85.15

OPINION NO. 85-15

An opinion has been requested by an agronomist in the Turf and Seed Section in the Department of Agriculture concerning whether he may have a private lawn maintenance business.

The Turf and Seed Section is a unit under the Department of Agriculture's (DAGR or the Department) Assistant Secretary for Plant Industry and Pest Management. It has the responsibility for implementing the Maryland Seed Law (Agriculture Article, §9-201 et seq., Annotated Code of Maryland), and the Maryland Turf Grass Law (Agriculture Article, §9-101 et seq., Annotated Code of Maryland). The Seed Law involves inspection, sampling and testing procedures for all agricultural, vegetable, flower, tree and shrub seed which is sold, offered for sale, or exposed for sale within Maryland. Seeds must meet certain germination and tolerance standards and all seed lots must meet labeling standards. Certain noxious weeds are prohibited, and wholesale seedsmen must have permits and maintain detailed records.

The Turf Grass Law applies to any person who sells, offers or exposes for sale, or transports sod for planting purposes within the State, other than a grower making a casual or isolated sale of unsevered sod. The Law establishes labeling and advertising requirements, limitations on amounts of prohibited noxious or restricted noxious weeds, prohibitions on destructively injurious insects, other animal pests or plant diseases, and requirements as to the nature of sod and sod roots remaining intact after folding, rolling or plugging. There are record-keeping requirements and the Secretary of DAGR has inspection, testing and other enforcement authority, including the power to issue a stop-sale order prohibiting sale of sod until it complies with the Law.

The Requestor indicates that he works primarily in the sod area, dealing with the approximately 38-39 growers in the State. He has an Associate of Arts degree in forestry and a Bachelor of Science degree in agronomy. He states that he inspects a sod field prior to planting as well as during the growing process. He also inspects warehouses and works with growers, possibly advising them regarding pesticide and other applications. His work under the Seed Law involves supervision of individuals involved in seed mixing and inspection of seed shipped across State lines for compliance with the Federal Seed Act. According to the Requestor, his duties do not involve his working closely with the Pesticide or Plant Protection Sections, also units under the Assistant Secretary for Plant Industry. He says he has on a few occasions notified the Pesticide Section of possible application violations he has seen in a sod growing situation, but that this does not come up on any regular basis, and his involvement is limited solely to reporting the fact.

The Requestor's private business is a lawn maintenance business which he operates with his brother-in-law. He indicates that the business was established three years ago as a retail nursery open only on weekends, and grew out of activities working for private contractors when he and his brother-in-law were students. A third partner left the business after the first two years. The Requestor indicates that the expansion to include lawn maintenance was in response to customer inquiries, and involves an application program he developed based in part on his experience with sod growers. He states that the entity's general program includes spraying lawn and shrubbery with pesticides, and pruning and mulching shrubbery. It includes no mowing, but may involve some shrubbery installation, though there has not been much of this recently.1 According to the Requestor, the firm has stayed away from establishing lawns because of the nature of his DAGR duties, and it does not do business with sod or seed companies subject to his jurisdiction.

In connection with its lawn maintenance program, the Requestor's business applies pesticides, and in order to do so he holds a pesticide application certificate. This is a permit issued by the Department's Pesticide Section pursuant to the Pesticide Applicator's Law in the Agriculture Article, §5-201 et seq., Annotated Code of Maryland. This Law provides for the adoption of rules and regulations regarding the storage, sale and distribution of pesticides, for establishment of conditions and appropriate areas for application of any pesticide, and for guidelines for the application of pesticides and maintenance and submission of records. Each applicator must have a certificate, issued after he has demonstrated his competence to use and apply pesticides by passing a written examination prepared and administered by the Department. Each business involved in this activity must also be licensed and provide proof of financial responsibility. The Secretary has sampling and inspection authority and may revoke or suspend licenses and certificates. Violation of the Pesticide Law is a misdemeanor, the court may require indemnification, and civil damages may also be sought by parties injured as a result of violations.

The Department, through the Deputy Secretary, has expressed some concern about the fact that the Requestor holds a private pesticide applicator's certificate. Both the Pesticide and Turf and Seed Sections report to the same Assistant Secretary. Even though the Requestor's private business does not include turf and seed work, the Deputy Secretary is concerned that the Department would be in an "untenable" position if it had to discipline a person under a private pesticide permit who was also a Department employee. According to the Deputy Secretary, this situation doesn't "look good"; the Department is "opposed to people having these kinds of relationships, and sooner or later they are going to get in trouble."

This request involves the employment and interest prohibitions of §3-103(a)(1)(i) of the Public Ethics Law (Article 40A, §3-103(a)(1)(i), Annotated Code of Maryland, the Ethics Law), and the possible application of the exception to that provision as implemented in Commission regulations. Section 3-103(a)(1)(i) is a strictly couched prohibition barring an employee from having a financial interest in or being employed by an entity that contracts with or is under his authority or that of his agency. If the Requestor receives an annual income from or has an equity interest of $1,000 or more in the business, then he has a financial interest in it. (See definition of financial interest, §1-201 of the Ethics Law.) Also, we have generally said that individuals who are affiliated with and provide services to private businesses have employment relationships with them. (See, for example, Opinions No. 82-35, No. 82-11, No. 82-20 and No. 82-12.) Both the Requestor and the business are licensed (or certified) by the Pesticide Section of the Department. His activities would therefore appear to be within the prohibition of §3-103(a)(1)(i), unless an exception can be allowed.

In reviewing application of the exception provision, we do not believe that the maintenance by the Requestor of a private business that requires DAGR licensing can be allowed under the criteria developed by us pursuant to statutory exception language set forth in §3-103(a). Basically, this language allows exception from the prohibition in accordance with Commission regulations, where the relationship would not result in a conflict of interest or appearance of conflict. Our regulations are published at COMAR 19A.02.01 (outside employment exception) and 19A.02.02 (financial interest exception). Their approach is to set forth general guidance criteria for assuring that an outside employment or interest relationship is so remote from the individual's agency activities and official duties that the possibility of a conflict or appearance thereof is remote.

The criteria include, for example, consideration of possible impact by the employee on his outside employer or interest, and also the relationship of the employee to supervisors, other employees, or the unit of his agency that impact on his outside employer or interest. In the situation here, few issues are raised under these aspects of the criteria, given the apparent absence of any official duties relating to the pesticide applicator's program, and the fact that the Requestor is in a separate Section under Plant Industry.

The regulatory criteria, however, also include a provision for consideration of the nature of the individual's private duties in relationship to his State agency, providing, for example (in COMAR 19A.02.01.03F and 19A.02.02.03G), that the employee's outside employment or financial interest should involve no substantive non-ministerial duties significantly relating to his State agency's authority over the entity. The one significant issue raised under the criteria is under this item. As the holder of an individual applicator's certificate and one of two parties in a licensed business, the Requestor has significant substantive responsibilities for assuring compliance with the agency's pesticide applicator requirements. This item is one which can be impacted by agency views. In this situation, however, the Department does not favor allowance of an exception. It has expressed concern, in particular, about appearance problems if the Department, through the Plant Management Section, is called upon to adjudicate matters relating to Requestor's pesticide applicator's license.2

Requestor's private business, because it is licensed by the Department, is an entity that is within the prohibition of §3-103(a)(1)(i) of the Ethics Law. Taking into account all the circumstances of the situation, including the Department's concerns, we are unable to conclude that the situation meets the statutory exception criteria that there not be a conflict of interest or appearance of conflict. We therefore advise the Requestor that continuation of his private business as described would be in violation of §3-103(a)(1)(i) of the Ethics Law, and that the exception regulations may not be applied to overcome this bar.

Thomas D. Washburne, Chairman
    Herbert J. Belgrad
    Reverend John Wesley Holland
    Betty B. Nelson
    Barbara M. Steckel

Date: September 24, 1985

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1 A nurseryman's license issued by the Plant Protection Section (also under the Plant Industry Assistant Secretary) would be required for shrubbery installation. The Requestor indicates he has not maintained this license, since the firm has not been doing this type of work.

2 This approach is similar to Commission Opinion No. 83-31, a situation in which this Department expressed the same concerns about its licensing responsibilities vis a vis a DAGR veterinarian.