Sheehan & Associates, P.L.C.

The three "feasances" and Flint's water contamination

Clean city water supplies have been one of the most significant public health advances of the last 100 years. The municipal water supplies and equally significantly, the water treatment plants have virtually eliminated many of the diseases of the 19th century that plague both urban and rural life.

As essential as they are, those systems can become like wallpaper; they are always there and so virtually no one pays attention to them. Then something like the catastrophe that struck Flint occurs. Public officials at all levels owe their constituency multiple duties. There is, of course, the duty to not be corrupt. Taking bribes or fixing deals that financially benefit the officeholder are clearly forbidden.

However, there is another duty, that is both obvious and obscure, and that is to perform the job they were hired to do. For some, like a prosecutor or a lab technician, their tasks are somewhat narrowly defined. For legislators or the governor, the "job" is so broad and affects so many areas that it is often hard to determine if they performed well or incompetently.

The charge of "misconduct in office" is broad, and encompasses conduct that includes malfeasance, where someone knowing commits a crime, misfeasance, where someone "does a lawful act in a wrongful manner" and nonfeasance, where someone fails to act when required by their job.

In Flint, while it is unlikely that anyone intentionally planned to place lead in the water supply, malfeasance could be found if there was any manipulation or cover-up attempted once issues began to appear.

The last two "feasances" could also be a problem for those involved in the Flint matter as potentially the failure to maintain a safe water supply could be grounds for a charge of misconduct based on misfeasance or nonfeasance.

We have grown so accustomed to this "wallpaper" simply working that it can be all too easy to forget that sometimes it demands an active commitment on behalf of our public officials. Nonetheless, in this circumstance, a prosecution is likely to be complex, and fraught with very difficult questions implicating Michigan authorities at the highest levels.

Source: nytimes.com, "Assessment of Flint Water Crisis May Hinge on Stupidity vs. Criminality," Peter J. Henning, February 1, 2016

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