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Flint water legal tab keeps growing to tens of millions as Michigan attorney general’s office mulls next move

The Flint Water Plant tower is shown in 2016 in Flint, Michigan. (Bill Pugliano/Getty Images/TNS)  (Bill Pugliano/Getty Images North America/TNS)
By Beth LeBlanc Detroit News

DETROIT – The state of Michigan has spent at least $60 million in legal costs related to the Flint water crisis – including what was spent to litigate a historic settlement with the city of Flint as well as the prosecution and defense of more than a dozen state employees.

The tally reflects the costs of civil litigation that resulted in a $600 million state settlement earlier this year and legal expenses for two rounds of prosecutions that have spanned two attorneys general and resulted, ultimately, in a few misdemeanor plea deals and no convictions.

The total does not include about a year of yet-to-be-determined legal expenses out of Attorney General Dana Nessel’s office; the attorney fees ordered in a connected federal dispute over protected documents unearthed during the criminal investigation; or the $47 million that will be taken from the state’s $600 million civil settlement for attorneys who represented Flint residents suing the state.

Even after the Michigan Supreme Court dismissed charges against defendants in June 2022, the state total grew by at least $7 million – increasing the total from $53 million to $60 million – as Nessel’s office challenged the meaning of the high court’s unanimous decision, according to public records obtained by the Detroit News. Nessel’s costs during that year after the Supreme Court decision have not yet been tallied by her office and will likely increase the final costs.

When the Supreme Court declined to take up a second appeal related to the cases in September, the cases appeared all but dead. But Nessel’s prosecution team – led by then-Solicitor General Fadwa Hammoud and Wayne County Prosecutor Kym Worthy – has not conceded.

On Wednesday, an Attorney General’s office spokesperson said Hammoud, who is Nessel’s chief deputy, and Worthy are still considering their next steps more than a month after the Supreme Court decision. Last month, the prosecution team asked the Legislature, in the event that they don’t pursue new charges, to change a grand jury law that is blocking the evidence they’ve collected from being released publicly.

Experts who reviewed the legal costs gathered by the Detroit News said they were significant, but also noted the case was complex. Without a breakdown of hourly rates and the specializations of each attorney, making a judgment call on the appropriateness of the costs was difficult, they said.

In the documents obtained by the News from five state agencies and offices, hours were listed for some legal services but weren’t for others, making a breakdown of hourly rates incomplete.

In the past, the courts have reimbursed the state $80 to $100 an hour for the work of assistant attorneys general. The cost of contracted, private practice special assistant attorneys general over the years has ranged from $50 to $500 an hour. By and large, private attorneys hired for the defense of state employees are even higher.

“Cases are very unique in various ways, but this is a super unique one,” said David Santacroce, a clinical professor of law at University of Michigan Law School. Without an hourly breakdown, “it’s just tough to say.”

But defendants in the cases have argued, regardless of hourly rates, choices made during the cases dragged out the prosecution and wasted taxpayer money on what they said amounted to a political witch hunt.

“The cost of this political persecution should have gone to help the people of Flint or other important needs in the state,” said Brian Lennon, attorney for Republican former Gov. Rick Snyder.

Nessel’s office defended its prosecutorial decisions, including the past 14 months of attempts to continue prosecutions a Supreme Court opinion in June 2022 all but ended. That unanimous opinion, spokeswoman Kim Bush said, left unanswered questions the prosecutors felt were “prudent” to pursue.

“It is, to be blunt, hypocritical for a ‘defense team’ that filed motion after motion after motion for years, appealing any ruling that went against them, to be critical of this office for appealing decisions of lower courts,” Bush said in a statement.

“Our goal with this prosecution was first and foremost to seek justice on behalf of the people of the City of Flint.”

A settlement and two prosecutions

The $60 million in costs associated with Michigan’s litigation related to the Flint water crisis have largely been spent on three different prongs: The costs associated with settling civil litigation with residents; the price of two separate prosecutions taken up under Nessel and Republican former Attorney General Bill Schuette; and the bill for defending the state employees charged in those two rounds of prosecutions.

Schuette initially charged 15 state officials with numerous counts related to the Flint water crisis, including some that led to plea deals. But Nessel’s office later dropped those charges, restarted the investigation, and in January 2021, charged nine state and city officials, including Snyder, in relation to the Flint water cases.

Nessel had argued at the time that Schuette had farmed out the prosecution to Todd Flood and his legal group rather than handling it in-house, driving up costs and ceding oversight of the investigation and prosecution. But Hammoud and Worthy later ended up hiring a host of outside attorneys because many employees in the office had been “conflicted out” because of involvement in the civil case.

The Supreme Court in June 2022 ruled the one-judge grand jury used by Nessel’s office to indict the nine officials was not used legally, upending the charges against all nine. The one-judge grand jury process, prior to the Supreme Court ruling, had been used successfully for decades by other prosecutors in much the same way the attorney general’s office used it.

Over the past year, Hammoud and Worthy have challenged the meaning of the ruling in appeals that were ultimately denied by the high court last month.

Two separate prosecutions, multiple trips to the Supreme Court and the defense of more than a dozen state employees over the course of seven years have taken a toll in terms of cost.

In all, the governor’s office spent $13.1 million defending members of the executive staff – including Snyder and his aides – and the Department of Health and Human Services spent $14.9 million defending its employees – including former Director Nick Lyon and former Chief Medical Officer Eden Wells.

The Department of Environment Great Lakes and Energy (formerly the Department of Environmental Quality) spent $12.2 million, and the Department of Treasury reimbursed the City of Flint about $300,000 for the litigation costs related to two state-appointed emergency managers.

Flint’s total costs for defending emergency managers Darnell Earley and Gerald Ambrose and several other city employees were not provided to the News, despite multiple requests for the information.

The attorney general’s office has spent a total of $19.4 million – $9.5 million over the three years Schuette prosecuted the case and $9.8 million from 2019 through 2022, while the case was in the care of Nessel’s office. The attorney general’s costs from September 2022 through September 2023 were not yet available.

Lyon, Wells, Snyder carry biggest price tag

Among the state employees with the highest price tags for defense are Lyon and Wells, both of whom faced multiple charges of involuntary manslaughter that grew to nine charges each by Hammoud and Worthy, with each one carrying up to 15 years in prison if convicted. Lyon’s defense, which included at least two trips to the Michigan Supreme Court, totaled $4 million, according to state records. Wells’ defense costs totaled $1.2 million.

The defense costs for Snyder and other members of the executive office are less clear.

From the records provided to the News, it appears that, prior to 2021, the costs for Snyder’s defense and those of his aides were not itemized in the governor’s legal services fund, but rather tracked by law firm.

After 2021, the legal services fund continued to track executive office spending by law firm related to Flint litigation, but also had separate processes for approving the costs by defendant – a controversial measure put in place by Democratic Gov. Gretchen Whitmer.

Whitmer’s cost control measures were initially stringent but were later amended to lock in more permissive reimbursement ceilings on Snyder’s litigation costs that required approval through the State Administrative Board.

Under that system, since January 2021, the state has tracked about $2.5 million in Flint-related litigation costs specific to Snyder and $629,000 for his former communications director and chief of staff Jarod Agen.

Lennon, Snyder’s attorney, said the Republican former governor also paid an undisclosed amount out-of-pocket for his legal representation.

Snyder’s adviser, Richard Baird, received about $16,900 from the state this year, but only after financing the lion’s share of his defense out of pocket. Baird estimated he spent $1.2 million out of pocket because Whitmer’s new litigation caps made it all but impossible for him to retain the attorney who had worked with him since 2016.