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O'Keefe in the News

Flint EMs not protected from criminal prosecution

Flint EMs not protected from criminal prosecution

December 23, 2016

As published by Jennifer Chalmers, The Detroit News

Michigan’s emergency manager law gives its appointees broad powers and broad protections — but not from criminal prosecution.

“No one, not even the president of the United States, is immune after leaving office from prosecution,” said Robert Sedler, a professor of law at Wayne State University.

On Tuesday, the Michigan Attorney General’s Office filed criminal charges against two former emergency managers appointed by Gov. Rick Snyder and two former Flint public works officials.

Darnell Earley and Gerald Ambrose, both appointed by Snyder as emergency managers for Flint, are targets of a state investigation into alleged misconduct in office and willful neglect of duty. In addition, they both face charges of false pretense and conspiracy to commit false pretense.

The charges stem from the city providing water to residents that was not properly treated, leading to lead contamination and likely causing an outbreak of deadly Legionnaires’ disease.

Still, many were surprised Tuesday that state Michigan Attorney General Bill Schuette charged the former emergency managers.

The state’s emergency manager law allows the governor to appoint an emergency manager with broad authority to run the day-to-day operations of a cash-strapped city or school district.

Pat O’Keefe, a corporate restructuring consultant based in Oakland County who has followed Michigan’s unique emergency manager law for years, said emergency managers are stepping into the fire in the communities they serve.

“I am surprised they are taking a swing at their own appointees,” he said.

Snyder has appointed emergency managers to run several cities, including Detroit, Flint, Ecorse and Pontiac. Emergency managers are not currently overseeing any cities but are running school districts in Detroit, Muskegon Heights and Highland Park.

Peter Henning, a Wayne State law professor, said the emergency manager statute protects against civil liability claims, such as a Flint resident suing over declining property values from the water crisis.

“Criminal liability is a different beast,” Henning says. “It can be granted by a judge.”

Henning said the decision to charge state appointees took him only partly by surprise after nine low-level government workers were already charged criminally earlier this year.

“This was not a move up the chain. These people charged are essentially the same level. They were on the ground dealing with the water,” he said.

Investigators have not moved up to state department heads, directors or to people who worked for Snyder, Henning said.

Although in mid-October, documents appeared to show state health department director Nick Lyon was a “target” of Schuette’s probe. Lyon’s attorneys disclosed the documents after repeated public statements by Schuette that “nobody is targeted” in the investigation. A letter from Flood appeared to directly contradicted Schuette’s comments.

Also in mid-October, Lyon’s attorneys released a copy of a subpoena they received from Schuette’s office with a criminal case against Lyon that had not been filed. No criminal charges were ever filed against Lyon.

While the new charges Tuesday include misconduct in office, which is what some of the other government workers charged in the Flint cases also face, the charge of false pretenses struck Henning as “interesting” because it usually involves a theft or larceny accusation.

“False pretensions, this is at least new. Because false pretensions is usually understood as a theft or larceny offense. So who is the victim, what is gained and can the statue be stretched to cover this as a broad anti-fraud provision?” Henning said.

“I think was the AG office is doing is focusing on the lie and looking for crimes they can fit the lie into. There is money involved here,” he said.

John Philo, legal director of Sugar Law Center, said Tuesday’s charges point to the root of the problem with Michigan’s emergency manager law.

“The tragedy in Flint resulted from the law that allows unelected leaders to apply a bottom-line, corporate mentality to human need. Stripping voters of their rights in order to save a few bucks is a horrible idea on its face,” Philo said. “The fact that this law allowed so-called local decision-makers to poison a city of 100,000 confirms that it needs to be repealed.”