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
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.