FORT SMITH -- A woman says she can prove that city officials deceived residents and wasted residents' sanitation fees by using trucks designated for picking up recyclable material but dumping the material in the landfill.
An attorney for Jennifer Merriott, representing the class of city sanitation customers, set out her arguments against Fort Smith in a response filed Monday to the city's request a Sebastian County circuit judge dismiss her lawsuit.
"The public expected its fees to have gone to paying for recycling," Fort Smith attorney W. Whitfield Wyman said in the response. "Instead, the defendant spent the money on maintaining the facade of recycling and misleading the public for 30 months."
In maintaining the facade, Merriott contends, the city continued to use its recycling trucks to collect recyclable material that residents set out in containers intended specifically for recyclables. But instead of taking the recyclable material to a recycling facility, the trucks took the material to the landfill.
This deception, Merriott claimed, lasted from Oct. 1, 2014, when the city's agreement with one recycling company expired, to May 1, 2017, when it signed an agreement with another recycling company. Of the 8,444 tons of recyclable waste collected during that period, the suit said, 7,786 tons of it, or about 92 percent, ended up in the landfill.
It also cost the city $52,920 a month to run those recyclable trucks through their routes to pick up the recyclable material rather than have regular trash trucks pick up the recyclables as they ran their routes, the suit said.
The expense of indiscriminately and unnecessarily using the recycling trucks constituted an illegal exaction and unjust enrichment against sanitation customers, Merriott claimed.
"Abundant evidence shows the defendant spent money exacted from residents on a recycling facade that defendant wanted to perpetuate while concealing this undertaking from the residents who paid for the facade," Merriott said in the response. "In equity and good conscience, this money should be returned to the class members."
The lawsuit documents did not set out a specific amount to be refunded.
Fort Smith attorney Jerry Canfield asked Circuit Judge Stephen Tabor on the city's behalf to dismiss Merriott's lawsuit in October, claiming that there were no issues of material fact to put before a trial jury and that the law did not support her claims.
Canfield wrote that the claim for illegal exaction is faulty because the money the city's Sanitation Department receives comes from sanitation service fees rather than taxes.
All the fees collected for sanitation go into a single operating fund for residential and commercial collections, landfilling and other activities, Canfield argued.
"There is no portion of the fees charged by the city for sanitation services designated for 'recycling activities' and neither is there any portion of the fees paid by plaintiff and others for sanitation services designated or appropriated to any particular function of the Sanitation Department," he wrote.
In an affidavit with the city's request to dismiss, Deputy City Administrator Jeff Dingman said residential sanitation customers are not charged separate fees for recycling. The $13.28 monthly fee charged to the customers is for collecting, hauling and disposing of garbage, recyclables and yard waste, it said.
NW News on 03/22/2018