97.09

OPINION NO. 97-09

An exception has been requested by an area coordinator in the Department of Agriculture (DAGR) to permit his entering into an agricultural land preservation easement agreement with his agency and otherwise to engage in various farming activities involving dealings with his Department. We do not believe that a regulatory exception is appropriate to permit the Requestor's participation in the land preservation or other programs based on the specific facts presented and his current duties and responsibilities.

The Department of Agriculture is organized in support of the agricultural economy in the State to help Maryland farmers produce high-quality commodities and to promote Maryland agriculture. Its goals are to eradicate disease in livestock and poultry and control pests and weeds, to protect the environment in a variety of regulatory and soil conservation activities, and to protect consumers through several inspection and grading programs. In addition to a variety of marketing and development programs managed in the Deputy Secretary's office, the agency includes four primary units. The Offices of Food Safety and Consumer Services and Plant Industries and Pest Management deal with consumer issues, animal health, weights and measures, and pest management programs. The Office of Administration oversees central and administrative services and the Maryland Agricultural Land Preservation Foundation (the Foundation).

The Requestor works as an area coordinator in the Department's Office of Resource Conservation, whose mission is to control soil erosion and agricultural nonpoint source water pollution, and which is the primary unit of the agency that interfaces with county, State and federal agencies involved in these programs. More particularly, this Office is the unit that interacts regularly with the local soil conservation districts, independent political subdivisions organized 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 governed by Boards of Supervisors appointed by local governing bodies, and are staffed by district employees as well as persons assigned from federal, State and local agencies. They are the primary governmental entities that work with farmers and others in administering the State's soil and water conservation programs and implementing the State's policies that further the control of soil erosion and agriculturally related nonpoint source water pollution. They administer grant programs and provide a variety of planning and technical assistance resources to the agricultural community.

The purpose of the Requestor's position within the Office is to serve as the regional representative of the Office in assisting and supporting local soil conservation district programs and as an advisor to the Secretary as to agricultural affairs in the Patuxent region. More particularly, his function is to supervise the selection, evaluation, and job performance of DAGR employees assigned to local district offices, to develop training programs for such employees, to oversee and coordinate use of agency equipment and resources in the districts, to assist in solving problems between the State Office and the districts, to serve as a representative in various local, district and State programs, to provide guidance in planning and implementation of Statewide programs at the local level, and to assist local supervisors and staff in resolution of problems related to program implementation, finances, personnel coordination or communication needs. His duties involve regular contacts with Soil Conservation District board members, and daily interaction with district staff and Resource Conservation Office employees in the district offices.

One of the services provided by the soil conservation districts involves development of agricultural plans. Though the district is involved in development of soil erosion plans for urban areas which are mandatory, the agricultural plans are generally voluntary. They involve conducting surveys of farm property, evaluation of soil erosion and water pollution problems and identification of practices and actions that can be adopted to avoid these problems. The result is an agreement between the District Supervisor and the landowner in which the landowner agrees to carry out the plan as rapidly as possible based on his resources and any assistance from the district, and agrees to maintain any conservation measures put into effect as a result of the agreement. The district agrees to provide assistance in establishing the conservation measures, again in accordance with its resources. Conservation measures may be put in place by the landowner at his own expense or may be funded in part through the Agricultural Cost Share program. The Requestor indicates that his official duties do not involve him in development of agricultural plans initially or in any processing of cost share applications, though he may be involved in working with the district staff if there is a problem and he is consulted about how to resolve it. He may also work with district staff in doing spot checks of projects to ensure that practices and projects continue to be maintained.

The Agricultural Land Preservation program was established in 1977, with the general purpose of preserving agricultural land and woodland in the State. It involves the purchase by the State of an easement on property that in effect reimburses a landowner for the difference between the value of land sold for commercial or development purposes and the value of the land if it is retained as agricultural. In return the landowner agrees to maintain the land as agricultural, without commercial or substantial residential development. The process involves originally the designation of land as an agricultural district based on review by local authorities and approval by the Foundation. Easements on land in a district may then be offered to the Foundation. The county reviews any applicants and makes recommendations to the Foundation, which orders appraisals of property and ranks properties by county. Offers may then be made in accordance with a formula and the owner may accept or reject an offer. If an easement is sold, then the landowner is subject to significant constraints on use and development of the property, and an easement is recorded on the deed which transfers the obligations with the property. The landowner is subject to continuing obligations to use the property only in accordance with the terms of the easement sale. Certain residential development for family members is permitted and there are provisions for terminating an easement.

The Requestor is a resident and farmer in a Southern Maryland county, and has been involved in many public and private programs relating to farming in the area. He currently has over 360 acres in two farmland parcels, about 300 of which is actually being farmed. One of the parcels is a home farm originally purchased by his parents and which includes residences for him and his parents. He indicates that he has never been involved in the cost share program. His land has been in a land preservation district since 1978, long before his affiliation with the State. His property has in the past been approved by the County for the land preservation program, and may therefore be offered directly to the State; he has twice in the past petitioned to sell development rights under the agricultural land preservation program. As noted above, agricultural plans are not mandatory for owners of farmland as a general matter. The land preservation program, however, requires as a condition for consideration that land offered for easement sale be the subject of an approved agricultural planning agreement. The Requestor thus indicates that these two parcels have both been the subject of an agricultural plan developed by the district supervisor in accordance with usual procedure several years ago when he originally offered easements on the properties to the Foundation. (Note that those transactions did not occur because the Requestor believed that the funding offered was insufficient.) These agreements/plans were updated, as recently as April 30 this year, in anticipation of his submitting an easement offer this year.

The Requestor and the agency indicate that he does not have any dealings or relationships with the agency personnel involved in the land preservation program, and point out that his inclusion in the district, approval by the County, and original plans were all generated prior to his State employment. He also indicates that he has other dealings with the Department as a private farmer that do not entail relationships with agency units that he works with in his official duties. These include that he has a private applicators license under the pesticide program (which is part of the Office of Plant Industries and Pest Management). He also submits his seed to the Seed and Turf unit in Plant Industries and Pest Management. Under this program his fields are inspected and seed evaluated for purity and certified. This enables sale of the seed for planting and also may result in an increase in the sale value of the resulting crop.

This request presents issues under the employment and exception provisions of §15-502 of the Ethics Law (State Government Article, §15-502, Annotated Code of Maryland). This section bars an official or employee from having any employment or financial interest relationship with an entity that contracts with or is subject to the authority of his agency (subsection (b)(1)), or from having any other employment relationship that would impair his impartiality or independence of judgment. The Requestor is a farmer with some direct relationships with his agency, particularly in the pesticide licensing area and the turf and seed certification program. He has an agricultural plan/agreement with a local soil conservation district which, though it is an independent agency, is a entity that includes employees of his agency and with which he and his agency interact on a regular and significant basis. Also, he proposes to enter into a preservation easement agreement that defines continuing conditions and constraints on his activities and use of his land. This agreement entails a continuing obligation to the Foundation, which monitors and inspects properties subject to easement and has in the past taken action to enforce the terms of an agreement where commercial activity was undertaken on land subject to an easement agreement.

Based on our many prior opinions regarding the definition of business entity and interpretation of the employment and interest provisions of §15-502, we believe that the Requestor's farming activity entails affiliation with an entity with which he has an interest and employment relationship, and these activities result in relationships that bring him within the strict prohibition of §15-502(b)(1).1 Exception is permitted under §15-502(c) of the Ethics Law, pursuant to Commission regulations designed to consider whether a particular situation presents relationships that are so substantially remote that the statutory criteria that there be no conflict or appearance of conflict are met. The regulatory criteria include, for example, consideration of any relationships between the individual's particular duties and the private activity, as well as evaluation of the nature of the private activities and whether they involve interaction or dealings with the agency. In this situation, though the Requestor does not deal directly with the Land Preservation Program, his easement offer necessarily includes actions to update his agricultural plan. This in turn involved his direct negotiation and execution of an agricultural plan agreement with the local District Supervisor, a person with whom he works on a regular basis in carrying out his official duties. Under these circumstances we do not believe that allowance of a regulatory exception is appropriate in this situation, and therefore decline to grant the requested exception.

We have also considered the general circumstances of this situation and the Requestor's ongoing interactions with his agency in the context of his private business, particularly in view of our prior Opinion No. 90-3. This opinion dealt with similar issues to those presented here, and reflects the Commission's consideration of general concerns presented by the Department as to its interest in recruiting active farmers to work in the agency. Though it acknowledged that being a farmer necessarily brings an individual within the Department's jurisdiction for a variety of purposes, the Department expressed the view, which it reiterated here, that it should be able to recruit farmers to the agency in some circumstances, and that service by these individuals in the Department should not result in their exclusion from generally available public programs designed to improve the quality of farming and the environment. The Commission's response in Opinion No. 90-3 was to acknowledge that the Ethics Law "need not be read to flatly prohibit employees of the Department of Agriculture from being family farmers."

We noted, however, that constraints needed to be applied to ensure sufficient remoteness to meet the statutory exception criteria. Particularly, the Opinion advised 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 ... 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 agency personnel involved are their close colleagues.

The Department in the context of reviewing Opinion No. 90-3 stated that it had established monitoring programs to avoid abuse, and handled duty assignments to limit the potential for conflict. We are concerned in view of the information presented in the review of this request about the status of the monitoring program, and its effectiveness in apprising the Department's farmer employees such as the Requestor of the requirements and potential limitations of the Ethics Law. Here, the Requestor was not advised as to these issues, no exception was requested by the Department, and apparently no ethics guidelines were provided in the situation that generated this request. We therefore advise in view of the overall circumstances here, that both the basic farming conflict and the land preservation request will only be considered for approval in whole or in part if an exemption is requested by the Governor pursuant to §15-502(d) of the Law.

Michael L. May, Chairman,
    Mark C. Medairy, Jr.,
    Charles O. Monk, II
    Robert J. Romadka,
    April E. Sepulveda

Date: July 15, 1997

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1 Even assuming that his agricultural plan agreement is with the soil conservation district and not his agency, it would nevertheless come within the Commission's interpretation of the impairment provision, since it entails his direct interaction with the district and its staff, with whom he works directly in his official capacity.