The battle over who gets to use a name of a group critical to a Fresno school board president may be headed to the courts.
Fresno Watchdogs for Ethical Bidding is an anonymous group publicly represented by Merced attorney Kenneth Mackie. They have openly questioned Fresno Unified School District President Brooke Ashjian over his votes on awarding construction contracts. Mackie has filed complaints with the state’s election finance monitor, the Fair Political Practices Commission, alleging Ashjian committed a variety of infractions ranging from failure to report income to failing to disclose partnerships of construction companies he later voted to award contracts to.
Ashjian has struck back by having his attorneys incorporate a company using that same Fresno Watchdogs for Ethical Bidding name. They served Mackie a cease and desist order as he was prepared to address the school board Aug. 9. That document warned Mackie that he could no longer claim to represent a group called FWEB because Ashjian is laying claim to it.
Mackie responded with a lawsuit in Fresno Superior Court asking a judge to prevent Ashjian’s group from using the name. Mackie’s suit says that even though his group never trademarked the name, they have been using it since March 2016 and cite several media stories as proof.
“The name Fresno Watchdogs for Ethical Bidding is associated with a group of one or more individuals who wish to remain anonymous, who have, through Mr. Mackie, brought to the public’s and Fresno Unified School District’s, attention certain actions committed by Ashjian that have led to the FPPC investigations,” the suit alleges.
“Confusion is anticipated,” the suit also states. “The intent behind forming Corporation C4048044 (Mackie’s term for Ashjian’s FWEB group) with the same name … is to confuse the public, solicit donors, and silence the original Fresno Watchdogs for Ethical Bidding by stripping it of the identity it has developed over the past year and four months.”
The lawsuit also says Mackie’s group is protected by the right of privacy.
Ashjian’s attorney, Terry Martin, says they have yet to be served with the lawsuit and aren’t paying it much respect. In a statement to GV Wire, Martin wrote:
“This lawsuit is a baseless attempt to use our name in connection with a shadowy effort to harass members of the Fresno Unified School District Board of Trustees. To be sure, Kenneth Mackie has no trademark in the name Fresno Watchdogs for Ethical Bidding. He cannot, as the organization has NEVER used the name in a commercial context, which is necessary to acquire a trademark. Indeed, his ‘organization’ is a farce. It has no members and no activity whatsoever besides Kenneth Mackie’s frequent visits to meetings of the Fresno Unified School District Board of Trustees to use the name as an alias to harass Board members. Nobody has ever heard of a single other person having been associated with that name, and the implication from Mackie’s frequent statements that it is simply comprised of ‘one or more individuals’ betrays his true purpose. “
Martin went on to say Ashjian’s FWEB group “strive to educate the public about ethical practices in government, and serve as a ‘watchdog’ group to that effect.”
Martin also said that if they are served with the suit, they “intend to file an anti-SLAPP motion, since such lawsuit arises out of our exercise of our First Amendment rights to educate the public about issues germane to our mission. At such a time, Mackie’s lawsuit will be stricken and we will be entitled to our attorney’s fees for defending against such a ridiculous claim.”
California enacted anti-SLAPP (Strategic Lawsuit Against Public Participation) legislation to prevent frivolous lawsuits aimed at denying people their Constitutional rights.
If Mackie’s suit goes forward, it would likely follow the usual civil trial process: discovery (the exchange of evidence), depositions (pre-trial questioning of the parties and witnesses by attorneys that are often video recorded), and a trial.
Would Mackie then have to finally reveal who is behind his FWEB group? He has cited attorney-client privilege when asked repeatedly by this reporter and others that question. It’s an answer that followers of this drama, and Ashjian himself, would like to know for sure.