Wes Musgrove
Director, Systems Operations Division
800 Lincoln Way
Ames, Iowa 50010
Mr. Musgrove,
The Iowa Ethics and Campaign Disclosure Board issues this Advisory Opinion pursuant to Iowa Code § 68B.32A(12) and Iowa Administrative Code rule 351-1.2(1). This opinion offers guidance on potential Chapter 68B conflicts arising from the development and sale of a mobile phone application owned by an administrative employee with the Iowa Department of Transportation. Guidance offered in this advisory opinion relies on information provided by the Department.
We note at the outset that the Board’s jurisdiction is limited to the application of Iowa Code chapters 68A, 68B, and rules in Iowa Administrative Code chapter 351. Other state and federal regulations outside the Board’s statutory jurisdiction may apply, but are not considered here. Advice in a Board advisory opinion, if followed, constitutes a defense of a subsequent complaint based on the same facts and circumstances.
BACKGROUND
This advisory opinion is issued in response to an inquiry from the Department of Transportation, concerning a mobile application developed by Matthew Miller, a state employee currently serving as the Director of New and Emerging Transportation Technologies within the Department’s Systems Operations Division. Mr. Miller is seeking approval to market his app commercially through a limited liability company he founded as a private venture.
According to the materials submitted with this request, the app in question is a stand-alone commercial software tool for “digital documentation of traffic control operations,” including work zone documentation, compliance tracking, automated safety alerts, and other features relevant to government bodies and private entities involved in traffic control. The app would be accessible to consumers through a monthly subscription, with different payment schedules depending on whether the user is a public or private entity. State and local agencies will be able to access certain features at no cost, with additional “premium” features available at higher tiers. Non-government contractors would pay a flat subscription fee.
Mr. Miller states the software was developed independently with the assistance of artificial intelligence tools, which Mr. Miller accessed solely through personal accounts. He also states the initially tried to pursue a similar project internally, as part of his role with the Department, and only began development of the app as a personal project after the agency declined. Mr. Miller affirms no state resources were used at any point in the app’s creation.
In his capacity as Director of New and Emerging Transportation Technologies, Mr. Miller is “responsible for strategic long-range integration, coordination, financing, and technical support for the implementation of new transportation-related technologies, both in Iowa and nationally through initiatives he either leads or is participating in at the national level.” His regular duties include advising departmental leadership and representing the Iowa Department to various interstate working groups and national bodies.
In an effort to avoid potential conflict issues, Mr. Miller has agreed not to sell his product to any Iowa-regulated entities, including a full restriction on sales to entities with current contested proceedings before the Department and a special disclosure process for sales to consulting firms actively contracting with the Department.
QUESTION POSED
What limitations apply under Chapter 68B when marketing an independently-developed mobile app for traffic control operations by a Department employee?
OPINION
Iowa Code § 68B.2A(1)(a) – Misuse of Government Resources or Office
Iowa Code § 68B.2A identifies three categories of outside employment or activities which may create conflicts of interest. All three categories are potentially relevant to this situation.
The first, Iowa Code § 68B.2A(1)(a), restricts outside employment and activities involving the use of state “time, facilities, equipment, and supplies” or any “badge, uniform, business card, or other evidences of office or employment,” where such use gives a state official or employee or a member of their immediate family “an advantage or pecuniary benefit that is not available to other similarly situated members or classes of members of the general public.” There is no de minimis threshold, meaning a conflict will exist so long the use of government resources creates any “advantage or pecuniary benefit,” even if the use does not result in an ongoing relationship (e.g. a conflict would exist if a state employee used licensed software paid for by their employer to create flyers to promote their private business).
In his request for consent letter submitted to the Department of Transportation, Mr. Miller reports the app was developed independently on his personal accounts. Mr. Miller asserts he did not use Department resources or nonpublic information in building the app, and he only began development on the app after exhausting potential routes to develop a comparable app internally.
Iowa Code § 68B.2A(1)(a) will apply to activities managing and promoting the app as his private business venture. Most notably, Mr. Miller’s role as the Director of New and Emerging Transportation Technologies involves coordination with the Federal Highway Authority (FHWA), the American Association of State Highway and Transportation Officials (AASHTO), and the leadership of other state transportation departments. Because these connections are based on his official duties, Iowa Code § 68B.2A(1)(a) would clearly prohibit Mr. Miller from using the various meetings and conferences he attends as a representative of the state as networking opportunities to solicit subscribers to his app. (1)
Iowa Code § 68B.2A(1)(b) – Compensation for Regular Duties & Work Hours
The second conflicts rule, Iowa Code § 68B.2A(1)(b), bars state officials and employees from accepting money or other consideration from third parties for “the performance of any act that the person would be required or expected to perform as a part of the person’s regular duties” or “during the hours during which the person performs service or work for the state.”
There are no obvious concerns under the first half of this subsection, as the app in question was created as a personal business venture, and any actions taken to promote or maintain the app would presumably be entirely outside the scope of Mr. Miller’s “regular duties” as a state employee.
With respect to the second restriction, this opinion acknowledges that Mr. Miller’s only source of revenue from the app would come from periodic subscription fees, meaning he technically would never receive immediate payment from outside sources for developing new features, contacting potential customers, or offering customer service. Nevertheless, the Board understands Iowa Code § 68B.2A(1)(b) to include these types of acts, so long as there is a direct relationship between acts done in relation to the outside employment or activities and the “receipt of, promise of, or acceptance of money or other consideration” from outside sources. (2) For this reason, this subsection would prohibit Mr. Miller from working on the app (developing new features, providing customer service, advertising to potential users, etc.) during his contracted hours with the Department.
Iowa Code § 68B.2A(1)(c) – Conflicts Arising from Control or Oversight Authority
The third and final type of conflict, described by Iowa Code § 68B.2A(1)(c), applies where outside employment and activities become “subject to the official control, inspection, review, audit, or enforcement authority of the person, during the performance of the person’s duties of office or employment.” Unlike the other two subsections, which describe strict conflicts, an official or employee with a conflict under this subsection may avoid a violation if they “[p]ublicly disclose the existence of the conflict and refrain from taking any official action or performing any official duty that would detrimentally affect or create a benefit for the outside employment or activities.” Iowa Code § 68B.2A(2)(b). For the purposes of this section, official actions and duties include but are not limited to “participating in any vote, taking affirmative action to influence any vote, granting any license or permit, determining the facts or law in a contested case or rulemaking proceeding, conducting any inspection, or providing any other official service or thing that is not available generally to members of the public in order to further the interests of the outside employment or activity.” Id.
In applying this rule, a key consideration is whether the outside employment or activity itself would actually be subject to the individual’s “official control, inspection, review, audit, or enforcement authority,” which requires more than the mere possibility that the individual might indirectly benefit in some way. As applied, this restriction would require recusal if the Department were ever considering some sort of contract with Mr. Miller’s company, or if the app were to become the subject of an official Department investigation.
Iowa Code § 68B.4 – Sales or Leases by Regulatory Agency Personnel
The other applicable section is Iowa Code § 68B.4, which restricts officials and employees of state regulatory agencies from selling or leasing any “goods, real estate, or services to individuals, associations, or corporations subject to the regulatory authority of the agency,” except where four required conditions are met, including affirmative consent to the sale from the agency involved. Iowa Code § 68B.2(23) names the Iowa Department of Transportation as a regulatory agency, meaning that Mr. Miller is one of the state officials or employees subject to this section.
The phrase “subject to the regulatory authority of the agency” has historically been interpreted broadly, to include the authority of the entire “regulatory agency” in question (rather than being limited to only the employee or official’s own subunit) and any sale or lease to covered buyers or lessees, regardless of whether the transaction itself relates to the scope of authority. (4) In this case, Iowa Code § 68B.4 would extend to any individuals, associations, or corporations involved in traffic control operations and road work in the state of Iowa, as their work and management of construction zones would be subject to regulation by the Department. For this reason, Mr. Miller would not be permitted to market his app to any of these Iowa-regulated entities without first satisfying the requirements of Iowa Code § 68B.4(1)(a)–(d), which would include obtaining the Department’s consent.
In light of this, Mr. Miller has proposed full exclusion of Iowa-regulated entities, which would be primarily enforced by an in-app subscription certification, whereby prospective users would certify they are “not a contractor or utility operator currently working in Iowa public rights-of-way under Iowa Department of Transportation regulatory authority” before they could become subscribers. Mr. Miller also states that he will not advertise within the state, no sales will be made to those in contested proceedings before the Department, and separate disclosure will be made before sale to any consulting firm with an active Department contract.
In theory, these self-imposed controls would resolve most of the risk of violation, as Iowa Code § 68B.4 does not bar sales to non-regulated entities, such as contractors working in other states. In practice, however, there are complications. As described, much of the burden for identifying a potential issue would fall to the user to read and understand the purpose of the certification they are agreeing to, and then monitor themselves in case circumstances change. This presents particular challenges in the context of a monthly subscription, where an out-of-state contractor could truthfully agree that they were not “currently working” on any project subject to the Department’s regulatory authority at the time they download the app, then later enter into a road work contract in Iowa which would transform their subscription into a restricted sale or lease. Because Iowa Code § 68B.4 is a constraint on the official or employee and not the buyer or lessee, Mr. Miller would be responsible for monitoring for these changes. Iowa Admin. Code r. 351–6.8(8) (“[i]t is the responsibility of the official or employee to ensure compliance with all applicable laws and rules”).
Due diligence would require at least a regular process for reviewing active subscribers for changes which might make them subject to the Department’s regulatory authority. Other potential safeguards might include monitoring for usage which indicates the software is being utilized at Iowa worksites and providing additional information/acknowledgment steps at initial certification to make it more likely that users will understand what the certification entails, including the various ways they may be subject to the Department’s regulatory authority. Given the range of potential scenarios which may arise, it is recommended the Department and Mr. Miller work together to address what steps will be required to meet this burden.
Mr. Miller’s Request for Consent to Sale or Lease Under Iowa Code § 68B.4
Despite his intent to exclude Iowa-regulated entities, Mr. Miller has also requested the Department’s consent to permit a sale or lease. As discussed in the prior section, Iowa Code § 68B.4 will not prevent sales or leases to individuals, associations, or corporations outside the scope of the Department’s regulatory authority. However, where it does apply to a sale or lease, the transaction is prohibited unless four statutory conditions are met. (5)
The latter two conditions facially appear to be satisfied, as the transaction would not obviously include advocacy by Mr. Miller on behalf of any subscriber (Iowa Code § 68B.4(1)(c)), nor would it cause Mr. Miller to sell or lease anything to the Department on behalf of any subscriber (Iowa Code § 68B.4(1)(d)).
Iowa Code § 68B.4(1)(b) requires one of two findings: either a lack of relationship between the official or employee’s duties or functions and the agency’s regulatory authority over the buyer/lessee, or a determination that the sale or lease will not affect the official or employee’s duties or functions at the regulatory agency. It is difficult to see how the sale or lease of this app would not affect Mr. Miller’s duties or functions. Mr. Miller is seeking to become a private participant in the market for transportation technologies, at the same time that he continues to advise and represent the Department on development in that space.
As for the former, however, Mr. Miller’s role does not include any authority to award grants or contracts, inspect worksites, issue permits and licenses, or participate in compliance enforcement against any of the Department-regulated entities in his prospective customer pool. Because none of Mr. Miller’s official duties and functions otherwise relate to the Department’s authority over his potential subscribers, then subsection b would be satisfied.
Lastly, Iowa Code § 68B.4(1)(a) requires discretionary consent from the regulatory agency to any restricted sale or lease, with determinations to be made in consultation with guidelines found in the Board’s administrative rules. See Iowa Admin. Code r. 6.8(4)(a)–(g). At the time of writing, these guidelines largely mirror the aforementioned considerations found in Iowa Code § 68B.2A and Iowa Code § 68B.4. A regulatory agency may grant its consent conditionally, subject to agreed-upon limitations, to address potential concerns and unforeseen changes.
In his application, Mr. Miller raised the possibility the Department could grant blanket consent pursuant to Iowa Admin. Code r. 351–6.8(4)(h), which permits a regulatory agency to consent to a class of sales or leases where “such blanket consent is consistent with [Iowa Code § 68B.4 guidelines] and the granting of single consents is impractical or impossible to determine.” (6) Given the variety of potential issues which could arise in a situation like this one, the Board advises that blanket consent would be inappropriate in this instance, even if there could be some instances where individual consent could be granted consistent with the above considerations.
Conclusion
Based on the information provided, the Board does not believe Mr. Miller would be strictly prohibited from selling subscriptions to the traffic control operations software app he developed while continuing to serve as the Director of New and Emerging Transportation Technologies, but due to the nature of the venture, the Department is advised to work with Mr. Miller to outline some safeguards to comply with Iowa Code § 68B.4 as identified in this opinion.
(1) This does not mean that anyone Mr. Miller interacts with while representing the Department are automatically barred from becoming customers. However, the Board believes it would create at least the risk of a conflict under this rule for Mr. Miller to affirmatively solicit such individuals.
(2) This analysis distinguishes active work done for the purpose of generating money or other consideration from the mere receipt of passive income. As an illustrative example, this subsection would not limit a state employee’s ability to generate passive income by leasing rental property to third party tenants, but there would be a prohibited conflict if the same employee were actively performing renovations on the property or offering tours to prospective renters during their regular working hours
(4) See, e.g., Iowa Att’y Gen. Op. 82-8-7, 1982 Iowa Op. Atty. Gen. 496 at *7 (Aug. 12, 1982) (advising that an ICRC commissioner with a private practice as an attorney would be subject to Iowa Code § 68B.4 for any legal services offered to the broad class of clients subject to the ICRC’s regulatory authority, even if the legal services offered were entirely unrelated to civil rights law).
(5) Iowa Code § 68B.4(1)(a)–(d).
- The consent of the regulatory agency for which the person is an official or employee is obtained and the person is not the official or employee with the authority to determine whether agency consent is to be given under this section.
- The duties or functions performed by the official or employee for the regulatory agency are not related to the regulatory authority of the agency over the individual, association, or corporation, or the selling or leasing of goods, real estate, or services by the official or employee to the individuals, associations, or corporations does not affect the official’s or employee’s duties or functions at the regulatory agency.
- The selling or leasing of any goods, real estate, or services by the official or employee to an individual, association, or corporation does not include advocacy on behalf of the individual, association, or corporation to the regulatory agency in which the person is an official or employee.
- The selling or leasing of any goods, real estate, or services by the official or employee to an individual, association, or corporation does not cause the official or employee to sell or lease goods, real estate, or services to the regulatory agency on behalf of the individual, association, or corporation.
(6) This opinion notes that the Department has previously granted its blanket consent pursuant to Iowa Admin. Code r. 351–6.8(4)(h) for sales and leases in the ordinary course of business to persons subject to driver licensing laws, vehicle registration and titling laws, vehicle equipment regulations, and aircraft registration laws, except in the case of transactions specifically related to these regulatory functions.
BY DIRECTION AND VOTE OF THE BOARD:
James Albert, Chair
Elaine Olson, Vice Chair
Jonathan Roos
Daniel Jessop
Leah Rodenberg
SUBMITTED BY:
Alexander Lee, Ethics Counsel
ISSUED ON:
September 30, 2026
Pursuant to Iowa Administrative rule 351-1.3(3), a person who has received a board opinion may, within 30 days after the issuance of the opinion, request modification or reconsideration of the opinion. A request for modification or reconsideration shall be deemed denied unless the board acts upon the request within 60 days of receipt of the request. Pursuant to Iowa Administrative rule 351-1.3(6), a person who has received a board opinion or advice may petition for a declaratory order pursuant to Iowa Code section 17A.9. The Board will refuse to issue a declaratory order to a person who has previously received a board opinion on the same question, unless the requestor demonstrates a significant change in circumstances from those in the board opinion.