San Clemente City Council Sued For Private E-mails Related To Use of Tax Dollars To Overturn Measure OO Election Result

San Clemente may well be the first California city sued under the new California Supreme Court ruling that public officials’ private e-mails are subject to the state public record laws.

A San Clemente resident has filed a lawsuit against the city and individual council members, seeking to obtain any private e-mail communications by city officials pertaining to the council’s abortive attempt to overturn the defeat of the Measure OO hotel bed tax hike with a taxpayer-funded recount. Measure OO failed by only 8 votes. The suit is also demanding the city provide email communications from its city accounts that have been withheld from a records request.

Last December, the San Clemente City Council took the extraordinary step of voting to fund a recount of Measure OO election results with tax dollars. Measure OO would have increased the city’s hotel bed tax; it was a general tax but the city sold it as a “public safety tax.” It was opposed by the Republican Party of Orange County as well as the OC Register, and narrowly rejected by San Clemente voters.

Spending taxpayer money in an attempt to change the election results is not only fundamentally bad policy, it is also illegal -as was reported here in OC Daily, which broke the story.

San Clemente Councilman Tim Brown, one of the more colorful elected officials in OC, bemoaned at the dais that Measure OO failed because no one on the council had campaigned for its passage. It is interesting to note that Tim Brown is an ex-member of the OC Republican Central Committee. During Brown’s brief tenure on the OCGOP Central Commitee he feverishly lobbied for the GOP to endorse his council colleague Mayor Bob Baker. However Brown sheepishly sat on his hands and was mum when it came time to defend Measure OO. Both Baker and OO were rejected by the OC Republican Party, and by the voters last November.

In his motion for a city-funded recount, Brown falsely claimed the Measure OO tax increase was “dedicated to public safety.” He went so far as to specify how many deputies the city would have hired if Measure OO had passed. In truth, the city council would have been free to spend Measure OO revenues on anything it pleased. Brown stated the recount wasn’t going to be like what you see in the movies, with partisans opposing or challenging ballots. The council voted 3-1 to direct the staff to engage the Registrar of Voters to conduct a recount.

City staff worked with the Registrar in fulfilling all the necessary commitments to provide funds to start the recount. Click here to see the letter from the City Manager – one of the most amazing documents produced by a local government agency.

The California Policy Center, an OC-based conservative public policy group, was alerted to the city council’s brazen recount vote by the OC Daily article, and served the city with notice to be at Superior Court on Monday, December 12 to deal with a writ for a Temporary Restraining Order. Absent the CPC’s quick action, the recount would have kicked off that morning.

The council’s shenanigans caused residents to demand answers. Longtime San Clemente resident Jim Bieber, a former legislative staffer and owner of one of the nation’s premiere voter contact mail firms, decided to take action.

In December Bieber filed an ethics complaint with the city against the city manager for using city letterhead for campaign purposes. The letter reads:

“I, James Makshanoff, a registered voter of the City of San Clemente, do hereby request that the Orange County Registrar of Voters’ Office recount the results of the November 8, 2016 election as it relates to Measure OO, My recount request is filed on behalf of the affirmative position on the subject measure…Enclosed is a check in the amount of $6,324.66 to cover the set-up fees.  I agree to pay, via credit card, $2,400 per day to cover that day’s recount services.  A representative from my office will email you early each morning with an authorization to charge $2,400 to the City credit card until the recount is complete.”

Per the City’s ordinance, ethics complaints from the public were heard in open session and voted on by council members. The city council dismissed this complaint, as it did three other complaints filed last year. The council’s rationale for the dismissal of this current breach of ethics? They stated that while the recount request letter was accepted by the Registrar of Voters – resulting in the recount being scheduled – the absence of the city manager’s electronic signature meant it didn’t really count as using official letterhead. Tim Brown admonished Bieber for filing the complaint – then complained that council members only get paid $400 a month and that “while we deal with these ethics complaints as they come in, I’ll be dammed If I’m going to take this abuse.”

At the very next city council meeting Councilman Brown moved to abolish the city’s code of ethics ordinance

Bieber subsequently filed a Public Records Request for all city records relating to the abortive Measure OO recount effort – including all correspondence and communications by councilmembers or staff using private e-mail. According to Bieber, he was given only 26 records following a month-long back and forth with the city clerk.

The city clerk informed Bieber that “the City is withholding two records [e-mails] under the deliberative process privilege. (Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1342.) The deliberative process privilege protects materials that reflect the deliberative or decision-making processes. (Wilson v. Superior Court (1996) 51 Cal.App 4th 1136, 1142, citing E.P.A. v. Mink (1973) 410 U.S. 73.) The privilege recognizes that the quality of decision making can be impaired when the deliberative process is prematurely exposed to public scrutiny.”

“This excuse is bogus,” said Bieber. “There isn’t any way to ‘prematurely expose’ to the public the issue of how recount funding will be deliberated. The deadline is past, the election is certified and because the council is painfully aware that the public knows that they cannot use their money to finance recounts, they can never revisit this issue in any format again in the future.”

Regarding Bieber’s request for any related communications by staff or councilmembers via private email, the city clerk informed him:

“Regarding your request for emails from private/non-city accounts, those emails are not subject to disclosure because they are not in the possession or control of the City of San Clemente.”

Their pushback on fulfilling that request is incompatible with recent California court ruling preventing public officials from concealing  communications on private devices.

Finally, the city also withheld 19 e-mails between the city clerk and the Registrar of Voters Neal Kelley pertaining to the abortive recount and the use of city funds to pay for it. A separate request for the same communications was made to the OC Registrar of Voters. In stark contrast to San Clemente’s secretiveness, the Registrar of Voters supplied those communications promptly and without hesitation.

San Clemente City Councilmembers Served With Summons
The latest act in this city-created drama unfolded at Tuesday’s San Clemente City Council meeting when council members Hamm, Brown and Mayor Ward were served with a court summons at the beginning of the council meeting.  None looked pleased, and upon being served, Councilmember Chris Hamm remarked, “What a dick!”

“These rogue elected officials – Council members Brown, Hamm and Mayor Ward – consistently think rules prohibiting the use of city staff and city resources for overtly political actions do not apply to them,” said Bieber.  “The City of San Clemente loses over 70% of all lawsuits brought against them and has paid out millions in attorney fees.   The root cause of so many successful lawsuits against the city is that these local electeds have only two distinct character traits: arrogance and stupidity.  They make policy and pass ordinances based on the bravado of ‘whaddaya gonna do about it? Sue us?’  Unfortunately, that is the only option for members of the public who want to see the majority of this council comply with the law.”

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