Michigan residents, particularly those living in Flint, are taking some small measure of comfort in this week’s news. With the contaminated water fiasco being officially recognized as a state of emergency, the city will likely be receiving federal funds to help remediate the crisis. Additionally, on Tuesday the media exploded with reports of the U.S. Department of Justice stepping-in to investigate what happened — probing who knew what and when. Also this week, Flint lawmaker Rep. Phil Phelps (D-49) announced plans to introduce legislation to make it a felony for state employees to manipulate data — based on concerns that there may have been willful malfeasance in the Flint water disaster.
While there is a chance some officials will be found guilty of some form of criminal negligence, will there be any recourse for citizens to take civil action against those errant public officials?
Probably not, and here’s why:
It’s important to remember that all of this occurred under the agency of Gov. Snyder’s “Local Financial Stability and Choice Act” — PA 436 of 2012, aka the Emergency Manager Law. Itself, a lengthy document that few have read in its entirety, yet there are carefully worded provisions in the law specifically designed to shield officials from certain lawsuits over decisions made and actions taken under its aegis.
Section 20(1) of PA 436 states: An emergency manager is immune from liability as provided in section 7(5) of 1964 PA 170, MCL 691.1407. — That’s Section 7(5) of Public Act 170 of 1964.
Public Act 170, Section 7(5) states the following: A judge, a legislator, and the elective or highest appointive executive official of all levels of government are immune from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her judicial, legislative, or executive authority. (emphasis mine)
That’s pretty clear.
Yet, in spite of conferring immunity to emergency managers, and incidentally, their employees, the authors of the Emergency Manager Law anticipated the potential wrath of citizens over harmful actions under the law, and doubled-down with costly extra protections to fight-off any litigation.
Let’s go back to Section 20 of the Emergency Manager Law, where we find subsection (4), which states that emergency managers may procure, at the local public body’s expense, a variety of personal protections, including general and professional liability insurance.
It gets uglier: Subsections (3), (5), and (6) deal with specific provisions under which the state treasurer may mandate that the local unit of government must additionally cover insurance gaps and fully indemnify individuals acting under PA 436 on their behalf. And furthermore, the state is permitted to deduct amounts owed out of the revenue sharing due to the local government. It is also of interest that certain types of lawsuits would fall under the state attorney general’s jurisdiction — meaning the AG would act as defense for the emergency manager and their employee(s) and bill the local government for his services.
That last part is important. If subsections (3), (5), and (6) were invoked, the City of Flint could bear the financial burden of civil litigation.
How about suing the state then? They covered that one too. Section 32 of the Emergency Manager law shields the state.
The particulars of the Emergency Manager Law beg the question: Was the original intent one to cut corners and put public safety at risk?
It’s a valid question. The fact that they stacked the deck, giving citizens no recourse whatsoever for abuses found at the hand of an unelected dictator says a lot about the values of the elected officials in Lansing who sanctioned this law. It is clear their primary concern was to protect the personal interests of the emergency manager — public health and safety be damned.