14-004303TTS Broward County School Board vs. Nicole Pollino Status: Closed Recommended Order on Thursday, April 30, 2015.

Summary: Just cause exists to suspend the employment of Respondent, a teacher, for five days without pay, for gross insubordination for failure to follow FCAT testing protocols.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 14 - 4303TTS

NICOLE POLLINO,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal admi nistrative hearing was

conducted before Administrative Law Judge Mary Li Creasy by video

teleconference at sites in Tallahassee and Lauderdale Lakes,

Florida, on February 19 , 2015.

APPEARANCES

For Petitioner: Adrian J. Alvarez, Esq uire

Ha liczer, Pettis, and Schwamm, P.A.

One Financial Plaza, Seventh Floor

100 Southeast Third Avenue

Fort Lauderdale, Florida 33394

For Respondent: Melissa C. Mihok, Esquire

Melissa C. Mihok , P.A.

1718 East Seventh Avenue , Suite 301

Tampa, Florida 33605

STATEMENT OF THE ISSUE

Whether Petitioner has just cause to suspend Respondent, a

classroom teacher, for five days without pay based upon her

failure to fol low the officially assigned Florida Comprehensive

Assessment Test ( FCAT ) testing schedule, as alleged in the

Administrative Complaint.

PRELIMINARY STATEMENT

At its regularly scheduled meeting on June 24 , 2014, Broward

C ounty School Board (Petitioner or Sch ool Board ) voted to suspend

the employment of Nicole Pollino (Respondent) for five days

without pay . On August 20 , 2014, Respondent requested a formal

administrative hearing to contest Petitioner ' s action. On

September 15 , 2014, Petitioner forwarded the request to the

Division of Administrative Hearings, which scheduled and

conducted the hearing.

The matter was originally set for hearing for December 2,

2014. The matter was rescheduled twice based upon the parties '

j oint motions for continuance. On Febr uary 10 , 201 5 , the parties

filed a Pre - hearing Stipulation, including a statement of agreed

facts that have been adopted and incorporated herein as

necessary.

At the final hearing, which took place on February 19,

2015, Petitioner called the following witn esses: Cheryl Cendon,

Principal of Millennium Middle School (MMS); Berta Hernandez -

Berkowitz, Guidance employee at MMS; Sandy Leung, teacher at

MMS; and Sophia Shaw, teacher at MMS. Petitioner ' s Exhibits 1

through 3, 5 through 8, 10, 12 and 13 were admit ted in evidence.

Respondent testified on h er own behalf and Kim Baker and Helen

Vargas, both teachers at MMS, also testified on Respondent ' s

behalf. Respondent ' s E xhibits 1 and 2 were admitted in evidence .

The two - volume final hearing T ranscript was fi led on

March 27 , 2015 . 1/ Both parties timely filed proposed recommended

orders which were considered in the preparation of this

Recommended Order.

Unless otherwise noted, citations to the Florida S tatutes

and administrative rules refer to the version s i n effect at the

time of the events giving rise to the charges identified in the

Administrative Complaint .

FINDING S OF FACT

1. Petitioner is a duly - constituted s chool b oard charged

with the duty of operating, controlling, and supervising all

free public sc hools within Broward County , Florida, pursuant

to A rticle IX, section 4(b) , Florida Constitution, and

section 1001.32, Florida Statutes.

2. At all times material hereto, Respondent was employed as

a seventh grade teacher at MMS , a public school in Broward

County, Florida. Respondent has been employed by the School

Board for approximately ten years pursuant to a professional

service contract and subject to Florida Statutes, the regulations

issued by the Florida State Board of Education , the policies and

pr ocedures of the School Board , and the collective bargaining

agreement between the Broward Teacher ' s Union (BTU) and the

School Board . Prior to teaching at MMS, Respondent taught school

in Dade County for approximately 15 years.

3. T he FCAT is a test whic h was given annually since 1998

through the 2013 - 2014 school year to all Florida public school

students in grades three through 11. The test measures student

achievement in reading, writing, mathematics, and science based

on the state ' s grade - level standa rds. 2 / Respondent proctored FCAT

exams since the test ' s inception.

4 . S tate, district , and school level training is provi ded

annually to teachers, including R espondent, so they may comply

with FCAT requirements and avoid potential ramifications to the

sc hool or the students for violation of those requirements.

5 . Ramifications for failing to comply with FCAT

requirements include sanctions against the teacher and/or the

school , and po ssible termination or in validation of a school ' s

letter grade.

6. Teach ers are specifically educated on the process of

obtaining certification numbers and si gn ing a receipt for certain

materials designated to them for FCAT testing purposes.

Furthermore, the teachers are provided a three - digit code which

is provided to the st udents so that the S tate knows which

teachers proctored which exams. The requirements and safeguards

relating to properly proctoring and administering the FCAT

testing are important to the integrity of such tests.

2013 FCAT

7 . The FCAT for the 2012 - 2013 school year was administered

at MMS in April 2013. Respondent was the testing p roctor during

the mathematics FCAT on April 15, 2013.

8 . Respondent provided the students a testing reference

sheet for the End of C ourse exam for an algebra class rather than

the F CAT r eference sheet. According to Respondent, this was the

sheet that was distributed to her to provide to the students from

the Guidance Department. This error was brought to Respondent ' s

attention by students during the first session of the exam.

Believing that she was not permitted to discuss the contents of

the exam with the students, Respondent instructed the students to

do the best they could with what they had.

9 . It is alleged that R espondent failed to follow

appropriate testing procedures by not timely contacting

administration or a d d ressing the problem when the students

brought it to her attention during session 1 of the FCAT Math

test. Respondent ' s failure to address the situation ,

immediately, or during a scheduled break in the testing , led to

the use of the wrong reference sheet for the second session as

well as the first . U ltimately , the FCAT was invalidated for

Respondent ' s students and the school district had to purchase an

alternative exam for the students who were not provided th e

proper FCAT reference sheet.

10 . Respondent received a one - day suspension without pay ,

based on her failure to follow proper FCAT testing protocols ,

which Respondent did not contest.

2014 FCAT

11 . The FCAT testing process has been supervised by

Princip al Cheryl Cendon since she opened MMS as its Principal in

2002. Principal Cendon ' s process regarding the scheduling of

FCAT testing , and assignment of teachers to groups of students to

proctor , was consistent through the 2013 Î 2014 school year. FCAT

admin istration requires a complex schedule because of limited

computer a vailability and teachers ' scheduled planning periods

and lunchtimes.

12 . The first step in this process is for Principal Cendon

to prepare a draft schedule which she then shares with teach ing

teams to solicit their input. After receiving teacher input,

P rincipal Cendon ' s second step is to meet with technical

personnel to ensure that the appropriate number of computers is

available for the testing as scheduled. The third step is for

princi pal Cendon to meet with E xceptional S tudent E ducation (ESE)

and English for S peakers of O ther L anguages (ESOL) teachers to

determine whether special accommodations are required for

particular students.

13 . The fourth and final step for Principal Cendon is to

prepare a final schedule on colored paper to be disseminated at

the FCAT teacher training session approximately two weeks prior

to the beginning of testing.

14 . During Principal Cendon ' s tenure at MMS, teachers have

often been assigned to proctor thei r Monday morning , first block ,

students for standardized testing, including for the FCAT.

However, there is no requirement that teachers be assigned these

groups and Principal Cendon has assigned different groups of

students to teachers as needed in the p ast.

15 . Approximately two weeks prior to FCAT testing, the

school transmits to the S tate a list of which students will be

tested at what time, in which classroom , and by which teacher.

The S tate then generates a ticket for each student which is

provided to the students on the day of the test. On test day,

t eachers are required to pick up and sign o ut their assigned

materials from a secure room monitored by Guidance . No one has

the authority to modify the final schedule other than Principal

Cendon.

16 . Respondent was on the " Innovators " teaching team during

the 2013 - 2014 school year which included four other teachers.

Principal Cendon met with the Innovators team for a " data chat "

on February 14, 2014, to review the first draft of her FC A T

schedule. A t this meeting there was a discussion regarding

changing the time of the testing for one lab but no discussion

regarding which students were assigned to which teachers. Some

members of the Innovators team, including Respondent , were not

assigned their Mon day morning, first block, students.

17. On April 9 , 2014, MMS teachers, including Respondent,

attended FCAT training and received the final FCAT testing

schedule and assignment printed on blue paper which had been

prepared by Principal Cendon. This train ing included a

PowerPoint presentation. On the fourth slide under the heading

" testing reminders, " teachers were instructed:

R efer to schedule set up for each grade

level. ASK QUESTIONS BEFORE TESTING BEGINS.

Follow exact testing time and day for each

s ession, NO DEVIATIONS.

FAILURE TO COMPLY WITH THESE RULES MAY RESULT

IN REPRIMAND, C RIMINAL PENALTY OR LOSS OF

CERTIFICATION.

18. Between February 14, 2014 , and the first day of FC A T

test ing , April 23, 2014, Respondent did not request a change in

the sc hedule from either Guidance or Principal Cendon.

19. Respondent was concerned that she was not assigned her

Monday morning block of students (Innovators E) for the 2014

FCAT.

20. Sometime after receiving the draft schedule in

February 2014, R espondent addressed her concerns with I nnovators

T eam L eader , Kim Baker. E ither before or after receiving the

draft schedule , Ms. Baker briefly spoke separately to Principal

Cendon and G uidance employee, Berta Hernandez - Berkowitz , and

stated " we ' re testing our regu lar Monday morning groups " t o which

Principal Cendon and Ms. Hernandez - Berkowitz purportedly said

" yes. " In fact , Ms. Baker was assigned her Monday morning group

of students.

21. Respondent believes she had a similar conversation

with Ms. Hernandez - Berko witz in passing. 3/ Neither Respondent nor

Ms. Baker advised P rincipal Cendon or Ms. Hernandez - Berkowitz of

their belief that the final schedule was in error because several

team members were assigned students other than the ir Monday

morning, first block.

2 2 . Based upon these informal and brief conversations ,

Respondent and Ms. Baker decided to create a different schedule

for the Innovators team after distribution of the final schedule

on April 9, 2014. Respondent prepared the revised schedule for

the wee k of the FCAT because she had a teaching schedule template

on her computer . Respondent disseminated it to the Innovators

teachers by e - mail on or about April 14, 2014 , and also advised

several team members verbally prior to the FCAT on April 23 to

follow the schedule which she (Respondent) created . Respondent

did not send the revised schedule to Guidance or Principal

Cendon.

23. Two members of the team, Sophia Shaw and Sandy Leung,

were confused by the e - mail and direction from R espondent and

asked the F CAT C oordinator, Janet Jackson, prior to the test,

which schedule to follow. They were instructed by Ms. Jackson to

follow the blue schedule , which was the final schedule prepared

by Principal Cendon.

24. On the first morning of FCAT testing, April 23, 2 014,

Respondent reported to the secure room and signed out the bin of

materials for Innovators E, her Monday morning group, rather than

her assigned group of Innovators B . Similarly, Ms. Vargas signed

out the bin of test materials for her Monday morning g roup,

Innovators D , rather than her assigned group for FCAT,

Innovators C.

2 5 . When Ms. Leung arrived to sign out her assigned bin

for Innovators D, she initially grabbed the wrong bin for

Innovators B because the materials for D h a d already been remov ed

from the room by Ms. Vargas. Ms. Leung realized the error

because Innovators B was assigned to Respondent. Ms. Leung

brought this error to the attention of Ms. Jackson. Respondent

and Ms. Vargas were instructed to immediately return to the

secure roo m to pick up the correct materials as assigned on the

final schedule prepared by Principal Cendon.

2 6 . When Ms. Shaw arrived to pick up her assigned materials

for Group E, she found they had already been checked out by

Respondent and only the materials fo r Group C remained. Both

Ms. Leung and Ms. Shaw had to wait for their materials to be

returned to the test room and be recounted before they could go

to their classrooms. This resulted in a delay of the start of

the test for Ms. Shaw ' s students.

CONCLUSI ONS OF LAW

2 7 . DOAH has jurisdiction over the parties to and the

subject matter of these proceedings pursuant to sections 120.569

and 120.57(1), Florida Statutes.

2 8 . Because Petitioner , acting through the S uperintendent,

seeks to suspend Respondent ' s em ployment without pay , which does

not involve the loss of a license or certification, Petitioner

has the burden of proving the allegations in its Administrative

Complaint by a preponderance of the evidence, as opposed to the

more stringent standard of clear and convincing evidence. See

McNeill v. Pinellas Cnty. Sch. Bd. , 678 So. 2d 476 (Fla. 2d DCA

1996); Allen v. Sch. Bd. of Dade Cnty. , 571 So. 2d 568, 569 (Fla.

3d DCA 1990); Dileo v. Sch. Bd. of Dade Cnty. , 569 So. 2d 883

(Fla. 3d DCA 1990).

2 9 . Section 1012.33(1)(a) , Florida Statutes, includes the

following definition of just cause to terminate a teacher ' s

professional services contract:

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Educati on: immorality,

misconduct in office or being convicted or

found guilty of, or entering a plea of guilty

to, regardless of adjudication of guilt, any

crime involving moral turpitude.

30 . The Administrative C omplaint alleges that Respondent ' s

failure to follow clear instructions and directives about FCAT

testing constitutes misconduct and insubordination in violation

of section s 1008.24 and 1022.33 , Florida Statutes , and Florida

Administrative Code R ule 6A - 5.056.

31 . Whether Respondent committed the char ged offenses is a

question of ultimate fact to be determined by the trier of fact

in the context of each alleged violation. Holmes v. Turlington ,

480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor , 667 So. 2d

387, 389 (Fla. 1st DCA 1995); Langston v. Jam erson , 653 So. 2d

489, 491 (Fla. 1st DCA 1995).

3 2 . Section 1001.02(1) grants the State Board of Education

authority to adopt rules pursuant to sections 120.536(1) and

120.54 to implement provisions of law conferring duties upon it.

Misconduct in Office

3 3 . Consistent with its rulemaking authority, the State

Board of Education has defined " misconduct in office " in r ule 6A -

5.056(2), which reads in pertinent part as follows:

(2) " Misconduct in Office " means one or more

of the following:

(a) A violation of the Code of Ethics of the

Education Profession in Florida as adopted in

Rule 6B - 1.001, F.A.C.;

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1.006, F.A.C.;

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the student ' s

learning environment; or

(e) Behavior that reduces the teacher ' s

ability or his or her colleagues ' ability to

effectively perform duties.

3 4 . No evidence was presented to demon strate that

Respond e nt violated the C ode of Ethics, the Principles of

Professional Conduct , or any adopted S chool B oard rule. No

evidence was presented that demonstrated that the confusion

created on the morning of the test by Respondent ' s actions

disrupt ed the learning envir o n men t. At most, the students of

Ms. Shaw were briefly delayed in the beginning of the test day.

3 5 . Only due to the common sense used by Respondent ' s

colleagues on the morning of the FCAT , in questioning why they

should disregard th e final schedule in favor of Respondent ' s

schedule, the mix - up of assigned testing materials did not result

in a redu ction of either Responde n t ' s or her colleagues ' ability

to effectively perform their duties. Accordingly, Petitioner

failed to demonstrate by a preponderance of the evidence that

Respondent engaged in " misconduct in office. "

Insubordination

3 6 . " Gross Insubordination " is defined as " the intentional

refusal to obey a direct order, reasonable in nature, and given

by and with proper authority; misfeasance, or malfeasance as to

involve failure in the performance of the required duties. " Fla.

Admin. Code R . 6A - 5.066(4).

3 7 . Section 1008.24 governs test administration and

security. In relevant part, section 1008.24(1)(f) and (g)

provide s a pers on may not knowingly and willfully " fail to follow

test administration directions specified in the test

administration manuals " or " participate in, direct, aid, counsel,

assist in, or encourage any of the acts prohibited in this

section. " V iolation of the se provisions constitute s a

misdemeanor in the first degree. § 1008.24(2) , Fla. Stat.

3 8 . As described above, the 2014 FCAT training materials

specifically told teachers, including Respondent , to refer to the

schedule and there could be absolutely no dev iations from times

and dates. In light of the mandates of section 1008.24, this

instruction constituted a direct order, reasonable in nature, and

given by and with proper authority .

3 9 . Given Respondent ' s one - day suspension for failure to

follow FCAT tes ting protocols in 2013, she clearly was aware of

the need for strict conformance to the FCAT schedule as assigned

by Principal Cendon. It is clear that for whatever reason,

Respondent intended that she and her fellow team members would

only test their Mon day morning, first block, students. Rather

than address this concern directly with Princi p a l Cendon or

Guidance , either at the February 14 meeting or thereafter,

Respondent chose to disseminate her own schedule to only her team

members and insist they ign ore the blue final schedule.

Respondent ' s assertion , that she believed she somehow had tacit

approval of an alternative schedule which she failed to share

with administration, simply is not credible.

40 . Petitioner demonstrated by a preponderance of the

evidence that Respondent committed " gross insubordination. "

41 . Under these circumstances, the undersigned recommends

that Respondent be suspended without pay for a period of five

days which is consistent with the progressive disciplinary

guidelines of Pe titioner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Broward County School

Board, enter a final order finding that just cause exists to

suspend the employment of Respondent, Nicole Poll ino, without pay

for a period of five days for gross insubordination.

DONE AND ENTERED this 30th day of April , 2015 , in

Tallahassee, Leon County, Florida.

S

MARY LI CREASY

Administrative Law Judge

Division of Administrat ive Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of April , 2015 .

ENDNOTE S

1/ The first volume of the T ranscript was inadvertently not filed

until April 15, 2015. Respondent was provided additional time to

file a proposed recommended order.

2 / These facts regarding the FCAT were not provided at the

hearing but the undersign ed sua sponte took judicial notice of

this general background information regarding the FCAT available

on the Florida Department of Education website: www.fldoc.edu .

3/ Both Principal Cendon and Ms. Hernandez - Berkowitz have no

recollection of such a con versation , and Ms. Baker does not

recall the details with any specificity . Ms. Baker ' s version is

being credited only because it makes no difference in the outcome

of this proceeding.

COPIES FURNISHED:

Tria Lawton - Russell, Esquire

The School Board of Broward County

Fourteen th Floor

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301

(eServed)

Melissa C. Mihok, Esquire

Melissa C. Mihok, P.A.

1718 East Seventh Avenue , Suite 301

Tampa, Florida 33605

(eServed)

Adrian J. Alvarez , Esquire

Haliczer, Pettis, and Schwamm, P.A.

One Financial Plaza, Seventh Floor

100 Southeast Third Avenue

Fort Lauderdale, Florida 33394

Matthew Mears , General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 3 2399 - 0400

(eServed)

Robert W. Runcie, Superintendent

Broward County School Board

Tenth Floor

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301

(eServed)

Pam Stewart

Commissioner of Education

Department of Education

Turlington Building, Suite 151 4

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Or der should be filed with the agency that

will issue the Final Order in this case.