Fenn started and circulated the petition in favor of banning smart meters and wrote the initiative ordinance—that is, a local law brought by the people to its elected officials. The petition got more than enough signatures to force the Truth or Consequences City Commission to consider the 10-year-ban on smart meters.
The City Commission held a special meeting on Jan. 29 to vote on the matter, but failed to act on the initiative ordinance.
The law on initiative ordinances states if the City Commission fails to act, then it “shall” pass a special election resolution to let the people decide.
In defiance of State law 3-14-18, the City Commission voted down the special election resolution, believing a court case carves out an exception to letting the people decide.
See: “Truth or Consequences City Commission chooses smart-meter contractor over people’s wish to ban them” for more information.
Fenn filed the case in Seventh Judicial District Court the morning after the City Commission voted down the special-election resolution. He asks the court for a “declaratory judgement” that the City violated the statute. He also asks the court to order the City to comply with the statute, “and provide for an election on the matter.”
Judge Mercedes Murphy has been assigned the case.
During the Jan. 29 meeting, City Attorney Jay Rubin would not advise the City Commission on whether they should pass the special-election resolution.
He presented a case that he said may allow the City Commission to block a public review of a question and thereby allow them to block a special election. The case is Johnson vs. Alamogordo, 1996.
The Sierra County Sun has asked the City for documents verifying if the City Commission received a copy of Johnson vs. Alamogordo, and if so, when, in order to gauge how long it has planned to deny the public the right to decide the issue. The document request was made Jan. 29; therefore it has not been fulfilled.
Past delays take on a more sinister aspect after the Jan. 29 meeting. It now appears the delays were to give Landis + Gyr time to manufacture the smart meters and other equipment and “deliverables,” locking the City into paying them $1 million, making the people’s ordinance moot.
The City Commission awarded the request for proposals to install smart meters to Landis + Gyre for $1 million Aug. 27, 2019. Mayor Sandra Whitehead signed the contract Sept. 16, 2019.
Fenn, with help, circulated the petition and submitted it to then-City Clerk Renee Cantin on Nov. 4, 2019, with the ordinance attached. Cantin refused to accept it, ruling, without authority in State law that the ordinance was flawed. State law only gives the city clerk authority to accept the petition “as to form.” The city clerk has no authority to approve or disapprove a citizen initiative ordinance.
The petition was submitted again by Jack Noel on Nov. 15, 2019, and Cantin accepted it. The 264 signatures were culled to 211 signatures, Cantin stating the others weren’t qualified electors. Only 154 signatures were needed to bring the initiative ordinance to the City Commission.
Cantin certified the petition and “presented” the initiative ordinance to the City Commission on Dec. 2, 2019. The State-law timeline required the City Commission to decide by Jan. 2 whether to approve the initiative ordinance, which would cancel the need for a special election, since it would be adopted as local law. Or, the City Commission could deny it and send it to the people to decide. They had until Jan. 12 to pass a special-election resolution, according to State law.
The City Commission ignored the Jan. 2 and Jan. 12 deadlines.
The City Commission agreed with City Manager Morris Madrid that the initiative ordinance had to be published before the City Commission could decide whether to accept it or deny it.
On Dec. 11 the City Commission approved the ordinance for publication. Publication is not required by State law for an initiative ordinance, brought by the people. It also does not follow past practices. The City Commission often considers ordinances before publishing them, most recently whether to decrease the Planning and Zoning Commission from five to three members. The City Commission voted it down, therefore it was not published.
Claiming Cantin missed the publication deadline with the Sierra County Sentinel, the City Commission did not consider the ordinance at the Jan. 8 or Jan. 22 meetings, waiting until Jan. 29 to hear the matter, and then failing to act on the initiative ordinance, letting it die on the floor for lack of a motion. Then it voted down the special-election resolution.
City Manager Morris Madrid and Attorney Jay Rubin said the Landis + Gyr contract could be terminated at the Jan. 29 meeting. But it would be “cost prohibitive,” because the City would have to pay for “deliverables,” if they were within 12 weeks of being delivered. Madrid confirmed the city was in the 12-week period and it would cost $1 million to terminate the contract.
Madrid and Rubin failed to reveal that the contract, under section 10, states it will terminate if the City doesn’t appropriate money to the project. “The City of Truth or Consequences decision as to whether sufficient appropriations are available shall be accepted by the Contractor and shall be final.”
The Sun’s document requests confirmed the City had paid Landis + Gyr nothing as late as Dec. 16, 2019.
Madrid said he didn’t terminate the contract when the City received the petition and initiative ordinance Nov. 15, 2018, “because I didn’t think it was in the best interests of the people.”
Since the City Commission failed to instruct Madrid to terminate or at least delay deliverables on the contract, they too chose to ignore the people’s pleas to ban smart meters.
State law requires all City Commission actions be for the “welfare” of the people. The people have expressed what is in their best welfare. They have spoken overwhelmingly against smart meters for health reasons. They have also protested spending $1 million on non-critical infrastructure, better spent on leaking water and sewer pipes and electrical-transmission loss.