The New Mexico Office of the Attorney General has found the Truth or Consequences City Commission violated the Open Meetings Act several times in handling three smart meters appeals early this winter, based on the AG’s review of commission agendas, documents, minutes and videos.
The AG’s Office determined that descriptions of agenda items involving the three appeals either lacked the specificity required to adequately inform the public of the nature of the business to be discussed or to cover actions subsequently taken by the commission. As a result, the commission must reconsider an Order denying the three appeals and its imposition of a monthly $50 meter-reading fee on residents who wished to retain their analog meters.
The review was prompted by OMA complaints filed with the Attorney General by T or C residents Ariel Dougherty and Ron Fenn, two of the three appellants. Assistant Attorney General John Kreienkamp responded to the complaints.
Dougherty and Fenn alleged OMA violations had occurred during commission meetings on Jan. 27 and Feb. 24 during discussions of their appeals to prevent the installation of smart meetings at their homes.
Kreienkamp wrote a determination letter addressed to Mayor Sandra Whitehead and City Attorney Jaime (Jay) Rubin on May 28. Noting that the city had not responded to the Attorney General’s investigatory questions, Kreienkamp stated that his examination of the two meetings’ documents, including his viewing of the videotaped proceedings, were sufficient evidence to conclude that the OMA had been violated, even in the absence of the city’s reply.
Attorney Rubin responded to Kreienkamp’s May 28 letter by resending his timely March 31 response to the investigation of the two complaints, which Kreienkamp had not received. Rubin explained that he had sent the city’s response via fax.
Kreienkamp issued a second determination letter that withdrew his criticism of the city’s failure to respond. The second letter, dated June 9, pointed out that the original rulings on OMA violations were unchanged.
The assistant attorney general first addressed the item on the Jan. 27 city commission meeting described as: “Discussion/Action: Public Appeals in Regard to Electric Smart Meters. Ron Fenn, Ariel Dougherty, Lee Foerstner.” Fenn and Dougherty argued—and Kreienkamp agreed—the commission took action other than what was stated on the agenda.
At the conclusion of their discussion of the three appeals, the commission passed a motion to “set a $50 per month trip charge for those who do not wish to have the smart meters installed.” The motion covered “all future applicants for similar ‘smart-meter’ exceptions,” Kreienkamp observed, quoting city documents and adding the emphasis to point out the action was outside the agenda item’s description. The OMA only allows action on agenda items.
The agenda for the commission’s Feb. 24 meeting included an item captioned as “Discussion/Action: Order on Section 14-30 (e) Appeals.” The discussion was led by Attorney Rubin, who had prepared an Order—whose purpose, he publicly admitted was “tidying up”—for the commission’s approval. The Order stated that, since no ruling had been made on the appeals at the Jan. 27 meeting, they were denied. According to Kreienkamp, this was “not a reasonably specific agenda description,” since it did not identify which appeals were to be considered.
As a result of these OMA violations, Kreienkamp determined that the commission’s actions to belatedly deny Fenn’s, Dougherty’s and Foerstner’s appeals and impose a new electric utility fee were invalid.
“Given that OMA expressly states that no action of any public body is valid ‘unless taken or made at a meeting held in accordance with the requirements of Section 10-15-1,’ it is imperative that the Commission take all possible remedial action,” Kreienkamp stated. “This should consist of reconsidering all of the actions that the Commission took on items of business not listed in its meeting agendas along with clarifying for the public the subjects improperly discussed by the Commission in closed session at both of these meetings.”
Kreienkamp addressed several other OMA violations, starting with the commission’s Feb. 24 vote to appoint an acting city manager. The executive session agenda, “Limited Personnel Matters Pursuant to 10-15-1 (H.2),” was not reasonably specific to allow the action, he stated.
Also listed on the agenda for the Feb. 24 executive session was “Committee Strategic Planning Pursuant to Section 10-15-1(H.9). This section of the Open Meetings Act, which allows strategic planning to be conducted behind closed doors, applies only to the governing committees of hospitals. which the city commission is not.
Lastly, the executive session agenda item, “Threatened & Pending Litigation (current & possible Litigation) pursuant to 10-15-1(H.7)” was also “violative of Section 10-15-1 (F),” Kreienkamp stated, since the public could not know “which particular litigation the Commission would discuss.”
The Sun asked each of the city commissioners for comment on Kreienkamp’s May 28 letter. None responded.
Mayor Whitehead evidently forwarded the Sun’s request to City Manager Bruce Swingle, who emailed the following response:
“The AG’s Office indicated that the city failed to respond to the inquiry and based his opinion on the allegations. The city did respond to his request and the response was timely. The AG’s Office has the city’s response and the documentation that it was filed timely, nine days early. The AG’s Office is now reviewing the city’s response and will likely amend the letter. The city will not change practices until a new letter, based on the city’s response, is received.”
The Sun asked Swingle to respond to Kreienkamp’s June 9 letter, which did not amend the previous determination letter’s findings. Swingle said city staff needed more time to evaluate the implications of the findings. He had not commented further by press time on June 14.