Anna Clark is a journalist in Detroit. She is the author of The Poisoned City: Flint's Water and the American Urban Tragedy.
As the Michigan city’s water crisis drags on, the state’s highest-ranking health official faces criminal charges. But he’s still on the job.
It’s been well over four years since the drinking water crisis began in Flint, Michigan. But when residents say that it isn’t over yet, they point to the corroded pipes across the city that are still being replaced, which is why many continue to use bottled water and filters.
They also point to the courts: This may have been a man-made disaster, but will any person ever be held responsible for it?
The highest-ranking official to face criminal charges for the Flint water crisis is still on active duty as the director of Michigan’s Department of Health and Human Services. And in the state’s aggressive but slow-moving investigation of itself, the public is paying the courtroom costs—all of them.
Prosecutors argue that Nick Lyon, the DHHS director, is responsible for involuntary manslaughter and misconduct in office in connection to Flint’s ill-fated water switch. In addition to the infamous lead contamination, the mismanagement of the water may also have caused an outbreak of Legionnaires’ disease, a virulent type of pneumonia that killed 12 people and sickened 90 in 2014 and 2015. (There’s a good chance that there were more cases.) It wasn’t made public until January 2016. Last week, after a lengthy preliminary examination, Lyon was bound over for trial, with the judge ruling that there is probable cause that the delay contributed to deaths.
Even as he is being indicted, Lyon still leads a department with over 14,000 employees and a $24 billion annual budget. DHHS is behind a vast array of programs that provide physical and mental health care across the state. That includes substance abuse treatment, food and cash assistance, child support, foster care, protective services, and adoption, as well as migrant and refugee initiatives. It also steers major public health efforts.
“I’ve become the evil face of the Flint crisis,” Lyon said last fall when he was a keynote speaker at a convention of Michigan mental health professionals. “My department reacted [to the Flint crisis] as soon as we knew,” he added, according to contemporaneous notes taken by one of more than 700 attendees, many of which worked at service agencies that depend on DHHS for funding. These notes were sent to me while I was reporting my book, The Poisoned City: Flint's Water and the American Urban Tragedy. At that talk, Lyon urged people to “recognize the facts and try to ignore the show.”
Lyon’s lawyers expect to appeal. Eden Wells, the chief medical executive at DHHS, has also been indicted and is also still serving in her post. Unlike Lyon and Wells, other state workers who have been charged were suspended with pay. Both Lyon and Wells have the vigorous support of Governor Rick Snyder.
This curious situation—officials indicted in a notorious public health disaster still on the job and drawing their paychecks—has some Flint leaders shaking their heads in astonishment. “Regardless of whether he’s guilty or not, one can find this extremely troubling,” said Michigan Senate Minority Leader Jim Ananich, who lives in Flint. “It’s got to be unprecedented, or close to unprecedented to be allowed to continue … Obviously in America we have the presumption of innocence until proven guilty, but that doesn’t mean you get to keep your job, or not even go on paid or unpaid leave.”
Ananich also noted that Michigan taxpayers aren’t just paying the salaries of state workers who face charges—they’re paying millions for both the prosecution and defense lawyers in the Flint cases. Defense representation alone has cost $26 million so far, according to MLive. Lyon’s lawyers have cost more than what Genesee County, which includes Flint, spends on an entire year of court-appointed attorneys for every one of its poor defendants. The criminal investigation, led by a special prosecutor in the attorney general’s office, has charged 15 people to date. Four received plea deals. No trials have yet begun; most are still in preliminary exams. Lyon’s was the first case to be bound over.
There’s no question that the prosecution is a distraction for DHHS, and by extension, social service agencies, said Robert Sheehan, CEO of the Community Mental Health Association of Michigan. If his organization wanted to work with the state department on “a grand vision of mental health care,” for example, it would be impossible. Lyon is the one who is empowered to make big decisions, and his attention has been diverted since he was indicted in June 2017.
Lyon’s judge also decided that at least some communications between the DHHS director and employees must go through attorneys. After I reached out to the department for this article, a spokesperson told me in an email that, “given the ongoing litigation, we can’t comment on the impact of the prosecution.”
Paula Nelson is the CEO of Sacred Heart Rehabilitation Center, which receives the bulk of its funding from DHHS and is headquartered in a county that saw more than one overdose death a day last year. She worries that the prosecution is having a chilling effect on other DHHS staff at a time when organizations like hers need help responding to the region’s opioid crisis. Drug overdose deaths in Michigan have risen 82 percent in five years.
“I am concerned with what I see now as a general fear that state employees have with making ‘out of the box’ decisions,” Nelson wrote in an email. “I believe people are extremely risk averse right now and possibly even more so” after Lyon was bound over for trial.
Lyon became director in 2015—a key year when the Flint crisis was escalating but not yet acknowledged by the state. Governor Rick Snyder had just created DHHS after merging other departments. He championed it as a way to provide more unified and efficient care, especially for those who have multiple intersecting needs, such as foster children with mental health challenges. Sheehan said that there was some good sense behind this, though it followed years of other structural changes to the system of care that ultimately led those “at the bottom of the totem pole and with the smallest budgets” to be sidelined. In particular, he said, mental and substance abuse services suffered. Agencies like his own began to invest more in advocacy.
A year later, Snyder proposed a budget that privatized a great deal of DHHS services. In some ways, this was in keeping with his philosophy—under Snyder, a former venture capitalist and business executive, the state had also privatized prison food service and expanded an emergency management law that gives state-appointed administrators power over struggling cities and schools instead of elected officials. (Flint had a series of four emergency managers throughout the water crisis; two have been indicted.) But Snyder was also one of the few Republican governors to accept the Medicaid expansion under President Barack Obama’s Affordable Care Act.
Advocates pushed back against the effort to shift mental health services to the private market, and the governor backed down. A year later, when the legislature delivered a similar privatization plan, advocates again challenged it, and again the proposal was dropped. But with mental health services worth $2.4 billion in Medicaid dollars, the spectre of privatization still looms, and advocates are on edge.
The prosecution of two top and actively serving DHHS leaders destabilizes things further. Some social service leaders I spoke to feel uncomfortable about expressing any on-the-record opinions about the department or the Flint water crisis—even when their agencies might be working on related issues, such as developmental delays (which can be caused by lead exposure)—for fear of putting their funding at risk.
Other agencies have made public displays of support for Lyon. Spectrum Human Services, which serves vulnerable people across Michigan, honored him with its governors award in October 2017. In July, Lyon was given the Michigan Association of Health Plans’ highest award. The insurers gave him a standing ovation.
And it is Robert Sheehan’s organization, the Community Mental Health Association of Michigan, where Lyon is a featured keynote each year before nearly 1,000 social service providers. It was at one of these on-stage talks where Lyon acknowledged that he had inserted the language in Snyder’s budget bill that would have privatized mental health services.
Despite his grave concerns about privatization, Sheehan has still championed Lyon’s leadership in the face of the Flint charges. “Nick Lyon represents the kind of leader that is needed now, in both the public and private sectors, in these times of newly emerging challenges and rapid change,” Sheehan said last fall. “One who is selfless and clear headed; a visionary and a consensus builder with a keen intellect.”
When I asked how he reconciled this, Sheehan said in an email that, at the conference, Lyon was “simply underscoring that he, as the director of the department, is responsible for the proposals that are contained in his department’s section of the governor’s proposed budget. This is the kind of statement that all good leaders make to make the point that ‘the buck stops’ at the director.” Lyon is expected back at the conference this fall.
The November election will bring in a new governor and a new set of questions about how (or if) the well-being of people in Michigan will be handled well. Notably, the Republican gubernatorial candidate, Bill Schuette, is the attorney general whose office is leading the prosecution of Lyon.
“I think the politics of it gets even more complicated,” Sheehan said. Even if Lyon or Eden Wells, the other indicted DHHS official who still serves in her job, “had the ability to do something” at the department, “the new administration that comes to power” might dismiss it as a “Nick Lyon proposal.”
Ananich, the Senate minority leader, chairs the board of the Greater Flint Health Coalition, which works with DHHS on the water crisis recovery of his community. There are great workers at the department, he said. But he reiterated his bafflement at the state’s inability to check itself. Only one state worker was fired because of her role in the crisis. (She led the drinking water office, which seriously mishandled Flint's water.) The Senate failed to hold full hearings or votes for nominees to lead departments—Ananich takes some responsibility for that, he said, and vows to do better oversight next time. And, whatever the veracity of the allegations against them, Ananich said he couldn’t shake his amazement that two top officials facing felonies are continuing in their roles.
“Maybe this is coming from a guy in Flint who was lied to for a long time,” Ananich said. “Maybe I’m overreacting, and I’ve never said this before, but maybe they know something that implicates someone else in the state. And if the state pays for their salaries and lawyers, and they keep their jobs, they’re less likely to talk.” Especially if—as Lyon, Wells, and Governor Snyder hope—they “triumph in their case.”
Ananich emphasized that he was just speculating, but “when you watch how these guys operated the last few years, saying things that are outright lies, it becomes almost like the new normal.”
In a state that desperately needs to rebuild credibility with its most vulnerable citizens, in Flint and beyond, perceptions have consequences. When trust is lost, suspicion moves in.