Whitmer questions state aid for Flint legal defenses

Leonard N. Fleming
The Detroit News
Nick Lyon has the second highest amount of state legal defense spending at $1.87 million.

Millions in state tax dollars for the legal defenses of Flint water crisis defendants are in danger of being cut when the aid runs out this year, as Democratic Gov. Gretchen Whitmer pledges to ensure taxpayers "are getting their money's worth."

The specter of losing funding has the private-practice lawyers for the two highest-profile defendants saying the state should continue to pick up the tab because the water crisis happened under the state government's watch. The price tag is now $30.6 million and growing. 

If state legal aid were cut off for the defendants, legal experts said it would pressure them to make deals with the special prosecutor — unless they have enough money to hire experts and mount a vigorous defense. 

Republican former Gov. Rick Snyder convinced the GOP-led Legislature to foot the legal bills of the 10 state employee defendants who were involved with Flint's switch of water sources in 2014 and an associated 2014-15 outbreak of Legionnaires' disease. They included two high-profile health department appointees, Nick Lyon and Eden Wells, who were accused of involuntary manslaughter and other crimes.

Eden Wells had the 10th highest state subsidy for legal defense at $723,208.

Whitmer has raised questions about the legal funding for private defense attorneys, while Democratic Attorney General Dana Nessel has asked Wayne County Prosecutor Kym Worthy to review the legal cases. 

Whitmer told The Detroit News last week that "of course I'm worried about" the "legal bills that were from activity that were not on my watch." But she said it's too early to say how she will handle the issue and is working with Nessel to figure out the answers.

"Unfortunately, there's no easy solution here," Whitmer said. "It's not easy, but I'm going to make sure that taxpayers are protected and are getting their money's worth and that people of Flint get the justice they deserve."

But attorneys for former Michigan Health and Human Services Department Director  Lyon and ex-Chief Medical Executive Wells say the state has a responsibility to help public servants with their legal defenses because they are being prosecuted for doing their jobs, not for taking money from taxpayers.

"Our position would certainly be that the state is obligated to continue providing the defense," said John Bursch, who unsuccessfully argued for Lyon's case not to go to trial last year on charges of involuntary manslaughter and misconduct in office.

A day after taking office, Gov. Gretchen Whitmer signed her first executive directive Wednesday requiring state employees to report immediately to their director any “imminent threat to the public health, safety, or welfare.”

Just because "things didn't work out the way everybody hopes that they would, I would hope the state would step in and take care of that," he said, adding that "you don't have someone embezzling from the state" and that his client "was genuinely trying to do their job."

Special Prosecutor Todd Flood has struck plea deals with six defendants, got two high-profile state officials bound over for trial and remains in preliminary exams for a state environmental regulator, a former Flint emergency manager and a data manager for a state lead poisoning prevention program.

No one has gone to prison three years after the state declared an emergency in Flint over the lead-contaminated drinking water. 

Whitmer also said her administration will be looking at the possibility of a settlement with some civil lawsuits — something Attorney General Dana Nessel reportedly is also considering.

"I think that there's a lot in flux here," the governor told The News, "and I don't think it'd be responsible to weigh in, in a black or a white way right now, definitely yes or no."

Legal subsidies mount

Former Attorney General Bill Schuette's office had spent $6.8 million on pursuing criminal charges and defending against Flint-related lawsuits through the end of 2018, according to state records.

For the fiscal year 2019 budget that began in October, the Attorney General's Office was given another $2.6 million for Flint defense legal services, said Kurt Weiss, spokesman for the Department of Technology, Management and Budget.

The Michigan Department of Environmental Quality, whose regulators were blamed by a Snyder task force for helping create the lead contamination crisis, was allotted an extra $3 million. Former and current DEQ officials Liane Shekter Smith, Stephen Busch and Michael Prysby reached plea deals with Flood in the past month.

The funding is supposed to last until the end of September.

Among state officials involved in the Flint crisis, Snyder has spent the most money at $8.5 million. Some of the taxpayer money initially was spent to review state documents and produce tens of thousands of them for posting on the governor’s office website.

But some of the funding has paid for private criminal defense attorneys for Snyder, who told The News in December that he has "no worries" about Nessel reviewing the Flint cases.

Lyon has the second highest amount of spending at $1.87 million. He is the highest-level administration official to be criminally charged. Wells had the 10th highest subsidy at $723,208.

Among the top five officials for legal spending are former DEQ Director Dan Wyant at $1.31 million and ex-DEQ spokesman Brad Wurfel at $1.23 million. The special prosecutor has not sought charges against Wyant or Wurfel, but they have been targets in civil litigation.

Lyon attorney Bursch said the legal financing issue is a "long ways in the future right now." But if continued funding "doesn't happen" by the late summer, "we're going to have to sit down and talk about that," he said.

Jerold Lax, one of the lawyers for Wells, also argues the state should keep funding the Flint defendants.

"I do think that under these circumstances that it has been entirely appropriate for the state to bear these costs, and it would continue to be appropriate for future such costs," Lax said.

Aid cutoff implications

The specter of less or no further funding for the defense applies pressure to the remaining defendants to cut deals and plead to lesser charges, said Peter Henning, a former federal prosecutor who is now a Wayne State University law professor.

"If this were to switch from the state paying the attorneys to coming out of the defendants' own pockets, it becomes problematic because these cases are going to require a lot of resources," Henning said.

"The defendants are going to have to hire experts to come in and try and counter the government's experts. And so that's not cheap. And if you don't have the financial wherewithal to pay for experts, that could put your defense in serious jeopardy.

"There are not a lot of people who have a lot of independent wealth," he added.

Prior plea deals with Flood were "pretty nice" to help foster cooperation, Henning said.

In December, DEQ water regulators Prysby and Busch pleaded guilty to misdemeanors and agreed to testify against other Flint prosecution defendants.  Busch and Prysby had been accused of “willfully and knowingly misleading” regulators at the U.S. Environmental Protection Agency and Genesee County Health Department about the treatment of Flint’s river water.

Their misdemeanors will be dismissed if they cooperate with prosecutors.

This month, Shekter-Smith, the fired former head of the Michigan Department of Environmental Quality's division responsible for overseeing Flint’s water source switch, pleaded no contest to a misdemeanor charge. She has agreed to testify as well, with Flood saying "Her candor and truthfulness to date has been refreshing."

Nessel spokeswoman Kelly Rossman-McKinney said state officials are working hard to bring resolution to all of these cases.

"Our commitment is to pursue those charges as efficiently as we possibly can," Rossman-McKinney said. "It is not our place to determine who pays for the defense of former state employees."

But Whitmer made it clear that the Flint defendants will have to compete with more compelling state needs in her upcoming spending plan.

"I've got a duty to make sure that I balance the budget," she said, "and make sure that we fix the damn roads and clean up our drinking water and protect our communities and make sure the kids are getting the education they need."


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Top 10 Flint legal aid spenders

The top 10 former and current state officials spending state money on legal services related to the Flint water crisis.:

Gov. Rick Snyder: $8.5 million

HHS Director Nick Lyon: $1.87 million

DEQ regulator Stephen Busch: $1.79 million

DEQ Director Dan Wyant: $1.31 million

DEQ spokesman Brad Wurfel: $1.23 million

DEQ drinking water chief Liane Shekter-Smith: $1.21 million 

DEQ regulator Mike Prysby: $1.01 million 

HHS employee Bob Scott: $1.01 million 

DEQ official Patrick Cook: $760,075

Chief Medical Exec Eden Wells: $723,208

Source: Documents from state of Michigan agencies