Flint report offers damning verdict on state emergency manager law

Though some locally elected leaders in Flint supported, and even celebrated, the city’s switch to the Flint River, state-appointed emergency managers had sole authority to make that decision, the task force report found. (photo courtesy of MLive)

 

State government is foremost to blame for failing to keep lead from poisoning Flint’s water supply. And key decisions to switch the city’s water supply to the Flint River, and stay there ‒ despite mounting public complaints about the taste, odor, color and health effects of the city’s tap water ‒ were made by a succession of state-appointed emergency managers.

Those were the conclusions of a five-member task force assigned to investigate the public health emergency in this poor, predominantly African-American city. Its report, released Wednesday, called for a review of the state’s emergency manager system, which the task force contends played a significant role in the government’s sluggish response to the concerns and warnings of Flint residents.

“What was clearly evident was individual (emergency managers) made decisions and no one had checks and balances on those decisions,” said task force member Chris Kolb, a former state representative and president of the Michigan Environmental Council. “Citizens had no ability to influence decision-making at the local level.”

The 116-page report offered a rebuke to a signature tool of Gov. Rick Snyder and a legislature that has largely supported the emergency manager law. The law, resurrected by Republican lawmakers in 2012 weeks after state residents voted to drop it, was hailed in some quarters after its implementation in Detroit led to that city’s swift transition through bankruptcy. But the law has also been the subject of lawsuits as well as accusations that it disenfranchises minorities, who note that most of the cities and school districts placed under emergency management have been majority black.

Snyder said Wednesday he was open to adopting many of the recommendations made by a task force that he appointed, adding that his office has already begun implementing some of the suggestions. “There are a lot of excellent recommendations here,” Snyder said at a news conference.

The Flint water task force chided Michigan Gov. Rick Snyder from diffusing blame for the water crisis among all levels of government when, the report concludes, state government bears most of the blame. (photo courtesy of MLive)

 

In Flint, the task force found, the emergency managers appointed by Snyder failed to consider, much less serve, the health interests of residents, a criticism the governor himself seemed to acknowledge in testimony last week before a congressional committee investigating the Flint crisis.

In essence, Wednesday’s report said, Flint’s emergency managers were too narrowly focused on the financial savings of switching the city’s water from the Detroit Water and Sewerage Department to the Flint River in 2014, and too reluctant to switch back to Detroit, also for financial reasons. As a result, the voices of local leaders and residents were marginalized. The report pointedly cited the economic and racial demographics of those residents.

“Flint residents, who are majority black or African-American and among the most impoverished of any metropolitan area in the United States, did not enjoy the same degree of protection from environmental and health hazards as that provided to other communities,” the report noted, leading “to the inescapable conclusion that this is a case of environmental injustice.”

The task force recommended Lansing review the emergency manager law with an eye toward restoring “checks and balances” on decisions made by emergency managers. Such managers also should be given greater access to experts in areas like public health, and should ensure that local residents and officials have a voice in how policy is shaped, including the ability to appeal emergency manager decisions, the task force recommended.

If legislators adopt the recommended changes, it will be a welcome relief to Kary Moss, executive director of the American Civil Liberties Union of Michigan. Last summer, Curt Guyette, an investigative reporter for the ACLU, broke the stories about the high lead levels in the water and the ACLU has called for changes in the emergency manager laws that had, at one point, covered cities and school districts in which more than half of the state’s African-American population lived.

“The task force is absolutely on the right track,” Moss said Wednesday. “None of this was possible a year ago. We’re thrilled to see the dire consequences of this law are being taken seriously.”

EM laws that work

Many of the recommendations suggested by the task force were outlined in a 2014 Bridge Magazine article examining why emergency manager laws are more popular in some states than in others.

The article noted that while Michigan’s law, which gives broad authority to emergency managers, was mired in controversy, other states such as North Carolina and Rhode Island avoided acrimony by enacting laws that were more proactive and encouraged more input from local leaders. Experts told Bridge that Michigan should pay more attention to monitoring financially distressed cities before they are in crisis and, if intervention is needed, give local leaders a more meaningful role in the recovery.

“The reason why some (receiverships) succeed and others don’t, I believe is if you don’t have buy-in it’ll never get through it,” James Spiotto, a municipal bankruptcy expert and co-author of “Municipalities in Distress?: How States and Investors Deal with Local Government Financial Emergencies,” told Bridge at the time.

“Nobody likes being told what to do from on high. It has to be on the city because they’re the ones who will have to live with it.”

Broader indictment of state failures

Much of Wednesday’s task-force report focused on other government failures, most notably by the much-maligned Michigan Department of Environmental Quality, which failed to enforce drinking water regulations, and the Michigan Department of Health and Human Services, which failed to act promptly amid mounting evidence of elevated lead levels among Flint’s children.

Both agencies, the task force wrote, “stubbornly worked to discredit and dismiss others’ attempts to bring the issues of unsafe water, lead contamination and increased cases of... (Legionnaire’s disease) to light.”

The governor, meanwhile, had the “ultimate accountability” for the emergency managers he assigned to Flint, the report said. Likewise, it was Snyder who appointed the heads of the state environmental, health and treasury agencies, which bore “differing degrees of responsibility” for Flint’s health crisis.

Without mentioning Snyder by name, the task force derided his insistence that the Flint debacle was a local, state and federal failure of government. Such a statement “implies that blame is attributable equally to all three levels of government. Primary responsibility for the water contamination in Flint lies with MDEQ,” the report concluded, while Flint was under the control of state-appointed emergency managers.

Anna Heaton, deputy press secretary to Snyder, supplied Bridge with a listing of all the task force recommendations via email that details how the governor’s office is handling them. It is implementing some, considering others and referring the remainder.

The case for emergency managers

Michigan has had an emergency manager law since 1988, though it was strengthened in 2011 before state voters dumped the law in 2012. The legislature enacted the current law just weeks after the state referendum.

Dozens of states have emergency managers in response to an outgrowth of failing municipal and school district finance. “All constituents of cities are constituents of the state,” said Mark Funkhouser, the former mayor of Kansas City, Mo., and publisher of Governing magazine, who says such laws can be useful in proper circumstances.

He estimates that of 1,000 cities in the country with more than 40,000 people, nearly a third are in financial trouble. Emergency managers have helped cities like New York, the District of Columbia and Detroit, he said.

“While the jury may be out, the intervention in Detroit may have been successful,” he said. “Sometimes it works and sometimes it doesn’t.”

The Flint water task force would argue that, at least in Flint, it did not. The report found that emergency managers – Flint had four separate ones between 2011 and 2015 – made several questionable decisions, including the now disastrous call to use the Flint River and then, amid mounting calls to return to water from the Detroit water system, blocking the switch back to Detroit.

In the latter case, Emergency Manager Jerry Ambrose rejected a largely symbolic 7-1 vote in March 2015 by the Flint City Council which urged a return to the Detroit system after months of complaints by residents. In blocking that option, Ambrose said the cash-strapped city could not afford it.

It was an example, said Kolb of the task force, of how local residents and officials had lost their voice and the ability to influence local decisions.

Among the report’s other findings:

• Emergency managers alone decided to use the Flint River for drinking water, and stay with that decision even after mounting complaints by residents.
• State treasury officials, through the terms of a 2015 loan to Flint, told the city it could not return to the Detroit system without prior state approval.
• Emergency managers, often experts in financial matters, often do not have expertise in other aspects of effective government. “They don’t know anything about public health,” according to Kolb.

Kolb said that without public input, residents and other local public officials didn’t have the chance to raise meaningful questions about the move to the Flint River. Perhaps, he said, someone would have asked about corrosion control, the absence of which allowed lead to leach from the inside of city pipes and into the water entering residents’ homes. The MDEQ should have required corrosion control, the report found.

“All those opportunities were missed because you had a few people making decisions,” Kolb said.

State Sen. Phil Pavlov, R-St. Clair Township, was sponsor of the existing emergency manager law. He did not return a call Wednesday seeking comment.

Snyder created the task force in October 2015, the same month he approved the switch back to the Detroit water system.

Flint had been using the river’s water since April 2014, a move which brought immediate outcries. But it wasn’t until July 2015 that most residents learned about the potential lead problem. Still, it was three more months before state officials acknowledged lead was in the water and that a return to Detroit water was warranted.

“The causes of the crisis lie primarily at the feet of the state by virtue of its agencies’ failures and its appointed emergency managers’ misjudgments,” the report concluded. “The significant consequences of these failures for Flint will be long-lasting. They have deeply affected Flint’s public health, its economic future, and residents’ trust in government.”

In addition to Kolb, other members of the task force include:

• Ken Sikkema of Public Sector Consultants, and former member of the Michigan House and Senate, holding Republican leadership positions in both chambers
• Dr. Matthew Davis of the University of Michigan Health System and an expert on public policy
• Eric Rothstein, an infrastructure consultant with the Galardi Rothstein Group
• Dr. Lawrence Reynolds, a pediatrician at Mott Children’s Hospital