Nessel's office appeals Flint ruling for new client: Rick Snyder

Jonathan Oosting
The Detroit News
Then-Gov. Rick Snyder testifies before a House Oversight and Government Reform Committee hearing Thursday, March 17, 2016, on the circumstances surrounding lead found in tap water in Flint. The state  has turned over more records to the committee.

Lansing — Former Gov. Rick Snyder is seeking continued taxpayer funding for private attorneys to represent him in criminal inquiries related to the Flint water crisis but is relying on Attorney General Dana Nessel’s office to defend him in a major class-action lawsuit.

The arrangement is another test of the Flint firewall maintained by Nessel, a Plymouth Democrat whose office is also prosecuting Snyder administration officials. As a candidate last year, Nessel said she would not rule out seeking charges against additional officials — including Snyder — if warranted upon re-examination of the evidence.

The Attorney General’s office became the Ann Arbor Republican's first line of defense in a major lawsuit filed by Flint residents after a state contract with his private attorneys ended as Snyder left office at the end of last year.

The former governor was re-instated as a defendant in the case last month. Assistant attorneys general representing Snyder, his former Treasurer Andy Dillon and current Gov. Gretchen Whitmer are challenging that decision, and last week filed a notice of a planned appeal to the Sixth Circuit U.S. Court of Appeals.  

“The appeal is part of our ethical obligation to represent clients in good faith and make all arguments supported by fact or law on their behalf,” said Dan Olsen, a spokesman for the Attorney General’s office.

The consolidated class-action lawsuit was filed on behalf of Flint residents claiming personal injury and/or property damage as a result of the city's lead-contaminated water crisis, including those exposed to lead and at least one person who died due to possible Legionnaires’ disease.

Plaintiffs contend Snyder was aware of significant risks posed by Flint River water as early as April 2015 but did not inform residents until five months later, when the crisis could no longer be denied.

Losing the suit — which targets other government officials — could cost the state significant sums of money. The Whitmer administration has been discussing a potential settlement. 

Plaintiff attorney Michael Pitt said he was not surprised the state appealed on Snyder's behalf. 

“The current governor has a duty to protect the office of the governor,” he said. “And if there’s a ruling that impacts the ability of the governor to exercise discretion, the governor should seek court review of that.”

But unlike the Snyder administration, Whitmer has shown “that she’s very committed to trying to get the matter resolved,” Pitt said, referencing ongoing settlement talks that continued Friday.

Private attorneys Eugene Driker, Morley Witus and Todd Mendel — who were part of Snyder’s defense team in the civil lawsuit — withdrew from the case earlier this year with the former governor’s consent, according to court records.

Attorneys from Warner Norcross & Judd continue to represent Snyder “in relation with inquiries of a criminal nature related to the Flint water crisis,” the law firm told The Detroit News in a statement.

Warner Norcross contacted the Whitmer administration this past week about continued state payments for those services, a request the administration is “still reviewing,” said Whitmer spokeswoman Tiffany Brown.

Whitmer told The Detroit News in January that she is worried about the legal bills and is working with Nessel to figure out how to handle the situation. "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," she said.

An attorney for the firm emailed Whitmer’s office on Tuesday “stating that he was interested in executing a new supplemental agreement with the Executive Office of the Governor for continuation of legal services to be delivered to former Gov. Snyder,” Brown said.

Warner Norcross declined further comment on the nature of its work with Snyder. The former governor has never faced criminal charges but Democratic U.S. House Oversight Committee Chairman Elijah Cummings of Maryland has said he would like to bring Snyder back before Congress for a second time.

In February, Warner Norcross attorney Brian Lennon chided former Special Assistant Attorney General Noah Hall for implying in a radio interview that the former governor should be held "accountable" for his testimony on the city's lead-contamination crisis before Congress in March 2016 and demanded a retraction. 

The state has paid nearly $240,000 for services related to the Flint water crisis to Warner Norcross since late November, according to a report from the Department of Technology, Management and Budget.

Under Snyder, invoices for the governor’s Flint representation would go first to the governor’s office for review and authorization, and then were sent to the budget department for payment.

The $240,000 in legal bills, nearly $85,000 of which was paid in early January, were from invoices issued in the last few months of the 2018 calendar year, Brown said. Whitmer’s office does not have copies of the invoices linked to those payments nor did it authorize any of the payments, Brown said.

Snyder has publicly apologized for the Flint water crisis but fought claims against himself and the state. Shortly before leaving office due to term limits on Jan. 1, the Ann Arbor Republican said he'll "always have issues" with the crisis and how the city's water switch was mishandled by the "so-called" experts who worked for him.

Senate Minority Leader Jim Ananich, a Flint Democrat who has repeatedly chided Snyder for his handling of the water contamination crisis, said he believes it is appropriate for the state to pay the former governor’s legal fees for criminal inquiries related to his government job.

But it is fair to question who provides the legal fees and how much they cost, Ananich said.

“As much as I have some serious issues with former Gov. Snyder and the way he handled my town — I believe he was dishonest about a lot of things related to this — people doing something in the service of their job still deserve to have their attorneys covered by the state,” he said.

U.S. District Court Judge Judith Levy dropped Snyder from the class-action lawsuit last fall but reinstated him as a defendant in April, citing new evidence in the case.

The amended complaint she allowed alleges that Snyder did not do enough to intervene in the lead contamination crisis or warn the public about outbreaks of deadly Legionnaire’s disease.

The allegations, if proven true, would show Snyder was “deliberately indifferent” and showed “callous disregard” for the health and safety of Flint residents, Levy wrote in her 128-page decision.

Assistant attorneys general Richard Kuhl, Margaret Bettenhausen, Nathan Gambill and Zachart Larsen filed a notice of appeal Tuesday. They have not yet presented their arguments but are expected to do so soon in the Court of Appeals.

Nessel’s office is asking for a six-month delay in prosecuting two Snyder administration officials — former Health Director Nick Lyon and ex-Chief Medical Officer Eden Wells — on Flint water crisis charges first filed by former Attorney General Bill Schuette.

As promised on the campaign trail, Nessel has shaken up the entire body of Flint litigation. On the criminal side, she put new Solicitor General Fadwa Hammoud in charge of Flint cases, and Hammoud last week fired special prosecutor Todd Flood.

Nessel said a recent dispute between Hammoud and Assistant Attorney General Christina Grossi over evidence concealment claims in the Lyon case shows her department’s “conflict wall works.”

She’s also denied potential conflict questions over her office’s supervision of civil cases. The same assistant attorneys general now defending Snyder in the civil case are also prosecuting a state lawsuit against water engineering firms that had worked in Flint.

Staff Writer Beth LeBlanc contributed.