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Residents’ smart-meter appeals denied Monday by T or C staff

by Kathleen Sloan | January 6, 2021
5 min read

Three Truth or Consequences residents who in December appealed the city’s decision to install smart meters to take electricity readings at their homes received certified letters from city staff on Jan. 4, denying their appeals.

The nearly identical letters informed Ron Fenn, Ariel Dougherty and Lee Foerstner they could next appeal to the city commission.

All three residents told the Sun they intend to take their appeals on to the commission.

City’s questionable execution of appeal process

The appeal process for smart-meter installation falls under city code 14-30 (e), which states: “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.”

Foerstner, in an interview with the Sun, noted that the letter combined the first two parts of the appeal process. “They skipped the second step,” Foerstner said.

certified letter denying a resident's smart-meters appeal
The city’s denial letter short-circuited the appeals process by combining two steps and shortening the time frame the appellants were given to notify the city of whether they will take their appeals to the city commission.

By signing the certified letters along with Madrid, Easley showed that his decisions to deny the three appeals were not made independently from that of his superior. According to city code 14-1, the city manager can hire and fire the utility director at will, “without the City Manager having to provide notice and hearing prior to removal.”

Furthermore, Foerstner noted, the allotted time to appeal to the city staff was 15 days, but city staff shortened the appellants’ time to submit their appeals to the city commission to one week.

Before he filed his 27-page appeal to city staff on Dec. 22, Fenn requested the “written procedures established by the Electric Department.” The city responded: “No such document exists.”

The lack of consistent or written procedures means the city can decide what constitutes due process on a case-by-case basis, Fenn said.

Background on Fenn’s appeal

Fenn’s confrontation with the city began after he refused the installation of a smart meter. He subsequently received a disconnection notice, informing him that he had 15 days to appeal. He filed his appeal three days before the deadline. The next day, Easley, accompanied by city police, removed Fenn’s analog electric meter, which shut off his power two days before his 15 days were up.

Madrid turned Fenn’s electric power back on about a week later—after New Mexico Assistant District Attorney Gideon Elliot interceded, informing Madrid the city was not following the due process laid out in the 15-day disconnection notice.

Madrid did not acknowledge due process was violated in a follow-up letter to Fenn. The letter explained Fenn’s electricity was turned on because it was the city’s “policy” to keep customers’ utilities on “during the holiday season.”

This, too, is an unwritten policy that allows the city manager to determine when the holiday season is over, Fenn noted. 

Next steps unclear to appellants

In interviews with the Sun, Fenn and Dougherty said the lack of proscribed due process leaves them fearful the city could move to disconnect their electricity at any time.  

Earlier this week, the Sun asked City Clerk Angela Torres and Manager Madrid for clarification about the next steps in the appeals process, particularly whether the city commission will hear the appeals at a city commission meeting and, if so, when; and whether the appellants will have their electricity cut off at any time during the appeals process, even if they decide to take their appeals on to district court.

Neither official had responded by press time.

City code does not state the city commission’s decision may be appealed to district court, but state law 1-074 allows such appeals.

Appeals grounded in health concerns

In their appeals, Fenn and Dougherty both stated they are recovering from cancer. They each cited World Health Organization and American Cancer Society warnings that radio frequency transmissions, such as those emitted by the city’s smart meters, are “possible carcinogens.”

Foerstner’s appeal explained his wife suffers from multiple sclerosis. He told the Sun he cited in his appeal a 1974 U.S. Department of Defense study, which “shows electromagnetic radiation causes damage to the circulatory and nervous systems.”

City staff’s denial of the three appeals cited a Nov. 20, 2020, email from Landis + Gyr, the makers of the city’s smart meters. In the email, employee Emmanuel Monnerie claims no “independent studies” show ill effects from smart meters.

Landis + Gyr is not an independent source, Foerstner said, since it will be paid over $1 million to install the city’s smart-meter system.

Monnerie also provided an internal Landis + Gyr document dated 2011 that the city staff included in their denial letters. Titled “Talking Points,” the document acknowledged that the World Health Organization has characterized “radio frequency electromagnetic fields associated with wireless phone use as possibly carcinogenic to humans.” However, it argued that research “suggests that RF emissions are found at significantly lower levels in smart meters than other products.” It goes on to provide a list of “reports and comments” on radio frequency transmissions.

Taking Landis + Gyr’s documents at face value, Madrid, Easley and Rubin state in their denial letters “the city considers the installation of ‘smart meters’ to be safe and effective.”

Appeals also question smart meter exemptions

In their appeals, Fenn and Dougherty both pointed out the city has exempted other electric customers from having to install smart meters.

These exemptions came to light during the August 26, 2019, city commission meeting, when then-Mayor Pro Tem Kathy Clark asked Easley if older businesses downtown would be required to install smart meters, thus forcing them to upgrade their electric systems. Easley assured her “30 or 40” businesses downtown would be exempted.

The Sun has since submitted two Inspection of Public Records requests for lists of the exempted businesses. Each time the city has responded: “No such document exists.”

Easley, Madrid and Rubin did not address Fenn’s and Dougherty’s arguments that these selectively granted exemptions are inequitable and discriminatory.   

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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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2 Comments on “Residents’ smart-meter appeals denied Monday by T or C staff”

  1. I never considered whether or not the new meters were a health consideration or not, so I have no opinion in that regard. That said, I do have some concern over the amount of money being spent to replace meters that are still in actual working condition with the concurrent reality that doing so will eliminate a couple of low-skill jobs for some of our citizens.

    Considering the fact that the city is allowing some businesses downtown to get a “pass” to keep their old meters for economic reasons, why are other citizens not allowed to get a pass if they have reasons that are medical or even personal rather than economic? Money rules, I guess. But the city will still need to employ someone to read the meters downtown, so is it not reasonable that they could just drive around once a month and read the few meters that others request to remain in place? It’s not like we’re sprawled over many miles. This town wants to bill itself as a “health-centered” place for retirees and tourists, but refuses to make simple exceptions like this. What’s the BIG DEAL?

  2. Reply to Dennis Dunnam: I think the city’s concern is only that there is pushback from the citizens about the meters; for them it’s a power struggle to show who is in charge.

    I say yes to objections based on health concerns and also on costs. I remarked during my three minutes of fame speaking to city commission that I don’t believe it bodes well to plunk 21st-century appliances requiring at least 20th-century capability on our mix and match of housing materials that are not necessarily up to code.

    There are so many other concerns about these meters. If there ARE reports out there that the meters cause fires, were these concerns addressed or even checked out? I have two friends who have had physical reactions already and needed to have meter guards placed. You mention jobs. This is also a huge factor. We’ve spent a cool million (and very likely much more in hidden costs if the million paid is for the units only and does not include installation) to eliminate three jobs that paid $60,000 a year. Do the math. We save $180,000 per year by spending $1,000,000. And zapping you to boot.

    The population that did not grow up in T or C came here precisely because the town was organized around the concept of being a City of Health. The meters are a deliberate ax to the roots of this premise. Just because electronic smog cannot be seen like the orange haze that used to hang over LA, does not mean it cannot harm us.

    It would be so different had anyone on the commission or the Public Utility Advisory Board had actually INVESTIGATED the fuller story and weighed the pros and cons. In running my own household, I look at affordability and efficiency; I offset benefit against convenience when making large purchases. Why doesn’t the city take these basic tenets into consideration?

    Instead, there was disrespect shown for our petition and concomitant ordinance submission. I attended the meeting where the issue of whether there should be a special election was reviewed and watched every commissioner look at each other, wide-eyed, their heads swiveling around as they pursed their lips in silence. Not one of them wanted to say yes or no. It was left to City Attorney Rubin to give permission to disclaim all responsibility by saying (in effect), “Awww, guys, so what if there’s a roomful of people against this operation here? So what if they have concerns? We already spent the mil. We already have everything ready to do this. Just close your eyes and say no to doing due diligence. Remember, our City Manager handed you the paperwork and said this is a good thing, so it really must be!”

    Remember when the phrase “Trust me!” automatically was taken to mean, “Uh, oh, look deeper!” We’ve been “trust me’d” pretty thoroughly here.

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