Recycling suit in Fort Smith goes to judge

FORT SMITH — The city is awaiting judgement from a class-action lawsuit about whether it misused customer money from the Sanitation Department from July 2015 until May 2017.

Resident Jennifer Merriott filed the lawsuit against the city, seeking to recover money from a recycling program. She contends the city was guilty of illegal exaction and unjust enrichment because the city charged a roughly $13 a month fee for recycling and was disposing of recyclables in the landfill.

Sebastian County Circuit Judge Stephen Tabor heard arguments Monday and Tuesday. The lawsuit was delayed for several years because of various motions and the covid-19 pandemic.

The city had contracted with Green Source Recycling in Clarksville; that arrangement ended in 2016 when Clarksville stopped accepting the city’s recycling.

In a court filing June 24, the plaintiff says by the city’s own estimates more than 95% of residential recyclables went to a landfill while the city encouraged residential customers to continue their recycling efforts and didn’t inform them their recyclables were being taken to a landfill.

The lawsuit argued that since the money was wrongly appropriated, customers deserve compensation for the period when recycling efforts were paused.

City Administrator Carl Geffken said when he was hired six years ago, one of his main goals was to fix the problem, but it took longer than anticipated for another recycling firm to be hired.

“Now, for slightly more than five years, 100% of all recyclable material collected by the Fort Smith Solid Waste department have been processed by our recycling firm,” Geffken said.

The city argued in court documents that the revenue from recycling fees went toward current and future sanitation expenses, and that straining personnel with added work would have led to a higher monthly fee anyway.

“We believe that the illegal exaction and unjust enrichment claims brought against the city should be dismissed, but a fair trial with a fair outcome is a hallmark of our legal system,” Geffken said.

“Our client is grateful that she and her fellow Fort Smith residents have had their day in court and that the issue of government transparency in residential recycling is receiving the attention it deserves,” said Monzer Mansour, a Fayetteville-based attorney who, along with W. Whitfield Hyman of the King Law Group in Fort Smith, represents the plaintiff in the lawsuit.