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Fitch v. State8/31/2001
neral 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 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 a §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 Construction would do all the work and Perma Construction was to do only the paperwork for the project.
Gore stated that he sent to the commission a bid for the contract to close the landfill. David Howell, audit manager with the Alabama Department of Examiners of Public Accounts, investigated the allegations against Fitch and testified that all the commissioners he spoke to, including Fitch, knew before accepting Perma Construction's bid that Gore was going to subcontract entire landfill closure to Gates, Construction. R. 782-83. Moreover, Fitch had known Ken Gates for many years, and E & F and Sons, Fitch's company, had worked with Gates Construction on several small construction projects.
On September 13, 1994, Commissioner Morris made a motion, seconded by Commissioner James, to award the landfill closure to Gore's company, Perma Construction, for $333,500. All commissioners voted affirmatively. Gore stated that the commission sent him a letter accepting the bid "and just told me to go to work." R. 520. Gore explained that there was no formal contract signed between Perma Corporation and Pickens County. According to Gore, he was told by the county commission to notify his subcontractors and to proceed with the work of closing the landfill. R. 515.
Lawrence Doughty, county engineer in Pickens County, testified that at some point after work had begun on the landfill closure, he was at the landfill when Commissioner Latham and Fitch were there. Latham commented that "it d
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