IN THE DISTRICT COURT OF THE STATE OF IOWA IN AND FOR MUSCATINE COUNTY LAURIE FREEMAN, JOSEPH PRESTON, SHARON MOCKMORE, EUGENE W. MOCKMORE, BECCY BOYSEL, GARY D. BOYSEL, DARYLE SNYDER, LINMDA L. GOREHAM, GARY R. GOREHAM, KELCEY BRACKETT & BOBBIE LYNN WEATHERMAN, Case No. LACV 021232 Plaintiffs, v. GRAIN PROCESSING CORPORATION, PLAINTIFFS' BRIEF IN RESISTANCE TO DEFENDANT'S MOTION TO DISQUALIFY COUNSEL Defendant. INTRODUCTION With its Motion to Disqualify Counsel, Defendant Grain Processing Corporation ("GPC" or "Defendant") hopes to end an action by residents of Muscatine, Iowa, for recovery of damages caused by the pollution of their environment and harms to their homes and property. In order to disqualify counsel1 representing these residents, GPC 1 Plaintiffs are represented in this putative class action by Iowa lawyers James C. Larew and Andrew L. Hope. In addition, out-of-state attorney Claire M. Diallo represents Plaintiffs. This Court recently revoked the pro hac vice admissions of Anthony G. Buzbee and Sean O'Rourke, which is now the subject of an interlocutory appeal. The majority of Defendant's Exhibits 36 bears the burden of establishing that Plaintiffs' counsel, James C. Larew, has violated Iowa Code section 68B.7 by receiving compensation from Plaintiffs in this case and that his services are related to a "case, proceeding or application" in which he was "directly concerned" and "personally participated" during his previous employment in state government. Despite the attachment of 62 voluminous exhibits, GPC has failed to point to any "case, proceeding or application" in which Mr. Larew's level of involvement would disqualify him from representing the Plaintiffs who have brought this action. Defendant further demands that Attorney Larew be disqualified because he has allegedly violated Iowa Rule of Professional Conduct 32:1.11(c), which prohibits an attorney having "confidential government information about a person when the lawyer was a public officer" from representing a client whose interests are "adverse to that person." The hundreds of pages of exhibits submitted by GPC, a business whose air and water emissions are regulated by state and federal agencies, demonstrates the Attorney Larew had access to public information, the type of information that GPC has obtained through routine public records requests to support its Motion to Disqualify, and demonstrates no reliance by Attorney Larew on any confidential governmental information in representing clients whose interests are adverse to GPC's. Finally, Defendant argues that Attorney Larew's disqualification must also lead to the disqualification of Plaintiffs' attorneys Claire M. Diallo and Andrew L. Hope, because of their association with Attorney Larew. No exhibits are presented and no controlling authority is cited in support of this draconian demand. The Motion to Disqualify Counsel should be over-ruled in its entirety. through 41 have previously been submitted as part of the Motion to Revoke Pro Hac Vice and Motion for Protective Order. 2 STATEMENT OF FACTS In January, 2007, after nearly 23 years in the general private practice of law in Iowa City, James C. Larew became general counsel to the Governor Chet Culver. His principal duties were to advise the Governor and his staff on legal issues within the governor's office. 2 None of the positions held by Mr. Larew in Governor Culver's four-year term of office involved representing the Governor or his Office or any state department in legal cases or proceedings against GPC, or any other, entity.3 During his governmental service, Mr. Larew never participated in any case, application or proceeding involving GPC. Litigation matters were handled by the Iowa Attorney General's Office. (Ex. 23). Mr. Larew has never worked for the Iowa Attorney General. Matters concerning the enforcement of environmental laws and regulations were handled by the Iowa Department of Natural Resources (DNR). (Ex. 23 ). Mr. Larew has never worked for nor legally represented the DNR. (Ex. A). As evidenced by the affidavit of Richard Leopold, who served as the Director of the DNR from 2007 until August 2010, the DNR was represented by and advised by its own legal staff, and, in litigation, by the Iowa Attorney General, not Mr. Larew. Further Mr. Larew had neither administrative nor legal authority over the DNR. (Ex A). Another member of the Governor's staff, Jamie Cashman, was the primary point of contact between DNR and the Governor's Office. (Ex. A). The DNR kept the Governor's Office apprised of matters that had some potential political implications or public debate 2 During the four years on Governor's staff in addition to his duties as General Counsel, Mr. Larew served concurrently for separate periods of time as Policy Director and as Chief of Staff. 3 In Iowa, the Governor's Office and all departments of the executive branch are represented in legal cases and proceedings by the Attorney General, who is separately elected to office, whose office receives its own appropriation from the Iowa General Assembly and whose various Assistant Attorneys General are assigned by the Attorney General to represent those departments in administrative and legal proceedings. Iowa Code ? 13.2 (2011). 3 or controversy, and other general matters. The DNR informed the Governor's office through various channels and staff personal. (Ex. A). Virtually all of the information provided to the Governor's office would be public information. (Ex. A). As part of his various capacities in the Office of Governor over a period of four years, Mr. Larew was involved in several public communications regarding GPC. The issues that are the focus of GPC's Motion to Disqualify Counsel can be divided into five main categories: a technical letter from the DNR to GPC that had been reviewed by the Governor's Office prior to mailing (Defendant's Exs. 4-9, 59-63); email exchanges on GPC's expiring permit involving baghouses that were no longer required (Defendant's Exs. 11-16, 57-58; Ex. A); the nonattainment designation by the EPA (Defendant's Exs. 3, 42-47); the query about an EPA criminal investigation of GPC as to whether the DNR was aware of this situation to verify that state and federal agencies were working together (Defendant's Exs. 2, 17, 19-22, 55-56); and the USA Today story regarding Air Toxics in Schools Report (Defendant's Exs. 29-31, 48-52). Mr. Larew's limited involvement in these issues, which were not cases, proceedings, or applications, does not implicate any statutory or confidentiality concerns related to the instant case. ARGUMENT I. Summary of the Argument Iowa Code section 68B.7 (sometimes "the statute") was enacted in order to address the "evil of influence peddling," which occurs when a "state official or employee can help direct the outcome of a decision to assist a particular person and then trade on that help to gain private sector employment with the same person." Iowa Ethics and Campaign Disclosure Board ("IECDB") Advisory Opinion ("AO") 2009-08. This couldn't be further 4 from the situation at hand. The statute requires subsequent actions "related to" a "case, proceeding, or application" in which the employee was "directly involved and personally participated." Iowa Code ? 68B.7 (2011). Mr. Larew had no such involvement in a "case, proceeding, or application" before the Governor's Office or its agencies with respect to the matters litigated in this lawsuit. GPC also bases its present Motion to Disqualify Counsel on Iowa Rule of Professional Conduct 32:1.11(c), which prohibits an attorney having "confidential government information about a person when the lawyer was a public officer" from representing a client whose interests are "adverse to that person." Iowa R. Prof'l Conduct 32:1.11(c)(2011) (emphasis added). In support of that allegation, Defendant presents a series of public records and documents, multiple copies of emails related to and the text of a letter issued by Richard Leopold, Director of the Department of Natural Resources to Mr. Doyle D. Tubandt, GPC's chief executive officer, describing GPC's publicly-known, repeated record of failing to abide by laws regulating the emission of particulate matter. (Defendant's Exs. 4-9). GPC offers no more than speculation that Mr. Larew obtained any confidential government information about it when he served in the Governor's Office. Based on these two extremely serious, specious allegations--violations of Iowa Code section 68B.7 and Iowa Rule of Professional Conduct 32:1.11(c)-- Defendant seeks drastic relief from the court: Disqualify the Plaintiffs' lead counsel Attorney James Larew and Claire M. Diallo at the Larew Law Office of Iowa City, Iowa; disqualify Plaintiffs' co-counsel Andrew Hope of the Hope Law Firm in Des Moines, Iowa, and an outright dismissal of the Plaintiffs' lawsuit. 5 II. Mr. Larew Did Not Violate Iowa Code Section 68B.7 Because He Was Not "Directly Concerned" and Had Not "Personally Participated" in Any "Case, Proceeding or Application" in Relation to GPC. Defendant bases its motion on an expansive interpretation of Section 68B.7, which would prohibit a person from engaging in post state employment activities that involve the same "topics," "activities" and "issues" with which the individual was involved during the period of state employment. Defendant states: "Many states including Iowa have erected barriers preventing state employees from pursing private employment regarding the same topics on which they worked while employed by the State." Defendant argues that because Mr. Larew, as the Governor's chief of staff, was involved with the topic or issue of GPC's air emissions, Section 68B.7 prohibits his representation of the Plaintiffs. Plaintiffs' respond by submitting that Defendant misreads and misstates Section 68B.7. The statute makes no reference to "topics" or "activities" or "issues." Instead Section 68B.7 is legislation that seeks to create a delicate balance between the rights of former state employees and protecting the public from the evil of influence peddling. 68B.7 accomplishes the balance by the use of specific statutory terms. The statute provides: A person who has served as an official, state employee of a state agency, member of the general assembly or legislative employee shall not within a period of two years after the termination of such service or employment appear before the agency or 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 person was directly concerned and personally participated during the period of service or employment. (Iowa Code ? 68B.7 (2012) (emphasis added). The prohibition created by the statute does not relate to the "same topic, activity or even issue," but is limited to any case, proceeding, or application with respect to which the person was directly concerned and personally participated during the period of service or employment." 6 Thus, in order to disqualify counsel from representing Plaintiffs, the Defendant bears the burden of establishing all the requirements of Section 68B.7. Despite the attachment of voluminous exhibits, Defendant as failed to point to any "case, proceeding or application" involving GPC, in which Mr. Larew's level of involvement would disqualify him from bringing this action. Defendant's motion is based on a fundamental misstatement of the law, Iowa Code Section 68B.7, regulating employment by state employees once they leave state employment. The core issue is simple: ? Defendant claims that any present activity by a prior state employee that concerned the same topic, activities and issues that the person was involved with while employed by the state are prohibited by Section 68B.7. Plaintiffs claim that Section 68B.7 prohibits only present activities which are related to a "case, proceeding or application" to which the person was "directly concerned and personally participated in" during the period of service or employment with the state. ? There is a world of difference between each position. Defendant's position is extremely broad, e.g., topic, issue, activity, etc. Plaintiffs' position is narrowed to a specific case, proceeding or application. Plaintiffs' position tracks with the exact wording of the statute. The Defendant's does not. This criminal statute must be construed narrowly, according to its terms. State v. Ahitow, 544 N.W.2d 270, 273-274 (Iowa 1996). Defendant's factual statement is replete with sweeping unsupported allegations that Mr. Larew "had extensive insider involvement in matters which involved GPC." Defendant attaches 62 Exhibits. Defendant claims that "even based upon the limited documents secured to date it is clear that Attorney Larew's involvement was extensive and 7 involved using his position to influence State action against GPC". 4 (citing to Exhibits 332). By way of example of the Defendant's failure to support allegation with facts, Defendant specifically alleges that: "Larew was involved in meetings with personnel at DNR, regarding GPC." (Ex 29-30). However, contrary to Defendant's allegations, Exhibits 29-30 involve the DNR and Governor's staff scheduling a meeting to discuss newspaper accounts about the air quality in schools. Moreover, as discussed more fully below, involvement in meetings does not implicate Iowa Code section 68B.7. Defendant also alleges Mr. Larew discussed settlement negotiations regarding GPC (Ex 17). Yet, Exhibit 17 does not show participation in settlement negotiations but rather memorializes the DNR communicating the status of an EPA investigation of GPC and assuring the Governor's staff that the state agency was acting in cooperation with the federal agency. Defendant alleges that Mr. Larew participated in phone calls regarding GPC (Ex. 4) and was consulted on letters regarding GPC (Ex. 5). Exhibit 4 and Exhibit 5 are all emails in which DNR and Governor's staff discussed, not the contents of a DNR letter to GPC - but rather whether local legislators should receive their copies of the letter before or after GPC received its copy. Furthermore, reviewing the contents of a letter does not implicate the prohibitions of Iowa Code section 68B.7. Defendant alleges that Mr. Larew chastised the DNR for "kowtowing" to industry (Ex. 28). Exhibit 28 is an email from DNR Division Administrator Wayne Gieselman to DNR Director Leopold and fellow staff member Air Quality Bureau Chief Catharine Fitzsimmons. In the email, Gieselman reports that Mr. Larew allegedly made comments 4 Defendant later added Exhibits 42-63 in a supplemental filing and indicated that the Exhibits evidence Attorney Larew's extensive personal involvement with air emission issues in Muscatine. While the Defendants' Exhibits are physically voluminous containing approximately 500 plus pages, none of the exhibits supports the allegations contained in the Defendant's Motion or Memorandum in Support. 8 during a conversation on the sidewalk in front of the Wallace Building directed at "regulatory agencies that were kowtowing to industry as a result a newspaper article". (Exhibit 28) This hardly supports an allegation that Mr. Larew was "exerting pressure" on the DNR, and is flatly contradicted by the affidavit of the DNR Director. (Exhibit A ). Moreover, even if, as GPC argues, Mr. Larew was "exerting pressure" on a government employee in response to a newspaper article, Iowa Code section 68B.7 does not criminalize such a conversation. Finally, the Defendant alleges that Mr. Larew was involved in GPC's permit regarding bag houses on coal-fired boilers (Exs. 16 & 35). However, again the Exhibits do not support this conclusion and the affidavit of Director Leopold contradicts this allegation. (Exhibit A). Suchlimited involvement is not prohibited by Iowa Code section 68B.7. A. The Iowa Ethics and Campaign Disclosure Board Has Issued Opinions Delineating the Contours of Iowa Code Section 68B.7, Demonstrating That it is Clearly Inapplicable 1. There Was No Disqualifying "Case, Proceeding or Application." State employees' post-state employment activities are regulated by Chapter 68B. That chapter established the Iowa Ethics and Campaign Disclosure Board. The Board is charged by statute with administering and setting standards for, investigating complaints relating to, and monitoring the ethics of officials, employees, lobbyists, and candidates for office in the executive branch of state government. Iowa Code ? 68B.32(1) (2011). As part of its duties, the Board must "establish and impose penalties, and recommendations for punishment of persons who are subject to penalties of or punishment by the board or by 9 other bodies, for failure to comply with the requirements of this chapter." Iowa Code ?68B.32A(9) (2011).5 The Board has provided several authoritative opinions interpreting the statute and describing its purpose. Applicable to the present case, the Board has interpreted the prohibition under 68B.7 as applying only where a former employee's new employment involved "a case, proceeding or application that [the employee] was directly concerned and personally participated' during employment with the State agency." IECDB AO 2007-04. The Board's opinion also indicated that the statutory prohibition is directed at "cases, proceedings or applications during the state employment" - not "issues" or "programs." IECDB AO 2006-16. The Board has also found that a state employee could work on applications similar to those processed in the past as a state employee, so long as the applications were not the same applications on which the former state employee had worked as an employee of the State. IECD AO 2008-01. The Board specifically stated: "...the fact that the program is ongoing is not the trigger for the statute to apply. Rather it would be each underlying individual application as part of the broader IFA program. The language of the statute does not seek to prohibit former state officials and employees from being involved in "programs" but in a "case, proceeding, or application." Thus you could work on a subsequent application for bond funding from an IFA program so long as the application was not one that you were "directly concerned and personally participated" in during state employment." IECD AO 2008-01 (attached to Resistance as Authorities) (emphasis added). The Board further determined, in its Advisory Opinion 2006-16, that while the employee at issue, who worked for a division of the Department of Human Services ("DHS"), had communicated with private employer Mosaic several times over a number of years to Similarly, Iowa Administrative Code Rule 351-6.1 (68B) provides the scope of this chapter, which designates that the "Iowa ethics and campaign disclosure board is to set standards for, investigate complaints relating to, and monitor the ethics of officials, employees, candidates for office in the executive branch of state government. Pursuant to Iowa Code section 68B.32A(13), the board is required to establish rules relating to ethical conduct for the executive branch of state government." 5 10 "discuss issues" and had sent letters in support of a federal project in which Mosaic would receive funds, there was no "case, proceeding, or application" before the DHS involving Mosaic that took place while the employee was in government service. IECDB AO 2006-16. Defendant relies on documents indicating that Mr. Larew discussed with Iowa DNR staff members the contents of a proposed letter from Iowa DNR Director Richard Leopold to GPC's president concerning a technical federal air quality issue (PM 2.5) before the letter was issued. (Defendant's Exs. 4-9). Neither the accompanying emails nor the letter itself suggest that, in fact, Mr. Larew, in heightening legality or policy considerations, either had, or exercised, any authority with respect to any case, proceeding or application, either directly or indirectly, involving the specific air quality issues that are the subject of the letter. With regard to nonattainment issues of PM2.5, the email chain attached by Defendant GPC demonstrated Mr. Larew's opinion that the Governor of Iowa should not become involved in the issue as to whether the non-attainment designation should be extended. [Defendant's Ex. 3]. Despite urging from the City of Davenport on the issue of PM2.5 generally, although not explicitly mentioning or involving GPC, Mr. Larew stated his belief that the Governor of Iowa had no role in issuing a one-year extension of the classification of an area. [Defendant's Ex. 3]. The additional documents more recently forwarded by Defendant describe the EPA's issuance of a letter to the Governor, where he was allowed to comment. [Defendant's Exs. 42-47]. Despite the opportunity, the Governor chose not to become involved in this situation. 2. Mr. Larew Was Not "Directly Involved" and Had Not "Personally Participated" in a "Case, Proceeding or Application in Relation to" GPC. In addition to the requirement that the challenged prior employment involvement be "a case, proceeding or application," the Defendant must also provide evidence that Mr. 11 Larew personally participated and was directly concerned in the case, proceeding or application. The Iowa Ethics and Campaign Disclosure Board has once again provided guidance on this matter. The Board has opined that "merely reviewing early drafts of requests for proposals does not rise to the level of directly concerned and personally participating." See IECDB AO 2000-43, Similarly, participating in discussions that resulted in a certain project and RFP from the Department of Energy did not rise to the level of direct involvement and personal participation. See IECDB AO 2007-03 (holding that while the former DOE employee had participated and even instigated discussions on the data warehouse solution project that later resulted in the DOE issuing an RFP for such solution, he could participate in responding to the RFP in private employment because he was not "directly involved" and had not "personally participated" as required by the statute). The Board more recently considered the following facts concerning application of 68B.7: a former Iowa Department of Public Health ("IDPH") employee, who supervised contracts with the Iowa Association of Community Providers ("IACP"), wanted to take a position with the IACP. IECDB AO 2009-08. The funding for the position with the IACP had come in part from an IDPH grant that the employee, while at IDPH, had assisted with obtaining, by compiling information for the application for the grant. Id. The Board held that while the employee helped to secure the funding for the grant, the employee was "not 'directly concerned' or 'personally participated' in awarding the grant/contract to IACP." Id. The Board further found that having participated in previous contracts between the IDPH and IACP was irrelevant as the only contract that mattered was the one awarding the funding, in which he was not involved. Id. at n. 5. This demonstrates both the specificity of having the exact same "case, proceeding or application" involved, as well as the multiple 12 layers of "directly concerned" and "personal[] participat[ion]."6 Active involvement, presumably with some decision-making power (according to the 2009-08 Advisory Opinion, and thereby implicating the real concern of using one's influence), at the time the decision occurs and is executed to grant an application or an award, to file suit, or such other result, is the relevant time period to consider. Mr. Larew reviewed a draft of a letter to GPC regarding a proposed particulate matter control strategy and emissions testing. (Defendant's Exs. 4-9, 59-63). Mr. Larew also met with members of the DNR staff regarding issues with GPC's expiring permit, as described above. (Defendant's Exs. 11-16, 57-58; Ex. "C", Affidavit of Richard A. Leopold). Mr. Larew, after reading a story in the news about an EPA criminal investigation of GPC, queried whether the DNR was aware of this situation to verify that state and federal agencies were working together. (Defendant's Exs. 2, 17, 19-22, 55-56). Mr. Larew exchanged emails regarding the Air Toxics in Schools Report by USA Today. (Defendant's Exs. 29-31, 48-52). According to the clear findings of the advisory opinions above, this does not rise to the level of direct involvement and personal participation. Therefore, even assuming arguendo, that reading a draft of a letter or participating in meetings regarding particulate matter emitted by GPC, constituted a case, proceeding or application, such activity does not rise to the level of personal participation and direct concern that triggers Since it has been improperly introduced, this analysis is particularly relevant for the case in which Mr. Larew represents CLAM as Intervenor in a case filed by the Iowa Attorney General on behalf of the DNR against GPC, now pending before the Iowa District Court for Muscatine County. Mr. Larew was not in any way involved in the decision of the Environmental Protection Commission to recommend prosecuting GPC to the Attorney General. Nor was he involved in the independent decision made by the Iowa Attorney General to prosecute that action. As long as Mr. Larew was not directly involved and personally participating in such proceeding,which he was not, it would not rise to this level of direct involvement in the final stages, which is the relevant time period. 6 13 the statutory restrictions.7 If one is not "directly involved" and has not "personally participated," then the "prohibitions of Iowa Code section 68B.7 do not apply." IECDB AO 2007-03. Defendant bases its arguments on a New Mexico and a New Jersey intermediate appellate court decision. Neither case is apposite nor dispositive. The first is a New Mexico case in which a former employee was prohibited from appearing at a Departmental hearing. A New Mexico statute prohibits former public officers and employees from representing persons for pay before their former government agency employers for a period of one year after leaving government service. In disqualifying the former employee from representing a client before the agency, the hearing officer noted that at one time the attorney had served as her supervisor and she was concerned that the attorney was attempting to use his former position to influence the hearing. Ortiz Taxation & Rev. Dept Motor Vehicle Div., 954 P2d 109 (N.M Ct App 1998).8 Mr. Larew is not appearing before any government agency, and he has not appeared against the DNR, or against the The Defendant includes emails that discuss the GPC's permit expiration sent to the Governor's Office from the DNR. This is a good example of the Defendant's attempt to skew the facts to invoke the application of Iowa Code section 68B.7 to this case. First, the permit issue did not involve a case, proceeding or application before the Governor in which Mr. Larew would be directly concerned. Rather, it involved a matter within the jurisdiction of the DNR. The Governor appoints the directors of departments, subject to senate approval, including the Director of the Department of Natural Resources. Iowa Code ? 455A.3 (2011). The Director of the DNR is vested with the power to plan, direct and execute the functions of the DNR, and has line authority over his or her appointed deputies, including those controlling the Air Quality Division and Water Quality Division. Iowa Code ? 455A.1.a (2011); Iowa Code ? 455A.6 (2011). As a matter of practice, the DNR Director at the time, Mr. Richard A. Leopold, or one of his deputies delegated with such power, would inform the Governor of major issues it was facing when they had political and/or legal implications. [Ex. A). As part of his duties, along with Mr. Jamie Cashman, the Governor's policy liaison, Mr. Larew would sometimes review issues with legal, policy or political implications that came to the Governor's attention, including from the DNR. (Ex. A). As described in the email from Ms. Fitzsimmons, which was in reply to a request from GPC to remove the baghouse requirement from its existing permit, arguably had legal implications in that the federal EPA Boiler Maximum Achievable Control Technologies ("MACT") requirement had previously been rejected by a federal district court. 8 7 Moreover, while Iowa Code section 68B.7 previously contained a similar prohibition against a former employee of an agency appearing before that agency for a period of two years, that prohibition was removed in the 2009 amendments to the section. 2009 Ia. ALS 9, 3. 14 Governor's Office in any matter before this Court.9 State v. Lucarello, 343 A.2d 465, (N.J. App. Div. 1975) involved an attorney who was found to have violated an ethical canon prohibiting a lawyer from private employment in a matter in which he had substantial responsibility while he was a public employee. The revolving door statue was invoked because the attorney simply switched sides, in the same case, from being a prosecutor involved with the initial of investigation of a criminal case to undertaking the defense of the same criminal case. Mr. Larew has not switched sides. He did not leave his state government position to represent the opposing party in a case that he previously handled for the state. 3. Iowa Code Section 68B.7 is Meant to Address the Evil of Influence Peddling, Which is Not Implicated Here. The revolving door statutes are meant to address the situation where one uses his or her position in the government to give special favors to a company or a private party with an eye to receiving a benefit, in the form of future employment and compensation, from said company or private party at a later date.10 Mr. Larew has not run afoul of the policy 9 GPC's attempt to bring issues related to Mr. Larew's representation of CLAM into this proceeding, in addition to being wholly inappropriate, is also readily dismissed: Mr. Larew is not appearing before the DNR as represented by the Attorney General, and the test of being "inadequately represented" for the purpose of an intervention analysis into an administrative proceeding in which citizens intervene on the side of Plaintiffs, the State of Iowa ex. rel. the Iowa Department of Natural Resources, can in no way be considered as being opposed to the DNR. CLAM seeks relief in addition to the relief sought by the Attorney General's Office, but does not in any way oppose the relief or action brought by the Attorney General. Furthermore, the fact that the Attorney General has not objected to CLAM's intervention petition filed in the companion case also speaks volumes as to whether that intervention is objectionable or somehow contrary to the State's goals. 10 Defendant's Memorandum in Support of Defendant's Motion to Disqualify Counsel ("Defendant's Memorandum"), pgs. 1-2 also references Rachel E. Boehm, Note: Caught in the Revolving Door: A State Lawyer's Guide to Post-Employment Restrictions, 15 Rev. Litig. 525, 528 (1996) which indicates that the many policy reasons justifying post-employment restrictions, is "a perception that there is something wrong with a government lawyer who switches sides" and "a concern that former government lawyers might enjoy an unfair advantage because of their influence or connections within a government agency" and "a concern that government lawyers with an eye toward private practice may act improperly while still government employees in order to enhance their future employment opportunities." 15 considerations underlying 68B.7. Defendant mischaracterizes the policy behind Iowa Code chapter 68B.7 as well as the actions of Mr. Larew by alleging that Mr. Larew used "his position to influence state action against GPC." As the Board noted in its Advisory Opinion 2009-08, "[t]he evil the statute seeks to prevent involves 'influence peddling' whereby a state official or employee can help direct the outcome of a decision to assist a particular person and then trade on that help to gain private sector employment with the same person." IECDB AO 2009-08. 11 None of facts presented by Defendant to support its Motion to Disqualify Counsel implicate this rule. There is no such evil, or "influence peddling," in these facts. Defendant presents no evidence that Mr. Larew was involved in any case, proceeding or application before the Governor or DNR that he has exploited in this case by continuing his involvement in private employment after leaving state government. Mr. Larew's involvement in communications concerning GPC's pollution during the time he worked in the Governor's Office was limited to staying informed about GPC's activities. There is no prohibition on attempting to follow the law, as Mr. Larew did in expressing a view to make sure that a proposed action by the state agency, DNR, was consistent with the actions or findings of a federal agency, the Environmental Protection Agency, (Defendant's Exs. 2, 17, 19-22, 5556), or that all legal implications related to a proposed course of action by a state agency had been fully considered. There is no issue or concern with "switching sides" or that actions taken by him while in government were done "with an eye toward private practice," which are two of the main policy reasons that revolving door statutes have been enacted, as GPC also cited. (Defendant's Memorandum, pgs. 1-2; Rachel E. Boehm, Note: Caught in 11 In footnote 4 of the same opinion, the Board went on to highlight that the title of Iowa Code section 68B.7 had been changed in 2009 from "Other activities - two year ban" to "Prohibited Use of Influence," demonstrating, again, the purpose of this statute. IECDB AO 2009-08, n. 4. 16 the Revolving Door: A State Lawyer's Guide to Post-Employment Restrictions, 15 Rev. Litig. 525, 528 (1996)). Neither the language nor the policy of Iowa Code section 68B.7 bears any relation to the sweeping statement made by Defendant, that some "state employees are forbidden from employment addressing the same issues they addressed with the state for two years after departing from the state." (Defendant's Memorandum, p. 4). Iowa Code section 68B.7 does not apply to Mr. Larew because he was not directly involved and did not personally participate in any case, proceeding, or application before the Governor, or even the DNR, involving GPC that is the subject of this litigation, during his service as a government employee. III. Mr. Larew has Not Violated Iowa Rule of Professional Conduct 32:1.11(c) Because He Had Access to Information of Public Record, and Not to Confidential Government Information that Could be Used to the Material Disadvantage of GPC. Defendant also bases its Motion to Disqualify Counsel on Iowa Rule of Professional Conduct 32:1.11(c), which prohibits an attorney having "confidential government information about a person when the lawyer was a public officer" from representing a client whose interests are "adverse to that person." Iowa R. Prof'l Conduct 32:1.11(c)(2011) (emphasis added). With respect to IA R Prof'l Conduct 32.1.11c the Defendant wholly fails to prove that Mr. Larew has " any confidential government information" about Defendant which "he gained as a public officer." Defendant alleges that Mr. Larew was in a position to be involved in internal discussion of litigation strategy citing to only one exhibit, Exhibit 17. However, even a close read of Exhibit 17 shows Defendant's conclusions to be misplaced. Exhibit 17 sets forth Mr. Larew's query regarding a criminal investigation of GPC by the EPA as reported in the 17 press and the ability for federal and state agencies to work collaboratively. It also ignores the structure of the Iowa State Government, where the Attorney General is charged with representing the State in environment lawsuits filed by the DNR, as described above in footnote 3. Nothing in Exhibit 17 supports the allegation that Mr. Larew was involved in internal strategic litigation discussions regarding GPC's environmental record. And Mr. Larew was not in fact involved in such discussions. Defendant attaches voluminous exhibits to bolster its confidentiality argument. However it overlooks the fact that all of Defendant's exhibits are part of the public record and were acquired by means of a simple public records request. These documents were and are available to anyone who asks for them under Iowa Code chapter 22.12 Defendant does not indicate which of these publicly obtained documents, included within its 62 exhibits, should be classified as "confidential government information" about GPC.13 Defendant offers no evidence that Mr. Larew obtained any confidential government information about GPC when he served in the Governor's Office. Mr. Larew has not violated Iowa Rule of Professional Conduct 32:1.11(c), which provides in its entirety: Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person, acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this rule, the term "confidential government information" means information that has been obtained under governmental authority and which, at the time this 12 In its initial letter to Mr. Larew, GPC describes its relevant review of those "documents from the State." [Defendant's Ex. 34]. 13 In addition Defendant's allegations completely ignore that, for anyone who seeks it, there is a bountiful amount of public information about GPC's proven violations and alleged transgressions of state and federal air and water quality laws over a period of years. 18 rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom. Iowa R. Prof'l Conduct P. 32:1.11(c)(2012) (emphasis added). The Rule clearly defines "confidential government information" as that which has been "obtained under governmental authority and which, at the time this rule is applied, the government is prohibited by law from disclosing to the public." Iowa R. Prof'l Conduct 32:1.11(c)(2012). In cases applying this Rule, or its former iteration in Iowa, it is clear that this provision is meant to apply only to truly confidential information, as often obtained in one's work representing a client. See Iowa Supreme Court Atty. Disciplinary Bd. v. Johnson, 728 N.W.2d 199, 204 (Iowa 2007) (holding that the assistant county attorney violated the former Rule when she served as a guardian ad litem in two juvenile cases about which she had confidential knowledge due to her former position as assistant county attorney in the juvenile division). The Iowa Supreme Court in Johnson dismissed the attorney's argument that this information could not be considered confidential because it was routinely shared with other attorneys and their clients. Id. While the Johnson Court did not apply the new Rule, it is clear even based on these facts that the information about GPC to which Mr. Larew had access was not confidential in the way an assistant county attorney's information would be. To support its allegations pursuant to Iowa Rule of Professional Conduct 32:1.11(c) Defendant cites cases in which the attorney "switched sides" of the controversy, taking confidential information about a case along with him. These situations are readily distinguishable. In Kronberg v. LaRouche, a criminal defense attorney was disqualified on 19 the basis that he was a former Assistant United States Attorney who had prosecuted one of the defendants and readily admitted that he had had access to confidential information about other defendants. 2010 U.S. Dist. LEXIS 35097, *3 (E.D. Va. Apr. 9, 2010). Additionally, in United States v. Villaspring Health Care Center, Inc., 2011 U.S. Dist. LEXIS 129933 (E.D. Ky. Nov. 7, 2011), also cited by Defendant, the attorney was disqualified where as an Attorney General he had investigated Villaspring Health Care Center, Inc. ("Villaspring") and recommended against prosecution, but when the attorney entered private practice, he "switched sides" and accepted Villaspring as a client to defend it against federal prosecution for the matters which he had originally investigated. Moreover, Iowa R. Prof'l Conduct P. 32:1.11(c)(2012) includes a scienter requirement, wherein the lawyer must have information the "lawyer knows" is "confidential government information." Iowa R. Prof'l Conduct 32:1.11(c)(2012). Nothing presented by the way of evidence has been submitted by Defendant to prove scienter. Indeed, the information used as the basis for allegations advanced by Plaintiffs before this Court are derived from public records, the experiences of Plaintiffs and information generally known in the Muscatine community--and does not arise from Mr. Larew's time in government service. Defendant offers no clues as what "confidential information" was in the possession of Mr. Larew that has been used in this, or any other, proceeding. There is none. The only information that Plaintiffs have about GPC is that which is "otherwise available to the public"--public records, media stories, direct witness observations. Defendant's exhibits, emails, court documents and letters with which Mr. Larew was tangentially involved are readily available to anyone pursuant to a public records request, as guaranteed by the Public Records Law, Iowa Code Chapter 22. Iowa Code ? 22.1 (2011). Defendant cannot 20 therefore prove that Plaintiffs in the instant action would gain an "unfair advantage" over GPC because, as required in the comment to the Rule, any such information must be confidential information "obtainable only through the lawyer's government service." Iowa R. Prof.'l Conduct 32:1.11, cmt. 4 (2012) (emphasis added). The information to which Mr. Larew was privy with respect to GPC's environmental record while employed in the Governor's Office is information to which the entire world may be privy, if a person merely makes a public records request. A violation of an ethical rule must be proven by a "convincing preponderance of evidence." Iowa Supreme Court Bd. Of Prof'l Ethics & Conduct v. Shinkle, 698 N.W.2d 316, 318 (Iowa 2005). Defendant has not provided any evidence of a violation of Iowa Rule of Professional Conduct 32:1.11(c), let alone a preponderance ofconvincing evidence. Defendant's Motion to Disqualify Counsel based on Iowa Rule of Professional Conduct 32:1.11(c) must therefore be dismissed. Defendant argues that because Mr. Larew should be disqualified, Ms. Diallo and Mr. Hope should also be disqualified, and the Plaintiffs' claim dismissed. Defendant faces an insurmountable problem, however: Defendant has failed to argue, let alone prove, that Mr. Larew had access to any confidential governmental information. IV. Defendant Abuses the Motion to Disqualify Defendant has failed to provide any evidence of a violation of Iowa Code section 68B.7 or Iowa Rule of Professional Conduct 32:1.11(c). Clearly, there is no ground for disqualification of Mr. Larew. "Disqualification is a 'drastic measure' that the Court should hesitate to impose, because it serves to 'separate a party from the counsel of his choice with immediate and measurable effect." United States v. Villaspring Health Care Center, Inc., 21 2011 U.S. Dist. LEXIS 129933, *4-5 (E.D. Ky. Nov. 7, 2011) (citing Zurich Ins. Co. v. Knotts, 52 S.W.3d 555, 560 (Ky. 2001)). "The extreme sanction of disqualification should only be utilized when there is a reasonable possibility that some specifically identifiable impropriety actually occurred, and where the public interest in requiring professional conduct by an attorney outweighs the competing interest of allowing a party to retain counsel of his choice. Id. at *5 (internal citations omitted). The Iowa Supreme Court decision of Killian v. Iowa Dist. Ct for Linn Cty, 452 N.W.2d 426 (Iowa 1990), recognizing that motions for disqualification of counsel were subject to misuse by opposing parties, adopted a cautionary standard. The Court stated: "We are mindful that a motion to disqualify can be misused. We note and approve the following: We approach our task as a reviewing court in this case conscious of our responsibility to preserve a balance, delicate though it may be, between an individual's right to his own freely chosen counsel and the need to maintain the highest ethical standards of professional responsibility. This balance is essential if the public's trust in the integrity of the bar is to be preserved. Moreover, we are mindful that ethical problems cannot be resolved in a vacuum." (Citing Emle Indus. Inc v. Patentez,, Inc, 478 F.2d 562, 564-65 (2nd Cir 1973)). In Hoffmann v. Internal Medicine, P.C., 533 N.W.2d 834, 836 (Iowa App. 1995), the Court of Appeals followed this directive in balancing the right of a litigant to choose his or her attorney against a claim for disqualification based on conflict of prior representation, noting that "[c]ourts must be vigilant to prevent a motion for disqualification from being wielded as a weapon for harassment or misuse." The Court continued: "Mindful of the competing interests, courts, like lawyers, must approach motions to disqualify attorneys with heightened scrutiny, (citing authority). It is not a time to 'paint with broad strokes', but to carefully examine the specific conduct of each particular case." Ironically, the law review Note cited by Defendant in support of its Motion to Disqualify also cites a case in which an appellate court articulated a warning that must also be heeded 22 here: "these revolving door laws may be used as a sword by an opposing party," and "the time and expense [of] litigating [post-employment restrictions]" may also unnecessarily prevent an attorney from representing clients, "even in those cases where it seems clear that the former employee did not violate the relevant law." Rachel E. Boehm, Note: Caught in the Revolving Door: A State Lawyer's Guide to Post-Employment Restrictions, 15 Rev. Litig. 525, 541 (1996). The defense motion is groundless, unsupported by evidence and without merit. Plaintiffs can only assume that it is being used as a weapon of litigation. This is evidenced by the Defendant's claim that the unsupported allegations against Mr. Larew could somehow taint the rest of co-counsel in this case. But, perhaps the most revealing of GPC's real purpose and intent in filing this Motion to Disqualify Counsel14 is Defendant's argument that Plaintiffs' claims in this action should somehow be dismissed because of the baseless allegations made against Mr. Larew. Both of the cases relied upon by Defendant to support its request to have the Plaintiffs' case dismissed involve a former in-house counsel to a company providing confidential information to plaintiffs as part of their suit against said company. Defendant's Memorandum, p. 10 (citing United States ex. rel. Fair Lab. Practices Assocs. v. Quest Diagnostics, Inc., 2011 WL 1330542, at *12 (S.D.N.Y. Apr. 5, 2011) and Ackerman v. National Prop. Analysts, Inc., 887 F. Supp. 510, 518-19 (S.D.N.Y. 1993)). Clearly, former in house counsel switching sides against a former employer is distinguishable, especially where it is presumed that without the confidential information provided by the former inhouse attorney the plaintiffs would not have had a case. There is no evidence of 14 Defendant goes even further in unveiling its litigation strategy by mentioning that the groundless allegations it has made may also be considered in the decision to certify a class and proposed class counsel. Defendant's Memorandum, p. 10. These sorts of attacks cannot continue and must be disallowed. 23 confidential information in the instant case, and certainly Mr. Larew has not switched sides. There are no grounds for disqualification and Plaintiffs' claims cannot be dismissed based on meritless allegations by the opposing party. CONCLUSION Iowa Code section 68B.7 is aimed at the "evil of influence peddling" and is not in any way implicated by the current situation. Based on the clear terms of the statute and the decisions interpreting it by the Iowa Ethics and Campaign Disclosure Board, Mr. Larew was not "directly concerned" and did not "personally participate" in any "case, proceeding or application" involving GPC related to environmental concerns as part of his duties in the Governor's Office. Mr. Larew has not used any influence from the Governor's Office to represent the affected citizens of Muscatine. Iowa Code section 68B.7 is clearly inapplicable. Iowa Rule of Professional Conduct 32:1.11(c), similarly, does not apply to the factual allegations presented by Defendant in support of its Motion to Disqualify Counsel because the documents presented do not support that Mr. Larew had access to any confidential government information about GPC concerning any matters related to this lawsuit due to his employment for the Governor. The Iowa Rule of Professional Conduct 32:1.11(c) defines "confidential government information" as that "not otherwise available to the public" and provides that the information must be used to disadvantage a party. The information regarding GPC's environmental record about which Mr. Larew became aware during his tenure working for the Governor was not "confidential government information" because it is otherwise available to the public through a public records request, government 24 emissions reports and, frequently, general public media, such as newspaper articles and internet websites. Defendant's Motion to Disqualify Counsel fails to provide any factual basis for extraordinary findings that it requests. Defendant also asks the Court to enter an Order based on clearly untenable grounds; grounds that would contradict express opinions issued by the state agency that specializes in the interpretation and implementation of Iowa Code chapter 68B.7. Defendant's Motion to Disqualify Counsel is a tactical tool. The Iowa Supreme Court has warned against the tactics that Defendant is presently using. In Bottoms v. Stapleton, 706 N.W.2d. 411, 415 (Iowa 2005), Ternus, J., gave notice that: In balancing these interests [court's interest in the administration of justice compared to a client's right to counsel of its own choosing], a court must also be vigilant to thwart any misuse of a motion to disqualify for strategic reasons. See id.; accord 1 Geoffrey C. Hazard, Jr. and W. William Hodes, The Law of Lawyering ? 10.2, at 10-10 (3d ed. 2004 Supp.) (stating 'policymaking with respect to conflicts of interest regulation must take account of the opportunities for manipulation and tactical infighting'). [Emphasis ours] Defendant's Motion to Disqualify Counsel is an attempt to deny Plaintiffs, who have alleged that their legal rights have been violated, and who have chosen legal counsel to advance those claims, from having their day in this Court. Defendant's Motion should be denied, coupled with a message that any future attempts of misuse should be avoided, if 25 sanctions are to be prevented. August 13, 2012 CRITELLILAW, P.C. ___________________________ Nick Critelli, J.D. (AT001865) 317 Sixth Avenue Des Moines, IA 50309 PH: 515-243-3122 FX: 515-243-2932 EM: Nick@CritelliLaw.com ATTORNEY FOR PLAINTIFFS (Limited Admission) Certificate of Service Copy For: Courtesy Copy for the Court: Hon. Mark Smith EM: Mark.Smith@Iowacourts.gov EM: Kathryn.Lang@Iowacourts.gov ---------------------------------Attorneys for Defendant Grain Processing Corporation: BELIN McCORMICK, P.C. Mark McCormick, J.D. Charles F. Becker, J.D. Michael R. Reck, J.D. Kelsey J. Knowles, J.D. 666 Walnut Sts Des Moines, IA 50309 Facsimile: (515) 558-0609 EM: mmccormick@belinmccormick.com EM: cfbecker@belinmccormick.com 26 ___________________ Nick Critelli I, Nick Critelli of CRITELLILAW, P.C. certify that on the 13th day of August 2012, I served a copy of the above pleading, motion or brief on the attorneys listed herein by electronic mail to the addresses listed herein. Certificate of Service EM: mrreck@belinmccormick.com EM: kjknowles@belinmccormick.com STANLEY, LANDE & HUNTER Steven J. Havercamp, J.D. 301 Iowa Avenue, Suite 400 Muscatine, IA 52761 EM: shavercamp@slhlaw.com BAKER & BOTTS Joshua Frank, J.D. Steven Leifer, J.D. Charles Loughlin, J.D. 1299 Pennsylvania Ave, N.W. Washington, D.C. 2005-2400 EM: joshua.frank@bakerbotts.com EM: sleifer@bakerbotts.com EM: charles.loughlin@bakerbotts.com Attorneys for the Plaintiffs: LAREW LAW OFFICE James C. Larew, J.D. Claire M. Diallo 504 E. Bloomington St. Iowa City, IA 52245 EM: James.Larew@larewlawoffice.com EM: Clair.Diallo@larewlawoffice.com HOPE LAW OFFICE Andrew L. Hope, J.D. 317 Sixth Avenue Des Moines, IA 50309 EM: Andrew@hopelawfirm.com 27 JZ .. .17II..IIQI . I4.-..--..Ura1-4;.-5II - a1 mrI--I---.. --. .--. lIgejuan - -.. - .. . ?II: --I IITMu.mL.7oI ..1IUQII 2.I?oo .--.A..-. -3..V4..au;. M-.-, V-6"ip. .V-V..- umu .4La(IIdh:" ..-gilVI-.5-T pi? I Vw I I IcIiAdvisory Opinion 2007-04 Page 1 of 2 Search All of Iowa.gov... Iowa Ethics & Campaign Disclosure Board An independent executive branch agency of the State of Iowa The Board Calendar Actions Staff Advisory Opinion IECDB AO 2007-04 June 28, 2007 Karlyn Dalsing Department of Inspections & Appeals kadalsing@hotmail.com Dear Ms. Dalsing: This opinion is in response to your email letter of March 22, 2007, 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 Mon Aug 13 12:11:55 CDT 2012. Search Iowa Ethics: Search IECDB Home State of Iowa Home Campaigns Candidates PACs Parties Other Additional info: Our FAQ For more information on how to use this site, go here. Information for County Auditors is here. Lobbyists and Clients need to register with the General Assembly. The legislative website is here. Executive Ethics Lobbying Ethics Manual 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: You request this opinion in your capacity as an employee of the Iowa Racing and Gaming Commission (IRGC), a regulatory agency within the Department of Inspections and Appeals (DIA). You advise us that Riverside Casino and Golf Resort, LLC (Riverside) received its operating license in 2005 and that you did not take part in the decision to authorize the license. You are now interested in accepting employment with Riverside an internal auditor/compliance position. You would be working with an IRGC gaming representative, reviewing staff compliance matters, and in the submission of casino internal controls/rules for IRGC review. You do not Local Ethics Electronic Filing File Reports Searchable Data View Campaign Reports View All Reports More links: Our Site Index Secretary of State Federal Election (FEC) IRS EIN information Address Lists Blank Forms Links of Interest Laws, Rules, Opinions Iowa Code anticipate engaging in lobbying activities. QUESTION: Is it permissible for you to accept employment with Riverside Casino and Golf Resort, LLC within two years of leaving employment with the Iowa Racing and Gaming Commission? OPINION: Rules Advisory Opinions Two sections of the state code of ethics in Iowa Code chapter 68B and the Board's administrative rules in 351--Chapter 6 address post state employment issues. First, http://www.iowa.gov/ethics/legal/adv_opn/2007/07fao04.htm 8/13/2012 Advisory Opinion 2007-04 Page 2 of 2 Latest news: Current Events Last updated on: July 3, 2012 Iowa Code section 68B.5A bans certain lobbying activities for two years after leaving state government. Since your proposed employment does not seem to involve lobbying, that statute would not apply.1 Iowa Code section 68B.7 prohibits you from engaging in certain activities for two years after leaving state government. That statute prohibits you from appearing before your former agency or receiving compensation for "any services rendered on behalf of any person, firm, corporation, or association in relation to any case, proceeding, or application" you were "directly concerned and personally participated" during state service. For two years you could not on behalf of Riverside appear before DIA or receive compensation from Riverside in relation to any "case, proceeding, or application" involving Riverside that you were "directly concerned and personally participated" in while employed at DIA. Thus, so long as your employment with Riverside did not involve any "case, proceeding, or application" that you were "directly concerned and personally participated" during your employment with IRGC and DIA, you would not be restricted in your employment with Riverside. In closing, if you do accept the employment the Board invites you to seek additional guidance if you have questions about a specific factual situation involving Riverside and your former agency to ensure that it would not involve an impermissible "case, proceeding, or application" that you were "directly concerned and personally participated" during state employment. 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 1 See Iowa Code section 68B.2(13) and Board rules 351--8.1 through 8.3 for the definitions of "lobbyist" and "lobbying." Iowa Ethics & Campaign Disclosure Board back to home http://www.iowa.gov/ethics/legal/adv_opn/2007/07fao04.htm 8/13/2012 Advisory Opinion 2008-01 Page 1 of 3 Search All of Iowa.gov... Iowa Ethics & Campaign Disclosure Board An independent executive branch agency of the State of Iowa The Board Calendar Actions Staff Advisory Opinion IECDB AO 2008-01 February 11, 2008 James H. Smith 1700 Fairway Drive Indianola, Iowa 50125 Dear Mr. Smith: This opinion is in response to your letter of January 2, 2008, 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 Mon Aug 13 12:13:40 CDT 2012. Search Iowa Ethics: Search IECDB Home State of Iowa Home Campaigns Candidates PACs Parties Other Additional info: Our FAQ For more information on how to use this site, go here. Information for County Auditors is here. Lobbyists and Clients need to register with the General Assembly. The legislative website is here. Executive Ethics Lobbying Ethics Manual 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: You advise us that you are currently the Deputy Director and Chief Financial Officer of the Iowa Finance Authority (IFA). IFA administers a variety of programs, several of which you are involved with as part of your state duties. These programs often involve an entity involving an application to IFA for funding. You are considering terminating state employment and accepting a position as a Special Partner in a private law firm. You would be receiving a salary, but would not be sharing in the profits and losses of the firm as an equity partner for at least two years. QUESTIONS: Based on this factual statement you ask us the following questions: 1. What impact would the state code of ethics have on the law firm that hired you? 2. Does that fact that your future employer currently provides legal services to IFA for many programs alleviate or diminish state code of ethics issues? 3. Would you be prohibited from drafting, reviewing, or commenting on statutory provisions or administrative rules affecting IFA? Local Ethics Electronic Filing File Reports Searchable Data View Campaign Reports View All Reports More links: Our Site Index Secretary of State Federal Election (FEC) IRS EIN information Address Lists Blank Forms Links of Interest Laws, Rules, Opinions Iowa Code Rules Advisory Opinions http://www.iowa.gov/ethics/legal/adv_opn/2008/08fao01.htm 8/13/2012 Advisory Opinion 2008-01 Page 2 of 3 Latest news: Current Events Last updated on: July 3, 2012 4. Does work on bond programs issued by IFA constitute a "case, proceeding, or application?" 5. Are you prohibited from working, for two years, on new transactions and bonds issued through a continuous program? OPINION: In answer to your first two questions, the post-state employment restrictions apply only to you and not the law firm that hires you. Thus, while you are restricted from engaging in certain activities, the law firm that hires you would not be prohibited from doing so. The fact that your future employer currently provides legal services to IFA does not alleviate or diminish the post-state employment restrictions in the state code of ethics as applied to you. Turning to your third question, Iowa Code section 68B.5A restricts state officials and employees from engaging in certain lobbying activities. The first three numbered paragraphs place restrictions on state officials and employees lobbying while they are employed by the state. Numbered paragraphs four through six place restrictions for two years on former state officials and employees lobbying. 1 As you are the "deputy executive or administrative head of an agency of state government" 2 you fall under the restrictions set out in Iowa Code section 68B.5A(1), and for purposes of your opinion request, Iowa Code section 68B.5A(4). That section prohibits you from becoming a "lobbyist", as defined in Iowa Code section 68B.2 (13)"a" and Board rule 351--8.2, "within two years after the termination" of state service. 3 Iowa Code section 68B.7 also places restrictions on state officials and employees for two years after leaving state government. That section, in pertinent part, prohibits you for two years after leaving state employment from receiving any compensation "in relation to any case, proceeding, or application" in which you were "directly concerned and personally participated" during state employment. It is our opinion that the process for seeking a bond from IFA as part of an IFA administered program is an "application" that triggers the statute. Therefore, you could not receive compensation for two years after leaving state employment related to any bond application that you were "directly concerned and personally participated" in during your employment with IFA. In response to your final question, the fact that the program is on-going is not the trigger for the statute to apply. Rather, it would be each underlying individual application as part of the broader IFA program. The language of the statute does not seek to prohibit former state officials and employees from being involved in "programs," but in a "case, proceeding, or application." Thus, you could work on a subsequent application for bond funding from an IFA program so long as the http://www.iowa.gov/ethics/legal/adv_opn/2008/08fao01.htm 8/13/2012 Advisory Opinion 2008-01 Page 3 of 3 application was not one that you were "directly concerned and personally participated" in during state employment. 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 1 Note that the Board's jurisdiction in interpreting the lobbying laws in Chapter 68B are limited to the executive branch of state government only. Questions concerning your ability to lobby the legislative branch would need to be referred to the House and Senate Ethics Committees. 2 See Iowa Code section 68B.2(2) that defines "agency of state government" to include an "authority." There are a number of exceptions from the definition of "lobbyist" as set out in Iowa Code section 68B.2 3 (13)"b" and Board rule 351--8.3. For example, you would be permitted to "give testimony or provide information at public hearings of state agencies" or provide "information or assistance at the request of public officials or employees." In addition, there is an exception for "submitting data, views, or arguments" as part of the agency rulemaking process set out in Iowa Code section 17A.4. Iowa Ethics & Campaign Disclosure Board back to home http://www.iowa.gov/ethics/legal/adv_opn/2008/08fao01.htm 8/13/2012 Advisory Opinion 2006-16 Page 1 of 3 Search All of Iowa.gov... Iowa Ethics & Campaign Disclosure Board An independent executive branch agency of the State of Iowa The Board Calendar Actions Staff Advisory Opinion IECDB AO 2006-16 December 21, 2006 Michael Davis, PH.D. 820 45th Street West Des Moines, Iowa 50265 Dear Dr. Davis: This opinion is in response to your letter of November 28, 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 Mon Aug 13 12:08:56 CDT 2012. Search Iowa Ethics: Search IECDB Home State of Iowa Home Campaigns Candidates PACs Parties Other Additional info: Our FAQ For more information on how to use this site, go here. Information for County Auditors is here. Lobbyists and Clients need to register with the General Assembly. The legislative website is here. Executive Ethics Lobbying Ethics Manual 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. Local Ethics Electronic Filing File Reports Searchable Data View Campaign Reports View All Reports FACTUAL STATEMENT: You currently serve as Superintendent of Woodward Resource Center (WRC) that is part of the Department of Human Services (DHS). You are interested in leaving state government and accepting doing work with Mosaic, a private nonprofit company, implementing a federal earmarked project entitled "The Road to Community" (Project). The Project has not involved a case, proceeding, or application involving Mosaic and DHS. If Mosaic receives the federal funding, it will not require a case, proceeding, or application involving DHS or any other state agency. Mosaic would need the cooperation of DHS staff. Your work would involve discussions with DHS, among other groups. More links: Our Site Index Secretary of State Federal Election (FEC) IRS EIN information Address Lists Blank Forms Links of Interest Laws, Rules, Opinions Iowa Code Rules Advisory Opinions In your capacity as Superintendent of WRC, your involvement with the Project has involved meeting with Mosaic three times over the past three years discussing various issues and you have sent letters of support to the Iowa Congressional delegation indicating WRC support for the Project. You did not participate in preparation of any proposal, in preparation of any budget, or in the planning of the structure of the Project. QUESTION: http://www.iowa.gov/ethics/legal/adv_opn/2006/06fao16.htm 8/13/2012 Advisory Opinion 2006-16 Page 2 of 3 Latest news: Current Events Last updated on: July 3, 2012 Is it permissible for you to provide services to Mosaic as an independent contractor for two years after leaving the Department of Human Services concerning The Road to Community project? OPINION: Iowa Code sections 68B.5A and 68B.7 place restrictions on state officials and employees engaging in certain activities within two years of leaving state government. In applying the language of Iowa Code section 68B.5A, we first find that as Superintendent of WRC you are the "head of a major subunit of a department." Therefore, pursuant to Iowa Code section 68B.5A(5) for two years after leaving state government you cannot become a "lobbyist" before DHS or before any state officials, employees, or agencies that you had "substantial and regular contact" with as part of your duties with DHS. 1 Thus, your work as an independent contractor with Mosaic, or any other entity, must not include lobbying DHS or other state officials, employees, or agencies you had "substantial and regular contact" with while employed with DHS. You could be a lobbyist before any other state officials, employees, or state agencies. Pursuant to Iowa Code section 68B.7 you cannot, for two years, "appear before the agency" (DHS) or "receive compensation for any services rendered on behalf of any person, firm, corporation, or association in relation to any case, proceeding, or application" that you were "directly concerned and personally participated" during your employment with DHS. From your opinion request, it does not appear that you have been involved with any case, proceeding, or application involving Mosaic while employed with DHS. It also does not appear that your work on the Project will involve any "case, proceeding, or application." Thus, so long as you comply with Iowa Code sections 68B.5A and 68B.7, we do not believe that you are prohibited from providing services to Mosaic on The Road to Community project within two years of leaving employment with the Department of Human Services. In closing, we do invite you to seek further Board guidance in the event that you provide services to other entities that may involve communications with DHS or if you desire an opinion on the specific application of the lobbying laws to your activities. BY DIRECTION AND VOTE OF THE BOARD James Albert, Board Chair Janet Carl, Vice Chair Gerald Sullivan Betsy Roe John Walsh Patricia Harper http://www.iowa.gov/ethics/legal/adv_opn/2006/06fao16.htm 8/13/2012 Advisory Opinion 2006-16 Page 3 of 3 Submitted by: W. Charles Smithson, Board Legal Counsel 1 Note the definition of "lobbyist" in Iowa Code section 68B.2(13) that a person who by "acting directly" encourages the "passage, defeat, approval, veto, or modification of legislation, a rule, or an executive order by the members of the general assembly, a state agency, or any statewide elected official." Iowa Ethics & Campaign Disclosure Board back to home http://www.iowa.gov/ethics/legal/adv_opn/2006/06fao16.htm 8/13/2012 Advisory Opinion 2000-43 Page 1 of 3 Search All of Iowa.gov... Iowa Ethics & Campaign Disclosure Board An independent executive branch agency of the State of Iowa The Board Calendar Advisory Opinion IECDB AO 2000-43 November 16, 2000 Mon Aug 13 12:15:15 CDT 2012. Search Iowa Ethics: Search IECDB Home State of Iowa Home Actions Staff Thomas Frolick 156F University Village Ames, Iowa 50010 Dear Mr. Frolick: Campaigns Candidates PACs Parties Other Additional info: This opinion is in response to your letter of November 7, 2000, in which you request an opinion from the Iowa Ethics and Campaign Disclosure Board. We note at the outset that the Board's jurisdiction is limited to the application of Iowa Code chapters Our FAQ For more information on how to use this site, go here. Information for County Auditors is here. Lobbyists and Clients need to register with the General Assembly. The legislative website is here. Executive Ethics Lobbying Ethics Manual 56 and 68B and rules in Iowa Administrative Code chapter 351. Whether some other statutory system, common law theory or agency rule applies to this issue is not covered by this opinion. FACTUAL STATEMENT: Local Ethics Electronic Filing File Reports Searchable Data View Campaign Reports View All Reports We understand you request this opinion in your capacity as the former Plan Administrator of the Iowa Department of Personnel's (IDOP) Deferred Compensation Program. As part of your state duties, you worked with sixty insurance companies with which state employees had investment plan funds. You further advise us that you resigned your position in November of 1999, but did not leave state service until June 30, 2000. Prior to your leaving state employment, IDOP issued a Request for Proposals (RFP) for new investment providers to begin on January 2001. You did not draft the RFP, but you did review early drafts of the document and attended preliminary meetings where it was discussed. However, you did not write, contribute to or review the final draft. More links: Our Site Index Secretary of State Federal Election (FEC) IRS EIN information Address Lists Blank Forms Links of Interest Laws, Rules, Opinions Iowa Code Rules Advisory Opinions Sixty days after your departure from state government, ten companies submitted competitive bids. On October 24, 2000, IDOP announced four successful bidders with Aetna being one of them. IDOP's proposed contract with Aetna included a clause that would prohibit those who participated in the evaluation and scoring process from http://www.iowa.gov/ethics/legal/adv_opn/2000/00fao43.htm 8/13/2012 Advisory Opinion 2000-43 Page 2 of 3 Latest news: Current Events Last updated on: July 3, 2012 working for the successful bidders. You state that your potential employment would not violate that prohibition. After the successful bidders were announced, you were offered a position with Aetna and would be responsible for marketing and client relationships for all of Aetna's public sector and non-profit retirement business in Iowa. As such, you would manage the relationship between Aetna and IDOP and would be involved in the marketing of deferred compensation to state employees. You are concerned about the impact of the conflict of interest laws in Chapter 68B to your proposed employment with Aetna. QUESTION: Do the provisions of Iowa Code section 68B.7 prohibit you from accepting employment with Aetna for two years following termination of state employment? OPINION: Iowa Code section 68B.7 in pertinent part states: "A person who has served as...state employee of a state agency...shall not within a period of two years after the termination of such service or employment appear before the agency or 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 person was directly concerned and personally participated during the period of service or employment." In applying this language to your question, we do not believe that merely reviewing early drafts of an RFP rises to the level of "directly concerned and personally participated" in an "application" as contemplated by the statute. Therefore, nothing in Iowa Code section 68B.7 would prohibit you from accepting employment with Aetna and appearing before IDOP within two years of termination of state employment. BY DIRECTION AND VOTE OF THE BOARD Bernard McKinley, Board Chair 1st Vice-Chair Geraldine Leinen 2nd Vice-Chair James Albert Gwen Boeke Mark McCormick Phyllis Peters Submitted by: W. Charles Smithson, Board Legal Counsel Click here for printer friendly version Iowa Ethics & Campaign Disclosure Board back to home http://www.iowa.gov/ethics/legal/adv_opn/2000/00fao43.htm 8/13/2012 Advisory Opinion 2000-43 Page 3 of 3 http://www.iowa.gov/ethics/legal/adv_opn/2000/00fao43.htm 8/13/2012 Advisory Opinion 2007-03 Page 1 of 3 Search All of Iowa.gov... Iowa Ethics & Campaign Disclosure Board An independent executive branch agency of the State of Iowa The Board Calendar Actions Staff Advisory Opinion IECDB AO 2007-03 June 28, 2007 Leland Tack Department of Education 6805 NorthGlenn Way Johnston, Iowa 50131 Dear Mr. Tack: This opinion is in response to your letter of May 21, 2007, 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 Mon Aug 13 12:12:42 CDT 2012. Search Iowa Ethics: Search IECDB Home State of Iowa Home Campaigns Candidates PACs Parties Other Additional info: Our FAQ For more information on how to use this site, go here. Information for County Auditors is here. Lobbyists and Clients need to register with the General Assembly. The legislative website is here. Executive Ethics Lobbying Ethics Manual 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: Local Ethics Electronic Filing File Reports Searchable Data View Campaign Reports View All Reports You request this opinion in your capacity as the former Administrator of the Financial and Information Services Division in the Department of Education (DOE) and now as an independent contractor with a company located outside of Iowa. Your opinion request states that as part of your former state duties you were involved in initiating and supporting DOE's move toward the electronic collection of data from school districts. Prior to leaving state service you facilitated a meeting to determine interest and support for a data warehouse to collect and process this data. As a result of this meeting, and other discussions that you were not involved in, DOE issued a RFP for developing and implementing a data warehouse solution. You state that you were not involved in the drafting, reviewing, or writing the RFP. You retired on November 15, 2006, and the RFP was issued on March 19, 2007. QUESTION: Based on your factual statement you ask us the following questions: More links: Our Site Index Secretary of State Federal Election (FEC) IRS EIN information Address Lists Blank Forms Links of Interest Laws, Rules, Opinions Iowa Code Rules Advisory Opinions 1. Are you prohibited from working on the development of a response to the RFP? http://www.iowa.gov/ethics/legal/adv_opn/2007/07fao03.htm 8/13/2012 Advisory Opinion 2007-03 Page 2 of 3 Latest news: Current Events Last updated on: July 3, 2012 2. Would the company that employs you be prohibited from identifying you as one of the key persons who would be involved in the project as part of the company's response to the RFP? 3. Would you be prohibited from working on this project? OPINION: Two sections of the state code of ethics in Iowa Code chapter 68B and the Board's administrative rules in 351--Chapter 6 address post state employment issues. First, Iowa Code section 68B.5A bans certain lobbying activities for two years after leaving state government. That statute does not seem to apply to your questions as the activities you describe in your opinion request do not trigger the definition of "lobbying." 1 Iowa Code section 68B.7 also prohibits you from engaging in certain activities for two years after leaving state government. That statute prohibits you from appearing before your former agency or receiving compensation for "any services rendered on behalf of any person, firm, corporation, or association in relation to any case, proceeding, or application" you were "directly concerned and personally participated" during state service. In applying this section to your questions the Board first notes that it does not appear that you were "directly concerned and personally participated" in the project during your time with DOE. You did not draft, review, or otherwise work on the RFP while you were employed with DOE. While you may have participated in discussions that ultimately resulted in the project in question, we do not believe this rises to the level of involvement the statute seeks to prohibit. 2 As the Board does not believe that you were "directly concerned and personally participated" in the data warehouse solution project during your employment with DOE, then the prohibitions in Iowa Code section 68B.7 would not apply. Therefore, you would not be prohibited from working on the response to the RFP, you could be identified as one of the individuals who would be working on the project, and you could work on the project without having to wait for two years after leaving DOE. 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 http://www.iowa.gov/ethics/legal/adv_opn/2007/07fao03.htm 8/13/2012 Advisory Opinion 2007-03 Page 3 of 3 1 See Iowa Code section 68B.2(13) and Board rules 351--8.1 through 8.3 for the definitions of "lobbyist" and "lobbying." 2 See IECDB Advisory Opinion 2000-43 in which the Board opined that even "reviewing early drafts of an RFP" did not "rise to the level of directly concerned and personally participated" for purposes of Iowa Code section 68B.7. Iowa Ethics & Campaign Disclosure Board back to home http://www.iowa.gov/ethics/legal/adv_opn/2007/07fao03.htm 8/13/2012 Advisory Opinion 2009-08 Page 1 of 3 Search All of Iowa.gov... Iowa Ethics & Campaign Disclosure Board An independent executive branch agency of the State of Iowa The Board Calendar Actions Staff Advisory Opinion IECDB AO 2009-08 April 30, 2009 Ben Woodworth Via Email Mon Aug 13 12:14:19 CDT 2012. Search Iowa Ethics: Search IECDB Home Campaigns Candidates Dear Mr. Woodworth: State of Iowa Home This opinion is in response to your email letters of April 16, 2009, and April 17, 2009, PACs Parties Other requesting an opinion from the Iowa Ethics and Campaign Disclosure Board pursuant to Iowa Code section 68B.32A(12) 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. Additional info: Our FAQ For more information on how to use this site, go here. Information for County Auditors is here. Lobbyists and Clients need to register with the General Assembly. The legislative website is here. Executive Ethics Lobbying Ethics Manual Advice in a Board opinion, if followed, constitutes a defense to a subsequent complaint based on the same facts and circumstances. FACTUAL STATEMENT: You advise us that until March 6, 2009, you were employed by the Iowa Department of Public Health (IDPH) as part of the Iowa Brain Injury Services Program. You were responsible for supervising contracts with the Iowa Association of Community Providers (IACP). You have been contacted by IACP concerning employment to do brain injury training and consultation. The funding for the IACP position would be funded, in part, through a grant that IDPH received from a federal source. IDPH then uses that funding to award grants to Local Ethics Electronic Filing File Reports Searchable Data View Campaign Reports View All Reports More links: Our Site Index Secretary of State Federal Election (FEC) IRS EIN information local entities in Iowa and enters into contracts for services. You participated in compiling information for the application of the grant on behalf of IDPH. The contract to IACP was awarded on April 10, 2009, by the Division Director of Behavioral Health. You were not part of the grant awarding decision. QUESTION: Is it permissible for you to accept private sector employment when the funding for the position would come from a grant that you assisted in securing while a state employee? Address Lists Blank Forms Links of Interest Laws, Rules, Opinions Iowa Code Rules Advisory Opinions OPINION: http://www.iowa.gov/ethics/legal/adv_opn/2009/09fao08.htm 8/13/2012 Advisory Opinion 2009-08 Page 2 of 3 Latest news: Current Events Last updated on: July 3, 2012 Two sections of the state code of ethics in Iowa Code chapter 68B and the Board's rules in 351--Chapter 6 address post state employment issues. First, Iowa Code section 68B.5A prohibits certain lobbying activities for two years after leaving state government. It does not appear from your request that you will be engaging in lobbying activities and this section would not apply. 1 Iowa Code section 68B.7 also places limitations on the ability of state officials and state employees from accepting employment. We first note that the statute was amended by the 2009 General Assembly. impact the analysis in this opinion. 3 2 However, those amendments do not The statute, in pertinent part, prohibits a state official or employee for two years after leaving state service from receiving compensation "in relation to any case, proceeding, or application" the state official or employee "was directly concerned and personally participated during the period" of state "service or employment." In reviewing your situation, we believe that your conduct does not rise to the level of being "directly concerned" or "personally participated" as contemplated by the statute. The evil the statute seeks to prevent involves "influence peddling" whereby a state official or employee can help direct the outcome of a decision to assist a particular person and then trade on that help to gain private sector employment with the same person. 4 You assisted in securing funding for the grant, but you were not "directly concerned" or "personally participated" in awarding the grant/contract to IACP. If you had participated in the IACP application to IDPH for the grant, the analysis of this opinion would be different. this opinion. 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 5 Therefore, you could accept employment with IACP as set out in 1 See Iowa Code section 68B.2(13) and Board rule 351--8.1 for the definition of "lobbying". See 2009 Iowa Acts, Senate File 52, section 3. For a full discussion on the history of Iowa Code section 68B.7 and the application of the amendments 2 3 see IECDB Advisory Opinion 2009-07. 4 In fact, 2009 Iowa Acts, Senate File 52, section 6, directs the Code Editor to rename Iowa Code section 68B.7 from "Other activities -- two year ban" to "Prohibited Use of Influence". http://www.iowa.gov/ethics/legal/adv_opn/2009/09fao08.htm 8/13/2012 Advisory Opinion 2009-08 Page 3 of 3 5 The fact that you participated in prior contracts between IDPH and IACP is irrelevant as the funding for the position is based on this particular grant/contract and not previous ones. Iowa Ethics & Campaign Disclosure Board back to home http://www.iowa.gov/ethics/legal/adv_opn/2009/09fao08.htm 8/13/2012