News analysis: Has T or C flouted state election laws—again?

by Kathleen Sloan | September 13, 2021

10 min read

Editor’s Note: Twice in the last two years the Truth or Consequences City Commission has refused to hold a referendum on citizens’ proposed smart meter legislation. Part 1 of this two-part series recaps these events and lays out the commissioners’ and city staff’s reasons for dismissing officially verified special election petitions. As filing suit in district court is the only recourse available to petitioners denied their proposed legislation’s day at the ballot box, Part 2 will examine pertinent case-law precedents that seem to support or rebut the city’s rationale.

Truth or Consequences is a commission-manager form of municipal government. Its citizens thus have the state-mandated right to propose legislation whose enactment or rejection shall be determined by the people at a special election.

As required by state law 3-14-17 on referendum ordinances and 3-14-18 on initiative ordinances, a city commission “shall” hold an election on citizen-proposed legislation when presented with a petition signed by duly verified registered voters comprising 20 percent of the average number of votes cast in the last four municipal elections.

Despite having received two petitions meeting those requirements—both proposing legislation concerning smart meters—T or C’s city commission has twice refused to hold special elections. Each time the commission claimed the people do not have the right to propose legislation concerning “administrative decisions.” This is the legal term of art the city ascribes to a contract and policies governing the $1 million-plus purchase and installation of radio-frequency meter readers at the properties of its 4,000 residential and commercial electric customers. These “smart” meters enable the remote reading of customers’ electricity usage.

The first piece of citizen-proposed legislation took the form of an initiative ordinance petition circulated in the fall of 2019. The petition sought to put to a vote the question of whether a 10-year moratorium should be enacted prohibiting T or C’s intended installation of smart meters and “all advanced metering infrastructure.” The moratorium would enable research to be completed on the health and effects of spiking radio-frequency radiation emitted by smart meter technology. The petition was signed by 264 citizens.

The second piece of citizen-proposed legislation, which took the form of a referendum ordinance petition, was submitted last month to the T or C Clerk’s Office for certification. The petition proposed a vote on whether customers who wished to keep their analog meters out of health and safety concerns about smart meters should be charged a $50 monthly fee to have their meters read manually. The city commission had passed a resolution on July 14 imposing the fee. About 240 people signed this petition.

The city clerk verified that the required 154 qualified (i.e., registered) voters had signed the initiative ordinance petition and the required 152 qualified voters had signed the referendum ordinance petition.

The verified petitions were presented to the city commission, which both times voted down resolutions calling for special elections, thus blocking a public vote on the citizen-proposed legislation.

THE CITY’S AND COMMISSIONERS’ REASONING

SEMANTICS

The city commissions first refusal to hold an election came in January 2020, on the advice of then City Manager Morris Madrid and City Attorney Jay Rubin. They informed the commissioners that, because the decisions to purchase and install smart meters were “administrative,” they were therefore exempt from legislative challenges at the ballot box. Rubin cited a New Mexico Supreme Court case decided in 1996 that he believed provided this legal precedence for not holding a referendum.

The triggering action for the smart meters’ acquisition occurred on Aug. 27, 2019, when the commission, by mere motion, approved awarding the city’s “request for proposals” to provide and install smart meters to the multinational corporation Landis + Gyr. Since the city commission had passed no resolution or ordinance governing the purchase, there was no city law to be put up at a referendum for possible repeal. Concerned citizens signed a petition proposing a new law—i.e., an initiative ordinance—in an effort to prohibit the installation.

At a regular commission meeting on Aug. 25 of this year, the commissioners once again refused to call a special election, this one intended to let the voters decide whether to overturn the $50 monthly fee imposed on utility customers who wished to keep their analog electric meter readers. City Manager Bruce Swingle advised the city commission to pass a resolution setting a special election on the question for Feb. 15, 2022. The commissioners ignored Swingle. Accepting Rubin’s opinion that the imposition of the fee was an administrative decision, they declined to pass the election resolution.

Mayor Sandra Whitehead, Mayor Pro Tem Amanda Forrister and Commissioner Paul Baca cited another reason for their votes against the election resolution. They all expressed disbelief that the petition signers understood what they were signing.

MISSAPPREHENSION OF PETITION SIGNERS’ INTENT

Forrister asked: “Why would they [constituents] bring it [the referendum ordinance petition] to us?” Her disbelief suggested that she is unfamiliar with the First Amendment and state law 3-14-17, both of which give citizen the right to petition their representatives, who, in turn, have a duty to consider those petitions.

At the city commission’s Sept. 8 meeting, Baca repeated a claim he first made on Aug. 25. “I think there was a lot of misinformation [during the petition drive],” he said again last week. “I don’t think people understood that the fee is only for people who opt out [of having a smart meter], not for the whole city.” Whitehead and Forrister concurred.

Baca’s statement reveals several condescending presumptions:

• Self-interest is the only reason people sign petitions. According to Inspection of Public Records documents provided the Sun, there were only seven customers who had refused smart meters as of May. So why would electric customers who signed the petition object to a punitive fee that does not affect them, unless they didn’t understand what they were signing?

• Alternatively, other electric customers who signed the petition must have mistakenly presumed they are also being charged $50 a month.

• Signers could not discern that the petition drive organizers were misinforming them.

CONFLATION OF PUBLIC MEETINGS WITH PUBLIC HEARINGS

Mayor Whitehead cited yet another reason at the Sept. 8 commission meeting for ignoring state law that city commissions “shall” hold duly verified petition referendums. Whitehead falsely claimed that T or C residents had been given ample time to object to the smart meter project at various public forums held in advance of the project’s initiation.

To defend its inaccurate claims that the smart meter initiative had been fully vetted by the public, the city posted a statement on the municipal website around Sept. 4 and took a full-page ad out in the Sept. 10 issue of the Sierra County Sentinel, which is owned and edited by City Commissioner Frances Luna. No such advertisement or statement was brought before or approved by the city commission, and no authorship is given for the statement or ad. The ad states: “Contrary to what a small group of people are telling the public,” the city has held “public meetings” on “AMI meters.”

No one has claimed smart meters have not been discussed in public meetings, but these forum are distinct from public hearings. The city’s and the mayor’s attempts to conflate the two show a lack of understanding of public notice and due process in law making.

Municipalities are not required to keep minutes of public comment given during public meetings, and city commissions cannot legally be held accountable for ignoring public comment. Municipalities are, however, required to hold public hearings before passing local laws or ordinances. (This requirement does not apply to resolutions and motions.)

There has never been a public hearing on the decision to install smart meters for all electric-utility customers, as the Sun has reported in the past and reiterates here. The Sun’s assertion is borne out by the lack of evidence produced by Inspection of Public Records Act requests for all documentation about those public hearings. “No such document exists,” the city responded.

A public record of any public hearing is required to be kept as evidence that the public had due notice a law was soon to be considered for passage and was given the opportunity to express assent or dissent on proposed government actions.

Public hearing records are indispensable should a law be challenged and it becomes necessary for a court to determine if it is to the benefit of the people. Laws that are “arbitrary and capricious”—meaning they have been made without due public deliberation or concern for the people’s benefit—can be overturned by courts.

The city’s Sept. 10 ad also claims that the city commission approved the Landis + Gyr contract on Sept. 16, 2019. This is inaccurate. On Sept. 16, 2019, Mayor Whitehead signed the contract with the company behind closed doors, as revealed by the Sun’s IPRA request for a copy of the contract.

The Sun also examined city commission meeting agendas and meeting minutes from that time period and found no agenda item referring to the Landis + Gyr contract. The agenda for the Aug. 27 meeting referred only to the approval of the RFP award. In other words, the contract was never brought before the city commission, and Mayor Whitehead has authority to sign contracts only with the commission’s approval, as required by the state’s Open Meetings Act.

To this day, the city commission has never held even a public meeting that makes clear past and ongoing costs of the smart meter project or how it was and is being funded. Then Manager Madrid merely stated at the Aug. 27, 2019, meeting that the purchase and installation costs would be “about $1 million.” The particulars of this estimate went unquestioned by the city commission then and ever since then.

THE PETITIONERS’ ONLY RECOURSE

The Truth or Consequences City Commission has not heeded or responded to two years of public comment on smart meters and has twice refused to consider proposed smart-meter legislation supported by a significant number of citizens. It has passed no ordinances governing smart meters, thus heading off a public hearing that would document citizens’ assent or dissent of this infrastructure project and avoiding the creation of an official record of the people’s will.

The only remaining means for citizens’ to redress the imposition and public funding of smart meters, as well as the imposition of a $50 monthly fee on residents who refuse to take smart meters, is through the courts—a slow, arduous and expensive process.

So far, local activist Ron Fenn is the only resident to file a court case. One day after the city commission refused to pass the election resolution on the smart-meter moratorium on Jan. 29, 2020, Fenn filed a case in district court.

The case was filed as a “declaratory judgment.” It asks the court to declare that the city violated state law 3-14-18 by refusing to hold an election. The relief requested is that the city commission be ordered hold an election on the proposed 10-year moratorium on smart meter installations. Judge Shannon Murdoch, assigned the case, has yet to schedule a hearing.

When Fenn filed, the installation of smart meters had been delayed by the COVID-19 pandemic. If the case had been timely heard, it might have blocked the installation of smart meters, which has since become a fait accompli. “Justice delayed is justice denied” is a common legal maxim that applies to this case. A ruling at this point may be moot, unless the district court orders the city to uninstall the meters, a remedy that would not make the residents whole on the $1 million-plus expenditure.

Fenn, in a Sept. 9 interview, said he plans to file a second court case objecting to the city commission’s failure to hold an election regarding the imposition of the $50 fee. If filed, Fenn’s case will seek a ruling on whether the city violated state law 3-14-17.

The Sun will publish a follow-up article on New Mexico Supreme Court cases that have set precedent on 3-14-17 (there are no cases of precedent for 3-14-18). The cases to be examined in Part 2 of this series speak to the administrative decisions that are exempt from citizen-led referendum legislation, as well as to the legislative decisions that require city commissions to hold elections when properly petitioned by citizens for redress of those decisions.

author

Kathleen Sloan is the Sun’s founder and chief reporter. She can be reached at kathleen.sloan@gmail.com or 575-297-4146.

Understanding New Mexico's proposed new social studies standards for K-12 students

“The primary purpose of social studies is to help young people develop the ability to make informed and reasoned decisions for the public good as citizens of a culturally diverse, democratic society in an interdependent world.”
—National Council for the Social Studies

Reader Michael L. Hayes of Las Cruces commented: What impresses me is that both the proposed standards and some of the criticisms of them are equally grotesque. I make this bold statement on the basis of my experience as a peripatetic high school and college English teacher for 45 years in many states with many students differing in race, religion, gender and socioeconomic background, and as a civic activist (PTA) in public education (My career, however, was as an independent consultant mainly in defense, energy and the environment.)

The proposed social studies standards are conceptually and instructionally flawed. For starters, a “performance standard” is not a standard at all; it is a task. Asking someone to explain something is not unlike asking someone to water the lawn. Nothing measures the performance, but without a measure, there is no standard. The teacher’s subjective judgment will be all that matters, and almost anything will count as satisfying a “performance standard,” even just trying. Students will be left to wonder “what is on the teacher’s mind?” or “have I sucked up enough.”

Four other quick criticisms of the performance standards. One, they are nearly unintelligible because they are written in jargon. PED’s use of jargon in a document intended for the public is worrisome. Bureaucrats often use jargon to confuse or conceal something uninformed, wrong or unworthy. As a result, most parents, some school board members and more than a few teachers do not understand them.

Two, the performance standards are so vague that they fail to define the education which teachers are supposed to teach, students are supposed to learn, and parents are supposed to understand. PED does not define words like “explain” or “describe” so that teachers can apply “standards” consistently and fairly. The standards do not indicate what teachers are supposed to know in order to teach or specify what students are supposed to learn. Supervisors cannot know whether teachers are teaching social studies well or poorly. The standards are so vague that the public, especially parents or guardians, cannot know the content of public education.

Three, many performance standards are simply unrealistic, especially at grade level. Under “Ethnic, Cultural and Identity Performance Standards”; then under “Diversity and Identity”; then under “Kindergarten,” one such standard is: “Identify how their family does things both the same as and different from how other people do things.” Do six-year-olds know how other people do things? Do they know whether these things are relevant to diversity and identity? Or another standard: “Describe their family history, culture, and past to current contributions of people in their main identity groups.” (A proficient writer would have hyphenated the compound adjective to avoid confusing the reader.) Do six-year-olds know so much about these things in relation to their “identity group”? Since teachers obviously do not teach them about these other people and have not taught them about these groups, why are these and similar items in the curriculum; or do teachers assign them to go home and collect this information?

Point four follows from “three”; some information relevant to some performance measures requires a disclosure of personal or family matters. The younger the students, the easier it is for teachers to invade their privacy and not only their privacy, but also the privacy of their parents or guardians, or neighbors, who may never be aware of these disclosures or not become aware of them until afterward. PED has no right to design a curriculum which requires teachers to ask students for information about themselves, parents or guardians, or neighbors, or puts teachers on the spot if the disclosures reveal criminal conduct. (Bill says Jeff’s father plays games in bed with his daughter. Lila says Angelo’s mother gives herself shots in the arm.) Since teacher-student communications have no legal protection to ensure privacy, those disclosures may become public accidentally or deliberately. The effect of these proposal standards is to turn New Mexico schools and teachers into investigative agents of the state and students into little informants or spies.

This PED proposal for social studies standards is a travesty of education despite its appeals to purportedly enlightened principles. It constitutes a clear and present danger to individual liberty and civil liberties. It should be repudiated; its development, investigated; its PED perpetrators, dismissed. No state curriculum should encourage or require the disclosure of private personal information.

I am equally outraged by the comments of some of T or C’s school board members: Christine LaFont and Julianne Stroup, two white Christian women, who belong to one of the larger minorities in America and assume white and Christian privileges. In different terms but for essentially the same reason, both oppose an education which includes lessons about historical events and trends, and social movements and developments, of other minorities. They object to the proposal for the new social studies standards because of its emphasis on individual and group identities not white or Christian. I am not going to reply with specific objections; they are too numerous and too pointed.

Ms. LaFont urges: “It’s better to address what’s similar with all Americans. It’s not good to differentiate.” Ms. Stroup adds: “Our country is not a racist country. We have to teach to respect each other. We have civil rights laws that protect everyone from discrimination. We need to teach civics, love and respect. We need to teach how to be color blind.”

Their desires for unity and homogeneity, and for mutual respect, are a contradiction and an impossibility. Aside from a shared citizenship, which implies acceptance of the Constitution, the rule of law and equality under the law, little else defines Americans. We are additionally defined by our race, religion, national origin, etc. So mutual respect requires individuals to respect others different from themselves. Disrespect desires blacks, Jews or Palestinians to assimilate or to suppress or conceal racial, religious or national origin aspects of their identity. The only people who want erasure of nonwhite, non-Christian, non-American origin aspects of identity are bigots. Ms. LaFont and Ms. Stroud want standards which, by stressing similarities and eliding differences, desire the erasure of such aspects. What they want will result in a social studies curriculum that enables white, Christian, native-born children to grow up to be bigots and all others to be their victims. This would be the academic equivalent of ethnic cleansing.

H.E.L.P.

This postmortem of a case involving a 75-year-old women who went missing from her home in Hillsboro last September sheds light on the bounds of law enforcement’s capacity to respond, especially in large rural jurisdictions such as Sierra County, and underscores the critical role the public, as well as concerned family and friends, can play in assisting a missing person’s search.

Reader Jane Debrott of Hillsboro commented: Thank you for your article on the tragic loss of Betsey. I am a resident of Hillsboro, a friend of Rick and Betsey, and a member of H.E.L.P. The thing that most distresses me now, is the emphasis on Rick’s mis-naming of the color of their car. I fear that this fact will cause Rick to feel that if he had only gotten the facts right, Betsey may have been rescued before it was too late. The incident was a series of unavoidable events, out of everyone’s control, and we will never know what place the correct color of her car may have had in the outcome. It breaks my heart to think that Rick has had one more thing added to his “what ifs” concerning this incident.

Diana Tittle responded: Dear Jane, the Sun undertook this investigation at the request of a Hillsboro resident concerned about the town’s inability to mount a prompt, coordinated response to the disappearance of a neighbor. From the beginning, I shared your concern about how our findings might affect Betsy’s family and friends. After I completed my research and began writing, I weighed each detail I eventually chose to include against my desire to cause no pain and the public’s right to know about the strengths and limitations of law enforcement’s response and the public’s need to know about how to be of meaningful assistance.

There was information I withheld about the state police investigation and the recovery. But I decided to include the issue of the car’s color because the individuals who spotted Betsy’s car emphasized how its color had been key to their identification of it as the vehicle described in Betsy’s Silver Alert. Because the misinformation was corrected within a couple of hours, I also included in this story the following editorial comment meant to put the error in perspective: “The fact that law enforcement throughout the state was on the lookout in the crucial early hours after Betsy’s disappearance for an elderly woman driving a “light blue” instead of a “silver” Accord would, in retrospect, likely not have changed the outcome of the search” [emphasis added].

I would also point to the story’s overarching conclusion about the inadvisability of assigning blame for what happened: “In this case, a perfect storm of unfortunate circumstances, many of them beyond human control, hindered the search that it would fall to Hamilton’s department to lead.”

It is my hope that any pain caused by my reporting will eventually be outweighed by its contribution to a better community understanding of what it will take in the future to mount a successful missing person’s search in rural Sierra County.

5 thoughts on “News analysis: Has T or C flouted state election laws—again?”

Susan Christie
September 13, 2021 at 5:20 pm

Thank you for a brilliant, knowledgeable, well-written presentation of the background surrounding the smart meter installation agreement, the way this was handled, behind closed doors, with little information to the public and input from the public. And now [in Part 2], we will read what comes next.
Dennis Dunnum
September 13, 2021 at 8:44 pm

Why would we sign a petition to bring the imposition of a $50/month charge on those who refused a “smart” meter? Because it’s pure and simple a punitive measure against people who have a legitimate issue with it. The commissioners are assuming that we are like them and only vote for something that affects us directly without considering that other folks may have a problem.

You say there are only seven people who objected to having that meter. So you think that it’s gonna cost the city $350 for someone to go read those analog meters once a month? I’ll volunteer right now to do it for free. Do you really think there aren’t people on your payroll who couldn’t do that as a part of their jobs? Maybe you think that if you let those seven get away with it that a bunch of others will sign up, as well? Well, maybe you should have had open hearings in the first place.

I’ve served on town councils, and I have never seen a bunch of people playing so fast and loose with the laws—and led by a lawyer, no less! I’m perfectly happy with my meter, but I signed that petition because I know some people have legitimate concerns. You’re being bullies!

‘
Carol Borsello
September 14, 2021 at 11:44 am

This article is a terrific summary of events. The commission continues to “un-serve” T or C by casting residents as liars. Had Mr. Baca read even the top of the petition, he’d have seen what we were asking for, rather than making up a story that people were too ignorant to know what they were signing. Believe me when I say no one signs anything these days without explanation and summary agreement.

The $50 fee is totally punitive. I thought the meters were supposed to eliminate the meter-reading jobs . . . now I understand that the readers did not lose their jobs and were moved into other positions. No city employee lost in the encounter—only the citizens.

I respectfully suggest our paid commissioners earn their salaries without innuendo, deceit and fogging up issues by paying attention to what citizens are asking for. Their retaliatory position of digging heels in, covering their ears and chanting “No, no, no,” while Mr. Rubin whispers about how he had to talk to other lawyers to get to his “opinion”—other lawyers whom we also pay with our dollars—shows his lack of certitude. After years of working herem he still doesn’t know a petition needs to be heard and honored?

Further legal action costs all of us—the city is still paying for poor practices/decisions from years back. Even their use of rented fencing @ $1,000 per month to close off Ralph Edwards Park during renovations, then the sudden discovery they can’t afford to finish the job, reveals poor planning habits and lack of oversight. (Did you notice the entry ramp for wheelchair visitors in the park travels from mid-block to the bathrooms and along the perimeter, rather than directly to our late-lamented, missing pavilion?)

I don’t think it all needs to be so confrontational. They sure agreed with us when asking for votes! Maybe it’s part of their oath to summarily disagree with their voters once in?

Thanks for opportunity to respond. Again, great article.
John Noel
September 15, 2021 at 3:14 pm

I was very concerned about the door that smart meters would open and when the bid was awarded I called the top three vendors. The second-place bidder told me that he knew the bid process was rigged and bid high. He also sold the AMI system and felt we did not have the IT skills/resources needed and that the AMI system maintenance was way too much for our community.

The second vendor bid half the amount of money (~$500,000) for a much less sophisticated system and thought seriously about protesting the bidding process. He placed numerous calls to the contracting officer, which were not returned. After 30 days he was ineligible to file a protest.

The whole process was riddled with this kind of slight of hand. Having contracted with the federal government for a number of years, I am familiar with the nuances of the process.

The citizens were never made aware of the health issues, nor asked if they wanted a “Smart City.” The issue was controlled from the very beginning, and I have heard smart water meters are being brought up again [for use by the T or C water department]. This is a very dangerous road to travel. Less is best: as simple as we can get it. This kind of “we know what is best for you” has gotten us into this huge financial hole.
Rick Dumiak
September 22, 2021 at 2:52 pm

The November election for city commission can’t come fast enough. Our current city commission is acting in bad faith by refusing to listen to its residents, but this is nothing new. Have you ever given public comment at a city commission meeting? If so, you understand what frustration is. If you have never given public comment, you will soon learn how useless public comment is. You get three minutes to speak, but do not expect a response or even recognition regarding your public comments. Simply put our city commission has decided they will not respond to public comment. Makes you wonder why we even make public comment available as it truly feels like a useless exercise.

I don’t understand why the commission is afraid of holding a vote on a resolution that charges a completely unfair and punitive fee for some of our residents that have concerns over the smart electric meters. The $50 fee that Commissioner Luna came up with without any due diligence or cost analysis is nothing more that this commission’s punishment for disagreeing with our elected officials. Never mind that the city’s own PUAB (Public Utility Advisory Board) recommended a lesser monthly fee of $25, as the board also felt the $50 fee was unreasonable and there was no cost study performed. Do you know the $50 punishment fee is more than the city currently charges to pick up our residential trash four times a month; that charge is $31.47 a month, yet the commission thinks its okay to charge a few residents $50 a month to come out once a month to read an electric meter. Never mind that there has never been a charge (according to the city’s electrical department) to read an electrical meter before the smart meters went in. By the way weren’t the smart meters supposed to have saved us money? Have any of you seen a cost savings or have any of you received a refund or rebate for not having your meter read each month?

It gets worse. If you ask the city to show you our utility rate sheet, you will see we have all been paying $8 every month for a “customer charge” on our electrical bill, but no one from the city can say what the charge is for. I have filed two different IPRA/FOIA (Inspection of Public Records Act/Freedom of Information Act)requests asking exactly what the $8 charge is for, and no one can say what the charge is for or what we get for the $8 each month. I suggest the $8 is or was a meter reading fee. The city says no it isn’t, but they also can’t say what it is for. This commission continues to ignore its citizens by not holding a vote on the $50 fee or responding to any public comment at its commission meetings.

Fellow residents I urge you to not vote for any of the incumbents. Let’s get some new faces on the commission and perhaps we can finally have a say in our own government.