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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION UNITED STATES OF AMERICA )

) v. ) CRIMINAL NO. 14-00291-CG

) KIMBERLY SMITH HASTIE, ) RAMONA MCARDLE YEAGER, and ) JOHN MELVIN HASTIE JR. )

UNITED STATES MOTION FOR MODIFICATION OF DEFENDANT HASTIES CONDITIONS OF RELEASE

Comes now the United States, by and through the United States Attorney for the

Southern District of Alabama, and, for reasons stated below, files this motion requesting that the

Court modify defendant Kimberly Smith Hasties conditions of release to include conditions

prohibiting Hastie from conducting any additional witness interviews of Mobile County License

Commission employees at the License Commission during the offices business hours, as well as

from accessing any records of License Commission employees without proper legal process.

The United States further requests a hearing before the Court to address the above matters.

Background Hastie is the current License Commissioner for Mobile County. She faces trial in May

2015. (Doc. 73).1 As License Commissioner, Hastie allegedly cultivated a work environment

of intimidation at the office and threatened to terminate the employment of several License

Commission employees. (Doc. 45, 20). On December 10, 2014, the Court ordered that Hastie

1 Hastie was indicted in November 2014, (Doc. 1), arraigned in December 2014, (Doc. 11), indicted on additional charges in January 2015, (Doc. 45), and arraigned on a superseding indictment in February 2015. (Doc. 73).

Case 1:14-cr-00291-CG-N Document 78 Filed 02/13/15 Page 1 of 7

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be released subject to certain conditions, including that she not commit any offense in violation

of federal, state or local law while on release in this action. (Doc. 12 at 1).

On Wednesday, January 21, 2015, Hasties private counsel allegedly conducted witness

interviews of various License Commission employees at the License Commissions main office

during the offices business hours.2 The United States has evidence of these interviews and

hereby proffers the following:

Hastie directed Dawn Evans, her personal secretary to instruct that certain employees be ushered one at a time into a conference room without disclosing the purpose of the summons;

Hastie gave no prior notice to the interviewees they would be interviewed by her private counsel;

Hastie and her private counsel used the interviews as a means to engage in personal trial

preparation during the License Commissions business hours, with an emphasis on interviewees views of Hastie and Victor Crawford, a victim as alleged in the superseding indictment;

The interviews were unrelated to the employees duties for the License Commission;

Hastie gave no prior notice to interviewees of the subject matter of the interviews;

Hastie did not convey to the interviewees whether the interviews were voluntary in nature until the employees were unknowingly ushered into a meeting at the License Commission Offices.

Interviewed employees felt intimidated and disgruntled by the interview process;

Interviewed employees felt they had to be interviewed, given Hasties position of

authority over them as License Commissioner and the presence of other supervisors at the License Commission on the day of the interviews. In fact, several employees felt they could have been watched by management during the interviews.

Certain employees and/or interviewees are fearful of retribution by Hastie, including termination of employment, if they speak out against Hastie.

2 The License Commission is closed to the public on Wednesdays. Nevertheless, the office conducts business on Wednesdays, and various License Commission employees working under Hastie travel to the Michael Square office to perform their official duties.


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At arraignment on the superseding indictment, Hasties counsel indicated to the United

States that Hastie intended to access the records of certain License Commission employees

without obtaining prior legal process for such records, which counsel said Hastie could do in her

capacity as License Commissioner. Defense counsel suggested that it intended to send a letter to

Hastie to acquire certain License Commission personnel files from Hastie, which Hastie would

presumably then provide to her own attorneys. The United States objected to such a procedure.

Discussion Ala. Code 36-25-5 states in relevant part:

(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.

(c) No public official or public employee shall use or cause to be used equipment, facilities, time, materials, human labor, or other public property under his or her discretion or control for the private benefit or business benefit of the public official, public employee, any other person, or principal campaign committee as defined in Section 17-22A-2, which would materially affect his or her financial interest, except as otherwise provided by law or as provided pursuant to a lawful employment agreement regulated by agency policy. Provided, however, nothing in this subsection shall be deemed to limit or otherwise prohibit communication between public officials or public employees and eleemosynary or membership organizations or such organizations communicating with public officials or public employees.

Ala. Code 36-25-5(a), (c) (emphasis added).

Alabama state ethics law defines conflict of interest, which is provided below in

relevant part:


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(8) CONFLICT OF INTEREST. A conflict on the part of a public official or public employee between his or her private interests and the official responsibilities inherent in an office of public trust. A conflict of interest involves any action, inaction, or decision by a public official or public employee in the discharge of his or her official duties which would materially affect his or her financial interest or those of his or her family members or any business with which the person is associated in a manner different from the manner it affects the other members of the class to which he or she belongs.

Ala. Code 36-25-1(8). Hastie has allegedly violated Ala. Code 36-25-5(a) and (c). She is using government

property and time for personal use. Her actions create a conflict of interest between her public

duties and her private interests in her upcoming federal trial. Hastie continues to use her current

position of office for personal gain, nam ely, among other things, trial preparation and avoiding

restitution payments should she be convicted at trial.

Through her private counsel, Hastie conducted witness interviews of License

Commission employees during business hours at the License Commission, which, when

combined with the nature and scope of the interviews as explicated above, is improper on several

levels. Such interviews take time and prohibit License Commission employees from doing their

job. Further, the use of the License Commission Offices to conduct private interviews is a

misuse of public property. The interviews also create an antagonistic work environment. They

put employees in an awkward situation, especially since Hastie had not notified them beforehand

why they were being individually summoned to a conference room to meet with an attorney who

represents Hastie. In this environment, an interviewee would be hard-pressed to provide truthful

answers to an attorney representing Hastie about matters concerning Hastie, the interviewees

boss. The interviews reinforce the culture of intimidation Hastie allegedly fostered at the


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License Commission. Her behavior is consistent with witness intimidation. If left unchallenged,

further such witness interviews would have a chilling effect on the judicial process.

Hastie is certainly permitted to prepare a vigorous trial defense. Nothing in the United

States motion would preclude her from doing so. The United States asks, however, that Hastie

be prohibited from abusing using her position of office to engage in trial preparation. She must

stop conflating her continuing obligations as a public official with her personal legal

predicament.

Similarly, it is troubling that Hasties counsel indicated to the United States at the

February 2015 arraignment that Hastie intends to access various License Commission employee

records without legal process (e.g., trial subpoena) to obtain such records. Defense counsel

appears to be focused on Victor Crawford, a whistleblower and victim in the case, and obtaining

his e-mail correspondence. The United States asserts that the property of the License

Commission (e.g., employee personnel files, e-mails sent from e-mail accounts held at the

License Commission, etc.) belongs not to Hastie but rather to Mobile County. Accordingly, the

United States contends that Hastie must use proper legal process to request any and all records

from Mobile County that belong to Mobile County. Her position as License Commissioner does

not and should not afford her special status that would permit her to bypass the regular legal

channels of obtaining License Commission records for trial. Her role as a public servant only

heightens, not diminishes, her ethical and legal obligations in the course of her public

responsibilities.

Conclusion


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For the reasons set out in this motion, the United States respectfully moves the Court to

modify Hasties conditions of release to include conditions prohibiting her from conducting any

additional witness interviews of Mobile County License Commission employees at the License

Commission during the offices business hours, as well as from accessing any records of License

Commission employees without proper legal process. The United States also requests a hearing

before the Court to address the above matters.

Respectfully submitted on February 13, 2015.

KENYEN R. BROWN UNITED STATES ATTORNEY By: /s/ GREGORY A. BORDENKIRCHER Gregory A. Bordenkircher (BORDG3301) Assistant United States Attorney United States Attorneys Office 63 South Royal Street, Suite 600 Mobile, Alabama 36602 Telephone: (251) 441-5845

By: /s/ SINAN KALAYOGLU Sinan Kalayoglu (kalas9469) Assistant United States Attorney United States Attorneys Office 63 South Royal Street, Suite 600 Mobile, Alabama 36602 Telephone: (251) 441-5845

CERTIFICATE OF SERVICE I hereby certify that on February 13, 2015, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to counsel of record for the defendants. /s/ GREGORY A. BORDENKIRCHER Gregory A. Bordenkircher Assistant United States Attorney


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/s/ SINAN KALAYOGLU

Sinan Kalayoglu Assistant United States Attorney


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