By Walker County News Today staff
The Huntsville City Council agreed in a split vote Tuesday to allow the city to hire a Houston construction firm to complete the design and construction phases of the Town Creek drainage project.
Opponents of the resolution, Ward 3 council member Ronnie Allen and at-large council member Andy Brauninger, voted against it because they were concerned council was voting Tuesday in violation of the city charter.
Town Creek, which runs through a portion of central Huntsville, is the subject of a multi-million-dollar project to address flooding and drainage issues. Council approved in a 6-2 vote a resolution to allow City Manager Matt Benoit to enter into a construction manager at risk contract with Garney Construction of Houston for the design and construction of this project. An construction manager at risk contract allows the contractor to give input into the design and planning phases of a construction project.
But, because Tuesday’s meeting followed a general election but a new mayor had not yet been sworn in, Allen and Brauninger cautioned their fellow council members that council was putting the city at risk for a lawsuit if it approved the resolution in violation of the city’s charter.
Section 14.14 of the city’s charter says the council can only enter into contracts such as the one approved Tuesday at regular meetings unless the city is facing “grave public emergency or calamity.” In addition, the charter prohibits the city from entering into contracts between the date of a city general election and the date that the members of council elected at that general election have duly qualified and taken office.
“As we all know, there is a runoff election and our current mayor will not be in office when the new mayor is sworn in. Approving this resolution, there is no doubt in my mind that the city of Huntsville is at risk to be sued,” Allen said. “It only takes one property tax-paying citizen to bring on this and stop the project.”
Brauninger agreed. “The city charter is our constitution; it is our bible. It was voted on by our citizens. Any time we violate the charter we’re on dangerouns ground. I’m not real clear on why we want to go forward with this at this time…and run the risk of going contrary to the city charter. Is there any downside to waiting until after the election is my question and does this event constitute a grave public emergency or calamity?”
Don Johnson said he was unaware of what the charter said and asked for time to review the section in question. But at-large council member Lydia Montgomery said she also had been concerned about potentially violating the charter with this vote and had consulted sections 3.03 and 11.06 of the charter, which seemed to say that because the funds for the contract had already been approved as part of the budget process, council could approve allowing the city to enter into the construction contract at any time thereafter.
Council then voted unanimously to allow City Attorney Leonard Schneider to give it legal advice in open session about whether voting to approve the Town Creek resolution violated the charter. Montgomery said City Manager Matt Benoit affirmed that the council approved funds for the project during the budget process.
Schneider said council agreed in response to questions from Montgomery that council had the ability to interpret the city’s charter. He also said the runoff election did not meet the definition of a general election, which the charter stipulates must be held in May or November. The charter also doesn’t mention runoff elections.
In response to a question from Montgomery, Benoit said the contract with Garney Construction was time sensitive because the company was in high demand because of its expertise with construction with complicated, deep-trench projects such as the Town Creek drainage project.
In addition, he said,the project schedule would benefit from the city engaging Garney Construction as early as possible to help in making engineering and design decisions. The design phase is scheduled to be complete by February or March 2016.
Schneider told council members that if they waited until after the runoff election to act on the construction contract, they couldn’t vote until their next regular meeting in January 2016 to employ Garney Construction.
“My hope is the sooner we can get Garney involved, the more involvement they can have in cost estimating, visiting with landowners and also adding their input on design,” Benoit said. By waiting until January to make a decision, council would be limiting the company’s ability to give input into design before construction is set to begin, he said.
“That’s why I’m bringing this to you. Because it’s ripe,” he said. If council waits until January 2016 to act, the city might as well start over and hire a construction company to carry out the design that will have been developed in February-March 2016.
Ward 2 council member Tish Humphrey said council should vote Tuesday because Town Creek is an important project and both council members who are in the runoff were already on council.
Allen maintained that the city already is fighting a number of lawsuits and didn’t need to risk any more with an arguable charter violation.
Johnson said Allen had skipped a “missing link” in Section 14.14 that states exceptions to the charter rule — “This provision shall not apply to contracts lawfully authorized prior to any city general election or to contracts that may be hereafter lawfully authorized by a vote of the qualified voters or to contracts made for the purpose of continuing the normal functions of any regularly established department of the city.”