After Flint Threatened Water Lawsuit, State Removed City's Power to Sue

by | September 19, 2016

By Paul Egan

Days after Flint Mayor Karen Weaver served notice that her city might file a lawsuit against the State of Michigan over the Flint drinking water crisis, the state removed Flint's ability to sue.

Though Flint has not been under a state-appointed emergency manager since April 2015, the state still exerts partial control over the city through a five-member Receivership Transition Advisory Board, whose members are appointed by Gov. Rick Snyder.

The board moved quickly to change the rules under which Flint is governed so that the city cannot file a lawsuit without first getting approval from that state-appointed board.

In other words, Flint cannot sue the state without getting the state to sign off on it first.

The controversy began March 24, when Flint filed a notice of intent to sue the State of Michigan in the Court of Claims. At the time, Weaver and other city officials said they had no plans to sue the state but had to take the action  to reserve the city's rights, should city leaders later determine a need to sue the state over the lead contamination of Flint's drinking water. Under state court rules, the city had 180 days from the time it became aware of a potential claim to file the notice or it would lose the right to sue in the future, city officials said, and March 24 was the 180th day.

State officials, who at the time were considering $165 million in state aid requests for Flint over the water crisis, on top of about $67 million already approved, were furious about the notice.

House Speaker Kevin Cotter, R-Mt. Pleasant, said "a reckless lawsuit could throw the state budget into disarray and undermine everything we've done for the city."

Cotter and  Snyder, through a spokesman, called on Flint to withdraw the notice.

That never happened, but the state quickly and quietly defused any imminent legal threat, using the Receivership Transition Advisory Board that continues to oversee many aspects of Flint city government while the city emerges from emergency management.

The board ensures "a smooth transition" to Flint self-government by reviewing "major financial and policy decisions ... to ensure that they maintain fiscal and organizational stability," according to information on the city website.

Anna Heaton, a spokeswoman for Snyder, said the main purpose of the March 31 change was to more fully involve the mayor, the City Council and other top city officials, not just the city administrator, in decisions about initiating and settling litigation.

However, "the (advisory board) resolution also clarified that its approval was required before the settlement or initiation of litigation," Heaton said in an e-mail to the Free Press on Friday.

Weaver could not be reached for comment.

Stacy Erwin Oakes, Flint's chief legal officer, said "the city cannot know" what motivated the change, but "the timing of the amendment speaks for itself."

"Previously, the city administrator had discretionary authority regarding litigation, now the city, including but not limited to the chief legal officer, can't  initiate litigation and assert its rights in court without state approval, through the (advisory board),"  Oakes said in an e-mail Friday.

"Whether the ...  resolution stripping the city's authority would survive a direct legal challenge is a question for another day. In the meantime, the city continues to be significantly under state control, even after the departure of the emergency manager, and while accumulating significant obligations as a result of decisions made by, and/or at the direction of emergency managers."

She said Flint has made "a request to the state for assistance with these obligations."

(c)2016 the Detroit Free Press