FLINT: How Gov. Snyder Insulated His Emergency Managers from Your Lawsuits

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.

logoAmy Kerr Hardin

 

 

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11 Responses to FLINT: How Gov. Snyder Insulated His Emergency Managers from Your Lawsuits

  1. JANE HYDEN says:

    he just needs to be impeached………..what a dirty low down scumbag he is!!!!!!!!!!!

  2. Dr. Harry Marshall says:

    The current Emergency Management Law should be repealed and no new one be enacted until a non-partison board to redraw voting districts in Michigan be established

  3. Jim P says:

    Pitchforks.

    Torches.

  4. Toby Powell says:

    The Michigan Republicans have been using draconian measures for years to thwart the people’s will. Gerrymandering, writing laws designed to undo voter approved legislation. We need the feds to step in and investigate possible criminal and or unconstitutional acts by these anti democratic cretins

  5. Richard says:

    Ok! But what about the Governor, Governor’s office and who ever conducted these false allegations that determined the water was safe to drink, cook, bath and even wash in was safe? Are they insulated from LAWSUITS? And the sad part about it all is that the majority of the people who voted for this guy did so on the basis of his skin color? And I say this not out of being bias! But just look around he’s in his second term who’s complaining? Black folk’s, Michigan is 79.9% white! Now remember this new law “Local Financial Stability and Choice Act”, did not mean a DAMN thing to the white community because no emergency manager was placed in their communities? But when Governor Snyder and his administration use this new law they created, used and implemented into certain communities of color they suffered! But what they didn’t anticipate on, is that their is a white community among those of color?

  6. Greg Thrasher says:

    Super analysis of course these provisions do not shield bad state actors from gross malfeasance as well as criminal and conspiracy

  7. democracy anyone? says:

    It is not initiative-proof. Referendum and initiative are two totally separate things. Referendum is the repeal of a law recently passed. An initiative rewriting a law, coming up with a new law altogether, or amending the state constitution is always an option. A constitutional amendment initiative petition could put it on the ballot in November 2016. Deadline for signatures is in July of 2016. Anyone working on that?

  8. Let's get Jiggy with-it says:

    Attack the Emergency Management law itself. Citing its unconstitutional pretext, as the law was written in anticipation of committing criminal acts, and therefore is unconstitutional. Just as a contract to murder someone is void and unenforceable, a law written that provides the same characteristics, may be and argued on the same basis. At least its worth a try. And, if the Emergency Management law was enacted, subsequent to the meeting of 2009, where all the current factors were established, synthesized and put into action, perhaps that door can be opened, and those participating can be called to answer (subpoenaed).

  9. We need the feds to step in and investigate possible criminals and or unconstitutional acts by these anti-democratic bastards!

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