May 22, 2019
Advisory Opinion
IECDB AO 2019-03
May 16, 2019
Eric Wilke
HDR Consulting
300 E Locust St, Suite 210
Des Moines, IA 50309-1823
Dear Mr. Wilke
Pursuant to Iowa Code section 68B.32A(12) and rule 351—1.2, the Iowa Ethics and Campaign Disclosure Board issues this opinion on the applicability of Iowa Code section 68B.7 to your potential post-state employment plans. We note at the outset that the Board’s jurisdiction is limited to the application of Iowa Code chapters 68A and 68B, Iowa Code section 8.7, and rules in Iowa Administrative Code chapter 351. Advice in a Board opinion, if followed, constitutes a defense to a subsequent complaint based on the same facts and circumstances.
Background
You advise the Board you were an employee of the Iowa Department of Transportation employee until the end of March 2018. At the DOT, you were a Transportation Planner 1/Travel Demand Modeler. As part of your duties, you created and ran travel demand models, including a program called Iowa Standardized Model Structure (ISMS).
ISMS created a standard travel demand model process for every Metropolitan Planning Organization within Iowa. The ISMS project was headed by the consulting firm HNTB. You were not on the committee to select this firm for the project. However, your supervisor at the time did ask for your opinion on your experience working with HNTB on prior projects, and he did ask what you thought about the responses to the DOT’s request for proposal to create the ISMS.
After HNTB was awarded the contract to create ISMS, you were involved in providing assistance to HNTB, including making recommendations to HNTB for the way certain processes should function. Some processes were actually borrowed from previous travel demand models you had developed. After phase 1 of the ISMS project wrapped up, you developed a travel demand model that followed the ISMS process while still with the Iowa DOT (Waterloo-Cedar Falls model). It was the first model to follow the process and meet the ISMS standard. The DOT has confirmed that its contract with HNTB to create ISMS has concluded, although the department may occasionally require HNTB’s assistance to address minor issues with the implementation of the ISMS project.
You also advise the Board that you now work part-time for HDR Consulting. HDR may soon be providing on-call modeling support to the Iowa DOT, which would include providing support for ISMS. The on-call support would be for the DOT’s Office of Systems Planning – the same office you worked in while employed at the DOT. HDR and the DOT would like you to be part of the on-call support team, provided it is permissible for you to do so under Iowa law.
Question
Would it be permissible for you to provide on-call modeling support to the Iowa DOT through your employment at HDR Consulting?
Analysis
Iowa Code section 68B.7 states a state employee “shall not within a period of two years after the termination of such service or employment receive compensation for any services rendered on behalf of any person, firm, corporation, or association in relation to any case, proceeding, or application with respect to which the [state employee] was directly concerned and personally participated during the period of service or employment.” Less than two years has passed since you left DOT employment. The question is whether the services you wish to undertake at HDR consulting are in any way related to a case, proceeding or application with respect to which you were directly concerned and personally participated during your employment at the DOT.
Providing on-call modeling support to the DOT would not include a case or proceeding that you were directly concerned or personally participated during your employment at the DOT. The only possibly relevant application would be HNTB’s proposal for the ISMS project. Based on the information you have provided, you were only nominally involved in the selection process to hire HNTB as the firm to create ISMS. To the extent there was an “application,” it was HNTB’s response to the DOT’s request for proposal. HNTB developed ISMS and its contract to do so has concluded. You are not proposing to work for HNTB to develop ISMS. Rather, you are proposing to work for HDR Consulting to provide on-call modeling support to the DOT for ISMS and other programs. We are of the opinion you providing on-call modeling support to the DOT through HDR Consulting would not involve a case, application or proceeding with respect to which you were directly concerned and personally participated during your employment at the DOT. Thus, Iowa Code section 68B.7 would not bar you from providing on-call modeling support to the DOT through HDR Consulting.
Conclusion
Based on the facts you have provided to the Board, we are of the opinion it is permissible for you to provide on-call modeling support to the DOT through HDR Consulting for ISMS and other DOT programs.
BY DIRECTION AND VOTE OF THE BOARD
James Albert, Board Chair
John Walsh, Vice Chair
Jonathan Roos
Carole Tillotson
Mary Rueter
Elaine Olson
Submitted by Megan Tooker, Board Legal Counsel