I don’t want to see the town get sued.”

Local resident Jonathan Shulman, speaking in favor of retaining the curbside ordinance.

For me, it’s all about choice.”

Local resident Karen Gleason, speaking in favor of repealing the ordinance

PORTSMOUTH — An attempt to squash a controversial curbside collection ordinance that had been approved by the previous Town Council narrowly failed during a meeting at Portsmouth High School Monday night.

A motion by council member David Reise to rescind the ordinance was voted down, 3-4. Reise and fellow members Sharlene Patton and Mary McDowell voted in favor of the motion, while Council President Keith Hamilton, Vice President David Gleason, and members Juan Carlos Payero and Sondra Blank voted against.

RELATED: COUNCIL SETS STICKER FEES FOR TRANSFER STATION, CURBSIDE COLLECTION

Now affirmed by majority vote, the ordinance allows MTG Disposal, LLC (Mega) to be the exclusive curbside collector when the new town-wide program begins on July 1. After an RFP (request for proposals) process, Mega was awarded the exclusive contract in May 2024, and the ordinance was approved at the previous council’s last meeting in November. The contract runs from July 1, 2025 to June 30, 2030.

Currently, far more households in Portsmouth privately contract with a curbside collector than use the transfer station — more than 4,000 versus 2,200. Curbside users who now contract with companies such as Waste Management, Mega or Patriot, and who want to continue getting their trash picked up, would be required to use only Mega if they join the town’s program.

The new municipal curbside program will be the first in Rhode Island that uses a single vendor and is not funded by tax dollars. Like the separate transfer station operation — which isn’t going away any time soon, town officials assured residents — the curbside program will be financed through an enterprise fund using sticker fees. The town is counting on at least 4,000 households to sign up for curbside in order to get the fee down to about $460.

Monday’s public hearing was scheduled after Gleason and four other council members voted in December to consider rescinding the ordinance. On Monday, however, Gleason and a few other councilors said it became clear to them the town had a binding agreement with Mega. Rescinding the ordinance, they said, could put the town in legal peril and possibly cost taxpayers millions.

“I hate to say it too, but I think we do have a contract,” Gleason said.

The meeting was held at PHS in anticipation of a large crowd, but there were plenty of empty seats in the school auditorium. Still, discussion ran on for more than 90 minutes and nearly 20 residents took to the podium, with most of them in favor of killing the ordinance. Several of them said residents who participate in the town’s curbside program should have their own choice of vendor, like they do now.

“For me, it’s all about choice,” said Karen Gleason, wife of the council vice president. She added that the council should “not be threatened by an intent to sue.”

That remark was in reference to a Jan. 8 “warning letter,” as Hamilton described it, that was sent to the town by Mega’s attorney, Mark Freel. In his letter, Freel stated that Mega has acted in good faith with the town since the process began, and the bid package explicitly stated that “Proposer’s signed proposal and Town of Portsmouth’s written acceptances shall constitute a binding contract.”

If the ordinance were appealed, Freel said Mega “would treat any such action by the town as a breach of contract” and that the town would be liable for the “full extent of the damages resulting from their breach, including costs already incurred and potential lost profits.”

Freel also spoke at Monday’s hearing. “What MTG or Mega wants out of this is not a legal battle. What they want is a benefit of a five-year commitment that they’re willing to make,” he said, adding the company hopes to receive a contract extension after that period.

Mega has already invested considerable capital preparing for the contract, he said. “We’ve postponed the ordering of the carts (trash bins), but we can’t postpone that indefinitely,” he said, noting they need to be in place by June.

David Fiorillo, of Hamilton Drive, pointed out MTG said it’s already committed $1.4 million on the contract, and the total contract is for $6 million over five years. As a business owner, he said, he would “absolutely go after” the town. “If we repeal this, all of our taxes are going to go up because they will sue,” Fiorillo said.

He also criticized the council’s decision to revisit the RFP and curbside ordinance process, which was first set in motion back in October 2022 and has been discussed numerous times since then in public session. “I’m kind of shocked that we’re going backwards,” he said.

Speaking remotely, Jonathan Shulman of James Court agreed.

“I don’t know how we’re even considering this after years of public input and going through the RFP process,” he said, adding that repealing the ordinance would seem to be a “pretty clear breach of contract. I don’t want to see the town get sued. I don’t see what we have to gain from this.”

Carol Anderheggen of Bristol Ferry Road also spoke in retaining the ordinance. 

“The town can probably negotiate a better price on curbside than I can,” said Anderheggen, adding that an exclusive contract would also reduce the number of collection trucks on the road. 

She also addressed concerns over losing the choice of vendor:“Sometimes we give up a little personal freedom for the betterment of the community. I hope here in Portsmouth, we can return to a common good — we can bring that back to civil discourse.”

Most against ordinance

The majority of residents, however, said they wanted the ordinance repealed.

Scott Boyd, of Kensington Avenue, said the town would need more than 4,000 residents to sign up to achieve a significant cost savings to curbside users — $460 compared to the $720 he now pays annually to Waste Management. But if only 2,500 households signed up for curbside, he said, they’d be paying about the same he is now.

Hamilton replied that’s one of the reasons why the ordinance for an exclusive contractor was important — to get more curbside customers to use the town’s program.

Chris Carceller, of Lepes Road, said residents get the best curbside rate through free enterprise, not by limiting their choices. “I only pay $420 a year to Waste Management. I call every year; I’m a pain,” she said. “It still baffles me why the town wants to get into the trash business. With an exclusive contract, I will no longer be able to shop around for better pricing. We still don’t know how many people will be signing up for this; we have a projection.”

Tom Grieb, of Thayer Drive, suggested the town retain Mega as its curbside vendor, but allow residents to choose who they want. “Do away with the ordinance, but keep Mega as your hauler,” he said.

Grieb also spoke out against eventually putting curbside collection in the tax base, as some have suggested. “That’s when nobody will know what they’re paying,” he said.

Manager: We need ordinance

Town Administrator Richard Rainer Jr. said keeping the exclusivity clause is the only way the municipal curbside program would work. 

The town has already been informed by competitors of Mega that without an ordinance, they’re going to offer lower rates, Rainer said. The problem is, he said, those “introductory rates” will later disappear and higher rates will go into effect. Customers have seen it happen before in Portsmouth, the manager said.

“Without the ordinance, I don’t think this is a program that would be financially viable to the town,” Rainer said.

After the public hearing was closed, council members debated amongst themselves. McDowell said the town didn’t need an ordinance, and she didn’t believe the town had a binding contract with Mega. In addition, she said, the town had no written opinion from its solicitor about any legal ramifications should the ordinance be repealed.

“I think that’s a shame. I’m saddened by that because I’m new and I struggling with this whole thing,” McDowell said.

Payero, however, said he was afraid the town would be held liable for millions should the ordinance be repealed. He reminded everyone that the town had to pay $800,000 in 2013 to settle a lawsuit filed by Rhode Island Nurseries due to a decision by the council in 2011 to abandon a  “paper” public road known as the “Heidi Drive Extension.”

“If we go back, we will be possibly liable for the entire life of the contract. That’s about 8 percent of our total budget,” Payero said, adding the town’s insurer would not bail the town out.