Fort Smith Board approves limited observation of consent decree talks, employee bonuses

The Fort Smith Board of Directors approved a resolution Tuesday (Sept. 20) requiring the mayor and one board member to observe all future consent decree negotiations between the city and the U.S. Environmental Protection Agency (EPA) and U.S. Department of Justice (DOJ).

Board members also during Tuesday’s regular board meeting approved more than $1.6 million in bonuses for eligible city employees.

The consent decree resolution was not on the original agenda for Tuesday’s meeting. The item was requested to be added to the agenda Sept. 15 by Director Lavon Morton. Directors Andre Good, George Catsavis, Kevin Settle and Neal Martin all concurred with the request. Directors Jarred Rego and Robyn Dawson could not be reached, a news release said.

The resolution states that for any future meeting or conference, whether in-person, by zoom or a similar teleconference method or any conference call between representatives of the city of Fort Smith and either or both of the EPA or the DOJ for the purpose of discussing the consent decree or any aspect of the decree, that, where schedules allow, the mayor and one, but no more than one, member of the Board of Directors be present as observers only of the meeting.

“I want to clarify. I did not intend this would cover (Utility Director Lance McAvoy) and the EPA regarding if there was a need for clarification or questions by the city or anything along those lines,” Morton said. “This is for negotiations only.”

Martin said he was for the idea and would be for taking it further to allow a director or the mayor to participate in the negotiations.

“I have thought elected officials need to be involved in these discussions for a long time,” Martin said. “It is important that someone who is accountable to the citizens be there.”

Morton said he did not want to create an atmosphere that would hinder the city in any future negotiations, so he believed observation only would be best.

“It’s really hard to understand what all is going on when no one is there,” Morton said. “I don’t want to upset or antagonize or cause anything that will give us more grief. It seems Region 6 has a bullseye on Fort Smith.”

Settle addressed whether the EPA or Justice Department would object to inclusion. Morton said if they did, then the city could react accordingly.

“But I don’t think they have any legal ground for keeping us out,” Morton said.

Because there would only be one board member and the mayor (two elected officials, but only one with voting power) the observations should not constitute a public meeting, according to Jerry Canfield, the city’s legal counsel.

“If we learn there is an issue with FOIA (Freedom of Information Act), then we just don’t do it,” Morton said.

CONSENT DECREE HISTORY
After years of failing to maintain water and sewer infrastructure to federal standards, the city entered into a federal consent decree with the United States Environmental Protection Agency (EPA) and U.S. Department of Justice in late 2014. The consent decree required the city to make an estimated $480 million worth of sewer upgrades over the course of 12 years. Over the past six years, the city has spent approximately $127 million in capital costs for required improvements. That does not include work done prior to the consent decree, work still needed, or the operation and maintenance program the city has implemented that will outlive the consent decree, said Fort Smith Director of Utilities Lance McAvoy.

On May 7, 2020, the EPA and the Arkansas Department of Environmental Quality (ADEQ) agreed that the city has proved that the sewer improvement program will be “inordinately expensive, accordingly, qualified for an additional five years of implementation time.” The city received an additional five years added to the 12 in the order to implement changes. Because almost six years have passed, that means the city has 11 years to complete the improvements, said Paul Calamita, with Richmond, Va.-based AquaLaw, the firm hired by the city to help with legal relief.

Along with the five year extension, the EPA and ADEQ agreed to provide additional flexibility with certain interim program deadlines that will allow Fort Smith the ability to stretch out expensive system improvements over the whole of the remaining program implementation schedule, according to the update to the decree provided by the city in 2020.

An attempt by the city to remove the category four and five lines, which according to McAvoy may not need to be repaired for many years, was blocked by U.S. District Judge P.K. Holmes III in 2021. The city lost an appeal to Judge Holmes’ ruling Sept. 14 in the U.S. 8th Circuit Court of Appeals.

A Grade 5 pipe segment is described as one that “has failed or will likely fail within the next five years. Pipe segment requires immediate attention.” A Grade 5 manhole is described as one where “failure has already occurred or is likely to occur.” A Grade 4 pipe segment is described as one that “has severe defects with the risk of failure within the next five to ten years.” A Grade 4 manhole is described as having cracks, deterioration or visible deformities.” By comparison, Grade 1, 2, and 3 pipe segments and manholes have less severe defects.

EMPLOYEE BONUSES
The directors also approved an ordinance giving a one-time payment to certain city employees for their hard work and commitment during the COVID-19 pandemic.

“City of Fort Smith employees demonstrated their commitment to serving the City during the COVID-19 pandemic. Because of their demonstrated hard work and commitment, City services have been provided without interruption and with high quality standards deserved by citizens and residents. In recognition of this commitment and hard work, Administration and Human Resources have discussed and recommend a one-time payment to certain employees of the City,” said a memo on the subject from Rick Lolley, director Human Resources.

All eligible, regular, full-time, uniformed fire and police department employees and non-uniformed telecommunicators and dispatch supervisors in the Fort Smith Police Department’s center will receive $2,500. All eligible, regular, full-time, non-uniformed employees will receive $1,500. All eligible, part-time, uniformed employees and all eligible, part-time non-uniformed employees will receive $750.

“The Mayor and members of the Board of Directors are not employees and are excluded from payment,” the memo said.

The cost for the one-time payment is approximately $1.63 million and will come from the city’s general fund.