Folks in Springfield seem generally poised to pay a trash fee, some grudgingly, some quite willing. The major frustration this week, spurred by the lawsuit brought by ten residents against the city, the mayor, and the Finance Control Board, is this notion that we don’t know what makes the fee legal or illegal. We just know we need our trash collected. Judge Constance Sweeney halted the fee not because it was deemed illegal—no such decision was made—but because it will take some time to assess. Residents ought not to have to pay in the interim, on the chance that the fee is illegal. Judge Sweeney will set a trial date on December 4.
Public fustration is captured in the comments of "Forestpk1965" on MassLive.com’s Springfield forum:
Instead of presenting an argument that the trash tax is indeed a legal fee, [Mayor Charles Ryan and Philip Puccia] have instead used their office as a bully pulpit to broadcast threats of layoffs as a case to justify what a judge in a court of law has ruled is an illegal fee. What is next? I do not understand the logic—the FCB is basically saying it is OK for them to break the law so they can balance the budget and avoid layoffs. …[They] would do well to concentrate on communicating to the public what exactly makes the trash fee legal, instead of issuing threats.
…What makes the trash fee legal? I understand the Department of Revenue recommended a trash fee, but using the excuse other towns have a similar fee does not make it legal.
…The DPW spends $9 million per year for trash collection, yet the trash fee only generates $4.5 million in revenues. Is it legal to fund half of the yearly cost for trash collection from a fee, and the other half from property taxes?
These are legitimate, honest questions. If they’ve been answered by the government, perhaps they haven’t been captured by the media. If they haven’t been answered, what’s the best way for the public to hear about it? Another FAQ online? Home visits by the mayor and the DPW director? Commercials on TV? (Not a bad idea on that last one, come to think of it.)
Poster "NoPol" attempted some answers, and repeatedly has pointed out that Judge Sweeney’s 10-page ruling was initially missing a page. Kristen Beam at MassLive.com has fixed the problem—so for those following the story closely, you may want to take another look at the full decision (PDF). From "NoPol’s" post in the forum:
[According to Judge Sweeney’s ruling] a fee is legal under three conditions:
1) Charged in exchange for a particular government service that benefits the party paying the fee in a manner not shared by other members of society. Sweeney said the city met this.
2) Paid by choice, the party paying the fee has the option of not using the service to avoid the charge. Sweeney said we failed this because people had to "opt out" instead of "opt in."
3) Charges are collected not to raise revenues but to compensate the government entity for providing the service.
…Springfield could probably do #2 differently. Instead of putting a lien on someone’s property for non-payment of the first bill, it should probably have taken away the trash container, or billed the resident if it couldn’t access it to take it away. I bet the lien is the big problem here, because liens aren’t usually associated with fees, disruption of service is.
If you read #3 as written, the intent seems to be that the revenue can’t exceed the cost of service. If Sweeney is saying that since the cost of trash pickup was previously covered in the budget, then this ruling makes all trash fees charged by a municipal government in Massachusetts illegal, unless the town did not have service before Proposition 2.5 went into effect, or unless the town passed a Proposition 2.5 underride to give money back to taxpayers, reducing the levy limit by the amount raised by the trash fee. I doubt that any have done this.
And in a different post:
Personally, I think that the crux of this decision rests on the difficulty that people would have opting out—although according to Puccia, other cities and towns have the exact same rules. I think that if the fee was written as, "If you don’t pay, your barrel gets taken away", and then fined people via code enforcement for trash that piles up, it would have been unquestionably legal.
I think that Sweeney’s decision borders on the incorrect. I suspect it will be overturned.
East Longmeadow, in essence, put a trash fee in last year by putting a low limit on the amount of trash that people could throw away, and then charging a per-bag fee for anything above that. The revenue they received allowed them to divert $200k, which used to go toward trash pickup, to other parts of their budget.
How is that not an illegal trash fee?
If "NoPol" is right, Sweeney’s eventual decision could have huge ramifications across the state. In the meantime, some Springfield residents might be interested in a crash legal course. The trash fee lawsuit may offer just such an opportunity.
