Credit: Jill Foster

A San Clemente resident has filed a public records lawsuit against the city for allegedly withholding records and refusing to consider his request for private email and phone records.

The issues relate to Measure OO, a ballot measure to increase the city’s hotel tax that failed by nine votes in November.

The complaint, filed by Jim Bieber, comes less than two weeks after the state Supreme Court ruled unanimously that government records and correspondence sent on the personal devices of public officials and government workers are public record.

Bieber, a frequent and outspoken critic of the City Council, alleges the city failed to give him all the records that he requested.

Some of the records not provided by the city, turned up in a separate request he filed with the county Registrar of Voters.

When he asked the city for correspondence sent on the personal devices of city officials, the city never “directly addressed this request” and Bieber later was told by Records Manager Jennifer Weiss that such correspondence is “not subject to disclosure because they are not in the possession or control of the City of San Clemente,” according to the complaint.

The lawsuit also claims that when Bieber tried to resolve his questions with the city about the adequacy of their response, the city attorney wrote to him that “the City is not required to ‘participate in debate,’” cutting off communication and “eliminating any hope that this dispute could be resolved without litigation.”

Mayor Kathy Ward did not return requests for comment. City Manager James Makshanoff, through the city spokeswoman, declined to comment on the lawsuit or on how the city intends to comply with the state Supreme Court ruling.

The California Public Records Act generally requires government agencies to, within reason, help members of the public identify records and provide suggestions for “overcoming any practical basis for denying access to the records” sought.

Bieber’s public records request concerns a City Council vote authorizing the city to spend $18,000 or more on a recount for Measure OO that was approved on Dec. 6 after the election results were finalized.

Measure OO, which was placed on the ballot by the city council and would have increased the tax on hotel and short-term rental rooms from 10 to 13 percent, was billed as a way to raise funds to hire more Sheriff’s deputies.

The city was later told by the Registrar of Voters that only an individual person, not the city as an entity, can request a recount, prompting Makshanoff to send a letter requesting a recount himself.

Bieber says city officials only dropped the recount effort after he tried to seek a temporary injunction to stop it.

State law allows cities and other legislative bodies to sponsor ballot initiatives, although there are many restrictions on how cities can educate the public or promote the measure to avoid disproportionately influencing the election.

Generally, agencies can spend money on analyses and informational reports about the impact of a ballot measure, but they cannot use public funds to mount a campaign, according to the Institute of Local Government.

What is clear, however, is that communications about government business on private phones, laptops and email accounts are public record.

The state Supreme Court’s decision is retroactive, so existing government information on private devices cannot legally be erased.

Some residents have accused the City Council, through their approval of the recount and use of city staff time on the recall, of using public funds for political purposes.

Bieber claims councilmembers Tim Brown, Chris Hamm, and Ward, and Makshanoff and City Clerk Joanne Baard “participated in a conspiracy to use public resources to fund a political recount,” according to the lawsuit.

He points to Baard’s work organizing the recount – such as sending emails and letters on the city letterhead to the Registrar of Voters – as violating the prohibition on using public funds for political activity.

Contact Thy Vo at tvo@voiceofoc.org or follow her on Twitter @thyanhvo.

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