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Judge William Whitbeck

Judge William Whitbeck

THE 7TH FLEET VERSUS THE DHHS

December 8, 2017

The Flint water crisis is a man-made disaster of major proportions, so major that the Governor of Michigan has characterized it as a failure at every level of government.  In fact, at the upper levels the preferred narrative was that the Flint River water, to which the City of Flint switched in 2014, was safe to use.  This narrative was false, but it dominated the governmental landscape for years and significantly impeded the response to the crisis.  The contrast with other recent organizational responses to crises—particularly that of the United States Navy when confronted with a number of fatal ship collisions in the Pacific—is painfully telling.   

However, there were exceptions in the Flint situation to this overall pattern.  In a number of instances, governmental employees further down the chain of command wrote surprisingly prescient emails and memoranda warning of the serious consequences of the course of action that their superiors were following.  But sadly, and almost uniformly, those at the top largely ignored, downplayed, and occasionally disparaged these warnings.  But the warnings did exist and those who made them deserve to be recognized for their courage, their competence, and their candor under the most trying of circumstances.  They make up a quartet:  “Four for Flint.”

  • In April of 2014, before the switch to the Flint River water that precipitated the crisis, Michael Glasgow, the laboratory and water quality supervisor at the Flint Water Treatment Plant, emailed Adam Rosenthal, Michael Prysby, and Stephen Busch at the Michigan Department of Environmental Quality (MDEQ) saying that if water was distributed from the plant in the next several weeks, “it will be against my direction.”  Glasgow went on to say that he needed time to adequately train additional staff and update monitoring plans “before I will feel that we are ready.”  He concluded his email by saying that, “I will reiterate this to management above me, but they seem to have their own agenda.”

There was no response to Glasgow’s email, but Glasgow on his own initiative later gathered water samples at Lee Anne Walters’ home in Flint, tested the samples, and found astonishingly high levels of lead at that site.  The City of Flint then issued a Consumer Notice of Lead & Copper Results in Drinking Water but by then the damage to Flint’s aging water distribution system had been done and poisonous lead was leaching into the drinking water of the residents of the city. 

  • In October of 2014, Valarie Brader, Governor Snyder’s Deputy Legal Counsel and Senior Policy Advisor, emailed Dennis Muchmore, Governor Snyder’s Chief of Staff, and others.  In her email, Brader sounded the alarm over the situation in Flint and requested that they ask Flint’s Emergency Manager, then Darnell Earley, to consider moving Flint off the Flint River water and back onto water supplied by the Detroit Water & Sewer Department.  That same day, Michael Gadola, then Governor Snyder’s Chief Legal Counsel and now a judge on the Michigan Court of Appeals, added his voice, saying that, “They should try to get back onto the Detroit system as a stopgap ASAP before this thing gets too far out of control.”

But no one took action on Brader’s memo.  Despite her credentials as an environmental expert—including a Master’s degree in environmental change and management—she was soon thereafter assigned to work on the Detroit bankruptcy and subsequently spent very little time on the Flint water crisis.  And despite the numerous emails and discussions back and forth among his staff and others, Governor Snyder has asserted that the matter did not come to his attention until fully 11 months later, in October of 2015.

  • In June of 2015, Miguel Del Toral of the federal Environmental Protection Agency (EPA) sent a memo to his supervisor at the EPA, Tom Poy.  In his memo Del Toral noted that the Flint water system had no corrosion control and said that, “In the absence of any corrosion control treatment, lead levels in drinking water can be expected to increase.”  Del Toral proposed a full EPA review of MDEQ enforcement in Flint, in part to determine whether the “state has abused its discretion.”  But for months, the EPA and the MDEQ ignored Del Toral’s warnings.

Indeed, in July of 2015, then EPA Region 5 Director Susan Hedman emailed then Flint Mayor Dayne Walling and downplayed Del Toral’s memo, saying that, “I apologize for taking all day to get back to you and for the manner in which this matter was handled.”  She also told Walling that, “It would be premature to draw any conclusions” based on the leaked Del Toral memo.

Tellingly, in September of 2015, the EPA’s Jennifer Crooks emailed individuals at the EPA and at the MDEQ and said that, “Just to clarify; on our call, I wanted to remind you that Miguel’s report had DEQ cc.d.  So if the Legislature or whoever might say that you were all cc.d, you can truthfully respond that it was the EPA’s request that the report not be sent to the ccs.  Consequently, you all never received the report from Miguel.”

  • In July of 2015, Nancy Peeler and Patricia McKane of what is now the Department of Health and Human Services (MDHHS) asked epidemiologist Cristin Larder to analyze data relating to blood lead levels in Flint derived from the Childhood Lead Poisoning Prevention Program.  Larder concluded that the blood lead levels for July, August, and September, 2014—after the switch to the untreated Flint River water—were outside or above the upper control limit of what would be expected by random chance.  Larder recommended that these data be looked at more closely.

But Robert Scott of the MDHHS looked at the same data and simplistically concluded, without any statistical analysis, that “water was not a major factor here.”  Peeler apparently accepted the Scott conclusion because she sent forward an email stating that, “[U]pon review we don’t believe our data demonstrates (sic) an increase in lead poisoning rates that might be attributable to the change in water for Flint.”  MDHHS Director Nick Lyon then apparently forwarded this analysis to the Governor’s office, with no mention of Cristin Larder, her analyses, or her recommendation that the data relating to the spike in blood lead levels in the summer of 2014 be looked at more closely.

It was not until December of 2015, after Dr. Mona Hanna-Attisha of the Hurley Medical Center released her study showing that the percentage of Flint infants and children with above average blood lead levels had nearly doubled citywide and had tripled among children in high risk areas of lead exposure that Meegan Holland, Governor Snyder’s new Director of Communications, acknowledged that the data showed “an increase outside of normal trends.”  Holland went on to say, by way of considerable understatement, that “the way we analyze data collected needs to be thoroughly reviewed.”

The Pattern Of Disregard

There is a strikingly evident pattern here:

  • Michael Glasgow of the Flint Water Treatment Plant stated that the plant was not ready for the switch to Flint River water, but his warnings were disregarded and the switch went forward. 
  • Valarie Brader alerted high-level members of the Governor’s staff of the emerging Flint water crisis, but her recommendations were ignored and she was reassigned.
  • The EPA’s Miguel Del Toral repeatedly raised his concerns about the lack of corrosion control at the Flint Water Treatment Plant, but EPA and MDEQ officials downplayed his analysis and the EPA Region 5 Administrator even apologized for its release.
  • The MDHHS’s Cristin Larder analyzed data relating to the elevated 2014 blood lead levels of Flint children, but her analysis was disregarded in favor of a bland finding that the water from the Flint river was not a major factor.

These governmental employees did their jobs; their superiors did not.  The results are chillingly real:  Children poisoned by lead, men and women dying of Legionnaires’ disease, and hundreds of millions of dollars needed for repairs and renovations. 

The employees who stepped forward did not deserve this legacy and neither do the citizens of Michigan.  And, it did not need to happen, at least to this extent.  When those at the top take immediate, decisive action, catastrophes such as the Flint water crisis can be avoided or minimized.  As a former Army officer, I somewhat hesitantly proffer the United States Navy’s reaction to the series of ship collisions as a case in point.

An Organizational Contrast:  The Navy Way

As has been widely reported, in the last year there have been a number of serious ship collisions in the Pacific involving ships of the United States Navy.  In particular:

  • In August, an oil tanker tore a large hole in the side of the USS John S. McCain that left 10 sailors dead;
  • In June, there was a collision involving the USS Fitzgerald leaving seven sailors dead;
  • And earlier, the USS Antietam ran aground in Tokyo Bay and the USS Lake Champlain collided with a South Korean fishing boat.

The Navy’s reaction to these incidents was quick and forceful.  It immediately and fully investigated each of the collisions.  Chief of Naval Operations Admiral John Richardson released a report of these investigations.  Richardson did not mince words; he said that, “. . . these accidents were preventable and the respective investigations found multiple failures by watch standers that contributed to the incidents.”

But the Navy did not just make statements; it took action.  Richardson announced that he had assigned Admiral James Caldwell, Jr. to serve as the “consolidated disposition authority” to oversee possible criminal (the emphasis is mine) and administrative cases against those responsible for the collisions.  And in August, the Navy removed Vice Admiral Joseph Aucoin—the three-star commander of the U.S. 7th Fleet—from his position due to a “loss of confidence.”  The Navy has also fired several other high-ranking officers. 

Thus, the Navy did not wait for years and it did not just bemoan the various failures that led to these collisions. The Navy realized that lives had been lost, that at a minimum there had been widespread negligence, and that these were not simply excusable mistakes.  The Navy acted within months.  And it acted decisively.

Contrast this with the actions of the Snyder administration:

  • Since the Flint water crisis first surfaced over three years ago, the administration has fired exactly one mid-level Civil Service employee in the MDEQ. 
  • The administration did accept the resignation of former MDEQ Director Dan Wyant and his public information officer.  But when Attorney General Bill Schuette charged MDHHS Director Nick Lyon with several major felonies, including misconduct in office and manslaughter, Governor Snyder’s office immediately issued a press release expressing full confidence in Lyon . . . and Lyon continues in office to this day, amidst periodic court appearances in connection with these charges. 
  • According to Noland Finley of The Detroit News, Governor Snyder is “furious” about the charges against Lyon.  We can legitimately wonder why he is not equally furious at Lyon himself, given the information about Lyon’s actions—or lack of action—that is spooling out in these hearings.  Admiral Aucoin had responsibility for the entire 7th Fleet; Nick Lyon had responsibility for the DHHS.  Broadly speaking, both were “watch standers” for their respective organizations and responsible for the actions of those beneath them.  Admiral Aucoin is gone; Nick Lyon remains

More generally, there has been much gnashing of teeth and rending of garments in Lansing about the “low morale” of state employees, the “scapegoating” of these employees, and the “criminalization” of mere mistakes.  Unlike the Navy, the Snyder administration continues to retreat to the fog of these types of generalities rather than assign responsibility and take forceful action to impose personal accountability.

Conclusion

With certain notable exceptions—in particular the actions of Glasgow, Brader, Del Toral, and Larder, who put their positions in writing and their careers on the line—the overall response of government to the Flint water crisis was three-fold:

  • Generally, the first response was to deny that such a crisis existed at all, even when warnings repeatedly surfaced; 
  • Again generally, the second response was to drift with events as they unfolded; 
  • Finally, and generally yet again, the third response was to delay taking remedial action in the apparent—and vain—hope that when a long-term water supply finally become available from the Karegnondi Water Authority, the situation would resolve itself without great additional expense.

But the status quo was unacceptable and the net effect of these exercises in denial, drift, and delay was that the Flint water crisis was swept under the rug for an extended period of time.  Now, both the true nature and full extent of the Flint situation are on public display, in open court.  But why, for so long, did high government officials avoid, ignore, downplay, and even disparage the warning flags that their subordinates were raising?  Why, in simple terms, did they not act as the Navy acted, quickly and decisively?

On the surface, the governmental reactions to the Flint water crisis appear to be a combination of sheer lassitude and outright incompetence.  Time and time again, high government officials simply took the easy way out.  They sat back, did nothing, denied, drifted, and delayed.  Inexcusably, when faced with the consequences of their inaction, they engaged in a years-long effort to minimize the blame for those consequences, labelling them as only “mistakes.”

But this answer assumes that these officials were simply passive and that they played no active role in the extended effort to conceal the unfolding disaster in Flint. Looked at from a different angle, however, the evidence is otherwise. 

Quite obviously, a number of public employees—the Flint Four prominent among them—were blowing the whistle loudly and clearly.  Their superiors did not simply ignore these warnings.  Inexplicably, they buried them.  And they then substituted their own preferred narrative:  that the Flint River water was perfectly safe to use.

It wasn’t.  The residents of Flint and the taxpayers of Michigan are paying and will continue to pay the price—in ruined lives and irretrievable treasure—for that master narrative. 

Moreover, these public officials, by their actions and by their failure to act, have significantly eroded our citizens’ belief that their government is trustworthy and capable of acting in an efficient, effective, and straight-forward manner.  This loss of trust is an ugly and enduring stain.  It will take years to eradicate. 

The Flint water crisis and its effects have not gone away.  It would be another exercise in denial to expect that they will somehow go away in the immediate future.    At best, we can take some solace in the actions of the Flint Four, and others, who came forward. And at worst, we can wonder why the Navy could act so resolutely to impose accountability but that the Snyder administration virtually could not act at all.   

William C. Whitbeck is a graduate of Northwestern University’s Medill School of Journalism and the University of Michigan Law School. During his long career, he has served on the direct staff of three Michigan governors, George Romney, William Milliken, and John Engler. In 1997, Governor Engler appointed him to the Michigan Court of Appeals where he served as a judge for almost 17 years, with six years as Chief Judge. Over the past year, he served as a Special Assistant Attorney General, advising Attorney General Bill Schuette on the Flint water crisis. Whitbeck is also the author of a legal mystery entitled, “To Account for Murder,” and is currently working on a second one.

December 7, 2017 · Filed under Judge William Whitbeck


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