You asked why foresters employed by the Department of Environmental Protection (DEP) cannot work on private forest land on their own time, even if they are not paid for their work.

SUMMARY

According to State Forester Don Smith, foresters employed by the state or a municipality may work either for pay or for free on private land provided they are certified to do so under state law, and are complying with state ethics laws and a DEP directive concerning outside consulting work. He states that DEP bars foresters holding a certification for government work from using it to work on private land (1) because the department interprets its certification process to restrict the work of governmental foresters only to those lands owned and managed by their government employer, and (2) to prevent the appearance or possibility of a conflict of interest for state employees working for, or selling forest products to, people or companies whom DEP regulates.

FORESTER CERTIFICATION

The Forest Practices Act (CGS § 23-65f et seq. ) requires people who advertise, solicit, contract or engage in commercial forest practices to obtain DEP certification. The act exempts state and municipal foresters from payment of the application fee, but voids their certification when they leave government employment (CGS § 23-65h(c) (7)). According to Smith, DEP interprets this provision to create separate certifications for government and private foresters. He says DEP foresters who possess a government certification may use it to work only on state land.

Smith says DEP foresters can pay the application fee to obtain a non-government certification, as private-sector foresters do. He says several DEP foresters have done so to avoid having to re-take the comprehensive certification exam should they leave state employment. Smith says DEP policy (see below) requires its foresters to check with the department before working on private land. Smith says such foresters who have obtained a non-government certification may be allowed to work on private forest land, provided they can show that such work will not violate applicable state ethics provisions and a department directive on outside consulting work.

DEP Directive

A December 1998 DEP directive (attached) prohibits department employees from performing “any consulting work or other activity outside the department if such work or activity in any way relates to or affects, or might relate to or affect, the department's work or interests. This means that an employee may not accept employment with a person who will or might benefit from present or future official actions of the employee or the department. ” The directive goes on to state an employee can still use his expertise for personal financial gain as long “as there would be no potential for actual or apparent conflict of interest. ”

Under the directive, employees must obtain DEP's written approval before performing compensated work that may pose a conflict of interest. The employee must submit a written description of the proposed work and an analysis of any potential for actual or apparent conflict with DEP's interests. The directive also recommends that the employee clear the employment with the State Ethics Commission (since renamed the Office of State Ethics).

The directive does not specifically address volunteer work. Smith says no certification of any kind may be necessary if a forester works for free on private forest land and his work does not generate commercial forest products under state law (CGS § 23-65f (2)). But he said a DEP forester seeking to perform such work must still first clear it with the department.

According to Smith, certified foresters are generally employed by a landowner to manage forests on behalf of the landowner. Foresters are directly involved in selecting and marking trees for sale and harvest, offering them for sale, and drafting written sales agreements. The forester inspects the harvest as it is conducted to ensure the sales agreement is being honored. This work requires the forester to work with, receive payment from, and judge the work of forest practitioners and businesses that DEP regulates.

PF: dw