120111 affidavit of fenn

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AFFIDAVIT OF RONALD FENN

Toomey v. City of Truth or Consequences –D-0721-CV2009-98

STATE OF NEW MEXICO

SEVENTH JUDICIAL DISTRICT

COUNTY OF SIERRA

STATE OF NEW MEXICO, ex rel.DEBORAH TOOMEY, an individual,

Plaintiff,

vs.

CITY OF TRUTH OR CONSEQUENCES,et al.,

Defendants.

No. D-0721-CV2009-98

HON. WILLIAM SANCHEZ


COMES NOW Ronald Fenn and states as follows:

1. Since October 2008 I have regularly attended public meetings of the

Truth or Consequences City Commission and the Planning & Zoning Commission.

2. I make extensive use of public records requests to ensure I am

informed of the affairs of our local government.

3. I attended two instructional training sessions for municipal

administrators and interested citizens, presented by the office of the Attorney

General and the Foundation for Open Government on governmental transparency.





4. I strongly believe that an informed electorate is essential to a

functional government. As such, I perform thorough research on issues and

proposals before our governing body so that I may pose appropriate questions and

share an informed opinion.

5. Unfortunately, the public servants in Truth or Consequences do not

share my view.

6. It is my experience that the City regularly violates IPRA by not

responding within the statutory timeframes, claiming a request is burdensome

when it is not, claiming records do not exist when they do exist, and falsifying

records in an attempt to hide dishonest acts. The most recent, and highly creative,

method of denying public records request is to claim it is the “creation of a new

document.”

7. On May 18th 2011 I requested a statistical report on all T or C utility

Customers, number only. The report was generated on the 20th and I received it the

next day.

8. On the 29th of August 2011 I made an IPRA request for a list of

Sanitation Customers (Commercial) by classification with company names and

addresses. I received a 12 page listing produced on 31 August 2011, Titled

“Selected Services Report” which appears to be an Excel type spreadsheet report





produced by BGARCIA.

9. I made a similar IPRA request on September 21, 2011, for the

“Commercial Utilities Database” in electronic format, the same database that

contains the audit log Ms. Toomey has been attempting to get for the last several

years. The response from Ms. Berna Garcia claimed that the database doesn’t

distinguish between residential and commercial users, and therefore it would be the

creation of a new record. However, since there are different billing rates for

residential and commercial customers, the database must distinguish between

residential and commercial customers. In addition, Ms. Garcia stated that since the

database contains confidential information (such as SSN, date of birth, etc.), the

City did not have to comply with the IPRA request as redacting the information

would be the creation of a new document. City has refused to comply with IPRA

for my request of the “commercial utilities database.”

10. It has also been my experience that our local public officials and

servants regularly intimidate, harass and retaliate against anyone who questions the

affairs of our local government.

11. In early 2009 I began to make IPRA requests on the City’s plans to

procure a mobile home for a Municipal Courthouse rather than as a “public works

project.” I noted numerous violations of the Procurement Code and what can only





be described as “bid rigging.” As I attempted to question and bring to light issues I

was discovering, on April 23, 2009 the City Manager filed a complaint against me

with the Board of Licensure for Professional Engineers and Professional Surveyors

(Case No. 10-09-08).

12. Although I was required to answer the complaint in an approximately

two week period or face possible prosecution, it took more than two years — until

July 28, 2011 —to resolve with a finding of “no cause of disciplinary action.”

However, a seated City Commissioner regularly called me a liar and as proof

referred to this investigation on numerous occasions during public meetings.

13. As for the IPRA requests on the Municipal Courthouse for change

orders, City claimed “no such records exist” for thousands of dollars of change

orders and numerous other documents that must exist as the manufacturer Clayton

Homes told me they did but as they were dealing with Anderson Homes, the

contractor with the City, the documents could not be given me by them.

14. The citizens of Truth or Consequences spent close to $400,000 on a

project that was not to exceed $167,000. In fact, we didn’t build a “public works

project.” It is more appropriately referred to as a “big Xerox machine” since our

Municipal Courthouse was procured as “tangible personal property.”

15. Determining that I may be more effective on our local governing





body, I declared my candidacy for City Commission in January 2010.

16. On February 4, 2010, a month before the election, I received what I

believe to be a City-sanctioned official intimidation attempt in the form of a

certified complaint of Zoning Code Violation by the Code Compliance Officer. It

alleged the use of my motor home as “Recreational Vehicles as Dwellings” Sect

11-11-6 of the City Zoning Code. Neither I nor anyone else was living in the motor

vehicle. It was parked under the roofed carport that was erected under permit of

the City for that purpose. I wrote a letter to the City denying the motor home was

being utilized as a dwelling and the matter was dropped.

17. On April 8, 2010, I submitted an IPRA request for all documents

supporting the threatened citation for “dwelling in a recreational vehicle”, which

should have included inspection notes at the least, and received nothing other than

a copy of the original citation, not even a copy of my letter denying the charges.

18. Interestingly enough, no action was taken on the threatened citation,

not even a response to my denial of violation nor a withdrawal of the violation,

supporting my belief that this complaint was nothing more than harassment.

19. On May 3, 2011, a Planning &Zoning public hearing was held for

variance of building height based upon “topographical hardship.” Having received

a copy of the P&Z packet associated with this matter, I made several visits to the





site and took numerous photos as the location of the proposed building on the site

was not marked on the site or provided in advance of the meeting. As I could not

find evidence of the “topographical anomaly” described in the variance application

I presented my findings to the P&Z Commission during the public hearing.

20. The matter was contentious and the developer introduced a

topographic map to the P&Z Commission for a few moments scrutiny, but was not

available for either close study or in the commission package as part of the

application for variance. The City’s Building Inspector testified that he was relying

on a survey report and disregarded the evidence I presented at the public hearing of

a lack of any “topographical hardship.”

21. The variance was approved by the P&Z Commission even though

none had a clear idea of the size and location of the building. The next day, May 4,

2011, I submitted an IPRA request for the Drawings, Elevations & plans presented

at the previous night’s hearing. Although I was allowed to view and copy a site

plan that was not previously given me in the Commission package, it was not the

topographic map with the floor plan superimposed as presented at the hearing

22. I resubmitted the IPRA request on May 11, 2011, in an attempt to

have the City produce the topographic map with the floor plan, and received a

written reply that I had been provided all the information that was provided to “this





office.” This type of response from the Custodian of Records— that it is all the

information “this office” has—is fast becoming the City’s latest ploy in refusing to

abide by IPRA.

23. On May 25, 2011, I submitted another IPRA request for the specific

drawing that was given into evidence by the developer at the P&Z public hearing

and the “survey report” referred to at that hearing on numerous occasions by the

Building Inspector. Once again, I received a letter stating that I had seen all that

was available and documents specifically referred to and presented as evidence in a

public hearing were not produced.

24. Upon attending the May 25, 2011, City Commission meeting ratifying

the variance approved by the P&Z Commission, I heard discussion of a letter

supposedly provided to the P&Z Commission for the May 3rd Public Hearing by

the Fire Chief relating to the city’s capability of protecting a building of this

height. While this letter was also not included in the P&Z package for May 3rd

(and no discussion of the letter occurred on May 3), it was referred to at the City

Commission on May 24 as having been submitted to the P&Z on May 3. I

requested per IPRA on May 25 to inspect this letter. Interestingly enough, when

the letter was produced that supposedly had been part of evidence for May 3rd, the

letter from the Fire Chief was dated May 25, 2011. In other words, the City





tampered with the public record and created a letter to back up that testimony had

occurred when it had not. Fortunately, as is often the case, the City was not

diligent in covering their tracks, and the letter requested under IPRA that was

submitted to the P&Z meeting on May 3rd had a date three weeks later,

coincidentally the same date I requested the letter.

25. It is my experience that employees of the City deny the existence of

public records in order hide certain actions of local government and “favored”

residents. The failure to follow IPRA, and dissuade requests through intimidation

and harassment, is the culture of our local government, and an unofficial policy in

regards to certain records.

I affirm under penalty of perjury under the laws of the State of New Mexico

that the foregoing is true and correct.

DATED: January 11, 2012RONALD FENN316 N. Foch StreetTruth or Consequences NM 87901(575) 894-1543





CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the AFFIDAVIT OF RONALD

FENN was personally faxed on January 11, 2012, addressed to:

Jay Rubin (VIA FAX)Attorney for Defendants575-894-3282

DATED: January 11, 2012 ______________________________

DEBORAH L. TOOMEY, Pro se 7010 Phoenix Ave NE, #518Albuquerque NM 87110Phone: (505) 315-8503Fax: (505) 214-5771

120111 affidavit of fenn

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