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Second day of testimony on Detroit water shutoffs; judge will rule on moratorium Monday

Judge Steven Rhodes said he'll rule next Monday whether to put a temporary halt to Detroit's controversial water shutoffs.

Witness testimony continued in federal bankruptcy court Tuesday with hearings to determine the fate of that policy.

A coalition of Detroit residents and advocacy groups filed a lawsuit challenging the city’s controversial shutoff policy on constitutional and civil rights grounds.

The Detroit water department has shut off around 19,000 customers this year – the vast majority of them residential accounts – in an effort to collect up to $120 million in delinquent bill payments.

Water department officials say the system simply can’t continue to function when thousands of people aren’t paying their bills.

Critics say the shutoff campaign has been poorly handled, and shutting off water to those who genuinely struggle to pay is inhumane. They want Rhodes to issue a 6-month moratorium on the practice, and the city to implement an income-based water affordability plan for needy residents.

Witnesses for the defense took the stand Tuesday, including DWSD deputy director Daryl Latimer, chief financial officer Nicolette Bateson, and Mayor Mike Duggan's chief of staff, Alexis Wiley.

Testimony was far more detailed and technicalthan on day 1 , with city and water department lawyers focusing on the the utility's legal right to shut off service for non-payment; and detailing how when some Detroiters don't pay their water bills, others have to pick up the slack.

They also warned Rhodes that a moratorium could put the department's financial viability at risk. Latimer testified that when the department escalated shutoffs as part of a massive overdue collections effort, revenues soared; only to drop off steeply when the department put the shutoffs on "pause" for several weeks this summer.

It's not entirely clear Rhodes has the authority to impose the restraining order the plaintiffs are asking for. However, the lawsuit and other issues involving the water department are now tied up in Detroit's bankruptcy case, which Rhodes is in charge of.

Witnesses for the plaintiffs testified Monday. They included:

Detroit water department director Sue McCormick

Under questioning from civil rights lawyer Alice Jennings, McCormick acknowledged several points that could potentially boost the plaintiff’s case. Among them:

  • DWSD had rules in place through 2014 that required an employee to go knock on a door to notify residents about impending shutoffs. However, McCormick said that policy hasn’t been followed “for years.”

That led to the following exchange between McCormick and Judge Rhodes, as recorded on Twitter by Detroit Free Press reporter Joe Guillen:

file:///C:\Users\SCwiek\AppData\Local\Temp\msohtmlclip1\01\clip_image001.jpgJoe Guillen @joeguillen

Rhodes: "When a public body has a rule that ... needs review and change, is it appropriate to simply ignore it and stop implementing it?"

file:///C:\Users\SCwiek\AppData\Local\Temp\msohtmlclip1\01\clip_image001.jpgJoe Guillen @joeguillen

McCormick: “Do I think it’s appropriate? No. have I seen it? Yes.”

file:///C:\Users\SCwiek\AppData\Local\Temp\msohtmlclip1\01\clip_image001.jpgJoe Guillen @joeguillen

Rhodes asked McCormick if cutting off service without face-to-face contact with the customer, as posted rules state, is legal?

file:///C:\Users\SCwiek\AppData\Local\Temp\msohtmlclip1\01\clip_image001.jpgJoe Guillen @joeguillen

McCormick: “I would say the practice ... has been so longstanding that I do believe (they are) legal terminations.”

  • McCormick admitted that DWSD made no effort to establish whether any of the homes being shut off had children or people with disabilities living in them, saying that’s up to deputy director Daryl Latimer. She also acknowledged not knowing how many of the homes shut off were vacant, but that it was probably “a large number.
  • Of the roughly 19,000 customers shut off since March, only 157 commercial customers have had service cut off and restored. It’s not clear how many commercial accounts were cut off in total; McCormick said shutoffs are “more complex with corporations.”

Under cross-examination, McCormick told the court it would be “potentially be very devastating” to the water department if Judge Rhodes were to grant a temporary restraining order against the shutoffs: “I believe we would start feeling it immediately. How long it would be before we couldn't pay all of our bills, I don't know."
Utilities expert Roger Colton

Colton, a public utilities expert who’s analyzed systems around the country, was another witness for the plaintiffs. He said that stopping water service because people can’t pay only makes the problem worse citywide, and advocated for making income-based payment plans available to low-income residents.

Defense lawyers, however, maintained that such income percentage-based plans would violate Michigan law.

The public health angle

Several public health experts, including former Detroit Deputy Health Director George Gaines, also testified about the potential public health and sanitation risks of denying water service to large numbers of people. But defense lawyers got them to admit that so far, no major public health crisis has emerged from the water shutoffs.

Sarah Cwiek joined Michigan Public in October 2009. As our Detroit reporter, she is helping us expand our coverage of the economy, politics, and culture in and around the city of Detroit.
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