90.03

OPINION NO. 90-3

An Opinion has been requested as to whether a Department of Agriculture (DAGR) employee in a County Soil Conservation Office may participate in agency programs, such as the agricultural land preservation program or the drainage cost share program, as a private farm owner in the County. We advise that this individual's activities are not flatly barred by the Ethics Law, and further, that certain activities are allowable and others barred, based on the particular factual situation as is set forth below.

This Requestor works as a Soil Conservation Engineering Technician in the Department of Agriculture, in the Agricultural Water Management unit of the Program Planning and Development Division. This unit is within the Office of Resource Conservation, headed by a DAGR Assistant Secretary. In addition to the Program Planning and Development Division, this Assistant Secretary is also responsible for a Conservation Grants Division and an Operations Division that includes three area coordinators who are responsible for administrative supervision of DAGR employees throughout the State.

The Requestor is assigned to work in a local Soil Conservation District Office. The soil conservation districts were established as independent political subdivisions in the 1930's to provide assistance and advice to localities and landowners in the areas of soil conservation, water conservation and protection, and related natural resources issues. The districts are fiscally and administratively independent, but they have cooperating relationships with other governmental entities that contribute both funding and staff resources. The Requestor is a State employee administratively and substantively accountable to DAGR headquarters program offices. His primary duty is to manage the watershed drainage program in his own and two neighboring counties. Under this program local governing bodies may charter drainage associations composed of local contiguous property owners, whose purpose is to design, construct and maintain projects for the drainage of agricultural land. There are 69 drainage associations within Requestor's geographical area of coverage. All of them have already constructed drainage ditches and other necessary capital improvements and are therefore currently in the position of maintaining the system.

The State of Maryland has a cost share program under which State funds are available to drainage associations for carrying out their activities. Funds may also be provided by the county, with the remainder supplied by assessments on the landowners. The assessments on landowners thus depend upon how much is available from the other sources, and are determined based on a formula that reflects the extent of the landowner's investment in the association territory. About 80 percent of the associations participate in this program, which involves the distribution of funds in accordance with an established formula, based on the proportionate number of miles of drainage of a particular association vis-a-vis the rest of the county (each county starts out with a defined allotment). The Requestor administers this program, and, as the person in his office responsible for the drainage program, is also the person responsible for working with the associations as to general management of the program. All associations (including those that are not funded) are required to operate and maintain their programs consistent with statutory criteria. He is responsible for monitoring this activity. He works with Boards of Managers of associations in developing operation and maintenance plans, and provides technical advice.

The Requestor's duties are, as a general matter, limited solely to his work with the drainage program. He does not have any responsibility for activities relating to the agricultural land preservation program, which are handled by local agricultural preservation boards and by the Trustees for the Agricultural Land Preservation Foundation in DAGR headquarters, under a different Assistant Secretary. He also does not work in an official or significant way with the water quality cost share program. This is a water pollution control program that is managed by the Conservation Grants Division of the Water Resources Office. These grants are approved at DAGR headquarters based on local input, which includes survey and other technical work performed by DAGR employees assigned to the local Soil Conservation District office. The Requestor indicates that he may assist a water quality survey team if they are short, and persons assigned to that program may assist him.

The question here arises from the fact that the Requestor is a farmer in the County where he works. He is the co-owner with his mother of a 160-acre family farm that has been owned by his family since around the time of the Civil War. He indicates that the farm is currently an active farm that is actually tilled on his behalf by another farmer in the area, under a contract under which he and his mother are guaranteed a certain established income. The farm is in a drainage association, to which he pays the required annual tax levy. His most recent assessment was $26.82. The Requestor indicates that this association does receive cost share funds and that he works directly with it and its Board of Managers in the course of his duties. He advises, however, that his private involvement with the association is limited. He has not had any projects constructed or maintenance required on his property. He indicates that the drainage from his property goes into the stream at point beyond where the public drainage association ends.

The Requestor's family farm includes 133 acres that have been established as an agricultural land preservation district. Under this program one or more landowners holding 100 or more contiguous acres of farmland may apply to establish a preservation district, the purpose of which is to create a mechanism for preserving farmland from development. A preservation district is established first by review at the local level and with approval by the State Agricultural Land Preservation Foundation Board of Trustees. An owner of land within a district undertakes not to transfer the property for development for a certain period, and becomes eligible to offer to sell an easement on the property to the State. The Requestor indicates that he has considered and would like to offer an easement on his property to the State under this program. Currently the Requestor indicates that he does not have any dealings with regard to this property with DAGR, except the drainage association affiliation and the potential for an agricultural land preservation easement. He advises that he has in the past participated in the water quality cost share program, with two projects involving water quality control structures. These projects involved grants of $400 each and are both completed.

This request raises issues under several provisions of the Public Ethics Law (Article 40A, Annotated Code of Maryland, the Ethics Law), both as to the specifics of this situation and as to the general issue that it presents. The Requestor has a private economic interest and possibly an employment relationship with a family farm property that actively functions as a farm and from which he derives a regular income. Though the activities of the DAGR may not be as widespread and pervasive as some departments, it is unlikely that a person would be a farmer and not interact in a variety of ways with the Department. These interactions could result in the kinds of regulatory or contractual relationships addressed by the employment and interest provisions of §3-103(a) of the Ethics Law, which prohibits an employee from being employed by or having an interest in an entity that is regulated by or contracts with his agency.

The Department, recognizing that issues could arise under the Ethics Law, nevertheless maintains its interest in being able to recruit employees from the farming community, and states further that persons in this community should not by virtue of their employment be automatically excluded from participation in programs that are available to all and that are generally designed to improve the quality of the farming activity and its impact on the environment. The Department indicates that it has established monitoring mechanisms to avoid abuse of the system. It has provided guidance and ethics information to local units, and has handled duty assignments to avoid improper involvement with an employee's own private activity. It believes that many issues can be administratively handled.

In evaluating this situation we also conclude that the Ethics Law need not be read to flatly prohibit employees of the Department of Agriculture from being family farmers. Moreover, we have in the past generally said that the Law does not always bar employees from participating in programs that are intended to be available to the public.1 (See, for example, Opinion No. 83-27.) We believe, rather, that the Law should be applied to each particular situation with constraints applied to ensure that the relationships between the person's official duties and private activity are sufficiently remote to meet the statutory exception criteria that there not be a conflict of interest or appearance of conflict.

It should be noted, however, that there are sound policy reasons for trying to avoid having grantees and regulatees on agency payrolls, and as a general matter these relationships should be avoided. Where the relationship is like this one and is permitted, there is a need to carefully structure and monitor the situation to avoid the appearance of conflict or potential abuse. For example, employees should not be assigned duties that result in their participation in matters that impact on their private farming activities. They should as a general matter avoid participation in programs where the agency personnel involved are their close colleagues. They should also be aware that further Commission review may be necessary where the particular circumstances present possible issues under the exception criteria.

Applying these principles to this particular situation, we advise that the Requestor's family farming activity, although a special type of activity, is a business undertaking that would be subject to the employment and interest prohibitions of §3-103(a) of the Ethics Law. We believe, however, that the Law does not forbid his very limited activity with the agency, though some constraints apply. In our view, for example, the Requestor's duties should be adjusted to ensure that some other employee handles any drainage association activities involving his particular association. As to the grants and other areas of agency program participation, we advise that the Requestor should seek further review if he decides to pursue these activities. Further review would also be necessary if the activity were to become involved in issues relating to Department's authority or the Requestor's unit.

We also believe, however, in view of his duties and the nature of the land preservation program, that Requestor's participation in that program would not be barred by his employment relationship with the Department, as long as he continues to be in a unit different from the one that handles the preservation program. Requestor should also be aware, of course, of the continuing application of the prestige and information provisions of §§3-104 and 3-107 of the Law, and be careful not to involve himself in any activities that could be viewed as involving the use of his position or confidential information obtained in his position to advance his own farming interests or those of private colleagues.

William J. Evans, Chairman
   Rev. C. Anthony Muse
   Robert C. Rice, Ph.D.
   Barbara M. Steckel

Date: February 21, 1990

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1 Additionally, recognizing the peculiar needs of the Department to attract an executive, the Commission at the Governor's request in 1984 allowed an exception so that a farmer could serve as Secretary of Agriculture.