NEWARK -- The school board is negotiating a new superintendent's contract this week as a question arose over whether the board violated the state's open meeting law.

On Friday, board members rejected Superintendent Dave Marken's attempt to rescind his resignation, then refused to reveal how each member voted. That refusal violated state law, an open meetings expert said this week.

But the district's attorney, Lou Lozano,¿ said his view "at the time" was that trustees only need to report votes on motions that pass.

However, the board's attempted secrecy violated state law, said Terry Francke, founder of Californians Aware, a nonprofit organization dedicated to open government. The Brown Act says local government boards must report how each member voted on any action taken, Francke said.

"What (the board is) saying is it's all in how you formulate the motion, and I don't believe the Brown Act puts up with such exercises in semantics," he said. "The public has a right to know who did what on that issue, no matter how the motion was framed."

Lozano said Wednesday that he did not have the Brown Act statutes in front of him when "the question was posed on the fly" at the meeting.

"The law is not always black and white," Lozano said. "My view at the time was that it is not legally required."

The board this week revealed only that a motion for Marken's request to stay with the district lost on a 3-2 vote.

Trustees will consider saying how each member voted when they meet Tuesday, board President Nancy Thomas said.


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"I think reporting out our votes should be done at a regular board meeting with board member consent," she said in an email, "Or as a correction if it was a Brown Act violation, which our attorney has said it is not."

Thomas has not revealed how she voted but said: "I have always supported Dr. Marken and have not wanted him to leave."

Board members Charlie Mensinger and Gary Stadler said this week that they voted against letting Marken rescind his resignation. Trustee Ray Rodriguez declined to comment, and Jan Crocker could not be reached for this story.

At Friday's meeting, the board interviewed an unidentified superintendent candidate in closed session for more than two hours and announced it had selected a finalist.

Earlier this week, Lozano said he called Marken to say the board felt it "might be in their best mutual interest" if he stepped down sooner than his Sept. 30 resignation date. Marken said he was asked to leave to make room for the new superintendent. His last day now is Friday.

That move has further angered Marken supporters already upset that his offer to stay was rejected.

Asking him to leave early "seems odd because wouldn't the district be stronger if the new superintendent has collaborative overlap with the current one?" said Noel Doot, a Newark special education aide. "I hope this isn't the case, but it seems rather insulting and retaliatory, like the board is saying, 'Look what we can do.'"

Lozano said Newark Unified's five trustees deserve praise.

"The board members are good people; they want to do well, and their only interest is in making the school district better," he said.

The new superintendent will be announced when contract negotiations are finished, perhaps as soon as Thursday, district leaders said.

For his supporters, Marken's offer to stay was a chance to heal the district's divisions. But that opportunity was lost with Friday's vote, Doot said.

"There was widespread disappointment and there were tears," she said. "It was clear what the public wanted the board to do, and they had every opportunity to redeem themselves, to change their minds with grace. But they didn't."

Contact Chris De Benedetti at 510-353-7011. Follow him at Twitter.com/cdebenedetti.