Lawyer: No need for U.S. marshals to hunt down Earley

Melissa Nann Burke, and Jim Lynch
Detroit Public Schools Emergency Manager Darnell Earley

Washington — The House oversight chairman said Wednesday the committee has directed U.S. marshals to “hunt down” former Flint Emergency Manager Darnell Earley to serve him a subpoena to testify on Flint’s water crisis.

But an attorney representing Earley, who is serving his final four weeks as emergency manager of Detroit Public Schools, said such actions are uncalled for, Earley would accept the subpoena and his client would appear as requested.

U.S. House Committee on Oversight and Government Reform Chairman Jason Chaffetz, R-Utah, had harsh words for Earley — particularly his refusal Wednesday to appear in Washington, D.C. Earley’s attorney, A. Scott Bolden, on Tuesday refused service of a subpoena.

“We’re calling on the U.S. Marshals to hunt him down and serve him that subpoena,” said Chaffetz, chairman of the House oversight committee, who indicated he had not decided whether there would be another hearing on Flint’s water contamination crisis.

Earley oversaw Flint’s drinking water supply as the state-appointed emergency manager when it was switched to the Flint River in April 2014.

On Wednesday, during a four-hour congressional hearing, several representatives criticized Earley’s failure to appear and called on Earley to testify at a future session.

Afterward, his attorney, A. Scott Bolden, said Earley would comply and questioned the idea that his client was avoiding an appearance.

“Issuing a subpoena at 6 p.m. the night before to appear at 9 a.m. the next day is completely unreasonable, unenforceable and inappropriate on the part of the committee,” Bolden said. “I had told the committee in writing last night and this morning that I was willing to accept service of a new subpoena within a reasonable time frame. ... And the committee failed to respond to either of those communications.

“I’ll accept service, and he will be willing to appear.”

Earlier this week, a spokeswoman said Earley’s work with Detroit schools would prevent him from testifying to the U.S. House Committee on Oversight and Government Reform.

“Mr. Earley was invited to appear before the committee, but he has declined that invitation,” Detroit school district spokeswoman Michelle A. Zdrodowski said in an email.

After the Wednesday hearing, Chaffetz said U.S. Marshals were directed to serve Earley personally with the subpoena because his attorney on Tuesday wouldn’t accept service of process.

“We tried to do it the polite way through his attorney,” Chaffetz said. “So we have U.S. Marshals that serve subpoenas. If that’s the way he wants it, that’s the way he gets it.”

Chaffetz said it is “bad form” and usually not needed to involve the marshals, but “if people are going to be difficult, that’s what happens.”

Democrats and Republicans alike called Wednesday for Earley to testify. U.S. Rep. Brenda Lawrence, D-Southfield, renewed her call for Snyder, Earley and other state officials to testify before the committee.

“They should come, and they should answer the questions,” Lawrence said.

U.S. Rep. Justin Amash, R-Cascade Township, said it was “outrageous” that a situation like Flint’s could happen in the United States and called for Earley to testify.

“It’s disappointing that former Emergency Manager (Darnell) Earley has his attorney tell us, when he received a subpoena for his appearance here, that it borders on nonsensical to accept that subpoena to come here,” Amash said. “What’s nonsensical, what’s disappointing is that one of the people who is probably most culpable in this situation won’t take responsibility for it. I think he needs to appear here.”

In an Oct. 26, 2015 commentary in The Detroit News, Earley wrote that the decision to switch Flint from the Detroit water system to a new regional water authority was “part of a long-term plan” that was also backed then-Emergency Manager Ed Kurtz, Flint’s mayor, city council and Genesee Drain commissioner.

“It did not fall to me to question, second guess or invalidate the actions taken prior to my appointment,” he wrote.

But some Democratic oversight committee members said Wednesday that Earley was the one who decided to use the Flint River as a temporary water source until the Karegnondi Regional Authority was built. The state has said the failure to treat the river water with corrosion controls resulted in dangerous levels of lead leaching into the water.

“What the City of Flint and the State of Michigan are now dealing with is the management of an unintended consequence resulting in a negative outcome from an otherwise sound public policy decision,” Earley wrote in the commentary. “There is no ‘blame’ to affix on any emergency manager for that.”

During the hearing, Chaffetz also said his committee will issue a subpoena Wednesday to the former Midwest regional administrator for the Environmental Protection Agency to testify about her agency’s response to the lead contamination of Flint’s drinking water.

Susan Hedman resigned her position effective Feb. 1 stemming from the EPA’s handling Flint water crisis. Chaffez said the EPA has promised to provide Hedman’s emails to the committee by the end of the week.

Chaffez has not committed to calling on Gov. Rick Snyder to testify despite calls from Democratic oversight committee members.