Michigan: GOP Bills Would Strip Emergency Managers of Their Immunity

Last week, Democracy Tree broke the story on the Michigan Emergency Manager Law’s immunity from civil liabilities — individuals acting under the aegis of the law are shielded from personal lawsuits, even if they cause grave harm — as long as they are operating within the parameters of their duties. Most notably, Michigan and the nation have been aghast at the poisoning of an entire city under emergency management. An additional insult to communities is that they are currently obligated to pay for any and all litigation that may occur in spite of the legal immunity. By law, the state is required to deduct these costs from the revenue sharing of the already fiscally distressed public body.

Not if one Republican lawmaker has his way.

Today we learn that a legislative remedy has been introduced by Rep. Peter Lucido (R-36). House Bills 5209 and 5210 would strip emergency managers of their immunity, and would provide at least some modicum of accountability through tort law. The proposal additionally requires an emergency manager to post a $5 million bond, which must be forfeited in the case of “gross negligence” or “willful and wanton misconduct”, causing the emergency manager to become personally responsible for all damages, instead of the tax paying public.

Excerpt from the HB 5209:

AN EMERGENCY MANAGER APPOINTED BY THE GOVERNOR UNDER SECTION 9 SHALL POST A SUITABLE BOND OF NOT LESS THAN $5,000,000.00, ISSUED BY A RESPONSIBLE BONDING ENTITY, FOR THE FAITHFUL PERFORMANCE OF THE DUTIES OF THE OFFICE. AN EMERGENCY MANAGER FORFEITS THE BOND IF HIS OR HER CONDUCT AS AN EMERGENCY MANAGER AMOUNTS TO GROSS NEGLIGENCE OR IS WILLFUL AND WANTON MISCONDUCT, AND THE EMERGENCY MANAGER IS RESPONSIBLE FOR ALL DAMAGES, EXPENSES, AND COSTS ASSOCIATED WITH THAT GROSS NEGLIGENCE OR WILLFUL AND WANTON MISCONDUCT.

There’s more:

Another GOP proposal, with bipartisan support, was introduced in the House to make legislators subject to the Freedom of Information Act. Rep. John Bizon (R-62) offered HB 5216, a bill that will kick open the door on one of the least transparent government bodies in the nation.

And something from the Dems:

Flint lawmaker Rep. Phil Phelps (D-49) announced plans to introduce legislation making it a felony for state employees to manipulate data — based on concerns that there may have been willful malfeasance in the Flint water disaster.

Sensible bills? Bipartisan cooperation? Pinch me.

logoAmy Kerr Hardin

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4 Responses to Michigan: GOP Bills Would Strip Emergency Managers of Their Immunity

  1. Helen Weeks says:

    Well its about time. The EMF law should be repealed it’s stated purpose and outcomes have caused irreversible harm to many people.

  2. Bruce Channell says:

    Bipartisan cooperation??I am shocked, shocked I say!

  3. Nick Krieger says:

    It is true that HBs 5209 and 5210 (Lucido) would amend both the Government Tort Liability Act (“GTLA”), MCL 691.1401 et seq., and the Local Financial Stability & Choice Act, (the “Emergency Manager Law”), MCL 141.1541 et seq., to eliminate statutory tort immunity for emergency managers. However, this likely wouldn’t accomplish much. I fully acknowledge that the bills, if adopted, would create the appearance of the availability of a tort remedy. But please remember that Sec. 32 of the Emergency Manager Law, itself, MCL 141.1572, bars all lawsuits against all state officials for all activities authorized by or arising under the act. In practical effect, therefore, the presence or absence of statutory tort immunity for EMs means very little indeed. After all, if a lawsuit cannot be prosecuted in the first instance, it really doesn’t matter whether an EM is immune to liability on the plaintiff’s asserted claims.

    • Amy Kerr Hardin says:

      Thanks Nick,
      You are correct. Under PA 436, the EM is an employee of the Dept. of Treasury, and therefore still immune under Sec. 32. It is doubtful these two bills will go far at this point. As the Flint and DPS troubles unfold, lawmakers may show some interest in amending the law. It is after all, an election year for the House.

      Rep. Lucido’s bills are probably intended to be a shot across the bow, similar to the many of the calls for arrests, which are equally improbable.

      Rep. Lucido is going to be on the Tom Sumner radio show tomorrow morning. I’ve alerted Tom to your observation.

      If the notion of stripping the EM immunity picks-up steam, the bill would be rewritten, as is frequently the case with trial balloon legislation.

      In the very least, PA 436 should relieve the local unit of government of the financial responsibility of defending any litigation. Just because the law says you can’t sue, doesn’t mean it won’t happen.

      Thanks again for your keen eye.
      Amy

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