Bobby Cruz
THE Public School System’s mental health program director, Bobby Cruz, Ed.D., filed a motion Thursday with the Board of Education to disqualify its pro tempore administrative hearing officer from hearing his sexual harassment grievance against former Education Commissioner Alfred B. Ada, Ed.D.
On behalf of Cruz, his attorneys Robert T. Torres and Charity R. Hodson also moved that the BOE enter a finding that the complainant has exhausted his administrative remedies.
The BOE said it has “no comment at this time.”
According to Cruz’s attorneys, the pro tempore administrative hearing officer, Catherine J. Cachero, “engaged in impermissible ex parte communications with BOE through its legal counsel, Tiberius Mocanu, in which [Cachero] was directed by the BOE on what issues would be heard.”
Cruz’s motion stated that at the direction of the BOE, Cachero “limited the issues to be heard at Dr. Cruz’s administrative hearing, in violation of Dr. Cruz’s constitutional right to due process, and in violation of the ethical duties of a hearing officer to preside over administrative hearings with impartiality and to abstain from ex parte communications.”
In August last year, Cruz, through Hodson, filed a sexual harassment grievance against Ada, and asked the BOE to remove the education commissioner.
Ada “categorically denied” the allegations. He later announced his resignation due to “health concerns.”
In light of this development, Mocanu, in an email to Cachero on Aug. 28, 2023, stated, “As you likely read, Mr. Ada has resigned as COE of PSS. As such, I believe the harassment portion of the grievance has become moot. However, there remains the issue of what salary Mr. Cruz should be paid. I was hoping you could make that determination as a hearing officer and render a decision on the matter. Please let me know if that is your understanding of the situation as well.”
In her reply, Cachero told Mocanu: “I am aware of Dr. Ada’s resignation as Commissioner of Education. I am not sure if you are aware, but I also understand that Charity and Dr. Ada provided statements and were interviewed by KUAM News, which [was] posted today, and in her interview, Charity confirmed that a ‘sexual harassment grievance’ was filed by her client, Dr. Cruz, against Dr. Ada with [the] BOE.”
Cachero further told Mocanu: “On the matter of how Dr. Ada’s resignation affects the proceedings before me and the BOE, I believe that the resignation does not in effect limit Dr. Cruz’s grievance to just contractual claim. Unless I am missing something, e.g. a global settlement by PSS of Dr. Cruz’s EEOC claims that included a settlement of Dr. Cruz’s discrimination claim…, I am not entirely sure how Dr. Ada’s resignation could limit the grievance to just the contractual claim.”
Cachero also said: “Please let me know if you want to discuss further…I look forward to hearing from you on how the BOE wants me to proceed.”
Hodson and Torres said these emails between Cachero and Mocanu “indicate that the two had a call or actual meeting in which the ex parte communications continued, resulting in [Cachero’s] issuance of an order on October 20, 2023, setting the administrative hearing and stating that the only issue she would hear was Dr. Cruz’s salary claim.”
The emails were only provided to Cruz after his counsel submitted an Open Government Act request, specifically requesting such communications, Torres and Hodson said.
They added that their client “objected to the unlawful reduction of his grievance in writing and on the record multiple times thereafter, the most recent objection occurring at the administrative hearing which began on January 16, 2024, and is scheduled to proceed on February 14, 2024.”
Hodson and Torres further stated that while the hearing officer decided to allow testimony of sexual harassment based on Cruz’s allegation that the proposed reduction was attributable to the sexual harassment, her final decision was that the only issue would be whether the threat to Cruz’s salary was improper, and not the issue of whether sexual harassment occurred.
Hodson and Torres said Cachero must be disqualified from presiding over the administrative hearing. They said Cruz calls upon the BOE members, for the third time, to issue a decision that he has exhausted his administrative remedies.
They noted that “this matter has now been pending for 14 months. Members of the board making decisions on this issue include a board member who is related to Dr. Ada and impermissibly participated in the decision to direct [Cachero] not to decide the issue of whether her brother-in-law Dr. Ada sexually harassed Dr. Cruz and other PSS employees for the last decade.”
The lawyers reiterated that the BOE initiated and engaged in ex parte communications with the pro tempore administrative hearing officer they had appointed supposedly to be fair and neutral, “which misconduct now requires her disqualification.”
“This is not a fair or impartial process and Dr. Cruz has exhausted every opportunity to try to present his case,” his lawyers said.
“PSS and the Board have demonstrated that [they are] unable to provide that forum. Despite PSS’s repeated anthems of transparency and integrity, the only transparent takeaway here is that PSS is determined to bury what is obviously a continuing sexual harassment problem at PSS. And who would expect any different? If PSS allows sexual harassment to occur to multiple employees by the head of the institution, the Commissioner of Education, how would anyone expect that sexual harassment would not multiply and flourish for the last decade, now apparently to the detriment of underage students?” the lawyers asked.
“There is no transparency where the Board engages in secret communications and directives to the hearing officer. There is no integrity when the Board dictates what issues can be heard by controlling the hearing officer. The pro tem administrative hearing officer must be disqualified and the Board must issue a decision that administrative remedies have been exhausted,” the lawyers added.
