BOE finds ex-PSS commissioner’s argument puzzling

The Board of Education and its members are puzzled over the argument of former Public School System commissioner Cynthia I. Deleon Guerrero in her motion that asked the federal court to reconsider its decision to dismiss her claims against the BOE and its members over her termination.

The board and its members, through special assistant attorney general Tiberius D. Mocanu, said Deleon Guerrero argues that she should be entitled to a pre-termination hearing because BOE chair MaryLou S. Ada had stated that she did not get along with her.

Mocanu said that, in her motion for consideration, Deleon Guerrero contests the accuracy of that statement. Mocanu asked how is that even possible.

“How could anyone contest the stated subjective feelings of another person? What would the goal of that hearing even be?” the lawyer asked. He urged Deleon Guerrero to produce evidence that Ada did, in fact, get along with her.

The most absurd part of this argument, Mocanu said, is that if Deleon Guerrero succeeds in proving the statement false, it would make her case worse, not better. Meaning if Deleon Guerrero proves she and Ada did get along, then her termination really could not be “for cause,” let alone an illegal one.

“They get along, after all,” Mocanu added.

The board and its members do not believe that Deleon Guerrero’s motion for reconsideration raises any new issues of law or posits any argument that would disturb the court’s “sound reasoning.”

First of all, Deleon Guerrero herself agrees that she is an at-will employee, Mocanu said.

This ends the analysis, he said.

He said the court’s decision and the totality of the federal law stands for the proposition that an at-will employee does not have a property interest sufficient to make out a claim for procedural due process under the 14th Amendment.

The lawyer said Deleon Guerrero’s simple retort is that she had a contract for four years, she was terminated after only one, and that she had a property right in continuing her job for the rest of her term. “This misses the point,” Mocanu said.

He said Deleon Guerrero’s contract for four years and the accompanying statute creates a term limit on employment, not a guarantee. “In other words, the four-year term is a ceiling, not a floor,” he said.

Mocanu said this is the case because both the contract and the statute contemplate her possible removal prior to the expiration of her term.

Thus, he said, if an “expectation” analysis is conducted to determine what reasonable expectation Deleon Guerrero had in her continued employment, the answer is simple.

Mocanu said Deleon Guerrero had the expectation that she would serve a term no longer than four years unless reappointed by the board, and that she could be terminated prior to the end of her term—for cause or without cause.

Mocanu said if Deleon Guerrero was terminated without cause, she would be entitled to a lump sum payment of several pay periods.

He said Deleon Guerrero also contends that she was removed “for cause,” namely that the board stated that they did not get along with her.

Mocanu said all terminations are predicated on a motivation.

He said Deleon Guerrero makes no allegation of discriminatory animus and thus cannot sustain any argument stemming from her claim that the termination was really “for cause.”

Last May 30, U.S. District Court for the NMI Chief Judge Ramona V. Manglona dismissed with prejudice Deleon Guerrero’s remaining two claims in her lawsuit: violation of her due process rights and conspiracy to violate her due process rights.

Dismissal with prejudice means Deleon Guerrero can no longer re-file the claims.

Deleon Guerrero then asked the court to reconsider.

Deleon Guerrero, through counsel Brien Sers Nicholas, asserted that the manifest errors of law in her case will make her suffer injustice.

Nicholas argued, among other things, that Deleon Guerrero is entitled to due process as she has a “property interest” in her employment.

Deleon Guerrero is suing the board and its members for terminating her as the PSS commissioner last October. She is demanding $350,000 in damages.

Deleon Guerrero claimed that her termination was in retaliation for her questioning BOE’s micromanagement of PSS and her refusal to transfer $175,000 to the board’s account. The BOE has denied the allegations.