Health chief’s subpoena shows criminal charge for Flint

Chad Livengood
Detroit News Lansing Bureau

Lansing — An attorney for the Michigan Department of Health and Human Services said Tuesday he received a subpoena for a felony criminal case against department Director Nick Lyon.

However, the subpoena and accompanying criminal charge had not yet been filed in Attorney General Bill Schuette’s Flint water contamination investigation as of Tuesday afternoon, according to Genesee County’s 67th District Court.

Ron DeWaard, a Grand Rapids attorney representing the department, said Schuette’s office sent him the subpoena with a caption “People of the State of Michigan v. Nick Lyon,” but no such case existed Tuesday.

“All I can tell you is I have a subpoena with that case number on it,” DeWaard told The Detroit News.

The subpoena references a single felony charge of “misconduct in office” and asks for records related to Lyon’s job description and duties at the department from Sept. 1, 2014, through Dec. 31, 2015, according to the document obtained by The News.

A clerk at the Genesee County 67th District Court said Tuesday afternoon that no such case number was on file for charges against Lyon.

But a subpoena with a prewritten case number was a signal to Lyon’s attorneys that he could be charged criminally in the Flint water investigation as soon as Wednesday.

“I would say it’s unusual if no complaint has been filed to reference a complaint number,” DeWaard said.

Schuette spokeswoman Andrea Bitely declined to comment Tuesday when asked why the subpoena was titled as a felony criminal charge against Lyon.

“I can’t comment on that, but I can tell you that’s what the subpoena is for is for his job description,” Bitely said.

Peter Henning, a former federal prosecutor, said it seems “odd” for the Attorney General’s Office to subpoena a state department director’s job description.

“That sounds like a mistake. Like they let the cat out of the bag a little early,” said Henning, a Wayne State University law professor. “I guess we’ll see.”

The subpoena development comes one day after Schuette declined to say whether he planned to file charges against Lyon for his role in the department’s handling of high levels of lead in Flint’s water and a 2014-15 outbreak of Legionnaires’ disease suspected to be connected to Flint’s tainted water.

“You know we never talk about the specifics of what our charging decisions may or may not be,” Schuette said Monday in an interview on “Michigan’s Big Show,” a syndicated radio program.

Schuette was asked whether Lyon was a target of his investigation.

“We go wherever the emails take us and where the facts take us, which is just what you’d expect, just what you’d demand and just what you’re getting from the Department of Attorney General and our team,” Schuette said. “And so nobody is targeted, nobody is off the table, we’re just going to nothing but the facts, so to speak.”

But a document obtained Tuesday by The Detroit News shows Schuette’s special prosecutor, Todd Flood, sent Lyon a letter on Sept. 7 saying he was indeed a target of the criminal probe.

‘You have become a target’

“Our investigation into the Flint water crisis has evolved over eight months of developing subjects and targets,” Flood wrote. “As a result of our investigation, you have become a target, specially regarding the time frame of January 2015 to January 2016.”

Email records released by Gov. Rick Snyder’s administration show Lyon was aware of a spike in Legionella — bacteria that causes Legionnaires’ disease — as early as January 2015.

The state health department never informed the public about a deadly outbreak of Legionnaires’ disease in Genesee County that killed 12 people and sickened another 79 between June 2014 and October 2015 — a time period that corresponds with Flint’s use of the Flint River for drinking water.

In April, Lyon testified before a state legislative committee about his department’s handling of the outbreak, which was disclosed in mid-January days after Lyon first informed Snyder.

Lyon could not explain to lawmakers why a health alert was not sent out to all physicians about the spike in Legionnaires’ cases during the 17-month outbreak.

The Genesee County Health Department also did not notify the public of the spike in Legionniares’ cases, choosing to instead inform a small group of Flint-area doctors, emails show.

A city employee and eight state employees, including three from Lyon’s department, have been charged criminally by Schuette for allegedly covering up or concealing the depths of Flint’s public health crisis.

A state of emergency signed by Snyder urging residents not to drink the city’s water without a faucet filter has been in place since the first week in January.

Gov unaware of charges

Snyder said Tuesday in a statement sent to The News that he was not aware of any charges being filed against Lyon.

“Nick Lyon has guided the department through this crisis and made improvements to the procedures that are followed to protect public health,” Snyder said. “I am not aware of any official charges being filed against Nick, so I can’t comment further on the investigation specifically. Overall, I would say that this issue needs to be resolved efficiently and without further prolonged delay.”

Flood’s Sept. 7 letter was written on Department of Attorney General letterhead under Schuette’s name.

“I suggest that you contact your attorney and have him contact me if you would like to discuss this further,” Flood wrote to Lyon.

Jennifer Eisner, spokeswoman for the state health agency, said Tuesday the department “and Director Lyon continue to cooperate with the investigation.”

Bitely stood by Schuette’s comments from a day earlier that no individuals are targeted for prosecution in the Flint water probe.

“The attorney general, like any good prosecutor, didn’t pick his targets before this investigation started,” Bitely said.

Former state health chief Jim Haveman, who preceded Lyon at what was formerly known as the Department of Community Health, has come to Lyon’s defense in recent days as speculation has swirled in Lansing political circles that Schuette may level charges against Lyon.

“Nick Lyon is one of the most honest guys I’ve ever worked with, and he’s not capable of any kind of a cover-up,” Haveman told The News. “It just stuns me with what’s going on right now.”

Flood’s letter was dated one week before former state epidemiologist Corinne Miller pleaded no contest to a misdemeanor charge of neglect of duty in office in exchange for providing information to Flood.

Miller’s plea agreement referenced a Suspect 1 and Suspect 2 who are linked to the state’s handling of information about the Legionnaires’ outbreak.

The plea deal indicates that Suspect 1 directed Miller on Jan. 28, 2015, to provide a report on the 2014 outbreak and to meet with Suspect 2. She compiled data “to demonstrate an epidemic” and, in her report to both suspects, included graphs showing the outbreak was isolated to Genesee County.

“Further, the Defendant reported to Suspect 2 that the outbreak was related to the switch in the water source from the Detroit Water and Sewerage Department to the Flint River,” according to the court agreement.

Schuette declined to name Suspect 1 or Suspect 2 while speaking to reporters on Sept. 22 at the Capitol.

(517) 371-3661

Twitter: @ChadLivengood

Staff Writer Jonathan Oosting contributed.