Fitch v. State8/31/2001
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, 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. 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. Had Edwards been closing the landfill as a County employee , his salary during September and October 1994 would have been $7.75 per hour. 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's 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. All commissioners voted to accept Gates's bid. However, it was discovered that Gates was licensed only as an Alabama ge
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