By Tom Travis
The City Council has delayed voting on the water crisis settlement (WCS) again until Monday, Dec 21. In Thursday’s five-hour meeting a “companion resolution” was introduced into discussion by Council President Kate Fields (4th Ward).
In addition, Council president Kate Fields announced that a public hearing (available online via Zoom) has been scheduled for 1:30 p.m. Monday by Michigan Attorney General Dana Nessel’s office to determine if the federal court should give preliminary approval to the $641.2 million settlement.
The “companion” resolution asserts the state’s contribution is “insufficient,” that “proof of injury” requirements may be too burdensome, that the agreement should cover residents’ water bills, and that the council should have more time to consider the terms of the agreement.
The council voted to attach the “companion resolution” to the original resolution because it expresses their concerns and desired changes with the original WCS resolution.
The council voted eight to one, with only Councilperson Santino Guerra (3rd Ward) casting the single “no” vote, to postpone the original WCS resolution (resolution number 200488) with the “companion resolution” attached to it until Monday’s meeting.
The “Companion Resolution”
The “companion resolution” was drafted by the City’s legal department in response to the Council’s discussion and expressed concerns in Monday’s meeting. The response “companion resolution” reads in part:
– That the State of Michigan is contributing insufficient funds to the settlement agreement;
– That the proof of injury requirements in the settlement agreement may be unduly burdensome on some residents of the City of Flint
– That the Settlement Agreement should more explicitly cover payment of water bills by the residents of the City of Flint.
– That the Settlement Agreement should allocate Settlement Funds to cover claims for payment of water bills in an amount not less than 2%.
– That the City Council would prefer an additional two months to consider and deliberate regarding the Settlement Agreement and conduct additional consultations.
Fields told the council she received the “companion resolution” just hours before the council meeting began.
Councilperson Eric Mays said, “We’re getting ready to vote on something but I haven’t even seen or touched it yet,” referring to the “companion resolution”. It was suggested that the council take a ten minute recess for all council members to review the document but still not all council members had the document readily available.
EVM attempted to contact City Attorney Angela Wheeler, as to how the “companion resolution” came about and was written. Marjory Raymer, City Director of Communications responded, to the email sent to Wheeler, in an email to EVM:
“There was discussion on Monday, December 14, 2020 during the City Council meeting regarding the City Council expressing its concerns about the $600 million settlement. Through the Council President Fields, an alternative draft resolution with a listing of conditions was created.
“Based on that dialogue during the Monday meeting, the legal department addressed those City Council concerns by preparing a draft for consideration of the Council body. It was written this week, after the Monday meeting. All departments prepare and present resolutions to the City Council body.”
The “companion resolution” can be read in its entirety below:ACFrOgD2B-YYAuskmpgVjYZdvfQy1Pv5I48b81LTsHuztcxrm2_7tj66DBgZKZ-LOg_e-vAdQdDwzDvf46IidrYL7SmZQJf2sTXp-6pluhBnpRrNROShAH1BMJWWnhA=
Attorney Loyst Fletcher wants council to have their own attorney
Flint Attorney Loyst Fletcher, Jr. who is representing hundreds of water-refund customers sent a letter addressed “To the Public and To Whom It May Concern”. In the public letter Fletcher states, “The City Council requested an independent attorney to draft a response to the Motion to Confirm the Flint Water Crisis Settlement.
“The City Council was told by the City’s Attorneys that the Council may respond to the Joint Motion to Confirm the Settlement Agreement by accepting or rejecting it. The City’s attorneys said the Council could give no other response.”
Members of the City Council have expressed they want to adjust the formula for how the settlement is figured. According to the City Attorney the council only has two options: accept or reject.
Fletcher clarified saying, “The City Council, on behalf of the City, should have an equal right to seek modifications to the settlement. The State, as a defendant, was able to propose settlement terms and give input on the settlement agreement. The Council did not have any right to give any input ever. The City Council should have the opportunity to propose terms to a settlement before the final settlement agreement is confirmed.”
Fletcher’s letter “to the public” can be read in its entirety here:
The “companion resolution” aims at proper water refunds within the WCS
Understanding the history of the water refund portion of the Flint Water Crisis is a complex and exhausting task. In consulting with attorneys, activists and authors this summary is offered of the Flint Water refund history.
The water refund cases focus on the period between 2017 t0 2019. In January 2017 the EPA (Environmental Protection Agency) issued an emergency declaration that Flint water was too toxic to drink; that emergency declaration was lifted in June 2019.
During that period The City of Flint continued to charge citizens for water that, according to the EPA, was too toxic to drink after the City switched to Flint River water that was allegedly improperly treated. Most Flint residents never received a refund during the months that they paid for water they could not drink.
Rather than offer refunds to citizens, the City applied “credits” to reduce future bills. At the same time the water connection charge was raised by almost 40%. Residents who moved during that period did not receive any credit. Additionally, residents who did receive a credit had those credits removed by the connect charge.
The WCS gives the residents no coverage of this as an “economic loss”. If there is coverage for this amount of loss, it is under a property damage loss category.
In her book, “The Poisoned City: Flint’s Water and the American Urban Tragedy”, Anna Clark cites the disparity in Flint’s high water costs for water that can’t be drunk.
Clark writes: “To add insult to injury, this weird water was expensive. Residents were charged about $140 per month on their water and sewer bills, $35 more than the town with the second-highest rates in Genesee County and $90 more than the lowest. For just water, not including sewer, their bills were about twice the median cost in the water-rich Midwest. Out of the five hundred largest water systems in America, Flint’s rates were the very highest. This made for some peculiar juxtapositions. One man, Nijal Williams, paid almost $65 more per month for his water and sewer service than his neighbors who lived just one hundred yards away but who had an address in Burton, the town on the other side of Flint’s southeastern border.” (p. 34-35)
Clark added, “These prices hurt people with limited resources. Nearly 80 percent of working residents in Flint earned $40,000 or less a year. Forty percent of them earned $15,000 or less. The United Nations recommends that water and sewer bills be not more than 3 percent of a household’s income. In Flint, the bills were well beyond that.” (p. 35)
The losses suffered by adults in Flint as economic losses that are treated as property damage losses in the settlement are capped at $500 per adult resident. Flint residents will not be able to recover their losses due to denial of a refund. If the WCS paid more in refunds owed (close to $2400-$3100/household estimated by one attorney) many residents owed refunds would likely accept the WCS.
As the settlement stands, with such low payments, many residents may choose to opt out and to sue. If these residents sue, then there will be many of these claims against the city surviving the settlement. The City may face an amount it must pay of $15 to $20 million, said Attorney Fletcher at the Dec. 14 City Council meeting. This is an amount of liability the State of Michigan will not be obligate to reimburse to the City or pay.
This could result in the City being pushed into bankruptcy by these opt out water refund claimants resulting in a failure of the City to get benefit of a release being promise to it by settling.
As activist and protesters have recently pleaded that one way to fix this is for the settlement to be larger. But the issue could be resolved by expressly covering water refund claims for any Flint resident who had to pay for poisoned water during the months when they could not drink it. Water liens were put on the homes for over 8,000 Flint residents to collect these water bills in 2017.
A fair settlement would remove those water liens, said some at the Council meeting, protecting residents from facing foreclosure on their home when they did not pay for poisoned water.
Council President Fields stated in Thursday’s meeting that she had spoken with Michigan Attorney General Dana Nessel and that Nessel is “very willing to sit down with council to discuss things that are being ‘shortchanged’. Nessel added that she is in discussion with the governor concerning the water crisis settlement (WCS) and the governor is willing to meet with the city council. Fields said AG Nessel thinks there is opportunity to take care of some of these shortcomings in the WCS.”
Public hearing scheduled for Monday, Dec 21 at 1:30 p.m.
According to a press release from AG Nessel’s office, a hearing has been scheduled to determine if the federal court should give preliminary approval to the $641.2 million settlement.
A remote public hearing is scheduled for 1:30 p.m. Monday, Dec. 21. Flint residents can attend the hearing online via Zoom, Passcode: 679927, or by phone by dialing in to +1-669-254-5252, Passcode: 1615618836# or +1-646-828-7666, Passcode: 1615618836#.
“The public’s participation is part of the settlement process and I encourage Flint residents to attend the hearing on Monday,” Nessel said. “The State has made a concerted effort to reach this settlement with plaintiffs’ attorneys, with the guidance of court-appointed mediators. Countless hours of effort have gone into crafting this agreement, and while it may not be perfect, we continue to believe it is the best possible outcome for residents and the future of Flint.”
“I encourage Flint residents to learn about the settlement details, attend Monday’s hearing and participate as the settlement process moves forward,” said Governor Whitmer. “As I’ve said before, what happened in Flint should never have happened, and financial compensation with this settlement is just one important step forward in the long process of helping the city heal and making amends to the people of Flint who have faced so much uncertainty.”
City Council’s next scheduled meeting is Monday, Dec 21 at 5:30 p.m.
EVM Managing Editor, Tom Travis, can be reached at firstname.lastname@example.org