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Advisory Opinion

IECDB AO 2006-06

March 30, 2006

The Honorable Doug Shutts
Vice-Chairman
Poweshiek County Board of Supervisors
PO Box 57
Montezuma, Iowa 50171

Dear Vice-Chairman Shutts:

This opinion is in response to your letter of March 9, 2006, requesting an opinion from the Iowa Ethics and Campaign Disclosure Board pursuant to Iowa Code section 68B.32A(11) and Board rule 351—1.2. 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.

FACTUAL STATEMENT:

We understand you request this opinion in your capacity as the Vice-Chairman of the Poweshiek County Board of Supervisors. You advise us that prior to being elected to the Board of Supervisors, you entered into a contract with the county’s E-911 Service Board to perform services as the E-911 Coordinator. You further advise us that the E-911 Commission supervises the E-911 Service Board and has its own funding stream. You are concerned with compliance of Iowa Code chapters 68B, 314, and 331.

QUESTION:

Is it permissible for a member of the Board of Supervisors to simultaneously be employed with the E-911 Service Board?

OPINION:

We first reiterate that this opinion speaks only to the application of the ethics laws in Iowa Code chapter 68B to your question. The Board does not have jurisdiction to render advice on Iowa Code chapters 314 or 331.

Nothing in the ethics laws expressly prohibits a member of the Board of Supervisors from being simultaneously employed by the E-911 Service Board. Iowa Code section 68B.2A does prohibit you from engaging in any “outside employment or activity which is in conflict” with your “official duties and responsibilities.” The Board has consistently held that “outside employment” encompasses being employed by another governmental entity. Thus, there can be a conflict of interest when you serve on the Board of Supervisors and you are simultaneously employed by the E-911 Service Board.

Iowa Code section 68B.2A sets out three “situations in which an unacceptable conflict shall be deemed to exist.” We summarize each situation and how they apply to your question below:

1. The outside employment or activity involves the use of government resources. Therefore, you could not use resources of one of the governmental entities in order to do work for the other governmental entity. For example, time spent at the E-911 Service Board could not be used for Board of Supervisor work.

2. The outside employment or activity involves the receipt of compensation for the performance of any act that the person would be required or expected to perform as part of the person’s regular duties or during the hours of service or work. We do not see where this prohibition is currently applicable to your question.

3. The outside employment or activity is subject to the official control, inspection, review, audit, or enforcement authority of the person during the performance of official duties. You would have to publicly disclose the conflict and abstain from taking any actions as a Board of Supervisor on issues involving the E-911 Service Board that came before the Board of Supervisors. The same would be true if some issue involving the Board of Supervisors came before the E-911 Service Board.1

Thus, so long as you did not engage in any conduct that leads to a conflict of interest under Iowa Code section 68B.2A, nothing in the ethics laws of Iowa Code chapter 68B prohibits the situation you describe.

BY DIRECTION AND VOTE OF THE BOARD

James Albert, Board Chair
Janet Carl, Vice Chair
Gerald Sullivan
Betsy Roe
John Walsh
Patricia Harper

Submitted by: W. Charles Smithson, Board Legal Counsel


1See Iowa Code section 68B.2A(2)“b” that sets out the parameters for public disclosure and abstaining from action.