Colleen Conklin is the second-longest serving elected official in Flagler County, having won her first election to the school board in 2000, and her fifth just last month. She may be very lucky that she will get to fulfill that term.
Six times in her 16 years on the board Conklin was late turning in a required but brief financial disclosure form, according to an investigation by the Florida Commission on Ethics. One of those times cost her a $1,500 fine last year. Conklin appealed the fine, but the appeal was rejected in December.
Last Friday, the same case cost her yet another embarrassment: being found by the ethics commission to have “willfully failed” to file the form when she should have—a finding that could have led to Conklin’s removal from office. In fact, that section of law, which the Legislature added to Florida’s books just last year, leaves no room for excuses or leniency: “if the commission determines that the person willfully failed to file a full and public disclosure of financial interests, the commission shall enter an order recommending that the officer or employee be removed from his or her public office or public employment.”
It is shall, not may. Yet Conklin today may consider herself lucky: Because Conklin “acknowledged her failure to disclose and took steps to remedy the failure,” the ethics commission’s order, signed and filed today (Sept. 14), states, “the Commission will take no further action in this matter unless [Conklin] requests a public hearing.”
The commission, it appears, is not prepared to apply the letter of the new law as it may have consequences its drafters did not intend–punishing with the drastic act of removal from office even those officials who have complied with the filing requirements, however messily. The Conklin case exposes what may have been a well-intentioned law aimed at incorrigibly contemptuous public officials, but a poorly written one.
“My ego would like to appeal it,” Conklin said this afternoon. “My sensibility says, let it go and move on. I’m 16 years on the school board and I don’t have anything like this to blemish my record, and it’s embarrassing and it’s disappointing.”
Conklin’s words belie her ire at the ethics commission. She thought when she’d paid the $1,500 fine last year that the matter was over. It wasn’t. She hadn’t taken into account the new twist in the law, intended to ensure that elected officials don’t intentionally ignore or abuse the disclosure system. She says she did neither. She acknowledges the delays (her list of excuses read like any gifted student’s attempt to explain why a term paper was not turned in—“documents had crossed in the mail,” husband hadn’t mailed the form, she thought the commission had received the form, she mistook October for September, and so on) but said in the end all paperwork was turned in and the fine paid, and none of the substance of the disclosure was ever in question.
But the new law required of the ethics commission that “regardless of whether the fine imposed was paid or collected,” the commission was to launch an investigation “to determine whether the person’s failure to file is willful.” That results in yet another finding by the commission’s advocate, requiring respondents like Conklin to defend themselves. (See the investigation report here.)
For the failure to be willful, the commission has to prove five points: that the official in question is holding office, that the official “failed or refused to file” a disclosure statement, that the official received notice from the commission about the failure, that the maximum fine was run-up, and that (in an obvious tautology) the failure to file is willful. The commission’s advocate concluded that all five elements were met, and that Conklin’s prior history of being late on filing the document proves “she was no stranger to the process.” (She was late 14 days in 2006, one day in 2004, four days in 2005, three days in 2008, six days in 2009, and 60 days in 2013.)
Conklin says three of the five elements were met, but that she demonstrably paid the fine, and that she did not abstain from filing willfully. She traveled to Tallahassee last Friday and appeared before the full commission to make her case.
“When I went I obviously shared my side and specifically reviewed the five elements,” Conklin said, “and I was disappointed that the commission’s decision was in favor of the advocate, when the law clearly states that all five elements have to be evident, and in my case only three of the five were evident. And actually two other members of the commission attempted to have the whole thing thrown out, because their impression of the law was that this statute was created for those individuals who absolutely refuse to file their financial disclosure, and it did not pertain to the situation I was in. You had to prove that the respondent failed or refuse to file a full public disclosure. That’s not true. I filed it. Late, but it was filed. And also you had to prove that the failure to file was willful. It was absolutely not willful.”
In documents submitted to the commission and in her interview this afternoon, Conklin said she took full responsibility for late filings and acknowledged a tendency to procrastinate. She also was aware that she may have dodged a very damaging bullet, misfired though it may have been.
“They’ve decided not to take any action but the whole thing was very, very odd and quite strange,” Conklin said. “And of course I took full responsibility. At the end of the day it’s my own fault. The document was filed late. I paid the penalty, and the whole thing has been quite embarrassing. I’m really looking forward to moving on.”
She has not yet decided whether to do so or to file an appeal, though she’s not sure an appeal would do more than remove a stain on her 16-year record.