First District Court Judge Jason Lidyard ruled Nov. 20 in favor of the Rio Grande SUN in its writ of mandamus against the Jemez Mountains Electric Cooperative, clearing the way for the SUN to inspect much of the Co-op’s records without charge.
The SUN still must pay a small fee for any copies it may request.
The SUN sought to examine and receive copies of the Co-ops board books, vouchers (invoices), lobbying contracts, legal bills and financial statements. The records are meant to be available for members of the Co-op to examine and be available to trustees their monthly meetings, however, since the start of the COVID-19 pandemic Board meetings have moved to online teleconferencing, with extremely limited and inaudible access and the books have not been available for the public.
The lawyer for Publisher Robert Trapp and the Rio Grande SUN, Kip Purcell celebrated the victory.
“It was a gratifying result after Mr. Trapp had waited so long for the documents that were the subject of the lawsuit,” Purcell said.
Calls to Trustee John Tapia, Board President Leo Marquez, General Manager Ernesto Gonzales and Laura Rendon, all of the Co-op, were not returned. Several trustees contacted said they had no knowledge of the ruling and couldn’t comment.
The Cooperative in June, through its attorney Pete Domenici Jr., agreed to produce most of the documents free of charge. Others were allegedly posted on the Co-op’s website. The Co-op wanted to charge almost $3,000 for the redaction of 10 months of legal invoices. While that price was negotiated down, no final agreement was made on the production of the legal bills.
The Co-op insisted Trapp pay a copy charge for the operational invoices. It was agreed between Purcell and Domenici that the Co-op send the invoices to Pulp Faction, a printing company in Albuquerque. Instead, without Purcell’s nor Trapp’s knowledge the Co-op decided to copy the documents themselves and charge Trapp 16 hours labor at $40 per hour to organize, redact private information and print these documents.
Lidyard ruled earlier on Nov. 13 that the agreement between the two lawyers was a contract and that the Co-op violated it by not informing Purcell, nor Trapp of its change of production methods. The judge said Trapp did not have to pay the $640 bill the Co-op sent to Trapp.
Lidyard said Nov. 20 the board books and vouchers are to be made available for inspection within 30 days of the ruling.
Board books are the package trustees use during meetings. They contain financial statements, documents pertaining to specific meeting topics, some invoices, requests from member and minutes.
Lidyard also ruled that redaction and creation of these records were already an obligation of running the Cooperative and couldn’t be charged to the SUN. The Cooperative is still allowed to charge for copying costs as per its bylaws, Lidyard put a cap on the printing at 30 cents a page.
Lidyard arrived at the cost by allowing the charge of $9 per hour for 16 hours labor. He divided that number by 473 pages.
Domenici argued the method Lidyard used to determine that price was improperly calculated. Lidyard used the $40 an hour for 16 hours that was provided in the Co-op’s bill to Trapp, that was entered into evidence. Domenici said testimony established that it was two employees working at $20 an hour for 16 hours, so it really took them 32 hours not 16.
Lidyard ruled against this argument and upheld is previous calculation.
The Co-op claimed during depositions and in its billing that it took eight hours at $39 per hour to redact and copy five Board books, that average 20 to 30 pages. Lidyard applied the same logic to the cost of Board books, stating the Co-op had to allow inspection but if Trapp wanted copies the Co-op could charge up to 30 cents a page.
The ruling could have effects for other New Mexico electric cooperatives Purcell said.
“More important than the documents themselves were the principles the court announced that governed his decision and we hope will be persuasive to courts in similar situations,” Purcell said.
Trapp said he was pleased with the ruling but did not think this was the end of the fight.
“With these guys, you never know what hare-brained thing they’ll come up with,” he said. “We tolerated years of not being allowed to even look at contracts and bills and when I push the issue it takes two different general managers two months to write a letter saying, ‘We’re going to charge you a ton of money for copies, so go away.’ I really thought they knew me better than that.”
The ruling didn’t set any legal precedent outside of Rio Arriba County, however Purcell said he hoped it had persuasive strength for lawyers arguing similar cases.
Cooperatives and other private entities are exempt from sunshine laws like New Mexico’s Inspection of Public Records Act that allows members of the public to inspect records. However, older case law about corporation shareholders came into question as well as the Co-op’s own policies and bylaws.
“A rural electric cooperative exists for no reason other than to service its members,” Purcell said. “The operations of rural electric cooperatives are often shrouded in secrecy and the suspicion exists whether justified or not that cooperatives sometimes operate to benefit of their trustees rather than the great mass of their members.”
This is why it is important for members of the cooperative be able to inspect the records Purcell said.
“It is important that documents be freely available to the members, particularly to the members who are committed to scrutinize those documents to make sure that the operations of a cooperative are serving the interest of the members,” Purcell said.
Trapp said the judge’s order to allow inspection will be put to the test as soon as all the proper filings have gone through.
“That’s where we’ll find out if the washed up politicians and their puppets understand the ruling, and more importantly are they going to abide by it,” Trapp said. “If not, there’s always the next writ.”