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A pothole sits filled with water on Dell Range Boulevard near Sagebrush Avenue on Tuesday, Aug. 20, 2019, in Cheyenne. Cheyenne Mayor Marian Orr recently called the pothole situation an emergency and decided to bypass the City Council and dedicate $250,000 to hire a private contractor to fix potholes on city streets by Nov. 1. Michael Cummo/Wyoming Tribune Eagle

CHEYENNE – Mayor Marian Orr and Cheyenne City Council members agree the city needs to address the backlog of road maintenance work caused by a wet spring and an understaffed Public Works Department.

But whether the abundance of potholes in the city constitutes an emergency that allows Orr to circumvent City Council approval to spend six figures on pothole repairs is a source of major disagreement.

On Aug. 9, Orr issued a memorandum stating she would use emergency spending powers to procure a private contract for street patching with a maximum budget of $250,000 to come from the city’s fifth-penny sales tax funds.

The emergency procurement powers allow Orr to bypass approval by City Council and the normal bidding process. The mayor’s office is normally able to spend up to $35,000 for repairs and other purchases without approval.

Orr didn’t respond to a request for an interview for this story by press time Tuesday.

According to Orr’s memorandum, the emergency exists “due to an unusually wet spring season resulting in a significantly higher number of potholes throughout the city.”

With the Street and Alley Division of Public Works shorthanded due to a string of retirements and difficulty in hiring new staff given the tight job market, Orr’s memo said the Engineering Department recommended a private contractor be hired to complete the work by Nov. 1.

“The bid process does not provide a normal acquisition process that will meet this timeline. The only avenue for procuring these services is under the Emergency Procurement procedures,” Orr’s memorandum said. “This unexpected situation could not have been foreseen, as unusual weather and a shortage of personnel created the need for street patching to be completed this calendar year.”

Vicki Nemecek, director of Cheyenne’s Public Works Department, said staffing is down from 26 to 20, which has made dealing with the increased need for maintenance from the wet spring difficult. The city is trying to compete with the private sector, which is able to offer higher pay, as it tries to secure workers in a tight job market.

“Being short-staffed and having more potholes than normal created a situation where our 20 remaining people have not been able to do all the work,” Nemecek said Tuesday. “We have done a good job to get to those potholes required, but we’re falling behind.”

City code allows the mayor to circumvent normal spending procedures in a sudden or unexpected emergency situation where immediate action is needed to prevent serious damage to health, welfare or public safety. It also states the emergency has to already be present, and can’t be a condition that “reasonably may be foreseen in time to advertise for bids.”

For an emergency to qualify, the department head affected by the emergency has to state the reason for the order. And city code states if the department director could have anticipated “obvious conditions” that would jeopardize public health and safety, or delayed taking action to address the issue in a timely manner, it can’t be considered an emergency.

For City Council President Rocky Case, the potholes in the city don’t rise to the level of an emergency that should change how government money is spent.

Case said while work needs to be done on city roads, and the city has the money, the issue should have been presented earlier in the year and gone through the proper approval process. Currently, he doesn’t know the scope of the project, how many potholes would be fixed or where those potholes are located.

“I think there’s a host of many different ways it could have been accomplished in a more effective manner,” Case said. “My question is to the planning of it all and is our plan sufficient. Maybe this exposes that maybe the (pavement and maintenance) plan needs to be worked over and looked at.”

Councilman Pete Laybourn said he agrees with the need for the city to address the backlog of work on maintenance and patching of city streets. But he said he would wait for an opinion from the City Attorney’s Office about whether Orr’s use of emergency spending powers was correct under the law.

“Imperfect as it might be, I definitely support doing it if the city attorney gives us the opinion that it’s legal,” Laybourn said Tuesday. “I think this is a manageable amount of money, I think it’s there for that purpose, and I think we should do it if it’s legal.”

City Attorney Michael O’Donnell said he couldn’t comment on whether he was working on an opinion for City Council members related to the legality of Orr’s move.

Since Orr announced she would use the emergency procurement powers, Case has on several occasions voiced his displeasure in public about Orr going $215,000 over what the mayor’s office can spend without approval.

Those statements in the media by Case about the emergency powers elicited a memo from Orr to City Council recently that called into question whether council members knew enough about how the city was set up to operate.

“(Case’s comments are) yet another example of what appears to be a lack of understanding of the form of government our city operates,” Orr said in the memo. “If council wants to change that form of government to administrator/manager – I would support your efforts to place it on the ballot once again for the voters to decide.

“I act within state statute and city code. If there are those who don’t like it, change it, but attack the system we operate under, not the elected official carrying out the duties elected by the city to perform.”

Ramsey Scott is the Wyoming Tribune Eagle’s state government reporter. He can be reached at 307-633-3124 or rscott@wyomingnews.com. Follow him on Twitter at @RamseyWyoming.

Ramsey Scott is the Wyoming Tribune Eagle’s state government reporter. He can be reached at 307-633-3124 or rscott@wyomingnews.com. Follow him on Twitter at @RamseyWyoming.

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