00.05

OPINION NO. 00-05

An advisory opinion has been requested by a forester in DNR's Forest Service (the Requestor) regarding proposed service as a member of a local planning and zoning commission, an entity that has duties relating to site plan approval and forestry management activities. We advise, given the nature of the interaction between the forester's agency and the local planning commission, that this affiliation is barred by the employment provisions of the Public Ethics Law.

The Forest Service is within the Forest, Wildlife and Heritage Service of the Department of Natural Resources under the Assistant Secretary for Resource Management. It is charged with the duty of assisting private landowners and municipal and county governments in managing their forests and trees. Its programs include cooperative forest management; urban and community forestry; use, planning and protection of forests as a resource; and all matters relating to forestry in the critical areas surrounding the Chesapeake Bay. The Service's activities include a substantial forest stewardship program designed to improve the management of private forest lands in the State. This general program includes a number of programs directed at private landowners, including the Forest Conservation and Management Program, the Forest Legacy Program, the Forest Stewardship Program, cost share assistance programs, the Maryland Tree Farm Program, the Income Tax Modification Program, the Stewardship Incentive Program, the Woodland Incentive Program, and State collaboration in several federal and industry cost-share programs.

Another major aspect of the Forest Service activities occurs under the Forest Conservation Act (Natural Resources Article, Subtitle 16, Annotated Code of Maryland). This Law generally requires any landowner who develops property involving impact or clearing of more that 40,000 square feet of land to provide for conservation of trees and forests or for mitigation of damage to trees and forests. The requirements apply to any public or private subdivision plan or application for grading or sediment control, providing that a forest stand delineation and a forest management plan to be submitted with any covered land use application. Consideration and approval of these plans tends to be handled by local planning approval agencies, as the Forest Conservation Act mandates development by local jurisdictions of local forest conservation programs consistent with the requirements of the title, and submission of the programs for review and approval by the Department. If a local jurisdiction does not submit a program then the Department assumes the responsibility for review and approval of site plans within the county. The Act further provides for biennial review of the operation of programs and for actions to be taken by the State agency to assume review and approval authority if ongoing local programs are found to be deficient.

According to Forestry Service Regional Office staff, the Requestor's County has an approved forest conservation program. This means that the County planning and zoning office has the responsibility to review development site plans, work with developers, and make certain that development projects have forest stand delineation plans and forest management plans that meet the conservation and mitigation requirements of the Act. This is done in connection with the County's general planning and zoning review process. Site plans that have been reviewed for relevant requirements, including forestry conservation requirements, are presented to the County Planning and Zoning Commission, which has final approval authority. Forestry Service Regional Office staff work with the County planning office on a regular basis providing guidance and direction and assistance in resolution of particular issues, and also conduct biennial reviews of the County's program, reviewing the documentation of particular projects to ensure that the actual project meets requirements and was carried out as approved.

The Requestor does not at this time work in the Forest Conservation Act program. This work is handled by a staff person in the Regional Office. The Requestor works in a Project Office elsewhere in the County and the primary focus of his duties is in the forest stewardship programs relating to forest management activities of private landowners. He says that private landowners are not required to come to the agency for assistance. Owners of 5 or more acres of forest land, however, are required to have a forest management plan in order to retain certain tax benefits for qualification for the agriculture property tax rate, and many do work with the agency to develop these plans. According to the Requestor's position description, his two primary duties are to meet with forest landowners to help develop and implement forest management plans, and to develop and implement forestation plans on public and private lands for conservation purposes, including locating contractors to complete the planting project. The Requestor's duties also include providing technical assistance in preparing applications to various State and federal cost share programs, recommending applications for approval, and following up on the work to ensure it is done. He is the individual who certifies that the work is done in compliance with the plan and the cost share award, thus authorizing payment.

According to the Requestor, he has served as part of his official duties as a member of the local forestry board. Recently he was recruited by a local official for appointment to a position on the County's Planning and Zoning Commission that has been informally identified for a forestry expert. He was apparently recruited particularly for his forestry skills and expertise. The Department of Natural Resources, however, does not view this service as in furtherance of his official duties, and we have been advised by the Director of the Forest Service and by the Deputy Secretary that the agency does not believe that his service on the local commission is appropriate in view of the programs involved.

This situation presents issues under the employment provisions of §15-502 of the Ethics Law (State Government Article, §15-502, Annotated Code of Maryland). This section prohibits employees in State agencies from being employed by or having a financial interest in an entity that contracts with or is subject to their authority or that of their agency (subsection (b)(1)), and from having any other employment that would impair their impartiality or independence of judgment (subsection (b)(2)). The Ethics Commission has consistently advised in the past that service on an operational or management board constitutes an employment relationship even if not compen-sated. Also, though service with another State agency is not viewed as within the strict prohibition of subsection (b)(1), advice has been consistently provided that affiliation with a local government is employment that can be covered by the strict employment prohibition if there are regulatory or contractual relationships between the individual's State agency and the local jurisdiction. (See, for example, recent Opinion No. 00-3, published at 27:9 Md. R. 913, May 5, 2000.) The Commission has also been concerned in these types of situations where there are subject matter and personnel interactions that suggest impairment concerns under subsection (b)(2) of the Law.

We understand that the Requestor's specific current duties tend not to relate significantly to the implementation of the Forest Conservation Act, and that he tends not with his present assignment to deal with landowners involved in development projects likely to be before the Planning and Zoning Commission. He also maintains that the primary work in development projects being considered for site plan compliance with the Act is considered substantively and operationally by the planning office staff and goes to the Planning and Zoning Commission itself only after a recommendation for approval is developed by the staff. The Requestor's regional supervisors, however, indicate that though his duties may have another focus at this time, they could be changed to include more functional responsibility for the agency's forest conservation activities. Also, Department of Natural Resources agency managers have expressed concerns with the concept of his serving in a non-State capacity on a local board that has responsibilities under an agency program.

More importantly for Ethics Law purposes, the Requestor proposes to serve on a local board whose activities are within the regulatory authority of his agency and also that is the final decision making authority as to matters that are part of the ongoing programs of his agency and agency unit. He would not be functioning in this role as part of his agency duties, but is being recruited for his expertise as a forester, which involves him with County property owners on a regular basis, possibly on issues where his agency may have definite views. Under these circumstances, and given the regulatory and authority relationships between the Department and the County as to the forest conservation program, we must conclude that the Requestor's service as a member of his County's Planning and Zoning Commission would be employment within the strict prohibition of §15-502 of the Ethics Law, and is barred unless an exception is allowed.

The exception provision in §15-502 requires a finding by the Commission that there is no conflict of interest or appearance of conflict. We have allowed exceptions only where we have been persuaded that the two affiliations were sufficiently remote that a conflict or appearance is unlikely. Given that the Requestor would be a decision maker as to matters subject to his agency review, and matters where his agency may have had a role, we are unable to make this finding in the circumstances here. Also, exception under this provision of the Law involves consideration of an employee's agency views, and in this situation the agency management has expressed concerns about this relationship. Moreover, we are disinclined to allow exceptions where local jurisdictions are using State employees independently from their agency to implement programs subject to the State agency's legal requirements.

We therefore advise the Requestor and this agency that his service as proposed on the local planning commission charged with duties relating to this program is prohibited by the Ethics Law and that an exception may not be applied to allow this service.

Charles O. Monk, II, Chair
    Dorothy R. Fait
    D. Bruce Poole
   April E. Sepulveda

Date: July 20, 2000