88.15

OPINION NO. 88-15

An opinion has been requested concerning whether a Natural Resources Technician in the Forest, Park and Wildlife Administration of the Department of Natural Resources (DNR) may engage in a private compensated business providing non-commercial Timber Stand Improvement services to woodland owners. Based on our understanding of the persons who would be served by this private business, and their relationship to the Employee and his duties, we advise that this activity would be prohibited by the outside employment provisions of the Public Ethics Law (Article 40A, §3-103(a)(1), Annotated Code of Maryland, the Ethics Law).

The Employee is a Natural Resources Technician IV (Forest Option) who works as a forest technician in a regional office of DNR's Forest, Park and Wildlife Administration (the Administration). This Administration is the unit in DNR directed to serve the forest management and recreational needs of the people of Maryland. In addition to its administrative section, it has programs in cooperative forestry, forest and park management, wildlife management and natural heritage protection. The Employee works in the cooperative forestry program, which deals generally with private and municipal forest land. The program is directed at improving and maintaining the economic, aesthetic, recreational, and environmental contributions of trees, forests, and forest-related resources in the State. Under it the agency provides forest management expertise to woodland owners in a variety of areas, including land management, reforestation, fire prevention and watershed management.

The Administration works with the many woodland owners that have smaller forest acreage ranging from a few acres to 50 or more, on a purely voluntary basis initiated by the owner. The land-owner may request the assistance of the agency, partly for the purpose of managing the woodland area, but more specifically because involvement in a management program can be the basis for property tax benefits. The process begins with the land-owner requesting the agency to review the property and develop a management plan. The Project Forester and a technician such as the Employee review the property and evaluate the timber. This process, which is done primarily by the technician, involves collection of field data regarding the number and species of the trees, the health of the various trees, the nature of undergrowth and other vegetation and other technical data.

The information is provided by the field technician to the Project Forester, who develops the management plan. This plan will reflect the land-owner's goals as to the land, that is, whether it is to be managed for development of commercial products, for wildlife or for aesthetic and general purposes. The plan would include a schedule for cutting trees, for cleaning underbrush, for planting, and for application of herbicides or fire retardants, as well as other management practices. The land-owner may reject or accept the plan, and acceptance can be reflected in a number of ways. The land-owner may simply accept the plan and undertake to follow its schedule. Another alternative is to become a part of the Maryland Tree Farm program, and a third option is to enter into a Forest Conservation Management Agreement with the Administration.

Whichever option is selected, compliance by the land-owner with the plan allows a reduced tax assessment that is closer to the agricultural assessment than the much higher residential or commercial property assessment level. The property is inspected, usually by the Project Forester or a technician, to determine whether the owner has complied with the stipulation that he take the actions listed in the plan according to the schedule in the plan. The inspection reports are provided to the tax office and the assessment basis can be adjusted to reflect an owner's failure to comply with the plan. Both the Employee and the Project Forester who is his supervisor indicate that the agency provides assistance to land owners in implementing the plan, but that this assistance falls short of doing any cutting or other work on the property.

The assistance provided by the Administration can involve marking the trees and preparing a Timber Stand Improvement (TSI) plan that is the basis for a particular work project to comply with a portion of a management plan. The agency may also assist the land-owner in referring or connecting him with someone who would do the work. The Project Forester indicates that the problem in this geographical area arises as to the smaller land areas that do not provide a marketable product, either because the area is too small, the wood is not good firewood, or the job to be done is removing of brush and other undergrowth. Though the agency will work with land-owners in scheduling a company to do work on a particular property when it is going to be in the area, there continues to be a problem with owners obtaining services to do the work required by the plan. Some owners may be able to find a farmer or individual to do this work, but we are advised that generally there is a greater need than there are available persons to undertake this activity.

This work is what the Employee proposes to do on his own time and for private compensation. He says he does not intend to make this a major business, or compete with private entities. He intends to provide the service as a last resort if a land-owner has no other private resource and needs work done to comply with a plan. He says he has the technical skill to do the work and would anticipate working in his own geographical area. He would have a fee per job system, based on the nature of the work and the amount of time and effort likely to be involved.

This situation presents issues under the outside employment prohibitions of §3-103(a) of the Law, particularly (subsection (a)(1)(i)),1 which bars outside employment by a State employee or official with entities that are subject to the authority of or contract with the individual's agency. Under our prior Opinions, we believe that the Employee here should be viewed as having an employment relationship directly with the land-owner to whom he would be providing the services. In our Opinion No. 80-18, for example, we concluded that the provision of personal services directly to an individual or entity could be treated as employment directly with the person or entity, even if there were an intervening consultant or other entity. Even though the land-owners' initial involvement in this program is voluntary, as to those that have adopted a plan and are relying on it for tax benefits, there would also appear to be a contractual relationship with the Administration, and there is definitely an authority relationship arising from the agency's inspection authority.

It is therefore our view that the Employee's proposed private endeavor would come within the strict prohibition of §3-103(a)(1)(i), and would be barred unless an exception is possible. This section allows for exception, consistent with Commission regulations, where there is no conflict of interest or appearance of conflict. The Commission's regulations (COMAR 19A.02.01) set out guideline criteria that are designed to evaluate the potential relationships between private and official activities, to determine whether the two are sufficiently remote that a conflict or appearance of conflict is unlikely. They include consideration of whether the individual's duties could impact on the private employer, whether the individual is in the unit of the agency that regulates or contracts with the private employer, and consideration of whether the private duties relate to fulfillment of the contract with the agency or compliance with its requirements.

In applying these criteria to the situation presented by the Employee, we find that, given the nature of his official responsibilities and relationship to these land-owners, there are potential questions under practically every one of the criteria. The Employee participates in collecting the data that is the basis of the plan, and reports to and is supervised by the Project Forester who develops the plan. He is part of the process of identifying the specific work to be done, and responsible for inspecting and reporting on the land-owner's compliance with the plan. Also, since there are only two or three forest technicians in this office, there is a real probability that he would have worked with a land-owner to whom he would be providing private services.

Moreover, we have requested the views of the DNR, and have been advised that the agency is concerned about the potential for conflict that would exist if these types of private relationships were to be established. The agency thus believes that the activity should not be allowed. Under all of these circumstances, and particularly the position taken by the DNR, we are unable to conclude that the relationships are sufficiently remote here to warrant an exception. We therefore advise the Employee that the private activity that he proposes would be prohibited by the outside employment provision in §3-103(a)(1)(i) of the Ethics Law, and that an exception cannot be applied to overcome this bar.

M. Peter Moser, Chairman
   William J. Evans
   Rev. C. Anthony Muse
   Betty B. Nelson
   Barbara M. Steckel

Date: June 28, 1988

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1 Though issues could be raised under the participation, inconsistent employment and prestige provisions of §§3-101, 3-103(a)(1)(ii) and 3-104, we do not address them here, as we believe this request is this request is resolved by §3-103(a)(1)(i).