CONSULTANS: COMPLYING WITH THE REPORTING REQUIREMENTS AND CONFLICT OF INTREST PROVISIONS OF THE POLITICAL REFORM ACT AND GOVERNMENT CODE 1090

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I®1. BEST BEST & KRIEGER ; %% 114@@ ATTORNEYS AT LAW `017 Aliq -9 pM MEMORANDUMCITY OF CLERK OF o,,,t NA To: PUBLIC AGENCY CLIENTS ' From: BEST BEST & KRIEGER, LLP Date: JANUARY3, 2017 Re: CONSULTANTS: COMPLYING WITH THE REPORTING REQUIREMENTS AND CONFLICT OF INTEREST PROVISIONS OF THE POLITICAL REFORM ACT & GOVERNMENT CODE§1090 INTRODUCTION An Advice Letter recently issued by the Fair Political Practices Commission ("FPPC"), legal decisions issued in the last year or so, and FPPC interpretations of those decisions, have put a spotlight on consultants to government entities and the implications for reporting obligations and conflicts of interest under the Political Reform Act ("the Act") and Government Code § 1090 ("GC 1090"). Maintaining compliance with these laws, court decisions and regulations with respect to consultants, including independent contractors, poses a challenge to agencies because who qualifies as a '.consultant" for reporting purposes, and whether a consultant qualifies as an "employee" for conflict of interest purposes, depends on which law is at issue and the factual circumstances of the consultant's employment by the agency. This memo will discuss three separate aspects concerning consultants: 1) designation and reporting requirements under the Act; 2) conflict of interest implications under the Act; and 3) conflict of interest implications under GC 1090. Reporting Requirements for Consultants Under the Act In an advice letter issued in July, the FPPC made it clear that a public entity is responsible for ensuring that its conflict of interest code ("Code") designates all public officials and employees who make or participate in making decisions, including consultants, and that the disclosure categories of the conflict of interest code be tailored to the duties performed by the designated positions. Moreover, the filing officer is required to determine whether required Statements of Economic Interests ("SEI") have been filed and notify promptly all persons who have failed to file a statement. (Bakker Advice Letter, 1-16-062.) The FPPC made it clear that the government entity has an affirmative duty to identify a qualifying "consultant" under the Act and that that obligation does not lie with the individual consultant. This product provided under the Public Policy & Ethics Group Progam 93 93 9.0020E\294478 5 3, 1