Official misconduct over Flint water crisis may be hard to prove: lawyers

Reuters News
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Posted: Apr 21, 2016 2:48 PM

By David Ingram and David Bailey

(Reuters) - The lead criminal charge brought on Wednesday against two Michigan state officials in connection with the tainted water supply in Flint, Michigan, could be difficult to prove, lawyers familiar with the state's criminal law said.

The charge against state Department of Environmental Quality water supervisor Stephen Busch and water engineer Michael Prysby alleging "misconduct in office" might also be difficult to deploy against higher-level officials without day-to-day responsibilities relating to the city's water, the lawyers said.

The lawyers interviewed said that to prove official misconduct, the prosecutor would have to show that someone acted with intent either by failing to perform a duty or acting in a way that violated a duty to get a conviction.

"It has to be more than really screwing up your job or making a negligent mistake in your job," James Brady, a former federal prosecutor now at the law firm Dykema Gossett in Grand Rapids told Reuters.

Official misconduct is a felony carrying a penalty of up to five years in prison. It has been used before in Michigan against police officers accused of excessive force as well as legislators and public officials including former Detroit mayor Kwame Kilpatrick, who pleaded guilty to obstruction of justice.

Other charges also were lodged against Busch and Prysby, who have pleaded not guilty. A third official, Flint water quality supervisor Michael Glasgow, was charged with tampering with evidence and willful neglect of duty. It was not immediately clear when he would enter a plea.

In announcing the criminal charges, state Attorney General Bill Schuette, a Republican, vowed that no one was above the law and said more charges were to come.

Embattled Michigan Governor Rick Snyder, a Republican, has been the focus of public outcry over the Flint water crisis. Though he has apologized publicly for the contamination, which resulted from a decision to switch the source of the city's water, Snyder told a news conference on Wednesday he did not believe he was himself criminally liable. "A handful of bureaucrats created a terrible situation in Flint," he said.

But the governor also highlighted the challenge at the heart of the official misconduct charges. "Was it actually criminal, or was it just poor decision-making?" Snyder asked at the news conference.

Busch and Prysby violated the anti-misconduct law when they willfully and knowingly misled other regulators in violation of their "duty to provide clean and safe drinking water" and to protect public health, the state attorney general's office said.

Prysby further violated the same law when he authorized a permit to the Flint water treatment plant despite knowing the plant was deficient, the office said.

Demonstrating intent is not often clear-cut, the lawyers said.

"This is an amorphous offense, which makes it a challenge for both sides, both for prosecutors and the defense," said Peter Henning, a law professor at Wayne State University in Michigan and a former federal prosecutor.

Theoretically, the lawyers said Schuette or the special prosecutor could go after higher-level officials including Snyder for "misconduct in office" during Flint's lead crisis but they said it would be a challenge for prosecutors the more removed the official was from day-to-day decisions. The charges against Busch and Prysby are closely related to their duties with the DEQ.

"Where it becomes difficult is if it is not clear what that person's obligations were," Henning said.

Kilpatrick, who resigned as Detroit mayor in 2008, was one senior official in Michigan who faced a misconduct charge. He subsequently pleaded guilty to obstruction of justice, admitting to lying under oath, in a deal with county prosecutors. He was later convicted on separate federal charges and is currently serving a 28-year sentence.

Some other U.S. states have similar laws barring official misconduct. Last year, a same-sex couple in Kentucky accused Rowan County Clerk Kim Davis of official misconduct after Davis refused to issue marriage licenses despite a court order; Kentucky's attorney general opted not to prosecute.

(Reporting by David Bailey in Minneapolis; Additional reporting by Ben Klayman in Detroit; Writing by David Ingram in New York; Editing by Anthony Lin, Noeleen Walder and Diane Craft)