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Fitch v. State8/31/2001
stated:
"No member or officer of ... the county commissions ... shall be financially interested or have any personal beneficial interest, either directly or indirectly, in the purchase of or contract for any personal property or contractual service, nor shall any person willfully make any purchase or award any contract in violation of the provisions of this article."
In 1994, § 36-25-5(a) stated:
"No public official or employee shall use an official position or office to obtain direct personal financial gain for himself, or his family, or any business with which he or a member of his family is associated unless such use and gain are specifically authorized by law."
Sections 41-16-60 and 36-25-5(a) are not mutually exclusive. Section 41-16-60 governs the bidding procedures for awarding public contracts. Section 60 of chapter 16 concerns "conflicts of interest of members or officers of governing bodies or instrumentalities of counties, municipalities and certain state and local institutions generally" and the "making of purchases or awarding of contracts in violation of article." § 41-16-60, Ala. Code 1975. Regarding competitive-bid practices, "the intent of the legislature was to prevent a conflict of interests so that no member of a governing board would endeavor to give favorable treatment to businesses in which he would be financially or beneficially interested in connection with purchases of personal property or a contractual service." City of Montgomery v. Brendle Fire Equipment, Inc., 291 Ala. 216, 222, 279 So. 2d 480, 486 (Ala. 1973).
The ethics law is much broader than the competitive bid law.
"`The tenor of the section [36-25-2] read as a whole is that the legislature passed the act to prevent public officials from using their offices to reap private gains. The "conflicts of interests" referred to in the section are conflicts between an official's private interests and his official duties. Muncaster v. Alabama State Ethics Commission, 372 So. 2d 853 (Ala. 1979).'" Kirkland v. State, 529 So. 2d 1036, 1040 (Ala.Crim.App. 1988)(quoting Rampey v. State, 415 So. 2d 1184, 1186 (Ala.Crim.App. 1982)).
Whether Fitch voted to award the contract to an entity that would return personal gain to him is a separate issue from the issue whether he, in his official position, knowingly and willingly obtained direct personal financial gain for himself, his family, or business unless specifically authorized by law. Section 36-25-5(a) prohibited Fitch from deriving personal financial gain from his position as a commissioner, regardless of whether he voted to award the contract. The jury may have determined that Fitch formed the intent to use his office for gain after the vote. Intent may be formed at any time. See Samuels v. State, 504 So. 2d 367, 370 (Ala.Crim.App. 1987)(intent could have been formed after accused grasped the knife).
Thus, there was sufficient evidence presented indicating that Fitch had used his official position or office for personal gain to support the conviction.
IX.
Fitch contends that there was insufficient evidence presented from which the jury could find him guilty of aiding and abetting Harry Edwards in the use of his position or office for direct financial gain.
Fitch was charged in Count five of case no. CC-97-0155 with the following.
"JERRY T. FITCH, SR., ... with intent to promote or assist the commission of the offense, did aid or abet Harry Gene Edwards, a public official or employee, in committing the offense of knowingly and intentionally using his official position or office to obtain direct personal financial gain for himself, in
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