A memo from a Jemez Mountains Electric Cooperative contract attorney states Board of Trustees Member-at-Large John Tapia’s employment by Jerry Mosher does not break the Co-op’s bylaws.
Mosher owns Mosher Enterprises Arizona, as well as Consolidated Solar Technologies, LLC and Cuba Jemez, LLC.
Cuba Jemez, LLC is the company that will build, own and operate the 2.5-megawatt solar array in Alcalde, and power generated by this array will be sold to the Co-op.
Although the three companies are owned by the same person, they are separate corporate entities, records from the New Mexico Secretary of State’s Office show.
The Co-op bylaws state trustees are not allowed to be “financially interested in a competing enterprise or a business selling electric energy or major supplies to the (Co-op.)”
Cuddy & McCarthy, LLP Attorney Chuck Garcia wrote the memo, dated Jan. 29, 2019, which states that Tapia is not identified as an owner or a person with direct financial interest in any of the three companies. This was determined by reviewing Secretary of State corporation registration records for each one.
Tapia’s employment with Mosher became public knowledge in December 2018, during a trial between Tapia and his former employer, Los Alamos National Laboratory. Tapia sued the Lab for breach of employment contract and failing to provide progressive discipline after he was terminated for doing non-Lab-related work during work hours. Jurors ruled in Tapia’s favor and awarded him more than $730,000 in damages.
During the trial, Lab attorneys referenced a job offer letter from Consolidated Solar Technologies, LLC to Tapia, which was then viewed by a Rio Grande SUN reporter. Tapia later said, at the Jan. 25, 2019 Co-op monthly Board meeting, that he is employed by Mosher Enterprises.
While the phrases “financially interested” is used in the Co-op’s bylaws, the definition for the phrase is not given, the memo states.
“So we look to its usual legal meaning in the context of corporate law,” Garcia wrote in the memo. “Under this analysis, there is a distinction between who is ‘financially interested’ in a company like an owner, shareholder, principal, member, director or holder of another direct financial interest in a company and an employee of a company, who is not normally considered to be ‘financially interested’ by virtue of their employment status with the company.”
Mosher said in a November 2018 telephone interview that he signed a 25-year contract to sell power generated by the array to the Co-op for 6 cents per kilowatt hour with no escalation in price.
Although Garcia provided this legal opinion, he wrote that he had yet to see a copy of the Power Purchase Agreement.
A Power Purchase Agreement is a contract between the developer that generates electricity and the person or company that buys it.
Tapia, along with with Board President Nick Naranjo and District 6 Trustee Leo Marquez, were on a radio show June 7, to talk about the Co-op’s finances, the solar array and meter reading.
Meter Reader Supervisor Manny Martinez spoke about the function of the meters.
Martinez said in a telephone interview later that same day that he appeared on the radio as a Co-op employee and not as a representative of the city of Española. Martinez is a city councilor, as well as mayor pro tem.
Rio Arriba County Economic Development Director Christopher Madrid was also on air with Tapia and Marquez to discuss the solar array. The County will lease the property of the array to Cuba Jemez, LLC at a cost of $30,000 year.
County Manager Tomas Campos said that no one in their capacity as a County employee is endorsing anyone in the upcoming Board of Trustee elections in Districts 4, 5 and 6.
While the County has cooperative accounts at Kit Carson Electric Cooperative, Northern Rio Arriba Electric Cooperative and Jemez Mountains Electric Cooperative, it will not cast a ballot in any elections, he said.
Co-op elections for District 4 will be on June 21 at the Co-op’s offices in Hernandez. District 5 elections will be held June 24 at Española Valley High School. District 6 elections will be held June 26 at the old high school in Pojoaque. Polls are open from 7 a.m. to 7 p.m. each day.