Frustration boils overs as Newport City Council explores legal liability on Rogers project

NEWPORT — Frustrations with how the Rogers High School building project has been managed reached a new boiling point as the City Council decided to explore legal liability for the several issues the project has faced over the years.

“There is a rolling lack of accountability where nobody actually seems to be standing up and saying ‘We own this problem, this is where this is coming from,’ except for the taxpayers,” Mayor Xay Khamsyvoravong said at the regular meeting Wednesday night. “We cannot continue having a situation where the only reason and logic behind these project costs amounting is that they are unforeseen and unforeseen, and unforeseen. We hired someone to foresee the problems and they need to answer for that.”

This week, the City Council received news that the soil in the stockpile next to the new Rogers High School building project is too silty to be used for backfill in the project, meaning most of the soil will have to be removed at an extra cost. The soil pile had been a source of controversy for the project since construction began, however, the Newport School Building Committee and Rhode Island Department of Environmental Management assured the city that the soil could be used for the building.

Additionally, test results from an independent test of the soil confirmed certain contaminants in the soil were above the level the Rhode Island Department of Environmental Management accepts for residential areas.

In a memo to the City Council, interim City Manager Laura Sitrin recommended the city “inform” the school that they can no longer add any more excavated soil to the pile. The word “inform” is key to this request, as the city has very limited authority when it comes to decisions being made on the site. The city was not able to execute the council’s previous request to halt soil dumping on the pile for this very reason. However, Behan told the City Council on Wednesday that the city might be able to gain more legal authority over the project if they could prove the school acted outside its RIDEM permit.

Still, Behan advised the council that “ordering” the school to stop adding soil to the pile could lead to legal complications, possibly litigation between the City Council and School Building Committee.

Councilor Lynne Underwood Ceglie, who sits on the School Building Committee as a council representative alongside Councilor David Carlin, insisted there should be a plan in place for what to do with the soil so construction on the school isn’t interrupted or delayed. The construction team has to acquire a certificate of occupancy by summer 2025 to secure some state reimbursement for the project and there is a small amount of excavation that still needs to take place.

Council seeks more information

To remedy these concerns, Khamsyvoravong made a three-pronged motion, the first action of which is to request the school stop stockpiling soil until the School Building Committee develops a plan for what to do with the soil.

The second part of the motion, which was also recommended as a part of Sitrin’s memo, is to hire legal and environmental consultants to get a full history of land underneath the current track and field, which used to be a municipal dump. While the dump was presumably capped with clean soil in the 1990s, Sitrin’s memo said the city was just informed the cap is also contaminated.

In addition to following through with Sitrin’s recommendations, Khamsyvoravong also motioned to hire legal consultants with expertise in contracts to get a better understanding of the legal liability of each party involved in the process. He said either the contracts will reveal the consultants are liable for oversights in advice that should have been provided, or they are indemnified against it.

“I would ask the question that if they had the foresight to indemnify themselves against the risk of doing things like geotechnical testing, why didn’t they have the foresight to tell us we should have been doing that testing in the first place,” Khamsyvoravong said.

An 'obscenely mismanaged project'?

In the same vein, Councilor Mark Aramli, who has a degree in mechanical engineering and said he is in the construction business, called the project “the most obscenely mismanaged project” he’s ever seen.

“I can tell you, as an engineer, (silty soil testing) ain’t a sophisticated test,” Aramli said. “A good structural site engineer literally can pick up soil in his hands and squeeze it to tell you if the soil is junk or if its something that can be used for a load-bearing build. The fact that something so basic (the silty soil) has been missed implies perhaps there was some malfeasance here.”

The council passed Khamsyvoravong’s motion in a 5-1 vote, with Carlin against and Councilor Angela McCalla having left the room temporarily. Carlin voted the motion down after he was unable to get Khamsyvoravong to amend his motion and enable Sitrin to order the school to stop adding dirt.

While Khamsyvoravong and Aramli aimed their concerns at the capabilities of consultants working on the project, Carlin said he has lost faith in the School Building Committee itself.

“I don’t think the School Building Committee knows its a-- from its elbows,” Carlin said.

This article originally appeared on Newport Daily News: Newport City council to hire legal consultants to review Rogers contacts