It may be difficult for some, especially those who have recently moved to the New York City of the Ozarks, to understand that Fayetteville was once a city very much at war with itself. Pick an issue - ambulance companies, changing the form of city government, public access, park land, environmental protection, job protection for gay employees - - and you’d have citizens manning the barricades against what was often an unfriendly city government.
Fayetteville City Board (later City Council) and Washington County Quorum Court meetings were often loud, angry affairs. The old joke they used to tell about Club West and Dickson’s Street’s The Landing Strip was often applied to Fayetteville City Council meetings:
They would search you at the door for a gun or a knife; if you didn’t have one, they gave you one.
But the most contentious issue of all, and which some felt seemed to tie most issues together, was the infamous incinerator issue. Some may enjoy this glimpse at the past, when the issue was winding down. This is a also a chapter from "Ozark Mosaic."
Arkansas Supreme Court deals with Incinerator issue
Written by Richard S. Drake
The road to last week’s Arkansas Supreme Court decision dealing with Fayetteville's incinerator has been littered with lawsuits, both filed and threatened. Like an epic motion picture, which it has occasionally resembled, it seems to have featured a cast of thousands.
Wednesday, July 5, saw the latest skirmish in a verbal battle between Joe Robson, original plaintiff in the incinerator lawsuit, and members of Fayetteville’s City Council. Reading from a prepared statement, Robson challenged certain assumptions he felt the city council was holding concerning how to react to the Supreme Court’s judgement.
The 7-0 ruling declared the $2.02 monthly sanitation charge imposed on Fayetteville residents through their water bill to pay a bonded indebtedness by the Northwest Arkansas Resource Recovery Authority was an illegal exaction. They also ruled the original pact between Fayetteville and the Authority null and void.
The council voted to request a rehearing before the Supreme Court, though few observers see any chance for the court to reverse itself.
In addition to Fayetteville and the authority, other defendants were the city of West Fork, Washington County, Union National Bank, and the Financial Guaranty Insurance Company, based in Little Rock. An attorney from Financial Guaranty shared speaking time with Fayetteville attorney Kitty Gay during oral arguments before the Supreme Court.
Initially reading from his prepared statement, Robson suggested that the city of Fayetteville was merely trying to “buy some time” with regards to the lawsuit. He also said, “Things were misstated all along. To some, 'a win' would mean paying the debts of another corporation." He also said that to continue “with this charade is a tragic waste of money.”
The court's decision came as welcome news to Fayetteville residents Katherine Barnhart and Robson, who have both served as plaintiffs in the case, which has stretched on since 1989, when Robson, then a Washington County Justice of the Peace, filed the lawsuit. Later, after it was declared a class-action suit, Katherine Barnhart was named as class representative. It has been at Barnhart's direction that the lawyers have taken over the last several years.
During the verbal sparring between Robson and the council, Barnhart sat quietly in the audience with her two attorneys. Neither she nor they chose to speak at any point during the proceedings.
The Northwest Arkansas Resource Recovery Authority, formed in 1982, can no longer count on Fayetteville residents to pay its debt. E. Kent Hirsch, one of Barnhart's attorneys, said that the ruling was a victory for Fayetteville residents. He claimed that residents of this city would save over fourteen million dollars as a result of the lawsuit. Around four million dollars has been collected since 1989, whet the sanitation fee went into effect. Several million dollars have been paid out in legal fees in that time.
Legal Fees Continue to Mount
However, both Walter Niblock and Kitty Gay, who have been handling the city's legal work in this matter for several. years, declined to work for free, when asked point blank by Alderman Woody Bassett Wednesday night. He said that he was merely trying to find a way to stop some of the mounting expenditures. As result, he wanted City Attorney Jerry Rose to handle the rehearing petition.
Gay told Bassett that she had charged the city a flat rate of one hundred dollars an hour, which she said was lower than her usual fee. She also said that she has never considered raising her fee.
In the matter of fees, Hirsch has also indicated last week that he and co-counsel Dale Evans would ask for “reasonable attorney fees.” Attorneys who had previously separated from the case, Gordon Cummings and Larry Froelich, would also be in line for remuneration.
In a city that has seen Springdale attorney John Lisle awarded $2.76 million in attorney fees for his work in a case that returned one million dollars to taxpayers as a result of a 1992 sales tax case, this is not particularly welcome news, coupled with the fact that Fayetteville, like so many other cities, is also in danger of losing a substantial amount of money from the county sales tax.
It is also possible that third-party claims may be filed against A.G. Edwards, the Wright, Lindsey and Jennings law firm, the Rose law firm, and former Fayetteville City Attorney Jim McCord. Fayetteville’s city council may face the prospect of pursuing legal action against those with whom it was once in partnership.
And, of course, Financial Guaranty may decide to sue the city for lost funds.
Third-Party Lawsuits a Possibility
Rose indicated that he had never seen any evidence of bad faith on anyone’s part since he first became involved with the case as city attorney in 1989.
Alderman Stephen Miller said that, “Very bad advice was given by people who should have known better. There has to be some satisfaction from the people who sold us down the river.”
Suggesting that the bad advice constituted “legal malpractice,” Robson admonished the city not to go after the taxpayers.
He complained that he had never been a part of any official discussion concerning just what the city should do regarding legal strategy. He said that he thought he should be a participant in such discussions.
He also reiterated a point he had made in previous arguments before the council, that certain aldermen should not even broach any opinions concerning third party lawsuits, an apparent reference to Woody Bassett, whose sister's law firm (Wright, Lindsey and Jennings) may be named a defendant, should such an occasion arise.
After making the point several times, Bassett responded, asking Robson if he were speaking about him. Robson countered by quoting from the “Rules of Order and Procedure - Mayor/City Council,” which are the rules under which aldermen must conduct themselves.
Under the heading of “Personal Interest,” is the following:
“No member of the City Council with a direct or indirect financial or personal interest in any item before the City Council shall participate in the discussion of voting on such matter.”
Finally, saying that he needed to "clear this up," Bassett said his position was, “Unless the decision is changed by the Supreme Court, it is clear that potential third parties should be sued.”
In clear rebuttal to Robson' s reading from the procedural rules, Bassett said; “I intend to stay involved in this discussion as long as I’m up here.” He also said, “We're going to get through this,” and that Fayetteville would be stronger for having done so.
The council voted to have city attorney Rose pursue the rehearing request.
Ozark Gazette - July 10, 1995