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 7th 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?