In what can only be described as a Hail Mary attempt to use the Jedi Mind Trick on three judges on the Michigan Court of Appeals, Attorney General Bill Schuette’s Assistant Attorney General Nathan Gambill is arguing that Emergency Managers appointed by Gov. Rick Snyder are not “state officials”:
The Michigan Court of Appeals is weighing legal arguments which may determine if a class action lawsuit against the state concerning the Flint water crisis may go forward.
The lawsuit is seeking damages from the state for Flint residents affected by decisions that created the city’s tap water problems. It’s one of many lawsuits related to the water crisis.
The state is challenging key parts of the class action suit, including whether emergency managers appointed by the governor are actually ‘state’ officials.
“Unquestionably it is a significant amount of power,” Assistant Attorney General Nathan Gambill argued before the three-judge panel, “But that doesn’t make them state officials. Their authority is limited to only acting on behalf of local officials. That’s not statewide.”
Let’s examine this premise for a moment, shall we? The easiest way for us to do that is to have a look at Public Act 436, the latest iteration of Michigan’s odious Emergency Manager law, passed by our Republican legislature and signed into law after voters got rid of the former version – Public Act 4 – in November 2012. It took just 37 days after voters spoke for Republicans to pass a nearly identical version of the law and put it on the books, this time with an appropriation to make it veto-proof (or, as I like to call it: democracy-proof.)
I did a comprehensive review of PA 436 which you can read HERE. Here are a important elements in that law that address the issue of whether or not Emergency Managers are, in fact, “state officials” (the parts in italics are verbatim from the law):
- Upon appointment, an emergency manager shall act for and in the place and stead of the governing body and the office of chief administrative officer of the local government… Following appointment of an emergency manager and during the pendency of receivership, the governing body and the chief administrative officer of the local government shall not exercise any of the powers of those offices except as may be specifically authorized in writing by the emergency manager.
- The emergency manager’s compensation shall be paid by this state and shall be set forth in a contract approved by the state treasurer.
It’s worth noting here that the Emergency Managers report directly to the state treasurer. The state treasurer is their boss.
- The Emergency Manager may prohibit the local elected or appointed official or employee, agent, or contractor of the local government from access to the local government’s office facilities, electronic mail, and internal information systems.
- The Emergency Manager reject, modify, or terminate 1 or more terms and conditions of an existing contract as well as reject, modify, or terminate 1 or more terms and conditions of an existing collective bargaining agreement.
- Act as sole agent of the local government in collective bargaining with employees or representatives and approve any contract or agreement and the sole trustee of the local pension board.
- Consolidate or eliminate departments of the local government or transfer functions from 1 department to another and appoint, supervise, and, at his or her discretion, remove administrators, including heads of departments other than elected officials.
- Sell, lease, convey, assign, or otherwise use or transfer the assets, liabilities, functions, or responsibilities of the local government.
- For municipal governments, with approval of the governor, disincorporate or dissolve the municipal government and assign its assets, debts, and liabilities as provided by law. The disincorporation or dissolution of the local government is subject to a vote of the electors of that local government if required by law.
- Take any other action or exercise any power or authority of any officer, employee, department, board, commission, or other similar entity of the local government, whether elected or appointed, relating to the operation of the local government. The power of the emergency manager shall be superior to and supersede the power of any of the foregoing officers or entities.
- Remove, replace, appoint, or confirm the appointments to any office, board, commission, authority, or other entity which is within or is a component unit of the local government.
- When negotiating contracts worth more the $50,000, the EM may ask the treasurer to make them exempt from competitive bidding.
The upshot is that Emergency Managers take complete control over the local government and, while they are doing so, they report directly to the state treasurer. As Benton Harbor Emergency Manager Joe Harris once put it, “I am the City Manager. I replaced the Finance Director. So I’m the Finance Director and the City Manager. I am the Mayor and I am the Commission and I don’t need them.”
That, combined with the fact that they are appointed by the governor himself or herself, makes Emergency Managers “state officials” under pretty much any definition of that term that you could imagine. Whether or not they are acting “statewide” is completely irrelevant.
There are a couple of other points about this case before the Court of Appeals that are worthy of your attention. The first is that Attorney General Bill Schuette’s office is defending the Snyder administration in this case at the same time Schuette is trying to distance himself from the Snyder administration in his run for governor by going after as many Snyder administration officials as he can in his investigation into the Flint water crisis. In other words, he’s playing both sides of the game to make himself look good to voters.
And then there’s this:
Attorneys for the state are also arguing the class action suit should have been filed earlier. The suit seeks damages tied to a period in the fall of 2015 when problems with the water supply prompted a return to water from Detroit.
Paul Novak is one of the attorneys handling the class action suit. He scoffs at the state’s assertion that Flint residents should have known earlier that there was something wrong with their tap water. Novak points to the current criminal probe that’s charged state officials with misleading Flint residents by telling them their tap water was “safe to drink” for more than a year after the ill-fated switch.
“You tell me which time I’m supposed to believe the state and which time I’m not,” Novak told reporters after the hearing.
If the three-judge panel hearing these arguments don’t flush that argument down the toilet instantly, I’ll be shocked.
I’ll finish with a comment by Julie Hurwitz, the attorney for Flint residents suing the state: “What’s at stake is the ability to proceed in the only form available to be able to hold this state responsible and accountable for the violation of the rights of every single resident and water user in the city of Flint.”