HomeMy WebLinkAbout83-597 ShirkMr. Kenelm L. Shirk, III, Esquire
Shirk, Rice & Posey
P.O. Box 552
Lancaster, PA 17603
Dear Mr. Shirk:
Mailin Address
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
October 6, 1983
ADVICE OF COUNSEL
RE: Gifts, Family, Law Firm, Disclosure
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
83 -597
This responds to your letter of August 9, 1983, in which you requested
advice from the State Ethics Commission.
Issue: You ask if it is permissible under the Ethics Act for either you or
your father or the law firm in which you are both partners to pay for certain
expenditures for your sister and brother -in -law, and if so, whether they, as
public employees, would have to report such gifts on their Financial Interest
Statements.
Facts: You and your father, Kenelm L. Shirk, Jr., are both partners in the
law firm of Shirk, Rice and Posey. Your sister is a lawyer in Pennsylvania
who, from time -to -time, does legal research for your firm as an independent
contractor. Your sister's husband is employed by the Commonwealth of
Pennsylvania as an Attorney.
You state that you, your father, and /or the firm are willing to subsidize
the expenses of certain Bar Association functions for your sister and
brother -in -law. You believe this would be of benefit to their careers and
professional inter - relationships, and while you expect that the annual
expenditure for each will exceed $50, you are doubtful that such expenditures
will exceed $100 eacn.
You would like to know if it is permissable for your sister and
brother -in -law to accept such gifts from either your father, yourself, or the
firm, and if so, whether such gifts would have to be disclosed on a Financial
Interest Statement under the Ethics Act.
Mr. Kenelm L. Shirk, III, Esquire
October 6, 1983
Page 2
Discussion: Assuming, for the purposes of this Advice, that your
brother -in -law must file a Statement of Financial Interests as a public
employee, it is instructive to discuss what constitutes a "gift ", as well as
what gifts must be reported on the Financial Interest Statement.
Under 65 P.S. 402, "gift" is defined as:
"Gift." A payment, subscription, advance, forbearance,
rendering or deposit of money, services anything of
value, unless consideration of equal or greater value is
recieved. "Gift" shall not include a political
contribution otherwise reported as required by law, a
commercially reasonable loan made in the ordinary course
of business, or a gift received from a member of the
person's immediate family or from a relative within the
third degree of consanguinity of the person or of the
person's spouse or froi,r the spouse of any such relative.
65 P.S. 402.
Under 65 P.S. 405(b)(6), the content of the Financial Interest Statement
(FIS) with regard to "gifts" it is stated that the FIS must include:
(b)(6) The name and address of any person from whom a
gift or gifts valued in the aggregate at $200 or more
were received, and the value and the circumstances of
each gift. However, this provision shall not be
applicable to gifts received from the individual's
spouse, parents, parents by marriage, siblings,
children or grandchildren. 65 P.S. 405(b)(6).
In light of Sections 402 and 405(b)(6), your sister and brother -in -law
would not have to report any gifts above or below $200 made to them by either
you or your father. While this transaction may be considered to be an
attorney to attorney transaction, the Commission believes that the proper
approach in this case is to analyze the gift or payment as one being from
either a parent or sibling, and thus, not required to reported on the
Financial Interest Statement
However, if the law firm should make such a gift to your sister and
brother -in -law, Section 405(b)(6) indicates that such gift or gifts, if in
excess of $200, should be reported on the Financial Interest Statement.
Mr. Kenelm L. Shirk, III, Esquire
October 6, 1983
Page 3
Conclusion: Gifts from either you or your father to your sister and
brother -in -law need not be reported on the Financial Interest Statement,
whether or not they are in excess of $200. See 65 P.S. 405(b)(6). However,
gifts from the law firm in excess of $200 should be reported on the Financial
Interest Statement. The source, ie., the name and address of the law firm
would have to be reported, as well as the value and reason for the gift(s)
would then be reportable.
Pursuant to Section 7(9)(ii), this Advice is a complete defense in any
enforcement proceeding initiated by the Commission, and evidence of good faith
conduct in any other civil or criminal proceeding, providing the requestor has
disclosed truthfully all the material facts and committed the acts complained
of in reliance on the Advice given.
This letter is a public record and will be made available as such.
Finally, if you disagree with this Advice or if you have any reason to
challenge same, you may request that the full Commission review this Advice. A
personal appearance before the Commission will be scheduled and a formal
Opinion from the Commission will be issued. Any such appeal must be made, in
writing, to the Commission within 15 days of service of this Advice pursuant
to 51 Pa. Code 2.12.
CW /rdp
Sincerely,
S. ndra . r�isti a son
General CounAel