T or C city commission violated Open Meetings Act in handling smart meter appeals and their actions must be reconsidered, AG determines

by Kathleen Sloan | June 14, 2021
5 min read
Sunshine laws graphic
Source: News Leaders Association

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.

AG’s June 9-Determination LetterDownload

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.

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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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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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1 thought on “T or C city commission violated Open Meetings Act in handling smart meter appeals and their actions must be reconsidered, AG determines”

  1. martin mijal

    1) Our city used to be called “City of Health.” Now a better name is “City of SECRETS!”

    2) Our city commission apparently does not believe in maximum public input. Being a commission member is apparently very difficult. Maybe the city should not allow anyone on the ballet who does not first pass a test on the Constitution and Bill Of Rights. One new commission member promised “I answer your phone calls.” Now he is under a gag order to keep the secrets? I can only guess since there is no comments from our elected officials. We voted for you and gave you our trust and I am very disappointed.

    3) As noted above, the city handles complicated items by relying on our city attorney. When the $1 million dollar “smart” meter contract was signed (in secret, from my point of view), he said the city cannot break this contract. I ASKED: “ARE YOU A REAL LAWYER?” MY IMPRESSION IS THAT LAWYERS MAKE THEIR LIVING BY BREAKING CONTRACTS!!” I think the city lawyer is a major part of the problem. He gives gag orders to our elected representatives.

    Please have maximum public input, minimum secret meetings and financial responsibility!

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