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Fitch v. State8/31/2001
because of impending severe economic penalties, Pickens County and its citizens would suffer if the landfill was not closed. Nevertheless, the ethics law prohibits elected officials and public employees, and their relatives, from obtaining direct personal financial gain for themselves, their family, or any business with which they or a member of their family is associated. § 36-25-5(a), Ala. Code 1975.
Perhaps Commissioner Fitch would have had a stronger defense regarding lack of intent if he had "laid all his cards on the table" by explaining his involvement to the commission on the record minutes of the commission meetings. Or if he had sought an advisory opinion and followed it accordingly. "The written opinion of the state ethics commission provided to anyone shall protect such person to whom it is directed from liability to [the state] ... because of any official action or actions performed as directed or advised in such opinion.'" Dill v. State, 723 So. 2d at 803; See § 36-25-4(9), Ala. Code 1975 (before that statute was amended, effective October 1, 1995); see § 36-25-4(9), Ala. Code 1975 (as amended, effective October 1, 1995). The ethics law does not provide exceptions or provide latitude to "concerned" elected officials who foresee impending hardships on the public entity.
In the final analysis, the legislative intent is clear in its passage of the ethics law. In 1995, the ethics statute stated the following regarding the statute's intent:
"It is essential to the proper operation of democratic government that public officials be independent and impartial; that governmental decisions and policy be made in the proper channels of the governmental structure; that public office not be used for private gain other than the remuneration provided by law; and that there be public confidence in the integrity of government. The attainment of one or more of these ends is impaired whenever there exists a conflict of interest between the private interests of an elected official or a government employee and the duties as such. The public interest, therefore, requires that the law protect against such conflicts of interest and establish appropriate ethical standards with respect to the conduct of elected officials and government employees in situations where conflicts exist." § 36-25-2, Ala. Code 1975.
This intent was unchanged by the 1995 amendment.
Fitch had the benefit of outstanding trial and appellate counsel, but the ability of defense counsel cannot change the law or the facts. Fitch and a member of his family enjoyed substantial personal gain while Fitch held a position of public trust. Had Fitch truly wanted to save Pickens County taxpayer's money, he would have allowed Edwards work at the landfill for the County at his hourly pay. Consequently, Fitch's convictions are affirmed.
AFFIRMED.
McMillan, P.J., and Baschab and Shaw, JJ., concur; Wise, J., concurs in result.
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