When the Fresno Unified School Board holds its bi-monthly meetings, community members who want to comment on scheduled agenda or unscheduled items must submit their statements by voicemail or email by 8 p.m. the day before.

That appears to be a violation of California’s Brown Act, which mandates giving the public the opportunity to directly address board members about their actions, First Amendment Coalition executive director David Snyder tells GV Wire℠.

And if Fresno Unified were to wind up in court over the matter, Snyder believes it “very likely” that a judge would rule that the district is violating the Brown Act by not providing the opportunity for real-time, live comments during board meetings.

District Says It’s Following The Law

Fresno Unified, however, says it’s adhering to the Brown Act. In response to queries that GV Wire℠ sent to trustees this week about the board’s public commenting process, chief of staff David Chavez said that the district gives the public ample time to provide comments prior to meetings.

For example, he said, the agenda for Wednesday’s board meeting was posted online at 11:30 a.m. Oct. 9, which gave the public 11 days to submit comments.

Asked if the district’s lawyers have weighed in on whether Fresno Unified is adhering to the Brown Act when live public commenting is not allowed during the board meetings, Chavez said, “Legal counsel has been involved in our implementation of the Public Comment process from the beginning to ensure we were in compliance with all requirements.”

Other Districts Take Phone Calls from Public

Of Fresno’s three largest school districts, only Fresno Unified does not provide the opportunity for public comment during the meetings. The school boards in Central Unified and Clovis Unified are meeting in person and provide the opportunity for in-person and phone commenting.

At Clovis Unified’s board meeting on Wednesday night, for example, trustees took phone calls from the public after a lengthy discussion by administrators and trustees about the district’s plan to reopen elementary schools.

Central returned to in-person meetings on Oct. 13 but previously allowed the public to call in and comment during its virtual board meetings.

Having the ability to speak directly to the school board, and also to respond to their actions, is key to representational democracy, which the Brown Act is designed to support, Snyder said. The First Amendment Coalition is a San Rafael-based nonprofit that focuses on open and accountable government.

Governor’s Emergency Order Allowed Virtual Meetings Under Brown Act

Gov. Gavin Newsom’s emergency order N-29-20 in March permitted virtual public meetings under a temporary exemption to the Brown Act’s requirements. The goal was to slow the spread of the coronavirus.

But legislative bodies like school boards still need to allow for real-time, live commenting and feedback during meetings, Snyder said, calling it “one of the core rights of the Brown Act. … Agencies ought to be doing their level best to replicate public meetings as closely as possible.”

Fresno Unified initially allowed comments to be submitted a few hours before the start of board meetings but later moved the deadline to the day before.

But expecting the public to provide a comment or reaction before the board has even acted unreasonable and violates the spirit of the Brown Act, Snyder said.

Keep Cameras On

Constituents should be able to look their elected officials in the eye — even if it’s on a computer screen — while addressing them, he said.

By turning off their cameras during meetings, as some Fresno Unified trustees have done, constituents are prevented from seeing trustees’ reactions that normally would be visible during a public meeting, he said.

It would be as if an elected official stepped behind a curtain or left the room while a member of the public was commenting during an in-person meeting, Snyder said.

“Few people would find that acceptable,” he said.

How Brown Act Is Enforced

Enforcement of the Brown Act can come through action by a District Attorney’s Office, which can charge suspected offenders with misdemeanor offenses, or through a civil lawsuit, Snyder said.

Jerry Stanley, spokesman for the Fresno County District Attorney’s Office, said the office’s Public Integrity Unit has not received complaints about Fresno Unified’s current meeting process.

Fresno Unified could take another look at allowing real-time commenting from the public during board meetings, president Keshia Thomas told GV Wire℠: “I don’t see any reason why not.”