Why we, the people, must demand due process for Ron Fenn

by Diana Tittle | December 14, 2020

7 min read

During the five years I’ve lived in Truth or Consequences, I have experienced or witnessed innumerable examples of city government’s unresponsiveness to the wishes of residents who attend city commission meetings, voice their constituent concerns or seek city support for changes they believe will benefit T or C.

Last January, indifference morphed into contemptuousness when the city commissioners ignored state law governing citizens’ rights to petition to place an “initiative ordinance” on the ballot. They unanimously voted not to hold the required special election on an officially certified initiative ordinance petition, which sought to halt for 10 years the city’s plans to install smart meters at the properties of customers of the city-owned electrical company.

The commissioners grasped the fig leaf provided by City Manager Morris Madrid, who vouched for the correctness of City Attorney Jay Rubin’s opinion that, because the decision to purchase the smart meters was made administratively and not by ordinance, state elections law did not apply.

Now, Manager Madrid has pushed city government over the line into authoritarianism.

Last Thursday, Madrid gave the electrical department the green light to disconnect the electricity of the initiative ordinance’s lead petitioner, Ron Fenn. (You can read the Sun’s coverage of the incident here). The shutoff felt like an act of intimidation to the 76-year-old Fenn, a community activist who has a long record of publicly challenging T or C officials whenever he perceives they are not acting in the best interests of the taxpayers.

Fenn is also a cancer survivor. He refused to allow the installation of a smart meter at his home out of concern about the adverse effects on his health of exposure to the meter’s radio frequency waves. He and the 264 other local signatories of the initiative ordinance petition had called for the 10-year moratorium to allow time for thoroughgoing research on the safety of smart meters to be completed.

In addition, Fenn believed that, by capitulating and accepting a smart meter, he would weaken his lawsuit, filed last February in district court, against the city for breaking state law 3-14-18, which allows residents to initiate ordinances in a commission-manager form of government.

Madrid’s disconnection order is cruel and unconscionable. It flies in the face of the intent of a moratorium on residential electricity shutoffs during the public health emergency mandated by New Mexico Public Regulation Commission. The PRC recognizes that denying anyone, let alone a senior citizen, of heat, light and hot water during a pandemic is inhumane.

Furthermore, Madrid’s order undermines the rule of law by denying Fenn the due process rights prescribed in our municipal code. T or C code 14-30 (e) lays out a process for appealing a disconnection notice, such as the one Fenn received on Nov. 25 after refusing a smart-meter installer access to his property.

Last Wednesday, Fenn notified the T or C city clerk in writing within the required 15-day window of his intention to appeal the threatened disconnect. It was an abuse of power to disconnect Fenn’s power before his appeal proceeded to resolution by the city commissioners, as the code provides, and Madrid knew that. The city manager signed the form-letter disconnection notice, to which a copy of the relevant city ordinance was attached. Madrid’s flagrant disregard for Fenn’s human and civil rights smacks of vindictiveness.

As a concerned citizen, I asked City Commissioner Randall Aragon last Thursday night to intervene with Madrid on Fenn’s behalf, which Aragon to his credit did. But the city manager refused to acknowledge that Fenn’s electricity had been wrongly and prematurely shut off or to agree to restore Fenn’s power while his appeal is adjudicated.

Instead, Madrid advised Aragon not to speak publicly about the matter because of Fenn’s pending litigation. The city manager then drafted an Orwellian-doublespeak message to Fenn, which Aragon duly delivered via email. “Mr.” Fenn, Madrid insisted, “is not being disconnected. He is not allowing us to provide service.” For his part, Fenn, who has been huddling with his two dogs around a small gas fireplace, heating soup on his gas stove and making do without hot water for bathing or lights after dark, refuses to “knuckle under.”

A higher power will be needed to end Madrid’s egregious abuse of governmental authority. But who will step in? Perhaps the worst aspect of this outrageous standoff is that there appears to be no outside recourse. Fenn has fruitlessly called two attorneys, his state representative, T or C’s municipal court, the Sierra County Sheriff, the PRC, the New Mexico Department of Health and the New Mexico Attorney General, among other potential interveners. Responses have ranged from lack of interest to lack of jurisdiction to sympathetic but vague promises to “look into” the matter. Only assistant attorney general Gideon Elliot, who works in the AG’s consumer and environmental protection division, has taken concrete action, calling Manager Madrid at least once, but failing to reach the city manager as of press time. Madrid is notoriously adept at ducking calls and emails.

Even if Fenn could find a lawyer willing to take on city hall in the 7^th Judicial District Court serving Sierra County, it would be a long time before his case was heard. Ten months after the filing of Fenn’s election-related lawsuit, the district court has still not set a date for a hearing. Legislation recommended by the New Mexico Civil Rights Commission that ends sovereign immunity and permits aggrieved citizens to file civil suits against any government employee is currently under review by state legislative committees. (Read the Sun’s coverage of the commission’s majority report here and the minority rebuttal here). But the passage of such legislation is not guaranteed, and, again, the provided remedy would be a long time in coming.

People, it is up to us.

We, the citizens of Truth or Consequences, have the power to rectify the city manager’s unjust denial of Fenn’s due process rights and his unjustifiable assault on Fenn’s physical and mental health. Manager Madrid is meeting in public with his bosses, the city commissioners, via Go to Meeting teleconference this Wednesday, Dec. 16 at 9 a.m. We, the people, can show up in large numbers at the teleconference to express solidarity with Fenn and demand that the commissioners take corrective action. (Go to Meeting access information can be found in the box below.)

T or C’s municipal code designates the commissioners as the final local arbiters of city-utility disconnection appeals. Teleconference attendees can each take their allotted three minutes for public comment to demand that the commissioners instruct Madrid to immediately restore Fenn’s electricity. We, the people, can further demand that the commissioners instruct the city manager to find a fair and compassionate method of dealing with citizens who sincerely fear smart meters may be injurious to their health or safety.

The city showed that kind of deference and flexibility in exempting scores of downtown business owners from the installation program because it would require costly upgrades to their electrical systems. Why can’t the relatively small number of T or C residents who adamantly oppose smart meters be granted the right to read their analog meters and submit the data monthly, subject to fines if they fail to provide the needed readings on a timely basis?

What will happen if the community does not come to Fenn’s defense? It would be all too easy to justify inaction by our dislike of bothersome civic gadflies or our busyness or our disinclination to get involved in other people’s problems. But if we choose to stand passively by, we should expect City Manager Madrid to be emboldened by our silence. He will see that he can use the threat of utility shutoffs with impunity to cow T or C residents he considers to be troublemakers. Who would be targeted next?

We are better than this. Aren’t we?

Go to Meeting access info for Dec. 16 commissioners meeting

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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.

2 thoughts on “Why we, the people, must demand due process for Ron Fenn”

Barb Dewell
December 14, 2020 at 7:28 pm

Thank you, Diana Tittle, for your very well-written editorial. The night I read the article about Mr. Fenn’s electricity being cut off, I couldn’t sleep. I’ve lived in T or C for about 2.5 years now, and I’m appalled at the way our city government treats its citizens. It seems Mr. Madrid wears a gold crown that no one is willing to knock off. I wonder why? He is only one man, but he seems to make all the decisions for the entire city—many of them bad decisions contradicting what we-the-people want and can afford. Pandemic or not, one person should never have that power over the rest of us.

I had hoped that by electing a few new city commissioners in the last local election, we might have seen some change but it seems Mr. Madrid is still ruling the city with an iron fist that no one is willing to question. And if they do question, the outcome doesn’t change. Why is that?

I respect Ron Fenn for questioning bad decisions, running for office and standing up to the powerful people in this city when they are wrong. When he does this, it’s not just for himself, but for all of us who are very concerned about how our city is being run. I’m tired of reading about our city officials’ unresponsive, illegal and shameful actions. How can we turn this around?
Carol Borsello
December 23, 2020 at 9:23 pm

Excellent presentation and summary of a real problem in T or C. Thank you, Diana, for this! I do not understand why the commissioners cannot manage the city manager or take responsibility to fully discuss and approve his actions BEFORE decisions are made, studies ordered and paid for, lawsuits entered, etc.