On January 13, 2021, the Michigan Attorney General’s Office filed two counts of willful neglect of duty against former Michigan Gov. Rick Snyder related to his handling of the Flint water crisis while in office. The allegations accuse the former governor of failing to take significant action to fix the problem in 2014 when residents showed officials that their running water was discolored and bad tasting. It was not until a doctor reported elevated lead levels in children in 2016 related to the water that the administration took action. In the end, there were 12 deaths resulting from the crisis. This is the first time that a governor or former governor in the State of Michigan has been charged with a crime related to their service in office.
What exactly is a charge of “willful neglect of duty”? MCL 750.478 states the following:
- “When any duty is or shall be enjoined by law upon any public officer, or upon any person holding any public trust or employment, every willful neglect to perform such duty, where no special provision shall have been made for the punishment of such delinquency, constitutes a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00.”
The Michigan Court of Appeals held in People v Medlyn, 215 Mich App 338, 340-341; 544 NW2d 759 (1996) that, for a conviction under this statute, the prosecutor must prove all of the following beyond a reasonable doubt:
- (1) that the defendant was a public officer or “any person holding any public trust or employment.”
- (2) that the defendant had a duty that is “enjoined by law.”
- (3) that the defendant willfully neglected to perform such duty.
Who exactly is a “public officer”? The Michigan Penal Code does not provide a list of positions that would be subject to MCL 750.478. In People v Contu, 459 Mich 348, 354; 589 NW2d 458 (1999), the Michigan Supreme Court identified five elements to assist a court in determining whether a position should be considered a public officer:
- “(1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature”;
- “(2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public”;
- “(3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority”;
- “(4) the duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a superior officer or body”;
- “(5) it must have some permanency and continuity, and not be only temporary or occasional.”
If there exists any “oath and bond requirements” associated with the position, then it tends to support the finding of being a “public officer”. Id at 355. As additional guidance, MCL 15.181(e) defines a “public officer” as “a person who is elected or appointed to any of the following:”
- “(i) An office established by the state constitution of 1963.”
- “(ii) A public office of a city, village, township, or county in this state.”
- “(iii) A department, board, agency, institution, commission, authority, division, council, college, university, school district, intermediate school district, special district, or other public entity of this state or a city, village, township, or county in this state.”
In addition, the statute covers not only public officers but “any person holding any public trust or employment.” MCL 750.181(d) defines the term “public employee” as “an employee of this state, an employee of a city, village, township, or county of this state, or an employee of a department, board, agency, institution, commission, authority, division, council, college, university, school district, intermediate school district, special district, or other public entity of this state or of a city, village, township, or county in this state, but does not include a person whose employment results from election or appointment.”
Under these definitions, public officers or employees can include, but is not limited to, the governor, lieutenant governor, attorney general, secretary of state, county clerks, county prosecutors, sheriffs, police officers and teachers. This does NOT include independent contractors that enter into agreements with the government to provide a certain service such a construct a building.
What is a duty that is “enjoined by law”? In People v Parlovecchio, 319 Mich App 237; 900 NW2d 356 (2017), the Michigan Court of Appeals made the analogy of this statutory requirement to the law of mandamus, meaning that the public officer or employee must have “had a clear legal duty to perform the [requested] act.” However, mandamus only applies to those functions that are “ministerial, not discretionary”, for the court to compel action. For example, mandamus would be applicable against a township building inspector that refuses to issue a building permit when the applicant met every single legal requirement under the law. On the other hand, mandamus would not be applicable to a prosecuting attorney who has the discretion to not authorize a charge because he or she doesn’t think that guilt can be proven beyond a reasonable doubt. This charge is often levied against police officers or sheriff deputies who are informed by other people that a crime occurred but willfully refuse to take any action or even inform another officer or deputy to investigate the complaint.
What does it mean to “wilfully neglect to perform.” In People v Bommarito, 33 Mich App 385; 190 NW2d 359 (1971), the Michigan Court of Appeals upheld a conviction against a county undersheriff where his “[f]ailure to enforce the law or prevent a violation of which he is cognizant constitutes a breach of this duty[,]” and “[s]uch a breach of duty is a wilful neglect of duty in violation of [MCL 750.478].” It has to be more than an accident or an oversight to trigger culpability. The public officer or employee must be aware of their duty and purposefully fail to do it.
Is former Governor Snyder guilty of willful neglect of duty? He is clearly a public officer contemplated under MCL 750.478. Prosecutors allege that he failed to check the “performance, condition and administration” of his staff and follow through on his duty to protect the public from harm. Defense counsel alleges that it is nothing more than a political persecution undertaken by Democrats against a former Republican administration. Like every other Michigan resident, he is entitled to the due process of law. He is also entitled to be presumed innocent until proven guilty. Finally, he is entitled to the assistance of a skilled criminal defense lawyer to assert his rights and all of the defenses that would be available at law.
If you are accused of any crime or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
