Northwest Arkansas Democrat-Gazette

Lawsuit seeks fee payback from city

- DAVE HUGHES

FORT SMITH — A city sanitation customer is suing the Fort Smith because she says it has improperly used sanitation fees by dumping recyclable material into the city landfill instead of recycling it.

Jennifer Merriott is asking a Sebastian County circuit judge to order the city to pay back sanitation customers for wasting city money by continuing to use city recycling trucks and employees to collect recyclable material even though the material ended up in the landfill.

Attorneys Monzer Mansour of Fayettevil­le and W. Whitfield Hyman of Fort Smith estimated in the lawsuit filed Monday for Merriott that the needless use of the recycling crews cost the city $52,920 a month.

Fort Smith City Administra­tor Carl Geffken declined to comment on the lawsuit Thursday.

In the lawsuit, Merriott says the city is guilty of illegal exaction and unjust enrichment. The charges grow out of allegation­s that part of the sanitation fees customers paid each month was to go toward providing recycling services, but that the city didn’t use the money for that purpose.

“To prevent unjust enrichment, the plaintiff is entitled to restitutio­n from the city in an amount equal to the value of the benefit the city has received, retained

or appropriat­ed from the plaintiff,” the lawsuit said.

Merriott also criticized the city for charging sanitation customers for services it wasn’t providing and for not informing customers that the material they separated, placed in separate containers and rolled out to the curb to be recycled actually was being dumped in the landfill for nearly three years.

The lawsuit asks the judge to grant a class-action status, with the class consisting of all people who have paid sanitation fees from which the city used to operate the recycling program during the time it collected and dumped recyclable material into the landfill.

Fort Smith has been dumping at least some of its recyclable­s in the landfill since September 2014, when a recycling contract with Smurfitt Kappa of Fort Smith expired.

The city began taking its recyclable material to Green Source Recycling in Clarksvill­e, but the city’s volume was too great and it could accept only a small portion of what the city was delivering. The company stopped taking any recycling from Fort Smith about a year ago.

City sanitation customers didn’t know that the city discontinu­ed recycling until the city made an announceme­nt May 1.

The revelation prompted residents to express anger in the city’s lack of transparen­cy in not informing them sooner about the discontinu­ed recycling program. The recycling problem also led to the firing of Mark Schlievert, the Sanitation Department director who had been on the job for just more than a year.

Since May 1, city officials have intensifie­d efforts to restart the program and hire a company to take its recycling material.

City directors voted Tuesday to hire 3rd Rock Recycling of Webb City, Mo., and Pen Sales of Kansas City, Mo., to handle and market the city’s recyclable material. The companies have 30 days to find a location in or near Fort Smith and begin taking the city’s recyclable­s.

Officials said the city and 3rd Rock and Pen Sales will continue to work toward acquisitio­n of a sorting machine, which could change the arrangemen­t from one in which the city pays 3rd Rock and Pen Sales to take the city’s recyclable­s to one in which 3rd Rock and Pen Sales pay Fort Smith for the recycling material.

Since May 1, city officials have intensifie­d efforts to restart the program and hire a company to take its recycling material.

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