Lawyers hit how Schuette’s team conducts Flint probe

Chad Livengood
Detroit News Lansing Bureau

Attorney General Bill Schuette vowed at the Republican National Convention in mid-July that “justice is coming to Flint” after government agencies were blamed for the city’s water contamination crisis.

The next month, Todd Flood, Schuette’s special prosecutor in the Flint probe, said he was exploring a “very serious charge” that hinted at earlier remarks that involuntary manslaughter may have occurred in Genesee County when a dozen people died from a bacteria outbreak.

In April, Flint investigator Andrew Arena, who helped take down former Detroit Mayor Kwame Kilpatrick in a widespread public corruption dragnet, proclaimed the Flint water case would be “the biggest case in the history of the state of Michigan.”

Throughout the nine-month investigation, Schuette and his team have raised expectations of delivering punishment for the decision-making that made Flint’s lead-tainted water unsafe to drink.

Pressure mounted this past week on Schuette to deliver his promised swift justice after attorneys for state health director Nick Lyon disclosed that Flood sent Lyon a letter in September saying he’s a “target” of a criminal probe that has so far resulted in charges against nine low-level career public servants.

As the case intensifies, attorneys for some government employees being investigated or charged are criticizing how Schuette, Flood and Arena are conducting their multimillion-dollar investigation.

“I think you’ve got an attorney general using Flint to try to advance his own career,” said Mary Chartier, a Lansing attorney representing state health worker Bob Scott, who faces felony charges for allegedly covering up high levels of lead in the blood of Flint children.

Attorneys following the case said the target letter against Lyon and the months-long periods between charges brought in April and July against state workers point to a prosecutorial strategy to reach beyond Lyon, possibly into the governor’s office.

“I think the exit strategy is to try to intimidate as many people as you can to keep going higher and higher,” Chartier said.

Throughout the probe, Schuette has insisted he and his team are merely following the evidence. His statements have echoed what he said when launching the investigation in January: “Without fear or favor, I will carry out my responsibility to enforce the laws meant to protect Michigan families, and represent the citizens of Flint.”

Lyon and his one of his deputies, Susan Moran, have been under investigation for the Michigan Department of Health and Human Services’ failure to publicly disclose a deadly outbreak of Legionnaires’ disease that killed 12 people in Genesee County.

Richard Zambon, a Grand Rapids attorney representing Moran, who has not been charged with a crime, said Schuette and Flood have been operating with “the preconceived notion that there will be criminal charges.”

“In my 36 years of experience, I’ve never seen anything like this before,” Zambon said.

‘By the book’

Some of Schuette’s fellow Republicans are starting to suspect the Flint water probe is more about his well-documented political ambitions. Schuette took steps over the summer to lay the groundwork for a possible run for governor in 2018.

“You know and I know the elephant in the room is how political this is,” said Jim Haveman, a Holland Republican and former state health director under Govs. John Engler and Rick Snyder. “I don’t understand why you use this as a stepping stone to get in the governor’s chair.”

Haveman worked alongside Schuette in the Engler administration when the Midland Republican was director of the agriculture department. Lyon succeeded him at the state health department in 2014 when he retired.

“I’ve known Bill for a long time, but I just don’t get the strategy,” Haveman said.

Schuette has defended the pace of the investigation and Flood’s tactics, while deflecting questions about whether he’s preparing to run for governor in 2018.

“We do this by the book, it will be thorough, it will be quick and prompt,” Schuette said last Monday during an interview on the “Michigan’s Big Show” radio program. “... We’re not going to miss anything, so that’s why we’re very methodical in our approach. But we do it in a swift fashion. There will be more charges, so stay tuned.”

During the radio interview, the attorney general said “nobody is targeted” in the investigation — a comment that caused Lyon’s attorneys the next day to disclose a Sept. 7 letter from Flood informing Lyon he has “become a target” of the probe.

Haveman said the Schuette investigation has had a chilling effect on career state workers who fear the slightest mistake could be criminalized after watching eight state employees face criminal charges for errors in the supervision of Flint’s 2014 switch to Flint River water.

“It effects every department in state government right now,” he said. “All state departments are gun-shy right now because they don’t know what could be the retribution.”

Last Tuesday, Lyon’s attorneys released to The News a subpoena they obtained that day listing a felony misconduct charge against Lyon that has not been filed.

The subpoena’s case number was for a July felony charge against former state epidemiologist Corinne Miller, who cut a plea deal with Flood in September and is expected to testify against unnamed suspects at the health and welfare department.

“It’s unusual if no complaint has been filed to reference a complaint number,” said Ron DeWaard, a Grand Rapids criminal defense attorney representing Lyon’s department in Schuette’s investigation.

Flood and Schuette’s office declined to comment this past week about the subpoena listing a nonexistent charge against Lyon and whether prosecutors have threatened to charge Lyon or Moran.

“We do not discuss the internal workings of an ongoing investigation,” Schuette spokeswoman Andrea Bitely said Thursday.

Preparing for trial

Attorneys of current and former state employees from the departments of environmental quality and health and human services say the target letter and unexplained subpoena are part of a pattern of unpredictable behavior Flood has exhibited in recent months.

“When prosecutors threaten charges are coming, and they aren’t forthcoming, I always question what the motive is in that,” Chartier said. “I think that threat going out there is meant to intimidate people.”

Chartier’s client, Scott, is a data manager for the healthy homes and lead prevention program at the Department of Health and Human Services.

Schuette has accused Scott and state health employee Nancy Peeler of “burying” a report about elevated lead levels in the blood of Flint children in July 2015 — about two months before the department acknowledged there was a problem.

“I’m just not seeing the basis to charge for Mr. Scott, other than the fact he has no political clout whatsoever,” Chartier said.

Eighteen HHS employees have been represented by private attorneys in Schuette’s investigation costing taxpayers $440,000 to date. The Department of Environmental Quality has spent $2.3 million so far on private attorneys for its employees in both civil and criminal cases. Flood’s contract is worth close to $5 million over two years.

Scott and Peeler have been suspended with pay and won’t get a chance to fight the charges until April of next year.

Their lawyers wanted the preliminary hearing delayed to give them time to sort through a “mountain” of state emails, Chartier said.

Chartier said her client intends to fight the charges all the way to trial.

“To try and intimidate him is pointless because he’s not taking a plea offer,” she said. “We’ll see them in court.”