Flint water case may hinge on misconduct charges

Associated Press

LANSING, MICH.

The prosecution of current and former state of Michigan employees for their role in Flint’s lead-contaminated water crisis likely will face an early test over whether one of the most serious charges can even be levied against the middle- and lower-level government officials.

All eight workers charged so far, five from the Department of Environmental Quality and three with the Department of Health and Human Services, face a misconduct-in-office charge – a felony that can carry a five-year prison term. The cases are in the early stages of prosecution.

But there is no statute clearly defining official misconduct. Rather, it is a common law offense based on judicial decisions and a doctrine whose origins trace back centuries to England.

The Michigan Supreme Court has ruled that misconduct in office applies only to “public officers,” not all government workers.

Peter Henning, a Wayne State University law professor and a former federal prosecutor, said Michigan is one of few states to preserve common-law criminal offenses. State courts are struggling to discern who can face the charge, he said, particularly within bureaucracies staffed mostly with nonelected or nonappointed officials.

The DEQ employees worked in the Office of Drinking Water and Municipal Assistance. The former chief, Liane Shekter Smith, was fired in February while four others are suspended but recently began being paid again.

In announcing a second round of charges last month, Attorney General Bill Schuette said the defendants had deliberately concealed the tap water’s danger from the public, allowing children to continue “drinking poison.”