The Henderson City Council voted Monday night not to refund any more money to a Vance County man who says he overpaid his water bill for 18 years.
Samuel Smith’s next step might be a lawsuit seeking at least $2,238.
Smith appeared before the council two weeks earlier to share his plight, and he won wide sympathy that night.
The resident of a mobile home on Shank Street lives just outside the city limits, and while the city has properly charged him the non-city-resident water rates, it has mistakenly charged him the monthly sanitation fee since at least 2000, as far back as city records go.
Smith says he has paid the sanitation charge for the entire 18 years he has lived in the Shank Street home.
City Manager Eric Williams said the total for sanitation charges over the nearly two decades would be $2,995.
Finance Director Traig Neal paid Smith for three years, plus a month for the time it took to investigate the charges, after Smith brought his problem to city staff recently. That check was for $757 and represented what Neal believed to be the proper amount under a three-year statute of limitations for claims involving simple contracts.
Smith said he questioned his water bill 18 years ago, but people in the water payments office told him it was correct. He said that error put the burden on the city and made him eligible for a full refund. Now he wants all of his money, meaning at least an additional $2,238. He might also want the repayment of late fees he paid over the years, claiming that the sanitation charges pushed the bills beyond what he could afford.
The council’s consensus at its Finance and Intergovernmental Relations Committee meeting last week, however, was that the city could not and should not pay Smith any more money. The argument, championed by FAIR Chairman Bernard Alston, was that Smith’s claims couldn’t be verified, and even if they could, the city would be losing the defense of the statute of limitations against old and frivolous claims if it knowingly ignored the statute.
Mary Emma Evans was the lone council voice arguing for paying Smith because it’s the right thing to do, regardless of what the law says.
The debate continued Monday night.
It began during the public forum on the 2004 audit, when Smith was the second public speaker. He complained that he had to read about the city’s likely rejection of his claim because Henderson officials wouldn’t return his phone calls.
He held up a black mask and said: “You’re robbing me.”
Several hours later, his case officially came before the council.
John Wester explained why the council was going to refuse to pay Smith anything more. He cited the statute of limitations.
“There’s no question that it’s a dilemma,” Seifert said.
City Attorney John Zollicoffer has since discovered that the statute of limitations in this case is only two years, which added a twist to the discussion.
Smith said he had been told the limit was two years, but then he got a check for 37 months. He asked what the legal difference was between paying him one extra year and 15 extra years.
Yount and Seifert echoed that question, wondering whether the city could go ahead and pay him the full amount, or at least give him a credit on future water bills, without causing a legal problem.
Zollicoffer tried to explain that the city’s intent to follow the statute of limitations was an important defense. If Henderson willingly made an exception for Smith, it would waive that defense.
“We can’t break the law,” Yount said.
The city attorney said he checked with the Institute of Government about a way around the statute and found none.
“I think we need to find some sort of way to give this man his money back,” Evans said. “We’re talking about the city of Henderson going downhill. … If we don’t start treating people right, we can never start up again. …
“I’m totally upset about this.”
Seifert sided with Evans and said he would vote for a refund if he had a vote. “What’s right is right, and what’s wrong is wrong. … I think the city mishandled this one to some degree, and I think we overcharged him, and I think we ought to have some responsibility to pay him back.”
Evans made a motion to pay Smith an additional $2,238, but the motion died for lack of a second.
Butler made a motion that the city in good faith paid Smith what it could and would not pay him any more. Wester seconded the motion but noted that passage of the resolution would not prevent the city from continuing to search for a way around the statute of limitations through something like a credit on the water bill.
“I think it is a shame that … we see this man standing here with six children, needing his money, and we vote not to give him his money when we’re all over town trying to get our money from folks,” Evans said.
Butler quickly responded: “Mr. Smith, I’d like to go on record as saying I’m very sorry for what’s happened to you, but I will not go against the statute of limitations, and I will not make it hard for the next council that comes when I’m gone.”
“You’re saying you’re sorry, but you’re not sorry,” Smith said.
The motion passed 4-2, with Evans and Yount opposed. Yount said she voted no because the council lacked definitive information on the consequences of a credit instead of a cash payment.
Evans left the meeting after the vote, saying on her way out: “Well, I hope he does the same thing the rest of us do to get his money.”
She meant that she hopes he sues the city, and Smith implied as much before the vote when he vowed that one way or the other he was going to get his money.