Attorney alleges FUSD trustee wrongly changed his vote out of public eye

An attorney is alleging that Fresno Unified school board member Brooke Ashjian wrongly changed a vote after a public meeting in order to protect himself from a potential legal threat. But Ashjian – a longtime critic of Superintendent Michael Hanson – says the allegations are just the latest in a smear campaign against him orchestrated by district leaders.

The vote happened at a school board meeting June 1 and pertained to a $9 million school construction project that was re-bid after it was revealed that Ashjian’s company, Seal Rite Paving, was listed as a subcontractor on the project. The district is now scrutinizing Ashjian’s business deals and questioning whether they pose a conflict of interest with his position on the board.

A video of the June 1 meeting shows Ashjian voted to approve the consent agenda that included the project in question. But at the next board meeting on June 15, video shows that Ashjian contended he voted to abstain, asking to correct the record.

“Where they have me as approval, that was an abstain,” Ashjian said at the later meeting. School board president Luis Chavez replied: “Correct, you registered that abstain.” Trustees Janet Ryan and Christopher De La Cerda then abstained from approving those modified meeting minutes – an item that typically is approved without question.

The minutes from the June 1 meeting say that Ashjian abstained from the vote, despite there being no public record of that. Ashjian said that during the meeting, he asked the secretary to change his vote to an abstention and that Chavez approved it. Ashjian and Chavez say they both talked to the secretary following the meeting to ask her to change the record to reflect an abstention. The video of the public meeting does not show these exchanges.

“It happened so fast. The second that it happened, I turned to the board secretary and said, ‘Wait, I need to abstain.’ And she said OK,” Ashjian said. “I abstained from the vote. Whether it was at the exact right moment, what’s the difference? I abstained at that meeting.”

But Kenneth Mackie, a Merced-based attorney who says he was hired by a group called Fresno Watchdogs for Ethical Bidding, alleges Ashjian’s actions are illegal. Mackie points to state law that says the alteration or falsification of a public record is punishable by imprisonment.

“You don’t change your vote after the meeting was adjourned. The official vote is the official vote – anything after the meeting is inappropriate, very inappropriate,” Mackie said. “The public record (video) shows he voted in favor of this. It looks like a coverup.”

Fresno Unified spokesman Miguel Arias said that while board policy allows trustees to make amendments to meeting minutes, it does not allow for changing of a vote.

“Fresno Unified Board of Trustees does not have an established practice of members changing their votes in the minutes of a board meeting, nor is the current district administration aware of any previous situation in which a board member has done so,” Arias said.

According to the Brown Act, all votes except for those cast in permissible closed session must be made in public. Peter Scheer, executive director of the First Amendment Coalition – a nonprofit dedicated to open meetings laws – says Ashjian violated the Brown Act, but that it’s not a serious violation.

“The spirit of the act certainly doesn’t allow for somebody to vote publicly, then quietly change their vote. But it didn’t alter the outcome of the vote, and (Ashjian) tried to change it,” Scheeer said. “The change was made public – not when it ought to have been – but at least it was made public.”

Chavez confirmed that Ashjian informed him of “his desire to modify his vote” at the June 1 meeting. Trustee Carol Mills says she witnessed Ashjian and Chavez ask the secretary to record an abstention following the adjournment of the meeting. In an email, legal counsel for the district also acknowledged Ashjian’s attempt to abstain.

Mackie said he plans to file several complaints about Ashjian with the California Fair Political Practices Commission regarding the vote and other issues concerning Ashjian’s outside businesses.

In September, Fresno Unified received a much more detailed financial disclosure form from Ashjian, leading the district to question if his work with some companies creates an “indirect conflict of interest,” since the district also employs them.

“If (Ashjian) wanted to change his vote to an abstention, he failed to do a very crucial step, and that is disclosure. Doing it after the meeting avoids disclosure to the public,” Mackie said. “This is a guy that demands full disclosure from everybody but himself apparently.”

Mackie has refused to disclose who is behind the watchdog group that has hired him to look into the allegations.

Ashjian has been a vocal critic of the district since it was served with a subpoena last year, demanding Hanson and top administrators be more transparent about the ongoing federal investigation of its use of public money to pay no-bid contracts.

Ashjian said the district’s recent questions about his business are merely a political attack. “I always heard that people were afraid to say something. Now because I’ve been speaking up, look at what they’ve been trying to do to me. And I’m the boss,” he said. “We’ve got to change this culture of fear and retaliation. I’m not going to stop until it’s changed.”

This story was originally published October 3, 2016 at 4:30 PM with the headline "Attorney alleges FUSD trustee wrongly changed his vote out of public eye."