Michigan GOP gov hopefuls urge tax cuts, blast gun control

Expert: Charges are to show trio knew conduct was wrong

Jennifer Chambers, and Joel Kurth

Flint’s water crisis turned criminal on Wednesday when the Michigan Attorney General’s Office announced charges against three people who oversaw the safety of the city’s drinking water.

The charges, a mixture of felonies and misdemeanors, stem from an investigation led by Attorney General Bill Schuette’s office into how Flint’s water system became tainted by toxic lead, setting off a public health emergency.

Michigan Department of Environmental Quality District Engineer Michael Prysby faces six charges. Stephen Busch, DEQ’s Office of Drinking Water’s Lansing and Jackson district supervisor, faces a total of five charges. Both have been suspended without pay. And Michael Glasgow, Flint’s utilities administrator, is facing two charges. He has been placed on administrative leave.

Schuette told the public on Wednesday the charges are only the beginning and there will be more to come.

Yet Peter Henning, a Wayne State University law professor and former federal prosecutor, said investigations examining widespread accusations typically don’t result in rounds of charges over time.

“When prosecutors bring these charges, this is a way to get into the water crisis and the evidence. To build a case against the MDEQ or others in state government, they will need a cooperative witness to point them in the right direction,” Henning said.

“They have the documents they need. If they could have charged the higher-ups, they would have. Generally, these cases are not brought piecemeal. I wonder whether we will see charges against someone else.”

All three men were charged with tampering with evidence. The decision to file that charge, Henning said, is a way to show these defendants knew their conduct was wrongful, similar to the conduct in the infamous Watergate case, Henning said.

“It’s a way for prosecutors to show it’s not just negligence or they overlooked something. They realized they acted improperly,” Henning said. “It’s a way to try to get the jury to view them as liars.”

Prysby and Busch were charged with misconduct in office, a law that allows prosecutors to charge public officials with violating common law — those established before colonists came to the United States.

It’s something of a catch-all accusation of wrongdoing and, over the years, has been used against rogue police officers, assisted suicide advocate Jack Kevorkian and former Detroit Mayor Kwame Kilpatrick.

Most recently, the charge was levied against two Wayne County officials and a contractor following cost overruns that forced the cancellation of construction of a $300 million jail downtown.

The law is controversial because there’s disagreement about the definition of both a public official and what they’re duty-bound to do.

“My view is the law is very, very broad. … It’s just not clear enough to be applied in a constitutional way,” said Harold Gurewitz, an attorney who represents former Wayne County chief financial officer Carla Sledge. She was charged with misconduct in office on claims she misled county commissioners about the true costs of the jail project.

Her case is on hold while it’s under appeal. Among other things, the Michigan Court of Appeals is weighing the legitimacy of misconduct in office charges against her and Steven Collins, a county attorney. Charges against him were dismissed last year when a judge ruled he’s an employee, not an official, but prosecutors are appealing.

David M. Uhlmann, director of the Environmental Law and Policy Program at the University of Michigan Law School, said it’s no surprise criminal charges were brought on Wednesday because the Flint tragedy cries out for accountability from state and local officials.

What is unusual, Uhlmann said, is seeing these municipal water workers charged with criminal violations of the state Safe Drinking Water Act.

“Most SDWA violations are addressed by compliance plans by municipalities. Criminal charges are exceedingly rare. ... There may be no parallel case in recent history in the United States,” he said.

The closest example of a drinking water crisis happened in Washington, D.C., Uhlmann said, when water had alarming levels of lead between 2001 and 2004, when the Washington Aqueduct, which supplies city water, changed its treatment chemical, according to published reports.

But no criminal charges were ever filed, Uhlmann said. Instead the Environmental Protection Agency notified D.C. officials they were in violation of the act.

“The question that hangs over today’s announcement is whether these mid-level public officials were the ones calling the shots in Flint and whether they acted with the kind of criminal intent that is normally required for criminal prosecution,” Uhlmann said.

“The decision to move Flint off Detroit water was far above the pay grade of these defendants. A judge and jury will decide what will happen with criminal charges,” he said.