Emergency Managers, Flint, Rick Snyder — June 14, 2017

UPDATED x2: Snyder administration officials facing manslaughter charges over #FlintWaterCrisis but Snyder himself can’t be sued

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Big news out of Flint this morning. Attorney General Bill Schuette has filed charges against two current and two former Snyder administration officials and one former Flint official. Michigan Health and Human Services Director Nick Lyon is being charged with felony charges of involuntary manslaughter and misconduct in office. Four others, including former Emergency Manager Darnell Earley, are also facing manslaughter charges. In addition, Michigan’s Chief Medical Executive Eden Wells has been charged with obstruction of justice and lying to a police officer.

You may think this has to do with lead in Flint’s drinking water. However, these charges are over the officials’ handling of the Legionnaires’ Disease outbreak in Flint in 2014 and 2015:

Both are charged in connection with the Legionnaires’ disease outbreak in the Flint area that led to 12 deaths after the city’s water supply was switched to the Flint River in April 2014. […]

Lyon, 49, of Marshall is accused of causing the death of Robert Skidmore on Dec. 15, 2015 by failing to alert the public about a foreseeable outbreak of Legionnaires’ disease. It’s a 15-year felony.

“Defendant Lyon was aware of Genesee County’s Legionnaires’ disease outbreak at least by Jan. 28, 2015 and did not notify the public until a year later,” the charging documents allege.

Lyon “exhibited gross negligence when he failed to alert the public about the deadly outbreak and by taking steps to suppress information illustrating obvious and apparent harms that were likely to result in serious injury.”

On the misconduct in office charge, a five-year felony, Lyon is accused of instructing an official to discontinue an analysis that would help determine the cause of the outbreak. […]

Wells, 54, of Ann Arbor is accused in connection with the obstruction of justice charge of providing false testimony to a special agent and threatening to withhold funding for the Flint Area Community Health and Environment Partnership if the partnership did not cease its investigation into the source of the outbreak. That’s a five-year felony.

Wells is also charged with lying to a peace officer about the date she knew of the outbreak of Legionnaires’ disease. That’s a two-year misdemeanor.

Although there is no conclusive proof linking the 2014-2015 outbreak of Legionnaire’s Disease in Flint to the change to the Flint River as their water source, experts believe the connection is highly likely:

A national expert in Legionnaires’ disease who met with health and hospital officials in Michigan blames the spike in cases in Genesee County on Flint’s water.

Janet Stout, associate professor at the University of Pittsburgh Swanson School of Engineering with 30 years of experience studying the disease, concluded the problems with Flint’s water are related to the increase in Legionnaires’ cases — although she can’t prove it.

“It is like an emperor’s new clothes situation,” Stout said. “Somebody has to say it.”

She said it’s a “reasonable conclusion” given the link between poor water quality and Legionnaires’ disease in scientific studies done elsewhere.

New data released this week by the Michigan Department of Health and Human Services on Legionnaires’ outbreaks shows 70% of people who contracted the disease were exposed to Flint water two weeks before their symptoms began.

Just looking at the data, it seems pretty clear:

Twelve people died from the outbreak.

Michigan Health and Human Services Director under the “leadership” of Lyon and Wells has a history of hiding information with respect to the catastrophe in Flint. Wells, who worked part-time in her position until a PrideSource exposé revealed that this was illegal, revealed in January of 2016 that elevated lead levels in the blood of Flint children began to show up as early as the summer of 2014, a full year earlier than had been thought. However, because there was a dip later in the fall, a seasonal dip that is not unusual, HHS officials wrote it off as nothing out of the ordinary:

The Michigan Department of Health and Human Services’ own review last July showed a spike in blood-lead levels in Flint children in the months after the city switched its water supply to Flint River water. But state epidemiologists explained it away, a “missed opportunity” that could have resulted in an earlier response to the crisis, the agency’s chief medical officer said. […]

The July data review by the department came amid a growing outcry among Flint residents and local officials about the condition and safety of the city’s water. The data showed a spike in the levels of lead in Flint children’s blood in July, August and September 2014 — only a few months after the city had switched its water supply from the city of Detroit’s system to Flint River water. Email exchanges within the department showed efforts to broaden the data review, to see if the conclusions would change. They didn’t. “Even compared to the previous three years, the portion of first-time EBLL (elevated blood-lead levels) is highest during summer 2014,” health department officials stated in a July 28 memo for Health and Human Services Director Nick Lyon.

But the state data also showed a drop in blood-lead levels in Flint children for October 2014 — a typical, seasonal reduction. That led state epidemiologists to decide the summer spike they saw was insignificant. “So, they said we’ll just have to keep collecting further data, and taking a look at this, and follow it,” Wells said.

In October of 2014, Lyons was caught illegally destroying state government records when the liberal watchdog group Progress Michigan attempted obtain those documents in a FOIA request.

These charges are among many that have been filed by Schuette. Other Snyder administration officials who have been charged include former Flint Emergency Managers Darnell Earley and Gerald Ambrose. Schuette was notably absent from the Flint Water Crisis as it made headlines. When Michigan Department of Environmental Quality chief Dan Wyant resigned in disgrace for his role in the poisoning of Flint, Schuette was quick to defend him, saying he was “saddened” by Wyant’s resignation and knew him to be a “hardworking, dedicated public servant.” However, once it was clear that he was going to run for governor, Schuette suddenly took great interest in the plight of Flint’s residents, which allowed him to distance himself from the political toxicity of Gov. Snyder and appear to be “doing something”.

In the midst of these charges being filed, there are also dozens of lawsuits pending. However, one person who doesn’t have to worry about being sued over his role in the poisoning of Flint’s drinking water is Michigan Gov. Rick Snyder. This past week a judge ruled that Snyder has immunity:

State and Flint municipal employees can be sued over the Flint’s lead-tainted water, but Gov. Rick Snyder and the state of Michigan have governmental immunity under Michigan law, a federal judge ruled Monday.

The sweeping 15-count lawsuit was brought by Flint resident Shari Guertin against the state, the city of Flint, Snyder and 13 other public officials, as well as two consulting firms involved in the water debacle.

Judge Judith E. Levy of U.S. District Court in Ann Arbor, in a 101-page ruling, dismissed many of the counts charged in the lawsuit, but agreed that the “bodily integrity” of Guertin and her child were violated when city residents were unknowingly exposed by to dangerous levels of lead in the city’s drinking water that officials were aware of but hid from the public.

Though Levy ruled none of the state employees can be sued in their official capacity, she said some — including Michigan’s Chief Medical Executive Dr. Eden Wells and MDHHS Director Nick Lyon and others — can be sued as individuals. Flint officials have no state governmental immunity.

“As this case highlights, the more governmental actors that are involved in causing a massive tort in Michigan, the less likely it is that state tort claims can proceed against the individual government actors given the way the state immunity statutes operate,” she wrote.

“Because the harm that befell plaintiffs was such a massive undertaking, and took so many government actors to cause, the perverse result is that none can be held responsible under state tort law.”

So, if you’re planning on poisoning an entire city, the take home message is to be the governor and to involve as many people in it as you can to muddy the waters. Do that and you’ll get off scot-free.

UPDATE: Gov. Snyder is standing by his man (and woman):

Gov. Rick Snyder’s statement in support of DHHS Director Nick Lyon and Dr. Eden Wells
Wednesday, June 14, 2017

LANSING, Mich. – Gov. Rick Snyder issued the following statement today:

Nick Lyon has been a strong leader at the Department of Health and Human Services for the past several years and remains completely committed to Flint’s recovery. Director Lyon and Dr. Eden Wells, like every other person who has been charged with a crime by Bill Schuette, are presumed innocent unless and until proven guilty beyond a reasonable doubt.

Some state employees were charged over a year ago and have been suspended from work since that time. They still have not had their day in court. That is not justice for Flint nor for those who have been charged. Director Lyon and Dr. Wells have been and continue to be instrumental in Flint’s recovery. They have my full faith and confidence, and will remain on duty at DHHS.

UPDATE: Here is Schuette’s press release, available HERE:


Schuette Charges MDHHS Director Lyon, Four Others with Involuntary Manslaughter in Flint Water Crisis

Contact: Andrea Bitely, Megan Hawthorne; (517) 373-8060

June 14 2017

FLINT – Michigan Attorney General Bill Schuette today announced that he has charged Michigan Department of Health and Human Services Director Nick Lyon, former Flint Emergency Manager Darnell Earley, former City of Flint Water Department Manager Howard Croft, as well as Michigan Department of Environmental Quality’s Drinking Water Chief Liane Shekter-Smith and Water Supervisor Stephen Busch with involuntary manslaughter related to their alleged failure to act in the Flint Water Crisis.

Involuntary manslaughter is punishable by up to 15 years in prison, and/or a $7,500 fine.

In addition to the involuntary manslaughter charges, Schuette also charged Lyon with Misconduct in Office, a felony, subject to 5 years in prison and/or a $10,000 fine.

MDHHS Chief Medical Executive Eden Wells has also been charged with lying to a peace officer and obstruction of justice related to an alleged attempt to stop an investigation into the health crisis in Flint and later misleading investigators as to her actions.

Schuette was joined at the announcement by Genesee County Prosecutor David Leyton, Flint Water Investigation Special Prosecutor Todd Flood, and Chief Investigator Andrew Arena.

INVESTIGATION INTERIM REPORT
With more than a dozen people now having been charged, and pre-trial hearings and other legal proceedings occurring, Schuette released the initial results of the more than yearlong investigation. Included in the report is a comprehensive look at today’s and past charges made, as well as a review of the facts and evidence in the case.

DEFENDANTS

Multiple Flint-area residents died of Legionnaires’ disease in the time immediately following the switch from Detroit Water and Sewer Department to the Flint River. All defendants charged with involuntary manslaughter are charged in relation to the death of Robert Skidmore, 85, of Mt. Morris, Michigan. Skidmore died of Legionnaires’ disease after many others had been diagnosed with the illness, yet no public outbreak notice had been issued. The charges allege failure to notify and lack of action to stop the outbreak allowed the disease to continue its spread through Flint’s water system.

NICK LYON

As the Director of the Michigan Department of Health and Human Services, a position whose duties are outlined in the Michigan Constitution, Lyon has a duty to protect public health. The investigation has shown that Lyon allegedly received notice of a deadly Legionnaires’ Disease outbreak in Genesee County nearly one year before he informed the public.  After being informed about a potentially fatal health risk, Lyon allegedly deliberately failed to inform the public of a deadly Legionnaires’ Disease outbreak, which resulted in the death of Robert Skidmore.  Furthermore, Lyon allegedly participated in covering up the source of Genesee County’s Legionnaires’ Disease outbreak by repeatedly attempting to prevent an independent researcher from looking into the cause of the outbreak.

Charges:

COUNT 1 – HOMICIDE – MANSLAUGHTER – INVOLUNTARY Did cause the death of Robert Skidmore on December 13, 2015, by failing to alert the public about a Legionnaires’ Disease outbreak in Flint, Michigan when he had notice that another outbreak would occur; contrary to MCL 750.321. [750.321-C] FELONY: 15 Years and/or $7,500.00. DNA to be taken upon arrest.

COUNT 2 – MISCONDUCT IN OFFICE Did between February 2015 and May 2017, commit misconduct in office, an indictable offense at common law, in violation of his duty to protect the health of the citizens of the County of Genesee, State of Michigan and to protect the public health enjoined upon him by the Michigan Public Health Code, MCL 333.5111(1); MCL 333.5111(2)(f);MCL 333.2251(1): MCL 333.2251(3); and MCL 333.20531 and the Critical Health Problems Reporting Act; contrary to MCL 750.505. [750.505] FELONY: 5 Years and/or $10,000.00.

EDEN WELLS

As the Chief Medical Executive of the Michigan Department of Health and Human Services, Dr. Eden Wells has a responsibility to protect the health and welfare of Michigan residents. During the course of the investigation of the Flint Water Crisis, it is alleged that Wells attempted to withhold funding for programs designed to help the victims of the crisis, and then lied to an investigator about material facts related to the investigation.

Charges:

COUNT 1 – OBSTRUCTION OF JUSTICE Did commit the common law offense of obstruction of justice by knowingly providing false testimony to a Special Agent and by threatening to withhold funding for the Flint Area Community Health and Environment Partnership if the partnership did not cease its investigation into the source of the Legionnaires’ Disease outbreak in Flint, Michigan; contrary to MCL 750.505. FELONY: 5 Years or $10,000.  DNA to be taken upon arrest.

COUNT 2 – LYING TO A PEACE OFFICER – 4 YEAR OR MORE CRIME INVESTIGATION After being informed by Special Counsel Todd Flood, in the presence of Special Agent Arthur Wimmer, that they were conducting a criminal investigation, did knowingly and willfully make a statement or statements to the officer that he or she knew was false or misleading regarding the following material fact or facts relating to the investigation: the date she knew of the Legionnaires’ Disease outbreak in Flint, Michigan, and the officer was conducting a criminal investigation regarding involuntary manslaughter; contrary to MCL 750.479c(2)(c). [750.470C2C]. HIGH COURT MISDEMEANOR: 2 Years and/or $5,000.00.

STEPHEN BUSCH

Stephen Busch served as the Michigan Department of Environmental Quality District 8 Water Supervisor, a position which would have allowed him to order the Flint Water Treatment Plant be shut down because it was not producing safe water. In January of 2015, Busch was made aware of the Legionnaires’ Disease outbreak, yet he allegedly represented to the public that Flint’s drinking water was safe.

Busch was previously charged with felony Misconduct in Office, Tampering with Evidence, Conspiracy to Tamper with Evidence, and two misdemeanor counts for both a treatment and monitoring violation of the Michigan Safe Water Drinking Act.

Charges:

COUNT 1 – HOMICIDE – MANSLAUGHTER – INVOLUNTARY Did cause the death of Robert Skidmore on December 13, 2015, by failing to alert the public about a Legionnaires’ Disease outbreak in Flint, Michigan when he had notice that another outbreak would occur; contrary to MCL 750.321. [750.321-C] FELONY: 15 Years and/or $7,500.00. DNA to be taken upon arrest.

LIANE SHEKTER-SMITH

As the Chief of the Office of Drinking Water and Municipal Assistance at the Department of Environmental Quality, Shekter-Smith had the ability to order the Flint Water Treatment Plant shut down for failure to produce safe water.

Shekter-Smith was previously charged with a felony of Misconduct in Office and a misdemeanor charge of Willful Neglect of Duty.

Charges:

COUNT 1 – HOMICIDE – MANSLAUGHTER – INVOLUNTARY Did cause the death of Robert Skidmore on December 13, 2015, by failing to alert the public about a Legionnaires’ Disease outbreak in Flint, Michigan when he had notice that another outbreak would occur; contrary to MCL 750.321. [750.321-C] FELONY: 15 Years and/or $7,500.00. DNA to be taken upon arrest.

HOWARD CROFT

As Director of Public Works for the City of Flint, Croft had the ability to mandate changes to the treatment processes at the WTP to ensure proper disinfection was occurring, or switch back to DWSD. Mike Glasgow, former Flint Water Treatment Plant Operator, was allegedly pressured by Croft to start using the Flint Water Treatment Plant. Croft’s alleged failure to treat the water properly contributed to the bacterial outbreaks found in Flint, including the legionella in the spring of 2015.

Croft was previously charged with felony False Pretenses and Conspiracy to Commit False Pretenses.

Charges:

COUNT 1 – HOMICIDE – MANSLAUGHTER – INVOLUNTARY Did cause the death of Robert Skidmore on December 13, 2015, by failing to alert the public about a Legionnaires’ Disease outbreak in Flint, Michigan when he had notice that another outbreak would occur; contrary to MCL 750.321. [750.321-C] FELONY: 15 Years and/or $7,500.00. DNA to be taken upon arrest.

DARNELL EARLEY

As an appointed Emergency Manager for the City of Flint, Earley was tasked with ensuring the health and welfare of the City. During his terms as Emergency Manager, Earley contributed to the decisions that allegedly caused the death of Robert Skidmore by keeping the City on the water source even as it became obvious the source should be switched back to Detroit Water & Sewer.

Earley was previously charged with felony False Pretenses, Conspiracy to Commit False Pretenses, Misconduct in Office and a misdemeanor charge of Willful Neglect of Duty.

Charges:

COUNT 1 – HOMICIDE – MANSLAUGHTER – INVOLUNTARY Did cause the death of Robert Skidmore on December 13, 2015, by failing to alert the public about a Legionnaires’ Disease outbreak in Flint, Michigan when he had notice that another outbreak would occur; contrary to MCL 750.321. [750.321-C] FELONY: 15 Years and/or $7,500.00. DNA to be taken upon arrest.

A criminal charge is merely an accusation and the defendants are presumed innocent until proven guilty.

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