Flint Water, Legionnaire’s Disease, and Corruption in Office

Posted on November 12, 2018 by Jeffrey Haynes

On August 20, 2018, a Michigan state district court judge bound over Nick Lyon, the current director of the Michigan Department of Health and Human Services, for trial on two counts of involuntary manslaughter and one count of misconduct in office arising out of the deaths of two men from Legionnaire’s disease at a Flint-area hospital. In a rambling opinion read from the bench, district judge David Goggins found that two elderly men with prior health problems contracted Legionnaire’s disease at Hurley Hospital and died in 2015 because the health department director failed to give public warnings until January 2016 of outbreaks of the disease in the Flint area in 2014-2015.

Contradictory testimony linked Flint water to the outbreaks generally but did not establish that Flint water was the cause-in-fact of spreading the disease.  The challenge of establishing that Flint water was the specific source of the disease for the decedents was made more difficult by the fact that the hospital was already hyperchlorinating its water supply.  In theory, at least, hyperchlorination should have eliminated the Legionnaire disease toxin.

Apart from the causation question, the result does not easily square with Michigan law. In Michigan, misconduct in office is a common law felony. Caselaw defines misconduct in office as including (1) conduct in the exercise of the duties of the office or done under color of the office; (2) discretionary acts that were either misfeasance or malfeasance; and (3) acts that represent “corrupt behavior.” Examples of corrupt behavior would be enriching oneself or one’s friends while performing duties of one’s office.

The public health statute requires public notice based on the director’s “determination” that an “imminent danger to the health or lives of individuals” exists.  The court found probable cause to believe that the director’s failure to give notice of an outbreak of Legionnaire’s disease was corrupt behavior.

The preliminary examination transcript is thick with evidence of negligence of department staff in responding to local health department requests for help. The evidence also showed that the director was concerned about panic from a public notice and saving the state money by not addressing the disease outbreak.  But the transcript is thin on whether corruption was the basis for the misfeasance.  The misfeasance was surely bad judgment.  But there was no evidence that corruption motivated the director in exercising his discretion in the timing of the notice.

The result may not be surprising in view of the desire of Flint citizens to punish state actors involved with the crisis, combined with the pressure that may be created on judges who are elected by the same citizens. The current attorney general ran for governor in part based on the state spending over $26 million prosecuting state actors in the Flint water crisis. He lost. His successor, the Democratic attorney general-elect, must now decide whether she wants to continue spending similar amounts prosecuting members of a Republican former administration or work with the Democratic governor-elect to spend the state’s money fixing the Flint water system. The state may not have money to do both.  And if that is true, perhaps prosecutorial discretion will give way to fixing the water system once and for all.

Cooperative Federalism – 1; State Defendants in the Flint Water Crisis – 0

Posted on September 26, 2017 by Jeffrey Haynes

In a case of first impression, a divided Sixth Circuit held that the state agency defendants in the Flint water crisis cannot remove state-law tort claims against them under the federal officer removal statute.  Mays v. City of Flint, No. 16-2484 (Sixth Cir., Sept.11, 2017).  The ruling affirmed a remand to the Genesee County Circuit Court, where, the court acknowledged—emphasizing the obvious—the Michigan Department of Environmental Quality staffers are likely to be “unpopular figures.”

Residents of Flint sued, among others, several present and former MDEQ staff members for gross negligence, fraud, assault and battery, and intentional infliction of emotional distress, based upon MDEQ’s failure to control corrosion of aging water pipes, which caused lead to leach into Flint’s water supply.  The MDEQ defendants removed the action under the federal officer removal statute, 42 U.S.C. §1442(a)(1), which allows “any officer (or person acting under that officer) of the United States” to remove a state-law action to federal court.  The purpose of the statute is to insulate federal officers from local bias against unpopular federal laws.  Examples of customs agents in the War of 1812, revenue agents during Prohibition, and border agents come to mind.  The MDEQ defendants argued they were enforcing the Safe Drinking Water Act for USEPA, and therefore were acting under federal officers.

The court held that the MDEQ was enforcing Michigan law under a delegation of federal authority voluntarily accepted by the state.  The state officers were not contractors, employees, or agents of federal officers.  The cooperative federalism of the SDWA was more like a partnership than a principal-agent relationship.  EPA oversight, reporting requirements, and federal funding were not enough to bring the MDEQ defendants within the removal statute.  The dissent believed, on the other hand, that the state agency defendants’ removal petition satisfied their burden of demonstrating that their actions brought them under the statute’s protection. 

The court kept the floodgates closed.  It noted that many other environmental statutes come within the cooperative federalism model, and that allowing removal would cause garden-variety state-law tort claims against state officers for enforcing state law to be litigated in federal courts.

So, states’ rights advocates, take heart.  Even though your state enforces federal environmental standards with federal funds and oversight, you are on your own.  Regardless of citizen anger with the distant federal government, your state officials can still be tried by local jurors angry with your state government.

Flint litigation: an interim update

Posted on October 13, 2016 by Jeffrey Haynes

Along with the flood of news coverage of the Flint water crisis comes the flood of litigation.  So far, early indications show a wrong in search of a remedy, and for criminal defendants, just the expected plea deals.  Here are some highlights.

In April, a federal district judge dismissed for lack of subject matter jurisdiction a §1983 claim for “safe and portable water” as preempted by the Safe Drinking Water Act.  The case is on appeal.

Class actions have been filed against state and municipal officials in federal court, the Michigan Court of Claims, and Genesee County Circuit Court, seeking damages for personal injuries, property damages, and relief from water bills.  Along with the usual governmental immunity defense, defendants assert a statute of limitations defense, with a fair likelihood of success.  The governmental immunity defense is complicated by Governor Snyder admitting fault.  That admission strengthens plaintiffs’ gross negligence exception to governmental immunity.

So far, the Attorney General’s criminal charges have resulted in the usual plea deals by underlings.  The Flint water quality supervisor whom I lauded in a previous post as the only principled public servant in this mess (a position with which the Attorney General agrees) pled no contest to willful neglect of duty; the plea is essentially nothing, because the court took the plea under advisement with dismissal in one year if the supervisor cooperates with the investigation.  A state official reached a second plea deal, pleading no contest to willful neglect of duty regarding an outbreak of legionnaire’s disease with the usual cooperation clause.

Politics saturates the Flint legal landscape.  Attorney General Bill Schuette is widely expected to run for governor in 2018 and must therefore appear to be doing something, such as filing an unusual professional negligence and public nuisance claim against the Flint outside engineering firms.  And when the Flint mayor notified Michigan of intent to sue the state, the state receivership board with continuing jurisdiction over Flint removed the city’s authority to sue.

Stay tuned.

Technicians or Politicians—Whom to Believe?

Posted on February 19, 2016 by Jeffrey Haynes

Amid the finger-pointing, forced resignations, and mea culpas, a question has hovered over the Flint water crisis. What did staff at the Flint water plant say before the switch to Flint River water? 

For months, Michigan’s governor Rick Snyder and the Michigan Department of Environmental Quality have admitted mistakes but never quite explained why Flint switched from Lake Huron water to Flint River water without prior pilot studies. Critics assailed the saving-costs-at-the-expense-of-the-public-health attitude. Apologists apologized and promised remedial measures. But until last weekend, we did not know what the engineers and technicians who operate the Flint water plant thought of the switch.

On February 13, the Detroit Free Press reported that the Flint water lab supervisor questioned the switch. One week before the grandiose public ceremony celebrating the new era for Flint, the lab supervisor told DEQ he needed time to train staff and update monitoring to be ready to use Flint River water. He complained that higher-ups seemed to have their own agenda.

Like many members of this College, I have spent my career fighting the regulator attitude that “we’re the government experts—trust us” and being dismayed when courts blindly defer to an agency. But when faced with a choice, should we believe agency staff, or politicians and their flappers (see Gulliver’s Travels)? We should start by considering the views of the technical folks who take seriously their jobs to protect publichealth. We might get better policy.

 

From the Detroit Free Press, February 18, 2016