Mobile attorney cites
Peavy in ethics complaint
By Chip Drago
Mobile Bay Times
Mobile attorney Jim Zeigler Wednesday in Mongomery filed an ethics complaint against Mobile City Councilman and mayoral candidate John Peavy at 2:30 p.m. in the state ethics commission office.
Zeigler alleges that Peavy, 51, committed
"multiple violations of state ethics laws."
"He and his business, Peavy
Construction Company, intentionally
sought and performed work on a city
project on which John Peavy
participated as council member,"
Zeigler charges in the complaint.
"The complaint is without merit," said Peavy. "Some of the things in it are clearly fallacious from what I've been told is in it. I think it will be dismissed easily just by looking at the documentation. It's ridiculous really. But this is what politics is about, I guess. It's starting to kick up, so we must be doing something right."
Peavy's opponents in the Aug. 23 municipal election are ex-state Sen. Ann Bedsole, former City Councilwoman Bess Rich and Mobile County Commissioner Sam Jones.
Peavy addressed the charges more fully during a press conference at City Hall Wednesday afternoon.
Peavy has reportedly filed a lawsuit against Zeigler seeking damages. Among the three counts Peavy lodges against Zeigler are defamation, outrageous conduct and abuse of process. The case has reportedly been assigned to Mobile County Circuit Presiding Judge Bob Kendall. Kendall, according to an attorney involved in the case, has scheduled a telephone conference among the lawyers for Tuesday afternoon. It is believed that Peavy's team will seek a temporary restraining order against Zeigler.
Peavy's response calls into question his judgment, according to Zeigler.
"I think he is overreacting, especially if he believes he has a strong defense to the complaint," Zeigler said. "He is going to make this into the biggest issue in the campaign. He may very well take a brief minor issue and turn it into an elongated major issue and that's not good. Instead of this lawsuit, he may have been better advised to have hired Richard Scrushy's legal team."
Zeigler's complaint cites Section 36-25-5 of the Code of Alabama covering "Use of official position or office for personal gain. (a) No public official or public employee shall use or cause to be used his or her official position or office to obtain personal gain for himself or herself, or family member of the public employee or family member of the public official, or any business with which the person is associated unless the use and gain are otherwise specifically authorized by law. Personal gain is achieved when the public official, public employee, or a family member thereof receives, obtains, exerts control over, or otherwise converts to personal use the object constituting such personal gain."
Zeigler alleges the following occurred in violation of state law:
- In the spring of this year, heavy rains caused damage at the Bolton Branch drainage canal on Azalea Road in Mobile. Erosion made the road unstable, forcing its closure.
- On April 5, 2005 the Mobile City Council approved a $424,755 emergency contract with Construction Labor Services (CLS) to repair the damage.
- CLS subcontracted 62% of the work to Grady Dortch & Sons.
- John Peavy and his business, Peavy Construction, helped Dortch prepare the bid for this sub-contract. John Peavy recommended Dortch to CLS.
- The Dortch sub-contract, which Peavy assisted in preparing, violates the city’s standard construction contract, which requires the general contractor (CLS) to perform at least 50% of the work: "The contractor shall not sublet the contract or any portion thereof without written permission from the City Engineer. If consent is given, the contractor will be permitted to sublet a portion of the work, but shall perform with his own organization work amounting to not less than fifty percent of the total contract price. Their performance of the contract may not be assigned."
- The general contract to CLS was for $424,755. The CLS sub-contract to Dortch was for $266,306.25 (62% of the general contract), in clear violation of contract requirements.
- Inspector Tim Dixon says that Peavy Construction was actually the sub-contractor. Peavy simply used Dortch as a front to get around state law that prohibits Peavy’s participation.
- Peavy employees worked on the Azalea Road project and were paid directly by Dortch.
- Peavy’s heavy equipment worked the Azalea Road project for CLS.
- Ken Peavy, John Peavy’s brother and business partner, was regularly at the Azalea Road job site supervising the work. Ken Peavy shot grades, walked Dortch through the project, and directed him as to what to do. Ken Peavy served as a consultant to Dortch on this project.
- Peavy Construction assisted Dortch in questions on quantities, plan interpretations, and locating and ordering materials.
- The minutes of the April 5, 2005 city council meeting show that John Peavy voted “aye” on the resolution to grant the $424,577 to CLS. Those minutes were approved unanimously with no corrections on April 19, 2005, with John Peavy participating. The April 19 minutes were then approved with no corrections on May 3, 2005.
Zeigler asks the commission to conduct a preliminary inquiry and make an initial determination that reasonable cause exists to conduct an investigation; investigate Peavy's actions and hold a hearing on them; find probable cause that he violated state ethics laws; and forward the case to Alabama Attorney General Troy King for prosecution.
Other sections of the Alabama code that Zeigler refers to in his complaint are:
- Code of Alabama, Section 36-25-99(c):
No member of any county or municipal agency, board or commission shall vote or participate in any matter in which the member of family member of the member, has any financial gain or interest.
- Code of Alabama, Section 41-16-6-, et. seq.:
No member or officer of … the governing bodies of the municipalities of the state and the governing boards of instrumentalities of counties and municipalities, … 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.
Zeigler, an ally of ousted state Supreme Court Chief Justice Roy Moore, has been politically active in Alabama for more than 30 years. He is a former member of the Alabama Public Service Commission.
Any suggestion that he was acting in the interests of a Peavy mayoral foe was laughable, said Zeigler.
"I've been filing taxpayer lawsuits and ethics complaints for more than a quarter of a century," he said. "I'm a taxpayer advocate and I've been one for a long, long time."