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Thursday, January 7, 2016

Op/Ed: MI State Board of Ethics: Hold Snyder's Emergency Managers Responsible: Flint Water Crisis

Will Michigan's Board of Ethics Hold Rick Snyder's Emergency Managers Accountable for Flint's Water Crisis?
Photo Credit - IUNT
(L to R - Michigan Governor Rick Synder, Flint Emergency Managers
Michael Brown, Ed Kurtz, Darrell Earley and Jerry Amborse)

Michigan's State Board of Ethics. The Body is Tasked With Ensuring the Accountability and Ethical Nature of Governmental Functions.

The Board Duties Include Prescribing Standards of Conduct for Public Officers Appointed by The Governor, and Civil Service Employees of the State, According to Michigan Public Act 196 of 1973


Are Michigan's Emergency Managers (EM) Public Officers? And if so, When Will the State Board of Ethics Review at Least Four EM's Actions as it Relates to the Flint Water Crisis?


An Independent Underground News & Talk Op/Ed:


Michigan's Board of Ethics was created during former Governor William Milliken (R) administration in 1973, back in the days when terms similar to transparency and integrity existed in the State's Chief Executive Officer (CEO) position.

The Board has two primary functions. First, is to evaluate the ethical conduct of executive branch state employees. And the second conduct a similar test for public officers appointed by the Governor or other executive official.

Flint's former Emergency Managers Michael Brown, Ed Kurtz, Darrell Earley-- now a EM for Detroit Public Schools -- and Jerry Amborse each were appointed into the position of having unilateral control over Flint, Michigan government functions as it relates to operations, financial and administrative matters.

Two legislative measures - Public Act 4 of 2011 which was later repealed by Michigan's voters; and later Public Act 436 of 2012 both signed into law by Governor Rick Snyder (R) allotted Michigan's highest Elected Official - the Governor - sole rights to appoint Emergency Managers to any county, city, village, township or school district unit in the state by declaring the municipal unit under a "financial emergency".

In Flint, an economic hodgepodge of occurrences stained the city's finances over decades, starting with the closing of General Motors "Buick City" manufacturing plant in 1999.

The New York Times - November 22, 1997:

"Faced with dwindling demand for large cars as more Americans switch to sport utility vehicles, mini-vans and pickup trucks, the General Motors Corporation announced today that it would close its 2,900-employee car factory in Flint, Mich., during the third quarter of 1999. 
The closing of the Buick City factory, which produces Pontiac Bonneville and Buick LeSabre sedans, will mark the end of an era for G.M., which was founded in Flint in 1908 and has been building cars there ever since. After the closing, G.M.'s vehicle production in Flint will be limited to pickup trucks and medium-duty commercial trucks. 
The Buick City factory shutdown represents the latest setback for Flint, where G.M. employs 35,000 workers at 18 factories and other sites. G.M. has also been planning for several years to close a 3,100-employee V8 engine factory there in late 1999. 
Flint is situated 60 miles northwest of Detroit and rivals it in historical importance for the auto industry. A sitdown strike in 1937 at another G.M. factory in Flint, which has since been demolished, led to G.M.'s recognition of the United Automobile Workers union."
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In December 2011, less than 1 year after Michigan Governor Rick Snyder signed P.A. 4 that March, Snyder assigned Ed Kurtz as the first of four separate Emergency Managers to Flint -- over the next four years.

Flint's Emergency Managers since December 2011 has included:


Dec 2011-Aug 2012: Emergency Manager Michael Brown - Assigned by Gov. Rick Snyder (R)

Aug 2012-July 2013: Emergency Manager Ed Kurtz - Assigned by Gov. Rick Snyder (R)

July 2013-Oct 2013: Emergency Manager Michael Brown-Assigned by Gov. Rick Snyder (R)

Oct 2013 - Jan 2015: Emergency Manager Darnell Earley - Assigned by Gov. Rick Snyder (R)

Jan 2015–April 2015: Emergency Manager Jerry Ambrose-Assigned by Gov. Rick Snyder (R)


The EM's had total control to overrule the local elected governmental unit on all matters: Financial, Operations, Structure or Complete Removal of the elected or appointed bodies of local government.

Shortly after Rick Snyder's first and second appointed Emergency Managers landed in Flint, Michigan, problems with the City's water begun to surface. In April 2012 a problem with  Flint Water Department's infrastructure supply lead to a 150% rate hike -- mandated by EM Michael Brown.

Flint's Water supply problems expanded under Governor Rick Snyder's Emergency Managers. 

One year from revelation of Flint's massive water leak, instead of fixing the issue at hand in April 2013, Snyder's EM Ed Kurtz made a unilateral misguided decision to switch the City's water supply resource away from Detroit's Water and Sewer Department to the Flint River.

The decision by EM Kurtz was done in haste and error. 

First, the Detroit Water and Sewer Department (DWSD) was not at fault for then Emergency Manager's Brown and Kurtz failures to address the City's water infrastructural water leak issues. And, as Flint's water supply resource, the DWSD was under the authority of Detroit's Emergency Manager Kevyn Orr starting in March 2013, faced similar financial strains - leading to Michigan's largest city filing for Bankruptcy in July of 2013.

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Less than two months after mandating Flint switch immediately from Detroit's Water and Sewer Department supply resource, EM Kurtz announced he was "resigning" from the job in May 2013.

Over the next year and one half, Flint's Water Department begun issuing a on-going series of "Boil Water Advisory Alerts" in segmented parts of the City. The alerts were to address a total coliform bacteria issue while Flint was under authority of Snyder Emergency Manager's Michael Brown - serving second tenure as EM from July 2013-Oct 2013 -- and EM Darrell Earley in the position from Oct 2013 - Jan 2015.

From Michigan Radio - September 7, 2013:
"Several areas of Flint are under a boil-water warning. 
City officials say coliform bacteria was found in localized areas of the Flint water system. 
They say people affected by the warning should not drink water without boiling it first, nor should tap water be used to brush teeth, wash dishes, or prepare food. 
People with compromised immune systems, infants, pregnant women and the elderly could be at increased risk of getting sick from contaminated water.
The presence of coliform may be a sign that there's a problem with the water treatment system or the distribution pipes."
According to an October 2015 report from MLive.com, EM Darrell Earley made a erroneous claim that Flint's "local civic leaders", not former Governor Rick Snyder appointed EM Ed Kurtz, made the decision to switch the City's water supply resource from DWSD to the Flint River.

From M-Live - October 2015:
The city has stopped using the Flint River as its drinking water source, but that hasn't ended the finger-pointing over who decided to use it in the first place. 
Former emergency manager Darnell Earley said in a statement to The Flint Journal-MLive that "local civic leaders" — not the state — made the decision, which came to an abrupt end earlier this month as the city was reconnected to the Detroit water system. 
Earley, who was Flint's emergency manager at the time of the switch, said (former) Mayor Dayne Walling and the City Council in March 2013 approved a "long-term plan" that included joining the Karegnondi Water Authority and the temporary use of the river. 
The resolution does not indicate support or opposition to using the river, but Earley said river water was part of the overall plan presented to him by Walling and other city staff when he started working in Flint in October 2013. 
"Anyone who says otherwise is being disingenuous for whatever reason," Earley's statement said. 
The city began treating river water in April 2014, ending decades of buying treated Lake Huron water from Detroit, but operators struggled to control bacteria, total trihalomethanes (TTHM) and lead levels for the 17 months that followed.
In retrospect, "disingenuous" can be used for any attempts by Flint's Emergency Managers to switch blame onto Flint's "Local Governmental Leaders" for decisions the EM's had unilateral authority under - at the bequest and appointment of Governor Rick Snyder (R).

NBC News report revealed on January 6, a solution costing less than $100 a day could have taken to avoid Flint, Michigan's toxic water crisis from lead poisoning the City's children, adults, elderly and other visitors, with dangerously high lead levels by drinking Flint's water.

Documentary Film Maker Michael Moore has written a letter to Gov. Rick Snyder and started a petition asking the United States Attorney General to prosecute and arrest Snyder over his handling of the Flint water crisis -- and also Flint's former Emergency Managers, according to local news resource, WYXZ.com.


Video Credit - Channel 7 WXYZ.com

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But, back to Flint's former Emergency Managers and if they can be held responsible for their decisions leading to the toxic lead poisoning of the City's residents.

In the Emergency Management Law, version 2.0 called Public Act 436 of 2012, it states the following:


Section 20, Part 1 of PA 436 states:
An emergency manager is immune from liability as provided in section 7(5) of 1964 PA 170, MCL 691.1407. — Section 7, Part 5 of Public Act 170 of 1964.
Public Act 170, Section 7 cities:
A judge, a legislator, and the elective or highest appointive executive official of all levels of government are immune from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her judicial, legislative, or executive authority
Yet, the law does not address the issue of Ethical violations. 

Let's dive into this matter with a Michigan Complied Law the Emergency Law, PA 436 of 2012 did not address - the States Ethics Act.

From the Michigan Civil Service Commission Webpage:
The State Ethics Board (Board) has jurisdiction under the State Ethics Act (1973 PA 196, MCL 15.341 et seq.) to evaluate the ethical conduct of executive branch state employees and public officers appointed by the Governor or other executive official. Section 2 of the act defines unethical conduct as a violation of one or more of seven standards. 
The Board does not have jurisdiction over the following: 
Legislative or judicial branch employees or elected officials.  
Employees and elected officials in other public jurisdictions (cities, counties, townships, villages, and other municipalities.) 
Private sector attorneys and healthcare professionals.
As noted above, the State's Board of Ethics does not have jurisdiction to review or evaluate actions taken on behalf of Governor Rick Snyder (R) as it relates to Flint's Toxic Water Crisis. However, the Board appears to have the compliance authority to conduct an Ethics investigation into Snyder's Emergency Manager's actions.
The State Ethics Board (Board) has jurisdiction under the State Ethics Act (1973 PA 196, MCL 15.341 et seq.) to evaluate the ethical conduct of executive branch state employees and public officers appointed by the Governor or other executive official," the MCSC website states.
Are Emergency Managers Public Officials? It is a known fact the EM's are appointed by the Governor to enact their duties. 

Emergency Managers are paid under the budgets of the local communities which they serve supposedly, and the amounts EM's are paid are set solely by the State of Michigan.

MLive.com - December 11, 2011:
Cash-strapped communities and school districts in Michigan are paying six-figure salaries to the governor-appointed emergency managers who are supposed to rescue them from financial ruin. 
By law, the pay of (then) Michigan’s five emergency managers — ranging from $132,000 to $250,000 — is set by the state, but the money actually is paid by the local communities they’re in charge of. 
That rankles those who disagree with the law in the first place, saying the expanded powers of emergency managers go too far. 
“What is the proper salary of a dictator?” asked Flint resident Paul Jordan, one of many Michigan residents who has sued the state, saying the emergency manager law overreaches. “Certainly it’s a very big job. But on the other hand, here the people who are paying his salary had no opportunity to hire him.”
According to the cited PDF below as a duties, responsibilities and financial contract for Flint's last Emergency Manager Jerry Amborse under PA 436 of 2012 - the EM's authority was rather broad, in nature.




Furthermore
, in former Flint's EM's Amborse contract with the State of Michigan as noted by the document above, a Direct Conflict of Interest exists to what authority actual pays Governor Rick Snyder's appointed Emergency Managers.

Cited by Flint's Former EM Jerry Amborse Contract with the State of Michigan:
3. Compensation for Services Provided 
3.1 Source of Payment. The State shall pay the compensation of the Emergency Manager for all services rendered under this contract.
And the Emergency Managers are paid under the State of Michigan Financial resources and budget all other Civil Service Contracted Officials or Employees are paid with, via the Michigan Department of Treasury.

3.3 Payment for Services. The Emergency Manager shall be paid in installments consistent with established written policies and procedures of the Michigan Department of Treasury. If requested by the State's Treasurer, the Emergency Manager shall provide to the Michigan Department of Treasury additional information regarding services performed pursuant to this Contract.
If the language contained with Contracts of Emergency Managers appointed by Michigan Governor Rick Snyder on behalf of Michigan's Department of Treasury within selected municipalities across the state is correct - it appears that EM's are Public Officials at request of the Office of Governor in Michigan - actions are subject to review under the States Ethics Law, or PA 196 of 1973.


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The State of Michigan Board of Ethics (MBOE) cancelled its last Public Meeting on December 3, 2015 but, the Board next meeting is scheduled to concur on March 3, 2016 at 10 am ET in the Capitol Commons Center, Lower Level Conference Rooms A & B, 400 South Pine Street, Lansing, Michigan.


Adding items for the Board to Overview including Ethics Complaints at the MBOE's Public Meetings, appear to be Complaint given. A formal Complaint Form is available on the Michigan's Civil Service Commission website.

Public Act 196 of 1973 cities the seven sections available for the MBOE to review and evaluate the Ethical Actions of Public Officials appointed by Michigan's Governor. Two particular subsections of the Act could be in question as it relates to Governor Rick Snyder's appointed Emergency Managers with Flint's Toxic Water Crisis, as noted by italics below.   


15.342 Public officer or employee; prohibited conduct. - Sec. 2. 
(1) A public officer or employee shall not divulge to an unauthorized person, confidential information acquired in the course of employment in advance of the time prescribed for its authorized release to the public. 
(2) A public officer or employee shall not represent his or her personal opinion as that of an agency. 
(3) A public officer or employee shall use personnel resources, property, and funds under the officer or employee's official care and control judiciously and solely in accordance with prescribed constitutional, statutory, and regulatory procedures and not for personal gain or benefit.
(4) A public officer or employee shall not solicit or accept a gift or loan of money, goods, services, or other thing of value for the benefit of a person or organization, other than the state, which tends to influence the manner in which the public officer or employee or another public officer or employee performs official duties. 
(5) A public officer or employee shall not engage in a business transaction in which the public officer or employee may profit from his or her official position or authority or benefit financially from confidential information which the public officer or employee has obtained or may obtain by reason of that position or authority. Instruction which is not done during regularly scheduled working hours except for annual leave or vacation time shall not be considered a business transaction pursuant to this subsection if the instructor does not have any direct dealing with or influence on the employing or contracting facility associated with his or her course of employment with this state. 
(6) Except as provided in section 2a, a public officer or employee shall not engage in or accept employment or render services for a private or public interest when that employment or service is incompatible or in conflict with the discharge of the officer or employee's official duties or when that employment may tend to impair his or her independence of judgment or action in the performance of official duties. 
(7) Except as provided in section 2a, a public officer or employee shall not participate in the negotiation or execution of contracts, making of loans, granting of subsidies, fixing of rates, issuance of permits or certificates, or other regulation or supervision relating to a business entity in which the public officer or employee has a financial or personal interest.
Can Flint's Former Emergency Managers be subject to Michigan's Board of Ethics review for decisions made by their authority under Governor Rick Snyder as it relates to Flint's Toxic Water Crisis?

If nothing else, it appears Public Act 196 of 1973 should be tested to review the possibly -- and the MBOE seems to be the only recourse available at this time to do so.


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