City of San Clemente Sues Itself – They Win and Taxpayers Lose

How much did it cost San Clemente taxpayers in legal fees when two members of its City Council didn’t know how old their city was or when council members are up for election when they submitted their ballot argument against electing the council by voting districts?


In what has become one of the more bizarre examples of local elected official’s stupidity and secrecy in using tax dollars to hide the expense of their incompetence – the City of San Clemente filed a lawsuit against its self for violating Election Code 9295 for submitting a ballot statement with four “incorrect and misleading statements.”  The ballot argument written by the current Mayor Tim Brown and Mayor Pro Tem Chris Hamm starts; “For more than a 100 years San Clemente residents have enjoyed the right to vote for all 5 city council seats, every two years.”


Contrary to what Brown and Hamm submitted, this month the City of San Clemente is celebrating its 90th anniversary.   The city also rotates the elections, five council members are never up at the same time.

It’s hard to take their appeal to tradition seriously when Mayor Brown and Mayor Pro Tem Hamm can’t be accurate about basic facts such as how old San Clemente is and how many councilmembers are on the ballot every two years.

Although San Clemente is more than 19 square miles in size, three of its five council members are clustered within a few blocks of each other (it had been four until Councilman Bob Baker was voted out in November 2016).  Their attitude toward city residents who live in newer developments rather than the “real San Clemente” ranges from mild ridicule to open hostility.

In 2016, fed-up residents successfully circulated a ballot petition creating community district voting to ensure that all parts of the city will be represented. This is the only districting initiative in Orange County that has made it to the ballot via citizen signature gathering, rather than city council action. It is a truly grass-roots effort.

In an effort to delay the measure from being put on the 2016 ballot, the council voted to spend $18,500 for an independent study on districting that delayed it from appearing until 2018.

Despite the ballot qualifying in record time with strong support from the community, the council majority voted to put the City on record as officially opposed to the initiative.  The City Council voted to task Brown and Hamm with authoring the opposing ballot argument language that appears in sample ballots mailed out by the county.  Given the self-serving nature of their authorship, Brown, Hamm and Councilwoman Kathy Ward (who may seek re-election in the fall) went on to authorize five residents to attach their names to the ballot argument Brown and Hamm wrote – thus concealing from voters the true identities of the anti-districting ballot argument’s authors.

Was there an illegal secret lawsuit – to fix Brown and Hamm’s ballot language that highlighted their stupidity and or their indifference to the truth?

Brad Malamud is the author of the ballot argument in favor of district-based elections. On September 29, 2016, he contacted City Clerk Joanne Baade, who reviewed and submitted the ballot arguments to the Registrar of Voters, to alert her to factual inaccuracies in the anti-districting ballot argument secretly authored by Hamm and Brown. If a ballot argument contains false or inaccurate information, opponents can sue. If their allegations of inaccuracy are proven, the losing party must pay for legal fees.

In this case, Baade told Malumud he’d have to go to court to obtain the corrections.

City Manager James Makshonoff brought the matter to the attention of the former Mayor Bob Baker (who would be defeated for re-election a few weeks later), and full panic mode took hold.

Mayor Bob Baker: I haven’t seen it, but if it says the things he says it needs to be fixed. 

City Manager James Makshanoff: And Joanne tells me that the only way to make a change is through a writ according to the election law.

Mayor Bob Baker:  If his statements are correct, let’s do a writ.  This rebuttal has to be correct.

City Manager James Makshanoff:  I will talk to Scott (the City’s Attorney) and see what we can do.  The problem is the writ has to be done by Monday Per the election code.  And we don’t have a closed session until Tuesday to discuss.

Click here to read the original email exchanges.

Those were the only emails released by San Clemente in response to a Public Records Act request regarding the city’s decision to file a lawsuit in order to correct the ballot statement two of its councilmembers had written and submitted.

On Monday ,October 3, 2016 – with no approval and supposedly no input from City Council Members, and with no notification given to the public – the City Clerk filed a lawsuit against the Orange County Board of Supervisors and Paige D. Forman, Jamie Murphy, Dan W. Yeilding, David L. Hurwitz and Robert B. Wohlfarth to correct “false and misleading” statements in the ballot argument opposing district elections.

Those were the individuals recruited by Hamm and Brown to sign the error-filled ballot argument the two had written – and who now found themselves being sued in order to correct those errors.



The litigation was handled by Best, Best and Krieger, the municipal services law firm used by San Clemente as their contract City Attorney. The bill for services: $16,286.53:

Question: who should pay the bill? Councilmembers Hamm and Brown, who wrote the anti-districting ballot argument, including the glaring errors that prompted the city to sue itself?

Not in San Clemente. The taxpayers, who had nothing to do with this totally avoidable clusterf— get stuck with the bill. Taxpayers, however, never had a chance to weigh in on the matter as they were unaware of these incompetent machinations. If they had, residents would certainly demand Hamm and Brown split the bill themselves.

It’s never too late to be right. There’s no reason Brown and Hamm cannot take ownership of the situation, do the right thing and reimburse their constituents for the costs of their own laziness and secrecy.

They still may not get off ‘scott free’ as unanswered questions about this covert lawsuit are being reviewed by those with authority to act regarding Brown Act violations.

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