STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: WILLIAM CAMPION CASE NOS. 96-2926EC

96-2927EC

___________________________/ 96-2928EC

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Carolyn S. Holifield, held a formal hearing in this case on October 4, 1996, in Ocala, Florida.

APPEARANCES

Advocate: Virlindia Doss

Assistant Attorney General

Attorney General's Office

PL-01, The Capitol

Tallahassee, Florida 32399-1050

For Respondent: Mark Herron, Esquire

Akermann, Senterfitt and Edison, P.A.

216 South Monroe Street, Suite 200

Tallahassee, Florida 32301-0503

STATEMENT OF THE ISSUE

Whether William Campion, Respondent, as president of Central Florida Community College, violated Section 112.313(6), Florida Statutes, by using public resources in furtherance of his work with Excel Telecommunications, Inc., and if so, what penalty should be recommended.

PRELIMINARY STATEMENT

On June 4, 1996, the State of Florida Commission on Ethics (Commission), issued an Order Finding Probable Cause to believe that William J. Campion, while serving as president of Central Florida Community College, violated Section 112.313, Florida Statutes, by using public resources in furtherance of his work with Excel Telecommunications, Inc. By letter dated June 18, 1996, the case was forwarded to the Division of Administrative Hearings for assignment of an administrative law judge to conduct a public hearing and to prepare a recommended order.

Prior to the final hearing, the parties submitted a Joint Prehearing Stipulation which set forth a number of stipulated facts which required no proof at hearing.

At the hearing, the Advocate for the Commission called six witnesses: William J. Campion; Estelle Winkler; Kathleen Daghita; James Bernard Dial; Wanda Kay Johnston; and Roberta G. Malone. Respondent testified on his own behalf and called three witnesses: Berry Davis III; Pat Fleming; and Don Bostic. No exhibits were admitted into evidence during the course of the hearing. Following the hearing the Advocate moved to introduce into evidence the two videotapes which were viewed at hearing. Without objection from Respondent, the two videotapes were admitted into evidence.

A transcript of the administrative hearing was ordered. The parties agreed to file proposed recommended orders ten days from the date the transcript was filed with the Clerk of Division of Administrative Hearings. Because specific notice of filing of the transcript was not provided, the parties agreed to file their proposed recommended orders on or before October 30, 1996. Both parties filed proposed findings of fact and conclusions of law under this extended time frame.

FINDINGS OF FACT

1. Respondent, William Campion, (Respondent) became president of Central Florida Community College (CFCC/College) in October, 1986. He resigned in October, 1995, effective February 16, 1996, for reasons unrelated to the Ethics Commission investigation. As president of CFCC, Respondent's salary was approximately $120,0000 per year.

2. Excel Telecommunications, Inc., (Excel), is a multilevel marketing organization. Its product is long distance telephone service, but representatives earn money not primarily from selling the product, but by recruiting representatives. Respondent first heard about Excel in April 1993, and got involved with it in July of that year.

3. Respondent earned income based on the activities and efforts of those he recruited. The list of persons directly or indirectly recruited by Respondent was called his "downline". There were approximately 20,000 people in Respondent's downline as of February 1996.

4. By April 1994, Respondent had reached the highest level of Excel, Executive Director and National Training Director. Respondent remained at this level in 1995 and during 1994 and 1995 Respondent's income from Excel exceeded his salary as president of CFCC.

5. Respondent knew that it would be improper to use resources of CFCC to promote Excel. Accordingly, Respondent and others connected with Excel, including CFCC employees, rented an office in downtown Ocala to use as an Excel training and recruiting center.

6. Respondent limited the ability of Excel members employed at CFCC to conduct Excel activities on campus. Excel members were prohibited from soliciting or signing up customers on campus, although MCI, AT&T, and Sprint, competitors of Excel, did actively solicit customers on campus. Excel members were prohibited from holding meetings on campus. Excel meetings were conducted at the Excel office.

Use of Telephones to Promote Excel

7. On a few occasions Respondent used CFCC telephones to take care of matters relating to Excel. There were some occasions when Respondent made calls related to his work at CFCC, and during the conversations the individuals called mentioned Excel. During such conversations, there were sometimes brief comments relating to Excel, but the discussion returned to the CFCC related issue.

8. When first employed as Respondent's executive staff assistant, Kathleen Daghita was instructed by the other assistant in the office to tell callers that Respondent did not take Excel related calls at his CFCC office. Nevertheless, Ms. Daghita took one or two telephone calls per month for Respondent which were Excel related. Although some Excel related telephone calls were put through to Respondent, Ms. Daghita acknowledged that in doing so, she failed to follow specific directions.

9. Estelle Winkler, who served as Respondent's secretary, brought to Respondent's attention that another member of the CFCC's administration, Hillary Allen, was using the telephone to promote Excel. Respondent indicated that he would speak to Mr. Allen about it. Respondent spoke to Mr. Allen and directed him to refrain from making Excel related call from CFCC telephones. After this, Ms. Winkler never heard Mr. Allen make Excel related calls from CFCC telephones.

10. Respondent, during the course of his official duties, spoke to individuals at CFCC on college business who were involved in Excel.

11. Hillary Allen, Director of International Education at Central Florida Community College, and Don Bostic, Central Florida Community College's Dean of Continuing Education, both joined Excel with Respondent. Respondent was their sponsor.

12. Mr. Allen and Mr. Bostic had conversations about Excel with Respondent in Respondent's office. However, no meeting was ever called in Respondent's office for the purpose of talking about Excel. These conversations about Excel arose in context of discussions about CFCC business, with passing references to an Excel related topic.

Duplication of Video Tapes Using CFCC Facilities

13. Pat Fleming is the Media Services Coordinator at CFCC. Mr. Fleming came to the college in April 1993, and joined Excel in August 1993. Mr. Fleming considers himself a friend of Respondent and thinks highly of him.

14. At all times relevant to this case, there was no written policy prohibiting the duplication of tapes by CFCC's audiovisual personnel. It was a long-standing practice at the College to permit duplication of non-copyrighted tapes provided that the person requesting the copy brought in his or her own tape and the tape duplicator was not needed at the time for CFCC work. This practice predated Respondent's tenure at the College.

15. Mr. Fleming personally duplicated Excel tapes for Respondent on approximately ten occasions from the spring of 1995 through November of 1995. Generally, Respondent would have between one to three duplicates made of his Excel master tape. The Respondent had at least thirty to forty duplicate tapes made from the Excel master. Respondent would always provide the tapes to make the duplicates. He would always provide more blank tapes than the requested number of duplicates.

16. James Dial is the Audio/Visual Technician for the College. Pat Fleming has been his supervisor since 1993. Until 1993, Mr. Dial's duties included copying tapes. At about the same time Mr. Fleming came in as his supervisor, Dial's office was relocated to the lower floor due to construction, and he was no longer involved in copying tapes.

17. Mr. Dial testified that more than one hundred Excel tapes were copied in 1993, after Mr. Fleming was hired. He estimates that during the thirty-four month period between April 1993 and February 1996, more than one hundred Excel tapes were copied using audiovisual facilities at CFCC.

18. Mr. Dial's estimate is based on individuals including Hillary Allen, Gene Iba, and Don Bostic bringing Excel masters and blank tapes to the CFCC audiovisual facilities. During this time period, Mr. Dial was not personally involved in the duplication of tapes and had not been involved since 1993. By his own admission, Mr. Dial never witnessed any duplicate tapes being made.

19. There is no evidence that the tapes brought in by Mr. Allen, Mr. Iba, and Mr. Bostic were duplicated at Respondent's request or that he received any special privilege, benefit or exemption from those tapes. Mr. Dial never observed Respondent making copies of any tape. Mr. Dial had no knowledge that Respondent requested that duplicate copies of any tapes be made.

20. CFCC has equipment which permitted duplication of videotapes only in "real time" duplication. That is, a thirty minute tape would take thirty minutes to duplicate. Only three duplicates can be made at a time.

21. Consistent with the College's long-standing practice, the audiovisual personnel at CFCC made duplicate tapes for persons associated with CFCC as well for individuals in the community not associated with CFCC. Except for the duplication of a commercial video tape in 1991, the Excel tapes appear to have been the only tapes of a commercial nature duplicated at the College. However, the same processes and procedures were followed for the duplication of Excel related tapes as for other tapes of a noncommercial nature.

Use of College Satellite to Receive Excel Programming

22. Between March and November 1995, Excel ran broadcasts promoting the organization every Monday night at 9:00 p.m., alternating original shows with repeats.

23. In March 1995, Respondent asked Mr. Fleming whether the CFCC's satellite receiver could pick up an Excel program broadcast. Respondent's reason for making the request was that he wanted to watch the program. Although he had a satellite receiver at his house, Respondent often worked late at CFCC. Rather than go home to watch the program and then return to work, he watched the Excel program at CFCC. Mr. Fleming then asked Mr. Dial to set the College's satellite receiver to receive Excel's program broadcast. Respondent watched the program occasionally with Mr. Fleming at the audiovisual center or in his office. Re-spondent watched the program approximately six to ten times over a six month period.

24. Mr. Dial placed the Excel program location on the list of "favorite" channels. Respondent did not request that Excel be listed on the list of "favorite" channels. Mr. Dial placed it there on his own initiative as a matter of convenience.

25. The satellite receiver at CFCC has access to any programming that is not blocked by programmers, scramblers, and the like. There are no costs, such as royalties, associated with pulling programs off the satellite. The college has access to twenty-four satellites with approximately thirty channels on each satellite.

26. The process of pulling an unrestricted program off the satellite is not complicated: One merely locates the satellite, locates the channel, and pushes a button to pull the program in. It is a task that takes about ten or fifteen seconds to do.

27. There was no policy at the College which prohibited pulling up programs off the satellite for any individual. Several individuals, other than Respondent, requested that programming off the satellite be pulled in for their use. In these instances, CFCC audiovisual staff complied with these requests.

Use of College Room to Produce Excel Video

28. Mr. Dial testified that he had observed a video of Respondent making an Excel presentation in a room in Building Five of at the CFCC campus.

29. Mr. Dial indicated that he was familiar with the room which he alleged was used by Respondent in the presentation, from being in and out of almost every room on campus. However, he could not identify any reference point with respect to the room, such as a view through any window of the room shown on the tape. There was no room number shown in the video nor was any insignia of CFCC shown. All that Mr. Dial recalled was a wall and a conference table, but he did not provide any specific detail of either at hearing.

30. There was no evidence presented at hearing that the alleged use of the facility was in violation of any CFCC policy, or than any CFCC policy, or that any CFCC equipment was used to make the videotape.

Preparation and Duplication of Audiotapes

31. On one occasion, Respondent borrowed an audiotape recorder to make an Excel tape. At the request of Respondent, Mr. Dial, in September 1995, set up a tape recorder and a microphone in a conference room in Building Three. Respondent used that tape recorder to make an Excel audiotape. The tape recording was done after the end of the workday.

32. No evidence was presented at hearing that there was any policy prohibiting the use of audiovisual equipment by CFCC personnel. To the contrary, it was established that audiovisual equipment could be and was loaned to CFCC personnel for personal use.

33. The next day, Mr. Dial was requested by Mr. McClain to put a musical prelude on the tape that had been made by Respondent. It was estimated that it took Mr. Dial three or four minutes to put the musical prelude on the tape. There is no evidence that Respondent asked that the musical prelude be put on the tape. There is no evidence that Respondent knew at the time that the musical prelude had been put on the tape.

34. Approximately twenty duplicates of that tape were made using the audiovisual resources of CFCC. To duplicate audiotapes, CFCC had high speed duplicating equipment which permitted duplication of audiotapes at a five to one ratio. To duplicate twenty tapes using the high speed duplicating equipment took approximately seven and one half minutes. Respondent supplied the blank audio tapes for duplication.

35. It was a practice at CFCC to permit the duplication of non-copyrighted audiotapes provided that the person requesting copies brought in their own tapes to permit duplication. Audiotapes were duplicated for faculty, staff, students, and members of the community.

Use of College Room for Excel Presentation by Jim Voight

36. Respondent allowed Jim Voight, a successful member of the Excel organization, to use a room at CFCC to speak to interested persons about Excel. Mr. Voight had been instrumental in Respondent's decision to join Excel.

37. The meeting occurred during lunch and during Spring Break 1994 at CFCC. Spring Break during that year was March 14-18.

38. Respondent was concerned at the time that having the meeting with Mr. Voight on campus would give rise to an appearance of impropriety. It was initially Respondent's preference to have the meeting off campus.

39. The room used for the meeting with Mr. Voight was available for rent of fifty dollars to interested parties outside CFCC, but no rent was ever paid for using the meeting room.

40. At the meeting, Mr. Voight indicated that he would give CFCC more than fifty dollars and the he was intended to endow CFCC. Mr. Voight subsequently made donations to CFCC in amounts as follows: August 31, 1994- $6,000; October 31, 1994- $2,000; December 2, 1994- $2,000; January 3, 1995- $2,000; February 10, 1995- $2,000; and March 16, 1995- $2,000. All total, CFCC received $16,000 from Mr. Voight. Payments began in August 1994, because of the time delay associated with establishing the endowment mechanisms. Payments ceased after a local newspaper called attention to Respondent's involvement with Excel.

CONCLUSIONS OF LAW

41. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1995).

42. Section 112.322, Florida Statutes (1995), and Rule 34-5.0015, Florida Administrative Code, authorize the Commission to conduct investigations and to make public reports on complaints concerning violations of Part III, Chapter 112, Florida Statutes (the Code of Ethics for Public Officers and Employees).

43. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceedings. Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). In this proceeding, the Commission, through its Advocate, is asserting the affirmative: that the Respondent violated Section 112.313(6), Florida Statutes. Therefore, the Commissioner must establish by a preponderance of the evidence, the elements of Respondent's alleged violations.

44. It has been alleged that Respondent violated Section 112.313(6), Florida Statutes. That section provides the following:

MISUSE OF PUBLIC POSITION. No public officer or employee of agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31.

45. The term "corruptly" is defined by Section 112.312(9), Florida Statutes, as follows:

"Corruptly" means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with proper performance of his public duties.

46. In order for it to be concluded that the Respondent violated Section 112.313(6), Florida Statutes, the Advocate must establish the following elements.

1. The Respondent must have been a public officer or employee.

2. The Respondent must have used or attempted to use his or her official position or any other property or resources within his or her trust to secure a special privilege, benefit or exemption for himself or others.

3. The Respondent must have acted corruptly, that is, with wrongful intent and for the purpose of benefitting himself or another person from some act or omission which is inconsistent with the proper performance of public duties.

47. The parties have stipulated and the evidence established that the Respondent, as president of CCFC, was subject to the requirements of Part III, Chapter 112, Florida Statutes. Therefore, this element is proven.

48. It must next be established that Respondent used property and resources within his trust to secure a special privilege benefit, or exemption for himself or others. In the instant case, it is alleged that Respondent received such a privilege or benefit by use of college telephones, offices and conference rooms, satellite system, and audio video equipment.

49. The use of public resources for a private purpose is not per se violative of the Code of Ethics for Public Officers and Employees. A public official must act with "wrongful intent." Therefore, in order to determine that Respondent violated Section 112.313(6), Florida Statutes, it must be shown that he acted with "specific intent" to misuse his public position or any property or resources within his or her trust.

An essential element of the charged offense under section 112.313(6) is the statutory requirement that appellant acted with wrongful intent, that is, that she acted with reasonable notice that her conduct was inconsistent with the proper performance of her public duties and would be in violation of the law or the Code of Ethics in part III of Chapter 112.

Blackburn v. Commission on Ethics, 589 So.2d 431, 434 (Fla. 1st DCA 1991).

Use of Telephones and Office for Excel

Related Conversations

50. With regard to the use of CFCC telephones, Respondent admitted that he used them "on occasion" to deal with Excel related matters. This admission establishes that Respondent received a special privilege or benefit for himself from use of these phones on those occasions. However, the use of the telephones by Respondent was infrequent and incidental.

51. Respondent took reasonable steps to separate his private interests from his duties and responsibilities as a public officer serving as the President of CFCC. Respondent instructed his staff to inform callers that he did not take Excel related calls at his office at CFCC. Although a few calls related to Excel got through, one or two per month, they were the result of the office staff's unintentional failure to follow through on the instructions given not to put through Excel related calls. In view of these facts, Respondent did not have the requisite "corrupt intent" necessary to establish a violation of Section 112.313(6), Florida Statutes.

52. Respondent's use of the telephones for Excel related matters was incidental and de minimis. In view of the totality of the circumstances, Respondent did not misuse public resources by his occasional use of the telephone to speak about Excel related matters.

53. The evidence fails to establish that Respondent received any special privilege, benefit or exemption for himself or another with respect to the Excel related conversations which occurred in Respondent's office.

54. Likewise, the evidence fails to establish any "corrupt intent". No meeting was ever called in Respondent's office for the purpose of discussing Excel. All conversations arose in the context of discussing numerous topics, most of which involved CFCC business, and which tangentially touched upon Excel.

Use of College Room for Excel Presentation by Jim Voight

55. A privilege, benefit or exemption was received by Respondent or others because the $50 standard room fee was not paid in connection with the Excel presentation made by Jim Voight during the Spring Break of 1994. However, based on the evidence presented at hearing, the "privilege, benefit or exemption" was not a "special" one as that term is used in Section 112.313(6), Florida Statutes. The evidence establishes that a quid pro quo was reached between Respondent and Mr. Voight regarding the payment of the $50 standard fee. It established that Mr. Voight contributed $16,000 to CFCC in the period following use of the room.

56. The quid pro quo arrangement is not inconsistent with the proper performance of Respondent's duties as President of CFCC. Significant dollars were contributed to CFCC for the benefit of the college as a result of Respondent's efforts. Accordingly, the element of "corrupt intent" has not been established with respect to this incident.

Duplication of Videotapes Using CFCC Facilities

57. The evidence clearly established that Respondent did not receive any "special, privilege or benefit" through the use of CFCC facilities to have Excel tapes duplicated. There was a long-standing practice at CFCC which predated Respondent's tenure as President and which permitted duplication of personal videotapes of the CFCC staff and members of the community. Such duplication required only that the person requesting the duplicates provide the blank tapes; that the material to be duplicated was not copyrighted; and that the duplicating equipment was not otherwise being used for CFCC business.

58. Respondent's requests for duplication of Excel tapes complied with this long-standing practice in all respects. No evidence was presented that Respondent's duplication of tapes violated any established policy of CFCC. His requests for duplicating were treated as all other requests. With respect to the duplication of videotapes, CFCC's policy or practice made no distinction based on whether the tapes to be duplicated were of a commercial or noncommercial nature. Having established that this was the policy, the wisdom of such policy or practice is not an issue in this case.

59. There is no evidence that Respondent had the requisite "corrupt intent" in having Excel videotapes duplicated at the CFCC audio visual facility.

Preparation and Duplication of Audiotape

60. With respect to Respondent's use of a tape recorder and microphone to prepare an Excel related audiotape and the subsequent duplication of that audiotape, Respondent received no "special privilege, benefit or exemption." Neither did the evidence establish that Respondent had the requisite "corrupt intent" with respect to the duplication of Excel related audio tapes. It was the practice of CFCC to loan audiovisual equipment to CFCC staff and others. It was also the practice to permit the duplication of audiotapes consistent with the same practice and restrictions applicable to videotape duplication. Respondent's use of the tape recorder and microphone and the duplication of the audiotapes was consistent with that practice.

61. With respect to the placement of the musical prelude on the audiotape by Mr. Dial, Respondent did receive a special privilege, benefit or exemption. The use of CFCC resources was de minimis. There is no evidence that Respondent requested that the musical prelude placed on the tape. Also, no evidence was presented at hearing that Respondent even knew that the musical prelude had been placed on the tape. In view of the lack of evidence, there can be no finding of "corrupt intent" on the part of Respondent with respect to placement of the musical leader.

Use of Satellite to Receive Excel Programming

62. Respondent received a benefit from being able to watch Excel related broadcasts at CFCC using the college's satellite system. Rather than having to go home and watch the broadcasts using his own satellite system, he watched them at the college.

63. Notwithstanding this special benefit received by Respondent, there is no evidence that Respondent acted with any "corrupt intent" in using the satellite to watch Excel related programming. There was no CFCC policy which prohibited pulling up programs off the satellite for any individual. In fact, the evidence presented at hearing indicated that several CFCC staff members requested that programming off the satellite be pulled in for their use and that such requests were granted.

Use of College Room to Produce Excel Related Videotape

64. There is no competent, substantial evidence from which to conclude that there was a violation of Section 112.313(6), Florida Statutes, by Respondent appearing in an Excel video that was allegedly made in Building Five of the CFCC campus. No evidence was presented which indicated that the use of the room was in violation of any CFCC policy. No evidence was presented that any required fee had not been paid. Nor was any evidence presented that any resource of CFCC was used to make the videotape of Respondent's presentation. The videotape was not produced at hearing.

CONCLUSION

65. For the reasons set forth above, it is concluded that Respondent did not violate Section 112.313(6), Florida Statutes, as alleged, with respect to each of the alleged incidents or in consideration of all of the incidents in the aggregate.

66. The Code of Ethics does not prohibit public officials from acquiring and retaining private economic interests, available to all other citizens, except to the extent that such interests conflict with the official's public duties. See, Section 112.311(3), Florida Statutes. There has been no showing or evidence that Respondent's activities relating to Excel conflicted with the performance of his duties as president of CFCC.

RECOMMENDATION

Based on the forgoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order and Public Report be entered finding that William J. Campion, did not violate Section 112.313(6), Florida Statutes.

DONE and ENTERED this 24th day of December, 1996, in Tallahassee, Florida.

___________________________________

CARLOYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-647

Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 1996.

COPIES FURNISHED:

Virlindia Doss, Esquire

Advocate for the Florida

Commission on Ethics

Department of Legal Affairs

PL-01, The Capitol

Tallahassee, Florida 32399-1050

Mark Herron, Esquire

Akermann, Senterfitt and Eidson, P.A.

216 South Monroe Street, Suite 200

Tallahassee, Florida 32301-0503

Kerrie J. Stillman

Complaint Coordinator

Florida Commission on Ethics

Post Office Box 15709

Tallahassee, Florida 32317-5709

Bonnie Williams

Executive Director

Florida Commission on Ethics

Suite 101

2822 Remington Green Circle

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Phil Claypool

General Counsel

Florida Commission on Ethics

Suite 101

2822 Remington Green Circle

Post Office Drawer 15709

Tallahassee, Florida 32317-5709