Worse than a rejection, the initiative ordinance didn’t even go to a vote. None of the commissioners would make a motion to accept or reject it, although the Jan. 29 special meeting was called for that purpose.
Such inaction was accounted for in State law on initiative ordinances, which says if the City Commission “fails to act,” then the City Commission “shall” pass a special-election resolution to let the people decide the question at the polls.
Ignoring State law as well, the City Commission unanimously voted down the special-election resolution, denying the people the right to decide whether smart meters should be installed in about 4,300 residences and businesses.
Listening to City Attorney Jay Rubin and City Manager Morris Madrid, the City Commission believed the initiative ordinance was “unenforceable.”
The City Commission awarded a $1- million contract to Landis + Gyr to install smart meters for customers within the city-owned electric-utility jurisdiction at the Aug. 27, 2019 meeting. Mayor Sandra Whitehead signed the contract in September.
The initiative ordinance therefore seeks to not only ban smart meters for 10 years, but also to cancel the contract.
Rubin said the ordinance was unenforceable because of the words “repeal” and “void.” To “void” a contract “fraud to induce the City to sign it,” or some other illegality must be present, Rubin said, and “I think it’s a good contract.”
“Repeal is a word I’ve not seen in reference to a contract,” Rubin said, “but you can’t have a retroactive ordinance,” that is, the ordinance can’t cancel the contract because it would be enacted after the contract was signed.
Rubin said the word “repeal” could possibly be construed to mean “termination” of the contract, which does have a termination clause. It states Landis + Gyr must be compensated “for deliverables” if they are within 12 weeks of being delivered.
Madrid said, “We are under the 12 weeks, therefore the cost is prohibitive.” After the meeting, Madrid said he didn’t terminate the contract after receiving the people’s petition and ordinance on Nov. 15—before it became cost prohibitive—“because I didn’t think it was in the best interests of the people.”
Asked how much the “deliverables” are worth at this point, Madrid said, “The price of the contract—$1 million.”
Rubin said there was case precedent for denying the people’s right to a referendum, which probably applies to initiative ordinances as well. (A referendum is an action to put a city commission’s ordinance to public vote. An initiative ordinance is a local law brought by the people, not the city commission. The city commission may approve the people’s law, avoiding a special election. If rejected, then the initiative ordinance goes to a public vote.)
Rubin would not advise whether the City Commission should pass or reject the special-election resolution. “The City Commission will have to decide if it [the court case] carves out an exception.”
The 1996 court case, Johnson vs. Alamogordo, said Rubin, makes a distinction between “administrative action” and “legislative action.” An administrative action is not subject to referendum, the court ruled.
The Alamogordo City Commission passed an ordinance raising water and sewer rates to comply with the requirements of a revenue bond. The people got sufficient signatures on a petition to put the question to referendum, but the City wouldn’t allow it. The matter ended up in court.
The judge ruled that rate-setting was an administrative act and not subject to referendum. Madrid argued the smart meter purchase is also administrative. “It is an inner-departmental decision,” he said, whether the city-owned electric company should have smart meters or not. He compared the decision to the Chief of Police selecting the brand of bullet-proof vests to purchase.
The City Commission agreed no special election was required, voting down unanimously the special-election resolution.
During the public hearing, 15 people spoke in favor of passing the 10-year moratorium on smart meters, Jonathan Cartland qualifying he felt 10 years was too long.
Two people were opposed to the initiative ordinance, both Public Utility Advisory Board members and past directors of the City’s electric utility, Gil Avelar and Ed Williams.
Madrid assured the public the PUAB is drafting an ordinance that will allow people to opt out of having a smart meter installed. See the Sun’s “Public Utility Advisory Board in Lockstep with City, deaf to citizens’ concerns over smart meters,” for more information on the opt-out ordinance.
The people’s concerns about the health effects of electro-magnetic radiation from smart meters were minimized by Madrid, Williams and City Commissioner George Szigeti.
In addition, Madrid insisted the people knew or should have known the City was intending to buy smart meters, having Traci Burnette, the grants/projects coordinator, read off a long list of public meetings since 2015 in which they were discussed. He said the people should therefore have protested the installation of smart meters well before the contract with Landis + Gyr was signed in September 2019.
“It’s too late to do anything about the contract,” Madrid said. “We are going forward with it.”