When are Individuals Providing Services Considered Consultants for Disclosure Purposes?

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FPPC Advises When Administrative Consultants Make Governmental Decisions, or Serve in a Staff Capacity and Participate in Governmental Decisions

A recent advice letter by the Fair Political Practices Commission (FPPC) provides additional guidance to public agencies for classifying consultants in human resources or administrative positions. Anyone providing services under a contract that makes governmental decisions or serves in a staff capacity and participates in making governmental decisions is considered a consultant. The consultant would therefore fall under the jurisdiction of the agency’s conflict of interest code and must file appropriate disclosure statements. Many agency services and positions are now outsourced and contracted which means positions within each vendor may need to be analyzed to determine the requirement to file a statement of economic interests.

In contrast, employees of a contracted firm who implement decisions already made by the agency or its employees would not be considered consultants and are not required to file disclosure statements. However, employees of a contracted firm making executive decisions concerning human resources matters on behalf of the agency, such as hiring decisions, deciding what health benefits to offer or approving contracts on behalf of the agency, would need to be designated as consultants and required to file disclosure statements.

Examples of outside personnel duties requiring designation as a consultant under the agency’s conflict of interest code:

  • Hire an outside attorney to represent agency in personnel issues
  • Select and purchase software for agency for use in payroll and HR administration
  • Select benefits packages offered to agency employees, including determining what kind of benefits to provide or which providers to utilize
  • Participate as part of agency’s executive management team
  • Approve health benefit claims

Examples of outside personnel duties not requiring consultant designation:

  • Payroll administration
  • Administration of employee benefits
  • Processing new agency hires or separation of employees
  • Implementing authorized employee overtime
  • Preparation of salary or benefits surveys for consideration by government agency