93.03

OPINION NO. 93-3

An opinion has been requested as to whether an employee in the Department of Natural Resources' (DNR) Tidewater Administration may participate as a grantee in the Green Shores Program of the Department's Forest and Parks Administration. We advise that DNR employees who are not directly involved in implementation of this program may participate in it, provided their participation is limited to payment for expenses of the activity, rather than incentive payment that is part of the general public program.

This request arises from review of a grant application submitted under the Green Shores Program in DNR's Forest and Parks Division from a DNR employee (the Employee) who works in the Fisheries Division of the Department's Tidewater Administration. The purpose of the Green Shores Program (Natural Resources Article, §5-429) is to encourage planting and maintenance of forested buffers around the Chesapeake Bay and its tributaries. The $500 per acre funding currently available to private landowners meeting the acreage and location criteria exceeds the actual cost of the planting, allowing an incentive/profit to the participant. Though in the past there has been sufficient funding for all eligible applicants, given recent budget cutbacks and an increase in the per acre payment, it is anticipated in the future to become a competitive program. A landowner receiving funding agrees to do the planting and maintain the trees for at least 10 years, and to allow representatives of the Division to inspect for compliance with the plan during this period. Failure to comply at any time during the period can result in action by the Division to require reforestation or for repayment of grant funds to the State.

This request involves a proposal by the Employee to plant a pine tree buffer on 9.5 acres of family-owned property in Somerset County. The property consists of three small fields that have in the past been farmed, and are currently unimproved. One 4-acre portion has most recently been planted in soy beans by a local farmer. This grant request grew out of discussions with the local forester as to plans to do something with the land after the farming was discontinued. The Employee works in the Fisheries Division of the Tidewater Administration as an Industrial Development Officer II. He works in the shellfish program at the Administration's Deal Island facility, performing a field operations function in the development of the oyster industry in Maryland, while ensuring proper utilization of the resource. His duties generally involve conducting surveys of the shellfish population, moving seed oysters to better growing areas, planting or supervising the planting of oysters, participating in the assessment of the Bay bottom to locate planting sites for seed oysters and shells, and generally managing the field operation at the Deal Island facility. According to the Employee's supervisor, these primarily operational activities entail only peripheral dealings with other units of the Department.

This request presents a general issue that has been considered by the Commission in the past in a variety of contexts, the question of the extent to which State employees may participate in programs of their agencies that are directed to the general public. (See, for example, Opinions No. 81-24, No. 82-27, No. 83-27, No. 84-27, No. 87-18, No. 90-3, and No. 91-11.) Though these opinions do not suggest a broad approach to the allowance of exceptions in these types of situations, they do reflect a recognition by the Commission that State employees may participate in public programs of their agencies, at least in some settings and circumstances, where the facts show that the relationship between the private activities and the agency duties is sufficiently remote that the possibility of a conflict or appearance of conflict is unlikely. We have been particularly persuaded where situations involved environmental programs intended to benefit the State generally. These opinions have, however, defined some constraints as to these activities, especially where they involve benefits for commercial or business activities, and have barred such participation where the employee either worked directly in the State program or had any significant dealings with managers of the program.

This particular situation involves the ability of a DNR employee who (with his spouse) is a landowner, to participate in a program available to landowners and designed to encourage landowners to engage in certain activities designed to benefit the State and its natural resources. The Department in this case indicates that it supports allowance of this activity as it is anxious to recruit any eligible citizens into these programs, including its own employees. The program, however, involves an economic and a regulatory relationship with the State; there is funding available, a grant agreement to be signed, and agency monitoring and inspection authority over a period of 10 years. The Employee would be dealing directly with his agency in the application and review process and would also have to meet agency requirements for a substantial period of time or face possible return of the funding. The situation thus presents potential issues under §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law), and possible issues under the prestige provision of §3-104.

Section 3-103(a) of the Law, in particular, prohibits an employee from being employed by or having an interest in an entity that is subject to his authority or that of his agency or has contractual dealings with his agency. Given the structure of the Green Shores Program and the Employee's role as a grantee, this section would appear to apply to bar his participation. We believe, however, that participation in the program can be allowed for this Employee, with some constraints, without presenting a conflict of interest or appearance of conflict. These constraints reflect, in part, our previous advice barring persons involved in managing a program from participating in its benefits. We note that in this situation the Employee works in a different administration on a program that seems to be substantively separated from the Forestry Administration's activities. Thus, not only is the Employee not directly involved in the Green Shores Program, he functions in a strictly operational position and seems not to have any occasion to interact officially with persons who do manage the Green Shores or other forestry programs.

Also, to ensure against conflict or the appearance of conflict, this situation requires some additional limitations, particularly in view of the fact that the program is expected in the future to have limited funds, leading to denial of some requests, and that the $500 per acre payment provided in the program exceeds the per acre cost of the program to the landowner. While we recognize the agency's interest in recruiting participants (including its employees) for involvement in natural resources preservation programs, we believe that limiting the benefit to its employees to the cost of the activity will avoid the potential for actual abuse as well as the appearance of conflict. Thus, taking into account the agency program and the Employee's assignment in a completely different unit, we therefore advise the Employee and the Department that his participation in the Green Shores Program would be permitted under the Ethics Law, so long as payments under the program reflect the cost of the activity and do not include incentive/profit payments. We understand that the Department agrees with this approach and is taking steps to implement it.

William J. Evans, Chairman
    Shirley P. Hill
    Mark C. Medairy, Jr.
    Robert C. Rice, Ph.D.
   Mary M. Thompson

Date: January 12, 1993