Fenn files court case against City for violating law requiring they hold a special election on smart-meter ban

by Kathleen Sloan | January 30, 2020
5 min read
​Citizen-activist Ron Fenn and Truth or Consequences City Commission candidate for Seat 5 has filed a lawsuit against the City for blocking an election that would let the people decide whether smart meters should be banned over the next 10 years. 

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.  

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

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