No Kings: Court rules against T or C—City commission can’t make up public bid rules

Hubris is the only explanation for the lack of reference to law and ethics Truth or Consequences city commissioners used in buying and selling the public art sculpture by Jeffrey Barbour. 

Public art. Public money. 

Who commissioned or decided the city should take public money and purchase the sculpture was evidently decided by the city’s Public Arts Board more than 10 years ago. According to Barbour at an Aug. 28, 2024 city commission meeting, Cary “Jagger” Gustin, “made it happen.” Barbour has subsequently died. 

If the Public Arts Board had been given training or direction or instructions or had bothered to look it up themselves, they would have followed New Mexico’s administrative code covering “Art in Public Places,” as required for buying public art: https://nmarts.org/wp-content/uploads/2024/06/PUBLIC-ART-AIPP-Admin-Code.pdf 

Their hubris is the trickle down effect of a city commission that appoints citizen board members with little vetting or examination of their qualifications or merits for being appointed representatives of the people. As a result, many citizen board members represent their own tribe and interests and opinions, just as many of the city commissioners do, without reference to the law, evidence, facts or acknowledgement that they are supposed to be representing all constituents without favor or vilification. 

There was no RFQ or request for quotation published to let artists compete fairly for the public-money, public-place award of a public-art purchase. Barbour was favored. 

There was no architect or engineer or public-works expert consulted or an engineer’s stamp of approval to ensure the sculpture was safe to erect in a public place, as the state’s Art in Public Places guidelines require. 

The documents are sketchy, but it looks like the Sierra County Arts Council chipped in $2,100 to purchase the Barbour sculpture and the city, out of its public arts fund, paid $4,900 or $7,000 total to Barbour as the purchase price. The public arts fund then paid Barbour $500 to store the art for two and a half months, bringing the public-money purchase to $7,500. 

The city commission then decided to store the sculpture on city property for about 10 years, evidently finally figuring out it couldn’t put it up on public property because it was a “liability” without the engineer’s stamp, which would cost as much as the sculpture had to obtain. 

The sale of the art was done with as much hubris and carelessness and lack of reference to the law as the purchase. At the city commission’s July 24, 2024 meeting, as reflected in the minutes, with (mayor pro tem?) Rolf Hechler leading the discussion, it was decided that $1, 000 would be the suggested asking price, but price wouldn’t determine how the purchaser would be selected. A purchaser who would display the art on private property that was still viewable by the public within T or C would be favored. Without citing the law, Hechler proclaimed the city didn’t have to sell the art to the highest bidder, even though it was to be a public bid, not a private sale, both of which are allowed by state law 3-54-2 for selling government property. If a public bid is used, then the highest bid must be taken, unless it doesn’t meet “the published” conditions of the sale and then the second-highest bid must be awarded. 

State law 3-54-1 covers the sale or lease of government-owned real estate and 3-54-2 covers government property other than real estate. 

Sidebar: Hechler, in his 10 years as city commissioner, despite overseeing the sale of city property many times, and despite the many times the city has been corrected for violating mostly 3-54-1, (solar-farm land, chamber of commerce building, Lee Belle Johnson building) is either unable to learn or take correction. But, to be fair, none of the other city commissioners, long-employed city staff or City Attorney Jay Rubin corrected him either, showing the same hubris in ignoring the law or tribal good-ole-boy government sycophancy that follows kingly directions. Since City Manager Gary Whitehead was hired in February, observing the law and restoring the people to the top of the organizational chart has occurred. 

The city put an ad in the Sentinel, not a legal ad, which, nevertheless, made the sale a public bid. The “suggested” price was $1,000  “or best offer.”

The ad  “encouraged” bidders to attend the August 28, 2024 meeting to answer any questions the city commissioners might have. 

Three bids were submitted, according to city meeting minutes. 

One was from “Cindy” from Hillsboro, the minutes state, who had evidently given the city some indication that she would put the sculpture near or in “Percha Park” in Hillsboro. She did not attend the Aug. 28, 2024 meeting. The question of whether this too as public land and thus a public liability was not questioned or determined. 

Another bid was $300 to be paid by three of the Public Arts Board members, Sid Bryan, Cary “Jagger” Gustin and Andy Underwood. The massive conflict of interest of Public Arts Board members buying the sculpture for 4 percent of what it arranged to be purchased for–with public money–was not questioned or mentioned. The three would divide up the 14 spear-like components of the sculpture that Barbour intended to be displayed in a grid with six feet separating them–on public property. The three sites were all within the city and Barbour, who attended the meeting, after mentioning that Gustin “made it [the commission/purchase] happen,” said he preferred that the sculpture be sold to these three. 

The third bid was submitted by Ron Fenn for $767, the amount corresponding to the ordinance number for the city’s purchase of the PNC Bank building as the new police station, which showed the same disdain for democratic and transparent processes, being done behind closed doors shortly after the public had voted down purchasing a new police building. That public referendum on the police building was spearheaded by Fenn. 

Fenn did not explain where he would put the sculpture or attend the meeting.  

The city commission sold the sculpture to Gustin, Underwood and Bryan. 

Fenn filed a request that the local district court issue a “writ of mandamus” to compel the city to follow law 3-54-2 and sell the sculpture to him–the highest bidder. Judge Shannon Murdock-Poff was assigned the case. 

Writs of Mandamus are highly unusual and are issued if the law is clear and not muddy with discretionary power allotted to the government’s execution of its duty. The only response to a writ of mandamus that was supposed to be allowed the City of T or C was an explanation why it was or was not following 3-54-2, but City Attorney Rubin was allowed to skip any such response. Rubin filed a motion to dismiss under the misperception that Fenn had not made a claim for relief. Judge Murdock-Poff, without following writ-of-mandamus protocol and without hearing the merits of the case, granted Rubin’s motion to dismiss. 

Fenn appealed and the higher court remanded the case back to Murdock-Poff, directing her to consider 3-54-2. This time Murdock-Poff ruled in Fenn’s favor, who represented himself in court, the hearing being held Dec. 10. 

The Barbour sculpture must be sold to Fenn, the highest bidder, who cannot be disqualified, since the bid conditions were not mandatory but merely suggestions. Fenn pointed out that once the bids had been opened “that was it,” or should have been, instead of the city commission trying to exert authority and pressure and favor and disfavor into the process. 

Fenn, who has spearheaded many citizen referendums over the last 20 years, has been a thorn in the side of T or C city commissions. He told Judge Murdock-Poff that the city didn’t sell him the sculpture “because they don’t like me.” Rubin denied that claim, but the city commission by selling the sculpture to the art board members with no acknowledgement of that conflict of interest is at the very least a demonstration of favoritism if not active dislike of Fenn. 

It was likely also a violation of state law 10-16-13, “Prohibited Bidding,” which states that:

“No state agency or local government agency shall accept a bid or proposal from a person who directly participated in the preparation of specifications, qualifications or evaluation criteria on which the specific competitive bid or proposal was based. A person accepting a bid or proposal on behalf of a state agency or local government agency shall exercise due diligence to ensure compliance with this section.” 

The sale of the sculpture by bid was discussed by all three Public Arts Board members who were chosen to be the purchasers by the city commission and at least one of them, Gustin, was integral in commissioning and buying the sculpture from Barbour. 

But who is going to bring that to court, and appeal it when the district court dismisses it out of hand, let alone make the art board and the city commission accountable for wasting $7,500 of the public’s money.