Co-op to seek court ruling
Socorro Electric Cooperative’s board of trustees will challenge in court three new bylaws passed at last month’s annual meeting of member-owners on the grounds that they are unworkable, unreasonable or illegal.
At its regular meeting on Wednesday, May 26, the board unanimously agreed to follow the advice of SEC attorney Dennis Francish, who recommended the board move to file for a declaratory judgment requesting injunctive relief from three newly adopted bylaws.
All three bylaws address transparency relative to how the member-owned rural electric cooperative conducts business. They were among nearly a dozen member-sponsored resolutions overwhelming passed at the SEC’s annual meeting on April 17.
One calls for the board to voluntarily follow the Open Meetings Act and Inspection of Public Records Act. Another allows for member owners to have access to Co-op books, records and audits except those that would violate the Privacy Act. The third allows member owners and the press to attend monthly board meetings and that a portion of the meeting be set aside for public comment. It also requires that board meetings be advertised in monthly billing statements and local newspapers.
Francish told the board he could make a case the new bylaws don’t apply to the Co-op, because it is a non-profit public corporation.
He said rural electric cooperatives are defined by law as political subdivisions and exempt from laws pertaining to public entities.
“If you want me to take it to court, I’ll take it to court,” Francish said. “If you want to address it next year with changes at the annual meeting, you can do that. Or you can leave them lie and ignore them.”
With that, District 3 trustee Leroy Anaya made the motion, seconded by Donald Wolberg, to follow the first option and challenge the validity of the new bylaws in court. The board then passed the motion by acclamation.
District 5 trustee Charlie Wagner, who has led a movement to reform the SEC and advocated in favor of nearly a dozen bylaw changes adopted last month, remained silent on the vote — just as he was mute earlier in the meeting on accusations he made racial and demeaning remarks against Hispanics (see story Page 3).
Wagner was the only trustee to voice opposition against the attorney’s arguments prior to the vote.
He said the attorney was “misconstruing” the intent of the resolutions — all of which were member-sponsored — that were approved last month.
Wagner acknowledged that the Open Meetings Act, for example, prescribes penalties for violations of the law that can’t legally be applied to electric cooperatives.
“But we can use the language to draft our open meetings bylaw,” he said.
Wagner said it was also possible to draft language that requires notice of meetings and define limitations for what can be discussed in executive session.
“This is really what I thought we were paying Mr. Francish to do,” he said.
Wagner went on to suggest that the attorney was representing the interests of the trustees who hired him and not those of the member-owners. He reminded his colleagues that each of the board-sponsored resolutions up for adoption last month were soundly defeated.
Prior to the vote, the attorney laid out some of his arguments opposing the new bylaws.
Francish said the bylaw changes went beyond what state statute allows, therefore were unworkable. Some aspects were illegal, he said, abused the rights of member-owners and were harmful to the corporation. He also said it could be determined the bylaws were unreasonable, because they interfered with the Co-op’s ability to function properly.
The attorney went on to say that board meetings shouldn’t be open to the public.
“You can’t conduct business like you would ordinarily,” he said, adding that other Co-ops in the state don’t allow member-owners to attend board meetings. “There’s nothing in state law or corporate law that says members can be present in meetings.”
About 17 member-owners attended Wednesday’s meeting and several of them gasped at what Francish said next.
“The people that are here are wannabes. They want to be involved, but they can’t get elected,” he said.
When asked after the meeting when he might file papers for a declaratory judgment, Francish said he wasn’t sure. He indicated he would be indisposed for much of the month of June and it might not be until sometime in July.
Contact T.S. Last