00-003929PL Tom Gallagher, As Commissioner Of Education vs. Timothy P. Merchant Status: Closed Recommended Order on Friday, January 26, 2001.

Summary: Teacher sexually harassed two female students and three female teachers.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOM GALLAGHER, AS COMMISSIONER )

OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 00-3929PL

)

TIMOTHY P. MERCHANT, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided, and a formal hearing was held on

December 4 and 5, 2000, at the City Hall Council Chambers, in

Chipley, Florida, and conducted by Harry L. Hooper,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: J. David Holder, Esquire

24357 U.S. Highway 331, South

Santa Rosa Beach, Florida 32459

For Respondent: Anthony D. Demma, Esquire

Meyer and Brooks

2544 Blair Stone Pines Drive

Post Office Box 1547

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

Whether Respondent's teaching certificate should be

disciplined because of Respondent's misconduct.

PRELIMINARY STATEMENT

On July 20, 2000, an administrative complaint was filed by

the Commissioner of Education alleging inappropriate conduct on

the part of Respondent Timothy P. Merchant (Mr. Merchant) with

both female students and faculty, while on duty as a teacher, at

the Bethlehem School (Bethlehem), Holmes County, Florida. On

July 28, 2000, Respondent filed an election of rights requesting

a formal hearing.

At the formal hearing, Petitioner presented the testimony

of Penny Jones Driggers, Misty Bell Kolmetz, Teresa Diana

McGowan-Mitchell, Kimberly Gilley-Sheffield, Gayle Quivey, Alice

Regina Hall, Melissa Renee Richard, Amy Nicole Chancy, and

Marsha Denise Harrison. Petitioner offered Exhibits 1-7, which

were admitted into evidence. Mr. Merchant presented the

testimony of Ron Mollet, Leola English, and Sheila Maria

Merchant and testified on his own behalf. Mr. Merchant offered

Exhibits 1-3. None were admitted.

A Transcript was filed on January 10, 2001. Proposed

recommended orders were timely filed and were considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Mr. Merchant was employed as a teacher at Bethlehem

School (Bethlehem), Holmes County, Florida, from August 1991

until he resigned on May 24, 1999.

2. Mr. Merchant presently holds Florida Educator's

Certificate 695181, covering the area of physical education.

This certificate is valid through June 30, 2003.

3. Mr. Merchant taught physical education, history and

elementary courses at Bethlehem. The school provides

instruction in grades pre-kindergarten through twelve. About

500 students attend the school.

4. Mr. Merchant also coached the junior high basketball

team and was an assistant coach for the varsity basketball team.

The Driggers incident

5. Penny Jones Driggers has a degree in speech pathology.

She started teaching in the Holmes County School system in 1995.

This was the first year she was employed as a teacher. During

the 1995-96 school year, she taught at Bethlehem on Tuesdays and

Thursdays.

6. Mr. Merchant would visit Ms. Driggers about once a week

in her room at Bethlehem. He would ask for and receive hugs.

These hugs were non sexual expressions of affection considered

acceptable by Ms. Driggers.

7. In the late winter or early spring of the 1995-96

school year, Ms. Driggers was attempting to locate some manila

envelopes. Mr. Merchant said he had some envelopes and Ms.

Driggers followed him to his office in the gym.

8. Subsequent to presenting Ms. Driggers with the

envelopes, Mr. Merchant embraced Ms. Driggers and attempted to

kiss her. She endeavored to avoid Mr. Merchant's attempts but,

nevertheless, he succeeded in kissing her on her lips. Ms.

Driggers did not consent to his actions.

9. When Ms. Driggers succeeded in extracting herself from

his embrace, she retreated to Ms. Benton's pre-kindergarten

room. Neither Ms. Benton nor anyone else was in the room but

she felt safe there. After she calmed down she went to her

home. She informed her boyfriend who is now her husband. He

advised her to tell Ms. Sheffield, her peer teacher, which she

did. She also discussed the event with a fellow teacher, Misty

Kolmetz.

10. This incident embarrassed and humiliated Ms. Driggers.

It interfered with her ability to teach.

The Kolmetz incident

11. Misty Bell Kolmetz is a speech therapist in the Holmes

County School District. She taught at various schools in Holmes

County including Bonifay Elementary and Ponce de Leon Elementary

and Middle School. She taught at Bethlehem all day on Mondays

and Wednesdays, and one-half day on Fridays, during the 1996-97

school year. She maintained an office at Bethlehem.

12. Ms. Kolmetz did not know Mr. Merchant until she

commenced teaching at Bethlehem. Before the Christmas break in

December 1996, she was visiting various parties which were being

held in the classrooms. She saw Mr. Merchant in the hallway and

he asked her if she would watch his classes in the gym. She did

this, and after almost everyone had departed, he asked her to

help him lock up the rooms.

13. When the doors were locked and the lights were off,

Mr. Merchant attempted to embrace and try to kiss Ms. Kolmetz.

He pressed his body tightly against Ms. Kolmetz and tried to

kiss her. She resisted and he released her. When she tried to

walk away, he grabbed her from behind and pulled her toward him.

At this time he put his right arm under her jacket and moved it

in the direction of her breasts. She successfully resisted this

and was able to extract herself from his grasp and to escape.

This shocked and frightened Ms. Kolmetz. She did not invite

this behavior.

14. Ms. Kolmetz reported the incident to Teresa Mitchell,

who is a fellow teacher. Ms. Mitchell told Ms. Kolmetz that she

knew the former superintendent of schools in Holmes County, Jack

Jones, and she told her that she would talk to him. Ms. Kolmetz

learned that Mr. Jones told the current school superintendent

about the incident.

15. As a result of this incident Ms. Kolmetz became afraid

of Mr. Merchant. This incident made her uncomfortable while at

work. She was distraught.

16. No further incidences occurred between Ms. Kolmetz and

Mr. Merchant. During the 1998-99 school year, when allegations

regarding Mr. Merchant and a student became public, Ms. Kolmetz

and Ms. Driggers decided to provide written statements

addressing their experiences with Mr. Merchant.

The Quivey incident

17. Gayle Quivey taught science, biology, and chemistry at

Bethlehem. She knew Mr. Merchant and was a friend of his wife,

Sheila Merchant.

18. She lived in Westville, Florida, and she allowed Mr.

Merchant to hunt on her property in rural Holmes County. She

also permitted him to bait deer on her property. In the Spring

of 1997 he told her that he would be coming to her property to

bait deer. She greeted him when he arrived about five o'clock

p.m. Only Ms. Quivey and Mr. Merchant were present. She showed

him her pond, they fed the fish in her pond, and burned garbage.

They went into her house. At approximately, eight o'clock p.m.,

Ms. Quivey and Mr. Merchant were standing in her driveway and he

was preparing to depart.

19. At this time Mr. Merchant moved toward her and put his

hands on the sides of her breasts. She pushed him away. He

pressed the whole front of his body on hers. She was

devastated. Mr. Merchant's advances were unwanted, uninvited,

and unexpected.

20. She never spoke to him after this encounter and felt

humiliated. She told Alice Hall, Mary Harrison, and the

principal, Mr. Paul, about this incident.

The Melissa Richard incident

21. Melissa Richard attended Bethlehem from the fourth

through the twelfth grade. She graduated in the Spring of 2000

and currently is a receptionist for an attorney in Panama City,

Florida, Rhonda Clyatt. Ms. Clyatt represented Ms. Richard in a

civil suit against Mr. Merchant and the Holmes County School

Board.

22. Until October of 1996, Ms. Richard and Mr. Merchant

were close acquaintances. She was in the ninth grade at that

time. She was a cheerleader and kept statistics for the

baseball team. She had been employed as a baby sitter for

Mr. Merchant's child on one occasion.

23. In October of 1996, Mr. Merchant was her peer

counselor and as a result, she used his office as a study hall.

On Thursday, October 24, 1996, Mr. Merchant said something to

her which made her feel awkward. On Friday, October 25, 1996,

Ms. Richard was absent from school without authority. On the

following Monday, October 28, 1999, she was doing homework in an

office next to the weight room. She was sitting in front of a

computer which rested on a table facing a wall.

24. Mr. Merchant and Coach Bixby were helping her with her

homework. Coach Bixby left the room. Mr. Merchant stood behind

Ms. Richards and put his hands down the front of her shirt. He

did not touch her breasts. She told him to stop and he did,

momentarily. Thereafter, he went to the laundry area and got a

cup of ice. He then put his hand under the bottom of her shirt

which was not tucked. He massaged her stomach, put his chin on

her head, pulled her head back, and kissed her forehead. He

instructed her not to tell anyone about the incident.

Ms. Richard had attained the age of 15 years when this event

occurred.

25. Ms. Richard went to her friend Amy Chance and told her

about the incident. They went together to Ms. Harrison, one of

their teachers, who sent her back to class. Somewhat later,

Mr. Merchant got her out of class and inquired if she had told

anyone and she told him that she had not. During the lunch

period Mr. Merchant tried to speak with her, but was prevented

by Ms. Richard's friend Rachel.

26. Later in the day there was a meeting with the

assistant principal, Mr. Dady, the school secretary,

Ms. Taylor, Ms. Richard, Ms. Richard's mother, and

Mr. Merchant. Mr. Merchant said that he was merely massaging

Ms. Richard's shoulders and that Ms. Richard had misconstrued

his intentions.

27. As a result of the incident with Mr. Merchant,

Ms. Richard could no longer keep baseball statistics, and felt

embarrassed. Some people, including school officials, reacted

negatively to the news of this incident and treated her

differently. The incident upset Ms. Richard.

The Marsha Harrison incident

28. Ms. Harrison attended Bethlehem beginning in the

second grade and continued until her graduation from high school

in 1995.

29. While at Bethlehem she played basketball and softball

and was in the Beta Club and other clubs. She made all "A's"

and was the valedictorian of her class. She attended Stetson

University on a basketball scholarship and graduated with a

degree in exercise science. She returned to Bonifay and is now

employed by the University of Florida extension office for

Holmes county in its after-school program.

30. Ms. Harrison knew Mr. Merchant well even though he

never coached her or taught her. He flirted with her, told her

jokes, and made comments about her. In January or February of

1995 she was in his office and he commented about what she was

wearing and told her that they could "fool around."

Ms. Harrison did not believe he was serious. He approached her

while her back was to the wall and put both of his hands on her

shoulders and moved close to her.

31. Once after Ms. Harrison's return from a school trip,

he kissed her on the cheek and tried to kiss her on the mouth

but she avoided this. Mr. Merchant suggested that they could

meet somewhere away from school and have sex. Ms. Harrison did

not believe this comment to be serious. This occurred in the

school's weight room.

32. In February of 1995, near her eighteenth birthday,

Mr. Merchant asked her to go into his office with him which she

did. He kissed her and asked for oral sex and she complied with

his request. This occurred after normal school hours.

33. Subsequently, Ms. Harrison felt ashamed and avoided

Mr. Merchant. She did not tell anyone in authority about this

until the commencement of civil litigation involving

Mr. Merchant, the Holmes County School Board, and Ms. Richard.

Matters in mitigation

34. Ronald Mollet has worked for a total of 23 years as a

physical education instructor. He has known Mr. Merchant since

he coached Mr. Merchant in basketball. He has known

Mr. Merchant for 15 years. He believes Mr. Merchant to be a

friendly person who is a good family man. He has never seen him

act inappropriately with female students and he has observed

that Mr. Merchant has a caring attitude.

35. Mr. Merchant, prior to the events generating this

action, has received no bad marks as a teacher and no negative

action has been taken with regard to his teaching certificate.

He is married and has two children. He has attained both a

bachelor's and a master's degree.

CONCLUSIONS OF LAW .

36. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1),

Florida Statutes.

37. The material allegations set forth in the

administrative complaint must be proven by clear and convincing

evidence. Department of Banking and Finance v. Osborne Stern

and Company, Inc. , 670 So. 2d 932 (Fla. 1996) and Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

38. Pursuant to Section 231.262(5), Florida Statutes, the

Commissioner of Education notified Mr. Merchant that probable

cause to believe complaints about his behavior had been found.

39. Section 231.28, Florida Statutes (1999), 1 provides

that:

(1) The Education Practices Commission shall

have authority to suspend the teaching

certificate of any person as defined in

s.228.041(9) or (10) for a period of time not to

exceed 3 years, thereby denying that person the

right to teach for that period of time, after

which the holder may return to teaching as

provided in subsection (4); to revoke the

teaching certificate of any person, thereby

denying that person the right to teach for a

period of time not to exceed 10 years, with

reinstatement subject to the provisions of

subsection (4); to revoke permanently the

teaching certificate of any person; to suspend

the teaching certificate, upon order of the

court, of any person found to have a

delinquent child support obligation; or to impose

any other penalty provided by law, provided it

can be shown that such person:

* * *

(c) Has been guilty of gross immorality or an

act involving moral turpitude;

* * *

(f) Upon investigation, has been found guilty of

personal conduct which seriously reduces that

person's effectiveness as an employee of the

school board;

* * *

( i) Has violated the Principles of Professional

Conduct for the Education Profession prescribed

by State Board of Education rules;

40. Rule 6B-1.006(3), Florida Administrative Code, sets

forth the Principles of Professional Conduct for the Education

Profession. Applicable paragraphs of that rule provide that a

teacher:

(a) Shall make reasonable effort to protect the

student from conditions harmful to learning

and/or to the student's mental and/or physical

health and/or safety.

* * *

(e) Shall not intentionally expose a student to

unnecessary embarrassment or disparagement.

* * *

(f) Shall not intentionally violate or deny a

student's legal rights.

* * *

(h) Shall not exploit a relationship with a

student for personal gain or advantage.

41. Rule 6B-1.006(5)(d), Florida Administrative Code,

provides that a teacher:

(d) Shall not engage in harassment or

discriminatory conduct which unreasonably

interferes with an individual's performance of

professional or work responsibilities or with the

orderly processes of education or which creates a

hostile, intimidating, abusive, offensive, or

oppressive environment; and, further, shall make

reasonable effort to assure that each individual

is protected from such harassment or

discrimination.

42. Section 231.262(6), Florida Statutes, provides that a

panel of the Education Practices Commission, subsequent to a

determination of misconduct, may take one or more of the

following actions:

(a) Denial of an application for a teaching

certificate or for an administrative or

supervisory endorsement on a teaching

certificate. The denial may provide that the

applicant may not reapply for certification, and

that the department may refuse to consider that

applicant's application, for a specified period

of time or permanently.

(b) Revocation or suspension of a certificate.

(c) Imposition of an administrative fine not to

exceed $2,000 for each count or separate offense.

(d) Placement of the teacher, administrator, or

supervisor on probation for a period of time and

subject to such conditions as the commission may

specify, including requiring the certified

teacher, administrator, or supervisor to complete

additional appropriate college courses or work

with another certified educator, with the

administrative costs of monitoring the probation

assessed to the educator placed on probation.

(e) Restriction of the authorized scope of

practice of the teacher, administrator, or

supervisor.

(f) Reprimand of the teacher, administrator, or

supervisor in writing, with a copy to be placed

in the certification file of such person.

(g) Imposition of an administrative sanction,

upon a person whose teaching certificate has

expired, for an act or acts committed while that

person possessed a teaching certificate or an

expired certificate subject to late renewal,

which sanction bars that person from applying for

a new certificate for a period of 10 years or

less, or permanently.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED:

That the Education Practices Commission enter a final order

finding that the Respondent:

1. Violated Section 231.28(1)(c) and (f), Florida Statutes

(1999), in the cases of Ms. Richard and Ms. Harrison.

2. Violated Section 231.28(1)(i), Florida Statutes (1999),

by violating Subsections (3)(a), (3)(e), (3)(f), and (3)(h), of

the Principles of Professional Conduct for the Education

Profession, in the cases of Ms. Richard and Ms. Harrison.

3. Violated Section 231.28(1)(i), Flori da Statutes (1999)

by violating Subsection (5)(d) of the Principles of Professional

Conduct for the Education Profession, in the cases of

Ms. Driggers, Ms. Kolmetz, and Ms. Quivey.

It is further recommended that the Education Practices

Commission permanently revoke Florida Educator's Certificate

695181, currently held by Timothy P. Merchant.

DONE AND ENTERED this 26th day of January, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of January, 2001.

ENDNOTE

1 / Renumbered as 231.2615 and amended by Laws 2000-301, 27, eff.

July 1, 2000.

COPIES FURNISHED:

J. David Holder, Esquire

24357 U.S. Highway 331, South

Santa Rosa Beach, Florida 32459

Anthony D. Demma, Esquire

Meyer and Brooks

2544 Blair Stone Pines Drive

Post Office Box 1547

Tallahassee, Florida 32302

Kathleen Richards, Executive Director

Florida Education Center

325 West Gaines Street, Room 224-E

Tallahassee, Florida 32399-0400

Jerry W. Whitmore, Chief

Bureau of Educator Standards

Department of Education

325 West Gaines street, Room 224-E

Tallahassee, Florida 32399-0400

Michael H. Olenick, General Counsel

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399-0400

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 Order should be filed with the agency that

will issue the Final Order in this case.