City Attorney’s “order” and “findings of fact” offer up alternative reality

The Truth or Consequences City Commission attempted to rewrite its mishandling of three recent smart meter appeals hearings by approving last week an Order presenting an alternative version of events drafted by City Attorney Jaime (Jay) Rubin.

Rubin has admitted publicly why he wanted to write an Order tidying up the proceedings of the Jan. 27 appeals hearings. He told the commissioners at their Feb. 10 meeting he was going to do so, “in case this ends up in court.” The agenda item noting that the Order would be presented for approval at the commission’s Feb. 24 meeting reconfirmed this rationale, explaining that the Order “would summarize the City Commission’s decision in the event there might be an appeal to the District Court.”

The Sun attended the Jan. 27 hearing virtually, at which the commissioners made no decision on the appeals themselves. Nor did they make “findings of fact” about the validity of the appellants’ reasons for refusing to allow the city to install smart meters.

Rubin’s Order summarizing the hearing’s “findings of fact” and “orders” offers an alternative version of events that is at odds with the Sun’s firsthand observations. It is an effort to obscure the reality that the appellants’ rights to due process were violated at the hearing and that the commissioners failed to carry out their quasi-judicial duties to rule whether or not the appellants should be granted their requested exemption.

FACTUAL ACCOUNT OF THE APPEALS HEARINGS

The issue on appeal was the city’s decision that all its electric customers must allow the installation of smart meters that provide electronic readings of electricity use. The appellants—T or C residents Ariel Dougherty, Ron Fenn and Lee Foerstner—claimed smart meters pose a health danger in their reliance on high frequency radio waves to transmit data and a fire hazard due to electrical spikes or resistance when installed on homes with older electrical wiring. Other issues raised included the possibility of the utility customer database being hacked or customers’ movements being monitored through energy use. Appellants also argued that, because the city exempted businesses downtown from having smart meters installed on their older electrical systems, they had been treated unfairly by being forced to go through an arduous appeals process to gain the same exemption.

The Truth or Consequences City Commission acted as a “higher court” at the Jan. 27 hearing. It heard appeals of the decisions made by the “lower court,” consisting of Rubin, City Manager Morris Madrid and Electric Department Director Bo Easley. The three signed a letter denying Dougherty’s, Fenn’s and Foestner’s appeals of threatened disconnection notices sent to them by the city because they had declined smart meter installations. City code 14-30 (e) allows such appeals.

Dougherty and Fenn walked into the hearing blind, as the city had not provided any advance information about the proceedings. (Foerstner chose not to appear.) Rubin made up the hearing’s procedures on the spot. With the city commissioners’ assent, he gave the appellants five minutes each to speak, but did not allow them to cross examine Madrid, Easley or himself.

Rubin acted as both the city’s legal advisor and judge throughout the appeals processes, in violation of due process, which requires a neutral jury or judge. In addition to offering testimony and advice at the hearing, he permitted Madrid and Easley to testify as well. The appellants protested that these remarks could prejudice the commission against them.

Due process, by definition, must be known before court convenes to ensure opposing parties are treated equally and fairly under the judge’s watchful eye. The city’s appeals process is described in municipal code 14-30 (e), which states:

Appeal. Any person disputing a disconnect notice or other action related to utility service, will be provided a reasonable opportunity to appeal within the department, then to the City Manager, and if dissatisfied with the City Manager’s decision, to the City Commission in accordance with written procedures established by the Electric Department.

Fenn submitted an Inspection of Public Records Act request for the Electric Department’s written appeals procedures well before the Jan. 27 hearing. The city responded, “No such document exists.”

FINDINGS OF ALTERNATIVE FACTS

Rubin’s Order sanitizes the lack of due process at the hearing, stating, in the “findings of fact” section, the appellants’ five minutes of speaking time allowed them “to supplement their appeals with oral presentations.” Contradicting this assertion, the Order suggested the hearing was superfluous by arguing that the city commission primarily based its “decisions” on written documents submitted by the appellants to buttress their claims of the dangers posed by smart meters and the inequities in the city’s enforcement of the installation program.

None of the issues raised in these hundreds of pages of documents were referred to or discussed by the city commission during the hearing. Nevertheless, Rubin’s Order states, under “findings of fact,” that the appellants’ written arguments were “carefully consider[ed]” before the city commission handed down its non-ruling.

Legal-explanations.com defines findings of fact as the “decision, opinion or observation arrived at by a judge or jury on the issues related to the facts that are submitted for a decision of the court. The findings of fact ultimately influence the judgment.”

Rubin’s Order essentially absolved the city commission from making findings of fact based on arguments and evidence. Without the necessary grounding in fact-finding, judgments can be rightfully viewed as fiats.

THE COMMISSION’S NON-RULING

The section entitled “City Commission hereby orders” in Rubin’s cleaned-up version of the hearing proceedings defies what is commonly understood to constitute a judicial order.

A judicial order is defined by IBM Knowledge Center at ibm.com as “a directive by a court of law regarding a participant.  . . . A legal order is intended to be for or against a participant. A legal order contains the details of the decision provided by the judicial officer or the court on a petition or a hearing.”

Rubin claims in this section of the Order that the Jan. 27 hearing resulted in a ruling. Yet, at no time during the hearing did the commissioners specifically discuss whether the appeals before them should be approved or rejected. Nor did they make a formal motion to that effect. The Order’s statement that the city commission “upheld city administration’s decision to deny the appellant’s respective appeals, subject to (C),” is not accurate.

Order (C) refers to the hearing’s only official outcome: the commission’s approval of an off-the-cuff opt-out provision for those customers who object to having a smart meter. Notably different than the exemption requested by the appellants, the opt-out provision permits customers to retain their analog meter readers “by paying an additional fee of $50 per month.” This fee, Rubin’s Order states, “would cover the City’s anticipated cost of the meter reader manually reading the meters.”

Ignoring their quasi-judicial duty to make a hard decision, the commissioners seized upon the executive solution to the smart meter controversy proposed by Commissioner Frances Luna. Pronouncing herself in favor of freedom of choice, Luna made the motion to provide an opt-out provision out of the blue. She proposed charging opt-out customers a monthly $50 “trip fee,” because that is the amount that Sierra Electric Co-op charges to read an analog meter. The other commissioners passed the motion unanimously.

In doing so, the commissioners violated the Open Meetings Act by acting on a matter not on the agenda. Furthermore, new utility fees are usually enacted by ordinance, a process which requires the ordinance be published two weeks before a final decision is made in public session by the city commission, as required by state law 3-17-3. None of these requirements were observed in the case of the trip fee.

$50 FEE PROMPTS NEW COMPLAINTS OF UNFAIRNESS

Arguments against charging $50 fee to opt out have also been ignored by the city commissioners, who instead insisted at their Feb. 24 meeting that the fee be included in Rubin’s Order.

During public comment at that meeting, Fenn, Dougherty, and T or C resident Rick Dumiak argued that the “trip fee” was unfair on several counts. The distance a meter reader would have to travel in the city is much smaller than that required of his county counterpart, thus warranting a lesser charge. The city already charges a base fee to cover manual meter reading, so no additional charge should be added, they said. Water meters are still read manually, and both the electric and water meters could be read at the same time, cutting costs. Alternatively, customers with analog meters could take a picture of their meter readings and email them to the utility clerk.

In response, Commissioner Luna said she was “really irked” that appellants weren’t grateful she had given them “an option instead of a straight denial.” Her remark exposed her possible prejudice against granting the appeals. 

“Common sense would tell you,” Luna added in further defense of the fee, “that the $50 charge included more than just a trip charge.”

Luna called on Director Easley to explain how meters are read manually. The meter reader must go to a home, read the meter and input the reading into a machine, which must then be taken to the utility clerk, who downloads it onto a computer in order to create the bill.

The elaborate billing procedure was added to Rubin’s Order before the city commission approved the document, making it appear the city commission had acted less arbitrarily in choosing the $50 figure.

Fenn and Dougherty, in interviews with the Sun, related that, when their meter readings have been wrong in the past, the errors have been corrected easily by clerks, who can pull up the bill and insert the correct figure within minutes. The transport of the machine with the data to the utility clerk’s office is not essential to creating or correcting a bill, but a fiction employed to justify the $50 fee.