The Controversy Behind Michigan's Emergency Manager Law and Its Role in the Flint Water Crisis

POST BY Curt Guyette Investigative Reporter

Michigan’s emergency manager law is once again being fingered as a primary culprit in the lead poisoning of Flint’s water supply.

First, it was a gubernatorial task force. Then a bi-partisan legislative committee. Now, the Michigan’s Civil Rights Commission, in a report released last week, is casting blame on the controversial law for its role in the ongoing Flint Water Crisis.

The primary focus of the commission’s inquiry is reflected in the title of the report: “The Flint Water Crisis: Systemic Racism Through the Lens of Flint.” After unanimously voting in January 2016 to look into the issue, the commission held three public hearings and conducted field visits in an attempt to “better understand the role decades of structural and institutional discrimination and racism played” in “quieting the voices” of Flint residents and “enabling the poisoning” of the city’s water supply.

“We believe the underlying issue is historical and systemic, and dates back nearly a century, and has at its foundation race and segregation of the Flint community,” according to the report. It goes on to say:

“We are not suggesting that those making decisions related to the crisis were racists, or meant to treat Flint any differently because it is a community primarily made up by people of color. Rather, the disparate response is the result of systemic racism that was built into the foundation and growth of Flint, its industry and the suburban area surrounding it. This is revealed through the story of housing, employment, tax base and regionalization which are interconnected in creating the legacy of Flint.”

Those same factors are inextricably connected to the imposition of emergency management on Flint and seven other cities and three school districts that, with one exception, all have African-American majorities. “If you live in Michigan, there is a 10 percent chance that you have lived under emergency management since 2009,” the report points out.  “But if you are a black Michigander, the odds are 50/50.”

The commission reached the conclusion that the law—which usurps local democracy and puts unprecedented power into the hands of state appointees—is fundamentally flawed. The report argues that the law worsens the deficits between urban and more-affluent suburban communities, aggravates racial gaps and adds more hurdles to the path to racial equality.

 “In short,” concludes the report, “the EM law as applied far too often address the problems of already financially stricken governments in second-class communities, segregated based on race, wealth and opportunity, by appointing an emergency manager whose toolbox is filled with short term solutions that are contrary to the long term interests of the people living there.”

The report concedes that local fiscal emergencies may require some level of state intervention—but urges reforms that don’t “violate the principle of representative government.”

But Flint resident Claire McClinton, an activist who participated in the citizen-led study that revealed the high levels of lead in Flint’s water, told commissioners that the law needs to be “abolished,” not merely adjusted.

“Our civil rights and civil liberties were destroyed along with our water system,” McClinton said.

The Civil Rights Commission’s report adds to the growing body of criticism of Michigan’s emergency manager law.

About a year ago, the Flint Water Advisory Task Force – a panel of experts appointed by Gov. Rick Snyder to investigate the cause of the crisis – concluded that a string of appointed managers played a key role in creating and then prolonging the crisis, and that problems in the law needed to be addressed.

“Although we acknowledge that controversy will always accompany state receivership in whatever form, we recommend a review of PA 436,” the task force wrote in its report. “While some of the checks and balances inherent in democratic decision-making are necessarily and by definition absent under emergency management—as is also true under bankruptcy—proper and efficient checks and balances per se should not be a casualty of state receivership. Neither should avenues for citizens to voice their concerns, particularly regarding matters of public health and safety.”

In October, a joint legislative committee consisting of four Republicans and two Democrats reached similar conclusions. In their report, the legislators noted:

“To be clear, fiscal implications must be a key consideration in decisions made by a city under emergency management. … But while this principle is easy to apply to city contracts, for example, a more diverse perspective is needed when deciding issues that directly and materially affect public health and safety, such as whether to switch to a different drinking water source. The Legislature should thus consider prohibiting an emergency manager (or the equivalent) from looking at cost as the primary factor in a decision that evidence shows will directly and materially affect public health and safety. This would serve as a statutory reminder that an effective government means more than just the financial bottom line.”

Adding an exclamation point to these various critiques were felony criminal charges the Michigan Attorney General’s Office filed in December 2016 against two former Flint emergency managers for their alleged roles in the crisis.

Despite all this, no substantive effort to repeal or significantly reform Michigan’s emergency manager law has gained traction in either state legislative body. Four bills introduced last year seeking changes to the law all died in committee.

As Flint enters its third year of this completely avoidable, man-made crisis, the city’s water remains unsafe to use unless it is filtered. Many residents, afraid to use the water at all, continue to rely on bottled water.

And when their water supply finally is safe again, they can only hope the state will also clean up the toxic EM law that helped endanger their city in the first place.

Curt Guyette is an investigative reporter for the ACLU of Michigan. He can be reached at 313-578-6834 or cguyette@aclumich.org.

The Civil Rights Commission’s report adds to the growing body of criticism of Michigan’s emergency manager law.

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