions of the Code of Ethics. It declined to exercise its discretionary waiver authority based on its conclusion that the system would have provided "an extra award for work that would be performed anyway in the normal course of a forester's State duties."

The award program considered by the Board, however, offered as prizes useful items of some value, ranging from a suede portfolio to a CB radio or digital wristwatch. Also, awards were made for as few as 1, 3, or 6 inspections. Under the new tree farm inspector award program, the proposed award is a hardhat painted either bronze, silver, or gold, with a commemorative plaque, having an estimated value of $20. The awards are made for completion of 25, 50 or 75 inspections, respectively. The Forest Service views these awards more as a token of recognition than as a work incentive. Service personnel do not believe that hope of receiving such an award could improperly impact on the foresters' official activities.

Under these circumstances, we think that the modified award program addresses the concerns expressed by the Board of Ethics. We also believe that the hardhat awards fit squarely within the Ethics Law exception in section 3-106(b)(2) as "ceremonial gifts or awards which have insignificant monetary value." Further, we do not see the receipt of such awards as contemplated in the current tree farm program as likely to or intended to impair a forester's impartiality or independence of judgment. We therefore conclude that participation by foresters employed by the Forest Service in the Tree Farm Inspector Awards program as currently constituted would not violate the gift prohibitions of the Ethics Law.

Herbert J. Belgrad, Chairman
    Jervis S. Finney
    Reverend John Wesley Holland
    Betty B. Nelson
    Barbara M. Steckel

Date: August 19, 1981