New questions after Flint Legionnaires’ revelation

Correction: This story has been updated to correctly identify the four aides to Gov. Rick Snyder who Michigan deputy director of federal regulations Eric Brown testified on May 7 participated in a conference call regarding a Legionnaire's disease outbreak in Genesee County on Sept. 18, 2015. 

Flint — Prosecutors are asking more questions about what three top officials for Gov. Rick Snyder knew about Flint area Legionnaires’ disease cases after court testimony last week revealed some were told about the deadly outbreak in September 2015.

Special Prosecutor Todd Flood spent several minutes May 7 in his cross examination of Eric Brown, Snyder’s deputy director of federal regulations in Washington, D.C., zeroing in on who was on a Sept. 18, 2015, conference call when state Health and Human Services Director Nick Lyon talked about the Legionnaires’ cases.

The 2014-15 outbreak killed at least 12 people and sickened 79 others in the Flint region, according to the state.

Lyon has been charged with involuntary manslaughter and misconduct in office for allegedly trying to cover up the Flint area Legionnaires’ outbreak.

Brown, who was testifying as a defense witness in Lyon’s preliminary hearing, said then-Snyder chief of staff Dennis Muchmore,  Urban Initiatives director Harvey Hollins, Department of Environmental Quality director Dan Wyant and DEQ spokesman Brad Wurfel were on the conference call.

When asked by Flood, Brown could not recall if Snyder’s Transformation manager Richard Baird was on the line.

Lyon told callers there was an increase in cases of the respiratory disease, Brown testified, but that 73 percent of them “did not live in Flint,” and there was no determination the outbreak was related to the drinking water switch to the Flint River in April 2014. This was the only Legionnaires’-related comment he could remember Lyon making.

Snyder didn’t notify the public of the outbreak until a Jan. 13, 2016, press conference in Detroit after Lyon told him about it on Jan. 11, Muchmore has said.

Flood and the special prosecutors might be ascertaining who was “there so that they can get additional, corroborating witnesses to what was on the call,” said Dave Moran, a University of Michigan Law School professor specializing in criminal law.

Muchmore, who left the Snyder administration in early 2016, declined to comment about the Flint court hearings or Brown’s testimony invoking his name.

Muchmore said after a Jan. 15, 2016, taping of WKAR-TV’s “Off the Record” that information about the 2014-15 Legionnaires’ outbreak didn’t get to the governor, and Snyder should have been told about it.

But he said then it wasn’t negligence by state health officials, who failed to bring the respiratory disease outbreak to the governor’s attention earlier.

“What it does is show is that that information flow ... isn’t always forthcoming,” Muchmore told The Detroit News in January 2016.

Baird did not return calls seeking comment.

“Rich was not on the conference call nor was he invited to be on it,” said Snyder spokeswoman Anna Heaton about Baird and declined further comment.

Hollins declined to comment about Brown’s testimony.

It isn’t clear why information from Lyon’s September 2015 briefing wouldn’t have been communicated to Snyder.

But emails released by the Snyder administration showed that three months earlier, Department of Health and Human Services communicable disease division director Jim Collins thought the outbreak had ended. It was included with his summary report on 45 cases of Legionnaires’ disease from June 6, 2014, through March 9, 2015, records show.

“The outbreak is over,” Collins’ report declared in June 2015. “The last reported case occurred in March 2015. The lack of clinical Legionella isolates precludes our ability to link cases to an environmental source.”

Jim Henry, a Genesee County environmental health supervisor, indicated his skepticism about the claim in an email, noting there had been two confirmed Legionella cases earlier that week in June 2015, according to county records obtained by The News through a public records request.

The email trail about Legionnaires’ disease cases goes cold after that, according to a Detroit News review of state emails released by the Snyder administration.

Muchmore said Lyon told Snyder about the outbreak on Jan. 11, 2016, and then he learned about it.

But Hollins testified in October that he told Snyder and Baird about the Flint area Legionnaires’ outbreak on a Dec. 24, 2015, conference call — about three weeks before Snyder’s public announcement.

“The governor testified under oath to Congress and he stands by his testimony, and if Congress has any questions or further questions for him, if we get any questions from the committee, then we’ll respond to those as we always have,” Snyder spokesman Ari Adler said a few days after Hollins’ testimony.

Adler declined to say whether Hollins was mistaken.

If prosecutors are trying to show that Snyder’s officials knew and should have told or did tell the governor about the Legionella outbreak, it will be a tall order, UM’s Moran said.

“It’s quite a bit of evidentiary leap that we have to get from there to try and show what the governor knew earlier,” he said. “First of all, you’d have to show somebody on the call would have told the governor and somebody on the call was paying attention. I’ve certainly been on a lot of conference calls where I gather some people aren’t paying a whole lot of attention. But you’d have to show that somebody actually absorbed the information from the call.”

The only way to do that, Moran said, would be “to call them as witnesses.”

The day before the Dec. 24, 2015, conference call, Baird and Hollins met with members of the state’s Flint Water Task Force to find out what would be in its report. At that meeting, Hollins testified that the task force’s Dr. Larry Reynolds told Baird and him that there was an uptick in Legionnaires’ cases.

Flood peppered Brown with questions during the May 7 67th District Court hearing about why he didn’t share Lyon’s Legionnaires’ news with Congress.

“I would defer to the governor’s comments that it was a failure of government at all levels,” Brown said when asked by Flood if it was Lyon’s Department of Health and Human Services that failed in telling the public about the outbreak.

“I believe it is still incomplete,” Brown said of the cause of the Legionnaires’ outbreak. But he said he didn’t feel it was his job to tell Snyder about the outbreak.

“It would be the relevant health department officials,” Brown said.

lfleming@detroitnews.com

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Twitter: @leonardnfleming