Fitch v. State

• Decision Date: 31 August 2001
• Citation: 851 So.2d 103
• Parties: Jerry T. FITCH, Sr. v. STATE.
• Court: Alabama Court of Criminal Appeals

851 So.2d 103

Jerry T. FITCH, Sr. v. STATE.

CR-97-2284.

Court of Criminal Appeals of Alabama.

August 31, 2001.

Rehearing Denied December 14, 2001.

William J. Baxley and David McKnight, Birmingham, for appellant.

William H. Pryor, Jr., atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellee.

COBB, Judge.

Jerry T. Fitch, Sr., appeals his January 17, 1998, convictions arising from three separate indictments charging six counts of using his public office for personal gain, one count of aiding and abetting another in using his public position for personal gain, and two counts of first-degree theft.¹

The array of ethics charges focused on the actions of three people: Jerry T. Fitch, Sr., the appellant; Jerry T. Fitch, Jr., the appellant's son; and Harry Gene Edwards, the appellant's employee and business partner. During the calendar years 1994 and 1995, the appellant, Jerry T. Fitch, Sr. (hereinafter "Fitch"), was an elected official serving as county commissioner for District 4, Pickens County.² Jerry T. Fitch, Jr., also known as Bubba Fitch (hereinafter "Bubba"), is Fitch's son. Harry Gene Edwards (hereinafter "Edwards") was employed by Pickens County Commission, District 4, as a foreman during 1994 and 1995. In addition to their work for the county commission, Edwards and Fitch were equal partners in a small construction company, E & F and Sons. The company's only employees were Fitch, Edwards, Bubba, who worked as a machine operator, and Fitch's wife, who was bookkeeper. Fitch's home address was also the company's address.

During this period, Pickens County operated a sanitary landfill that was ordered to be closed by the Alabama Department of Environmental Management (hereinafter "ADEM"). The closing of the landfill resulted in Fitch's being convicted of violating § 36-25-5(a), Ala.Code 1975, of the "Code of Ethics For Public Officials, Employees, etc." which prohibits a public official from using a public position to obtain direct personal financial gain for himself, his family, or his business. Fitch was also convicted of aiding and abetting Harry Edwards, also a public employee, in using his public position to obtain direct personal financial gain, and Fitch was convicted of theft of County funds, a violation of § 13A-8-3, Ala.Code 1975. Fitch has raised 11 issues on appeal.

Facts

In 1994 Pickens County was operating a sanitary landfill. During this time the Environmental Protection Agency (hereinafter the "EPA") passed new federal regulations, 40 C.F.R. § 258, Subtitle D of the Resource Conservation and Recovery Act for Municipal Solid Waste Landfills, called "Subtitle D Regulations," governing sanitary landfills. Essentially, the EPA required that before October 9, 1994, a sanitary landfill operate under the newly imposed regulations or be closed. R. 1096. The Pickens County Commission decided that the landfill had to be closed because Pickens County could not afford the "significant financial burden" that accompanied compliance with the new regulations. R. 1096. However, failure to close the landfill in compliance with ADEM regulations by October 9, 1994, would result in the imposition of substantial fines against Pickens County. A fine of up to $ 25,000 per day—$175,000 per week—could be imposed for noncompliance. R. 1098.

In the summer of 1994 the county commission began advertising for contractors to submit bids to close the landfill. However, in an effort to save money and expedite closing the landfill, the county commission discussed alternative ways of accomplishing the work necessary to close the landfill. William Latham, chairman of the county commission at the time, testified that one suggestion discussed by the commission was to have county workers do any work they were qualified to do at the landfill in order to save money. Latham stated that Fitch took a negative approach to this idea. According to Latham, Fitch said that he was not going to let his foreman, Edwards, "be tied up out there." R. 877.

On July 26, 1994, the county commission opened the bids submitted from contractors seeking the job of closing the landfill. Fitch made a motion to award the contact for closing the landfill to the lowest bidder, RaCon, Incorporated, whose bid was $650,000. However, on August 23, 1994, the commissioners discovered that an error had been made in calculating the amount of dirt that had to be moved to cover the landfill. This error voided the July 26, 1994, contract awarded to RaCon, and required that bids for closing the landfill be resubmitted after consideration of the accurate information.

Steven E. Koehn, owner of Progressive Earthmovers, an earth-moving business in Aberdeen, Mississippi, testified that at some point in July 1994 Tony Edwards— Harry Edwards's brother—asked if he was interested in obtaining the job of moving the dirt required to close the landfill. At the time of their conversation, Tony and Harry Edwards were trying to form Eupora Contractors, Incorporated, to submit a bid on the landfill project. Thus, there was evidence indicating that as early as July, Edwards was planning to take leave from his county job in order to work at the landfill; this could be accomplished only with Fitch's approval. According to Koehn, at some point in July 1994,³ Koehn met with Tony Edwards, Edwards, and Fitch at the landfill. At this time Fitch showed Koehn the specifications for closing the landfill. R. 974. Koehn determined that he could move the dirt required to close the landfill for $133,000. However, Koehn stated that at some point after the meeting, Tony Edwards telephoned him and said the job was off because of some problem with obtaining the contract. Koehn testified that either Harry or Tony Edwards later telephoned and said the job was on again. R. 947. However, Koehn stated that he believed that it was Edwards who had informed him that Gates Construction Company, not Eupora, was the contractor for the project.⁴ R. 957.

Despite Fitch's assertion that he would not allow one of his employees to work for the County on the landfill closure, on August 29, 1994, Fitch, as commissioner for District 4, authorized Edwards's leave of absence to work on the landfill for Eupora.⁵ Had Edwards been closing the landfill as a County employee, his salary during September and October 1994 would have been $7.75 per hour.⁶ R. 505. As an independent subcontractor, Edwards's profit for his services for closing the landfill was $126,000 (R. 1130).

On September 1, 1994, two days after Fitch approved Edwards's leave of absence from his County job to work on the landfill, the resubmitted bids were opened and Eupora Contractors' bid was the lowest at $314,500. A motion to award the contract to Eupora carried. Fitch abstained from this vote.

Latham testified that after the second bidding process, but before any work had begun at the landfill, Fitch expressed an interest in getting the landfill contract himself. R. 878-79. According to Latham, Fitch said, "`I wish that I wasn't involved,' that he would like to have the contract." R. 880.

On September 6, 1994, the county commission met. It was revealed that Eupora Contractors was not eligible to work on the landfill because it did not have an Alabama State contractor's license. Pickens County administrator Keith Powell informed the commission that the Ala.Code 1975, § 11-3-9, allowed the commission to negotiate with any bidder since RaCon had submitted the only eligible bid. At this time, Commissioner Leon Morris made a motion, seconded by Fitch, to accept a bid from Gates Construction Company, owned by Ken Gates, for $324,000.⁷ All commissioners voted to accept Gates's bid. However, it was discovered that Gates was licensed only as an Alabama general contractor, i.e., a building contractor; he was not licensed to perform the work necessary to close the landfill—i.e., paving, grating, moving dirt, and water drainage.

At some point in June 1994, Fitch asked Horace Ray Gore, the owner of Perma Corporation, Incorporated, a construction company, if he was interested in bidding on the landfill closure. Gore stated that he was not interested because he did not have a supervisor for the project. R. 515. Gore testified that at some point after his June 1994 conversation with Fitch, Ken Gates went to Gore's office and asked Gore to submit a bid for the contract, then subcontract the entire job to Gates Construction. Gates came to Gore because Gates was licensed only as a general contractor in Alabama. Gore told Gates that Gore would have to review the bid Gates had submitted and make sure Gates Construction could do the work at the bid price because Gates's bid was $100,000 less than other bids. Gore stated that from looking at the numbers there did not appear to be much of a profit margin in Gates's bid proposal. In fact, Gore stated that Gates's bid proposal was "a good price for the county." R. 556. After review, Gore found Gates's bid to be acceptable. Out of abundance of caution, Gore telephoned the licensing board in Montgomery to make sure that it was acceptable for Perma Corporation to acquire the job closing the landfill and then to subcontract the entire job to Gates Construction. Gore wanted assurance that he could subcontract the work to Gates Construction, because Gates Construction did not have a license to do dirt work. R. 549. Gore was also told by an official with the county commission that the County had confirmed with the attorney general's office that Perma Corporation's subcontracting the entire job to Gates Construction was legal and was a proper business transaction. R. 543. Thus, the commissioners knew before awarding the contract to Perma Corporation that Perma Corporation planned to subcontract the job of closing the landfill to Gates Construction Company.

Gore agreed to subcontract the entire job to Gates Construction in return for a small percentage of the cost. Gore's agreement with Gates was that Gates...