Fitch v. State8/31/2001
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.
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. (herineafter "Fitch"), was an elected official serving as county commissioner for District 4, Pickens County. 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, C.F.R 40 § 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,
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