Judge orders co-op to release addresses
A judge ordered Socorro Electric Cooperative to release the addresses of co-op members to Charlene West during a hearing last week.
The other items presented in a writ of mandamus request was not granted. Co-op trustee Charles Wagner will not be allowed access to board executive sessions.
A writ of mandamus is an order issued from a court of superior jurisdiction to perform a particular act that is required by law as an obligation. During the Dec. 13 hearing, in front of 7th Judicial District Judge Matthew Reynolds, the petitioners, West, Carol Pittman and Sara Robinson, were represented by attorney Lee DesChamps.
One of the petitioners’ concerns was for the people in Wagner’s co-op district, District 2. The writ request was to allow Wagner access to various board activities he is not currently allowed to be a part of and therefore it says he is not able to represent his district properly. DesChamps said Wagner is being deprived of access to executive sessions, board committees, committee membership, books and records, and communicating with vendors.
The electric co-op claims Wagner secretly recorded confidential executive session discussion by the other trustees and released it to members of the SEC Reform Group. The co-op maintains that action was against the trustees’ code of ethics and thus the censure against Wagner’s participation in executive sessions and board committees.
Reynolds denied the section of the writ ordering Wagner access because Wagner would have to be a party in the case and was not listed as a petitioner. The judge dismissed that issue without prejudice, meaning it can be revisited in the future.
After determining West had proper purpose for requesting the names and addresses of her fellow co-op member-owners, the opposing counsels tossed around various laws, ordinances and bylaws in trying to prove she has, or has not, the right to the addresses of the other member-owners.
DesChamps, in the writ, uses a New Mexico statute that states “each corporation shall keep at its registered office or principal office in New Mexico a record of the names and addresses of its members entitled to vote. All books and records of a corporation may be inspected by any member, or his agent or attorney, for any proper purpose at any reasonable time.”
According to the writ, West’s proper purpose in seeking access to the addresses is “to exercise her constitutional rights of free speech and free association with the other members of SEC for the purpose of improving the management and administration of the Co-op and the services which it provides.”
In other words, West wanted to let fellow member-owners know about upcoming meetings, elections and issues relating to co-op business.
Patricia Williams, co-op attorney, said the law is unspecific and would be trumped by the specific. She said it is clear co-ops are governed by bylaws. The co-ops bylaws say the addresses will not be released.
“The cooperative has a special duty to its members,” Williams said.
She maintained the relationship of a rural electric co-op with its members is different than other nonprofits, such as the Animal Humane Association.
“But it’s still under the corporate act,” Reynolds said.
“The statutes deal with structures,” DesChamps said. “The structure is the same. By counsel’s account, they could say, ‘We don’t need to keep books and records.’”
The co-op attorneys, Williams and Lorna Wiggins, brought up how important it is to maintain privacy for the members because, unlike the Animal Humane Association, members don’t have a choice. If they want electric service, they have to use the co-op unless they go off the grid.
“So aren’t you saying members have less rights?” the judge asked. “Wouldn’t it be a greater responsibility to let members communicate with one another?”
DesChamps used the example of a recent mailer sent out to members by the co-op trustees and manager as the “degree to which the co-op is obfuscating the ability of its members to communicate.”
The mailer requests member-owners return a postcard if “you want us to release your mailing address to anyone who requests it.”
Out of 10,000 mailers sent out, only 49 of them were returned. And some of those returned threatened litigation if the co-op releases their addresses.
The judge wanted to address the issue of a new co-op bylaw, voted for by the member-owners in April of 2010 that directs the co-op to voluntarily abide by the rules of the Inspection of Public Records Act and New Mexico Open Meetings Act.
DesChamps called Wagner as a witness to testify about the intent of the new bylaw which was drafted by Wagner before the members voted on it.
“The bylaw was drafted because the co-op would not give out information and many things in board meetings were being kept confidential from the members, such as how much the trustees got,” Wagner said. “The intent was to put members in the same place as tax-payers.”
Wagner went on to talk about the need for the co-op to have democratic control through its members and the need to have access to residents’ addresses to verify their right to vote in co-op district elections.
“One thing coming up is — were the people who voted entitled to vote in the district?” Wagner said. “Membership is based on physical address. I know of at least one person who voted whose district was not there.”
Reynolds found that the intent of the Nonprofit Corporation Act is frustrated if a small percentage of members show up at a meeting to vote and the majority of the members are not represented. While the issue is not directly covered under the act, the intent is to allow the members initiative. Thus, he found in favor of West in regard to the request for addresses.
“My ruling is based on the books and records being open,” Reynolds said. “It is based on the amendment to bylaw. The mechanism of IPRA doesn’t apply.”
He ordered the co-op to release the addresses and names to West for proper purposes.