Nick Krieger (@nckrieger):
At a press conference this morning, Michigan Attorney General Bill Schuette announced that his office would pursue felony charges—including charges of common-law misconduct in office—against disgraced, former state representatives Todd Courser and Cindy Gamrat. You will recall that the Michigan House of Representatives sex scandal occupied the headlines for much of the summer and fall of 2015, eventually making it all the way to ABC’s 20/20 television news program. Schuette’s charging decision in the Courser/Gamrat case is therefore significant in its own right as a stand-alone story.
But Schuette’s charging decision is significant in a different context as well.
In the case of the Flint Water Crisis, I have speculated for some time that the most likely criminal charge against Governor Snyder, his staff, or other officials in the executive branch of state government would be for common-law misconduct in office. Misconduct in office is an unusual crime in Michigan. Unlike most other felonies, it is not defined by statute. Instead, under a catchall provision in the Michigan Penal Code, any offense indictable at common law that is not otherwise covered by Michigan statute may be charged as a felony and punished by up to five years in prison. MCL 750.505. Common-law misconduct in office is just such an offense.
As a common-law crime, misconduct in office is defined entirely by case law. Specifically, it consists of corrupt conduct by a public official; this can be proven by evidence that the public official has intentionally violated the duties of his or her office. People v Waterstone, 296 Mich App 121, 141-142; 818 NW2d 432 (2012). Common-law misconduct in office includes malfeasance (the performance of a wrongful act), misfeasance (the performance of an act in a wrongful manner), and nonfeasance (the failure to perform an act required by the duties of office).
Misconduct in office might sound like an antiquated offense that is never charged. Indeed, because it is defined by case law instead of statute, and because its parameters are poorly understood, some prosecutors are apprehensive to pursue it. But this is not true in all cases. For example, both former Detroit Mayor Kwame Kilpatrick and former Wayne Circuit Judge Mary Waterstone were charged with common-law misconduct in office in recent years.
Schuette has launched an investigation into the Flint Water Crisis, and Special Counsel to the Attorney General Todd Flood has indicated that criminal charges are possible. As I see it, Schuette’s decision to file misconduct-in-office charges in the Courser/Gamrat case essentially compels him to file similar felony charges in the case of the Flint Water Crisis. Anything less would be utterly hypocritical.
Sure, Courser and Gamrat misused computer equipment and violated the duties of their offices by misdirecting their employees and using state-owned resources to cover up their extramarital affair. But they did not knowingly endanger the public health. Contrast their actions with the situation in Flint, where state officials lied about the looming public-health crisis, withheld critical information from the local health department, attempted to discredit independent scientific researchers, intentionally delayed the return of water-testing results, and engaged in PR spin to minimize the severity of the man-made disaster. If felony misconduct-in-office charges are warranted against Courser and Gamrat, surely they are warranted against the state officials who poisoned Flint’s drinking water through their own misfeasance, nonfeasance, and neglect of duty.