Key Players in NC Local Public Health: Boards of County Commissioners
This page includes questions and answers about the role of boards of county commissioners in North Carolina's local public health system.
PLEASE NOTE: THESE QUESTIONS AND ANSWERS HAVE NOT BEEN UPDATED TO REFLECT THE CHANGES FROM THE 2012 LEGISLATIVE SESSION. FOR MORE DETAILS, SEE THE "LEGISLATIVE UPDATES" PAGE.
FAQs
North Carolina law requires counties to provide public health services to their residents. County commissioners take several actions to ensure that this happens:
- Selection of agency type: Commissioners are key players in the selection of the type of local public health agency. In all counties, the commissioners may choose to operate a county health department or jointly resolve with the local board of health to join a district health department or form a public health authority. If the county meets a certain population threshold (currently 425,000),[1] the commissioners may choose to operate a consolidated human services agency, in which public health, mental health, and social services are provided by a single agency.
- Appointment of board: County commissioners make appointments to the local public health board. The board of county commissioners appoints all the members of a county board of health, a single-county public health authority board, or a consolidated human services board. The boards of district health departments or multi-county public health authorities are appointed somewhat differently: the board of county commissioners of each participating county appoints one county commissioner to the health board, and then those commissioners appoint all the remaining members. Finally, in counties that meet a population threshold (presently 425,000), the county commissioners may serve as the local board of health.
- Approval of budget or budget request: County commissioners approve the budgets of local public health agencies that are county departments. If the county participates in a public health authority or district health department, the commissioners may be involved in approving budget requests or providing funding to the agency but it is not required.
[1] G.S. 153A-77(b). Such counties must also have a county-manager form of government pursuant to G.S. 153A-81.
Under current law, the boards of commissioners of such counties have two options:
- The commissioners may abolish any or all of their local human services boards (including the board of health) and directly assume the powers and duties of the abolished board(s).[1]
- The commissioners may establish a consolidated human services agency, in which public health, mental health, and social services are provided by a single agency governed by a consolidated human services board.[2]
[1]G.S. 153A-77(a). This option is available to any county with a population exceeding 425,000.
[2]G.S. 153A-77(b). This option is available to a county that meets two conditions: (1) has a population exceeding 425,000, and (2) has a county-manager form of government pursuant to G.S. 153A-81. Tyrrell is the only North Carolina county that does not have a county-manager form of government pursuant to G.S. 153A-81. Personal communication, Professor Carl Stenberg, UNC School of Government (February 2012).
There are aspects of operation and administration that are not addressed specifically by laws and that are within local officials’ discretion to manage. For example, a county health department may:
- share administrative staff with a different county agency, such as the department of social services;
- consolidate administrative functions such as finance or human resources in a single office housed in county operations rather than in one of the departments;
- co-locate its public health and social services agencies and possibly share front desk and intake operations;
- have an agreement in place with a neighboring county for provision of one or more specific services; or
- have a direct contract in place with staff from a neighboring county for provision of services in off-hours.
This is not an exhaustive list – a county may well be able to identify additional actions that it could take, despite not reaching the population threshold for full consolidation.
Under present law, counties with populations exceeding 425,000 may abolish any or all of their local human services boards (including the board of health) and permit the board of county commissioners to exercise the powers and duties of the abolished boards. The law that permits this applies to boards that are either (1) appointed by the commissioners, or (2) acting under the commissioners’ authority.[1] This clearly includes traditional county boards of health and county consolidated human services boards. It may also include a board in a single-county public health authority, as such boards are appointed by the commissioners.
A board of county commissioners in a county that meets the population threshold would not be able to abolish a district health department or a multi-county public health authority, because the commissioners appoint only a subset of those boards’ members, the agencies represent multiple counties, and they operate pursuant to their own legal authority (rather than the county’s). The board of county commissioners could, however, withdraw its county from a multi-county arrangement.
If a board of county commissioners abolishes its local board of health, the county commissioners would acquire new powers and duties, which are described in question 5.
[1]G.S. 153A-77(a).
If a board of county commissioners abolishes its local health board, the commissioners would acquire the following powers and duties related to public health and the operation of the local public health agency.
Role and charge: A local board of health is responsible for protecting and promoting the public’s health within its jurisdiction.[1] A board of county commissioners that assumes the board of health’s powers and duties acquires this responsibility.
Direct appointment of the local health director: A local board of health appoints a local health director after consultation with the county commissioners.[2] If the county commissioners abolish the board and assume its duties, the commissioners will be responsible for appointing the local health director. In most cases, the local health director must meet minimum education and experience requirements.[3]
Policy-making authority for the department: The board of county commissioners would become the policy-making body for the local public health agency.[4]
Rule-making authority for public health throughout the jurisdiction, including within municipalities: Local boards of health have the authority to adopt rules to protect and promote the public’s health within their jurisdictions.[5] The rule-making authority of a local board of health differs from the ordinance-adopting authority of boards of commissioners in significant ways:
- When a board of health adopts public health rules, its territorial jurisdiction exceeds that of a board of county commissioners exercising ordinance-making authority. Typically, county ordinances apply only in the unincorporated areas of the county, not inside the municipalities (unless the municipalities consent to be governed by the county ordinance).[6] However, a board of health rule applies throughout the board of health’s territorial jurisdiction—including within municipal borders.[7]
- A board of health’s authority to adopt rules is limited to matters related to public health, and has other limits imposed by law. At least some of these limits would apply to the board of commissioners if it chose to adopt a local public health rule.[8]
- There are statutory procedures regarding notice to the public that must be followed when a public health rule is adopted, and they differ from the procedures for adoption of county ordinances.[9]
- When a board of commissioners acting as a board of health adopts a public health rule, the options for enforcing the rule are different from those available to a traditional board of health.[10]
A board of county commissioners that has assumed the powers and duties of a local board of health would therefore need to determine and document when it was exercising its general ordinance-making authority versus its public health rule-making authority, to ensure proper procedures are followed and any limits to the authority are observed.
Adjudicatory body for public health:The board of county commissioners would acquire the power and duty to adjudicate disputes pertaining to the local agency’s application of local board of health rules or the imposition of administrative penalties by the local health director.[11] For example, if the local health director imposed a fine on a restaurant for failing to comply with the state law governing smoking in public places and the restaurant appealed the fine, the board of county commissioners would hear the appeal and issue a decision.
Imposing fees for public health services: A local board of health has limited authority to impose fees for services rendered by the local public health agency, with the approval of the board of county commissioners.[12] State law prohibits fees for some services[13] and requires the state to approve local fees in some cases.[14] Fees must be deposited into the local agency’s account and expended for public health purposes.[15] A board of county commissioners acting as the board of health would have the authority to impose these fees, subject to any applicable limitations in state law.
Duties related to accreditation: North Carolina law requires each local public health agency to obtain and maintain accreditation.[16] As part of the accreditation process, the local board of health must satisfyat least six of eight benchmarks[17]—a duty the county commissioners would acquire. To satisfy a benchmark, the department must demonstrate satisfactory completion of a list of activities associated with the benchmark. The benchmarks for boards of health are:
- Exercising the public health rule-making authority.
- Assuring a fair and equitable adjudication process.
- Training regarding board of health service.
- Assuring the development, implementation, and evaluation of local public health services and programs.
- Participating in the establishment of public health goals and objectives.
- Assuring the availability of resources to implement the essential public health services.
- Advocating in the community on behalf of public health.
- Promoting the development of public health partnerships.[18]
[1]G.S. 130A-39(a).
[2]G.S. 130A-40 (local health department); 130A-45.4 (public health authority). A consolidated human services agency has a director who is appointed by the county manager with the advice and consent of the board, G.S. 153A-77(e).
[3]G.S. 130A-40 (local health department); 130A-45.4 (public health authority). The law creating the position of consolidated human services director does not require any specific training, education, or experience, but North Carolina’s standards for local public health agency accreditation specify that the agency’s governing board must appoint a local health director who meets the requirements of the law that applies to county and district health directors. However, it may be possible for an agency to skip this requirement and still obtain accreditation. See the further discussion of this issue here.
[4]G.S. 130A-35(a).
[5]G.S. 130A-39(a).
[6]G.S. 153A-122.
[7]G.S. 130A-39(c).
[8]G.S. 130A-39 gives local boards of health rule-making authority but imposes some limits to that authority. For example, it prohibits local boards of health from adopting rules relating to the operating, grading or permitting of restaurants (a matter that is regulated by state law). Court decisions have also imposed limits to the rule-making authority of local boards of health. For example, the North Carolina Court of Appeals has held that a board of health acts within its authority only if a rule it adopts: (1) is related to the promotion or protection of health, (2) is reasonable in light of the health risk addressed, (3) does not violate any law or constitutional provision, (4) is not discriminatory, and (5) does not make distinctions based on policy concerns traditionally reserved for legislative bodies. City of Roanoke Rapids v. Peedin, 124 N.C. App. 578 (1996). It is likely that part (5) of this test would not apply to a board of county commissioners acting as a board of health, as the county commissioners are a legislative body traditionally empowered to make distinctions based on policy concerns. However, the other portions of the Peedin test would appear to be salient, perhaps especially the provision thatrequires the rule to be related to the promotion or protection of health. Unless it is acting as the board of health, the board of county commissioners lacks jurisdiction to take actions affecting municipalities. Thus, county commissioners acting as a board of health probably must establish that a proposed rule relates to the protection and promotion of public health in order to impose requirements that apply within municipalities.
[9]G.S. 130A-39(d).
[10]G.S. 153A-77(a). A board of county commissioners may enforce public health rules by imposing civil penalties, an option that is not available to conventional boards of health. Typically, violation of local public health rules is a misdemeanor, except for local rules pertaining to smoking in public places. G.S. 130A-25; 130A-498(d1). However, if a board of county commissioners acting as a board of health imposes a civil penalty for violation of the rule, then violation of the local rule will not constitute a misdemeanor unless the rule specifically states that violation is a misdemeanor.
[11]The statutes that make the local board of health the adjudicatory body for these issues are G.S. 130A-35(a) (county board of health); 130A-45.1 (public health authority board); 153A-77(d) (consolidated human services board). Actions that may be adjudicated and procedures for adjudications are in G.S. 130A-24.
[12]G.S. 130A-39(g).
[13]See, e.g., G.S. 130A-130 (testing or counseling for sickle cell disease); 130A-144(e) (diagnosis or treatment of tuberculosis or sexually transmitted diseases); 130A-153(a) (childhood immunizations for families who meet income and other criteria); 10A NCAC 41A. 0202(9) (testing and counseling for HIV). Federal laws also prohibit or limit fees for some services. For example, local health departments may not charge clients for language interpretation services. Civil Rights Act of 1964, Title VI, Section 601 (42 U.S.C. § 2001d); see also Policy Guidance: Title VI Prohibition Against National Origin Discrimination As It Affects Persons With Limited English Proficiency, 65 Fed. Reg. 52,762 (August 30, 2000). For some programs, fees may be charged only in accordance with sliding scales set by federal regulations.
[14]G.S. 130A-39(g).
[15]G.S. 130A-39(g).
[16]G.S. 130A-34.1.
[17]10A NCAC 48B. 0103(a)(3).
[18]10A NCAC 48. 1301 - .1308.
The county is still subject to the state law that requires it to provide public health services by operating or participating in a local public health agency, or contracting with the state. Therefore, a county that takes this action could operate a county health department, a consolidated human services agency, or contract with the state to provide public health services. It may be that such a county could operate a single-county public health authority as well, if the statute that authorizes commissioners to assume the duties of human services boards that are appointed by the commissioners extends to the board of a public health authority.
It does not appear that a county that takes this action could participate in a multi-county district health department, as the board of commissioners of an eligible county may assume direct control only of those commissions, boards or agencies over which it has jurisdiction. District health departments and multi-county public health authorities include two or more counties by definition.
The law that permits a county with a population exceeding 425,000 to create a consolidated human services agency or abolish human services boards does not permit a county to do away with the functions of a local health department. A county that exercises the options in that law retains the duty to provide public health services to its residents.[1] However, if the county creates a consolidated human services agency, the functions of the local health department will transfer to the consolidated agency. Whether the county continues to identify a particular component as the “health department” is not addressed by law—so long as the functions of the health department are being carried out, what to call the agency is up to the county.
[1]See also G.S. 153A-76 (prohibiting a board of county commissioners from abolishing a department or agency required by law); 130A-34(b) (“a county shall operate a county health department, establish a consolidated human services agency pursuant to G.S. 153A-77, participate in a district health department, or contract with the State for the provision of public health services” (emphasis added)); 52 Op. Atty Gen. 44 (1982) (concluding that G.S. 153A-76 prohibits a board of county commissioners from abolishing the local health department and assigning its functions elsewhere). A county may also satisfy its duty to provide public health services by operating a public health authority. G.S. 130A-45.01. It therefore appears some form of department or agency is required unless the county contracts with the state to operate services, and even then the state could require the county to provide facilities for a department or agency as a condition of the contract.
A state law prohibits county commissioners from abolishing an office established or required by law.[1] State laws establish the office of local health director[2] and require local boards of health to appoint an individual to serve in that role.[3]
In one type of public health agency – a consolidated human services agency – some or all of the responsibilities of the local health director may be assumed by other individuals. If a county creates a consolidated human services agency, the county manager must appoint a consolidated human services director with the advice and consent of the consolidated human services board.[4] The consolidated human services director is required by law to carry out most of the powers and duties of a local health director.[5] He or she may exercise those powers and duties directly or may delegate them to another agency employee.
[1]G.S. 153A-76 (prohibiting a board of county commissioners from abolishing an office established or required by law); see also 52 Op. Atty Gen. 44 (1982) (concluding that the office of local health director is unaffected by G.S. 153A-77(a) and must be filled by a board of commissioners acting as a board of health under that provision).
[2]G.S. 130A-40 (establishing the office of local health director for a county or district health department); 130A-45.4 (establishing the office of public health authority director for a public health authority); 153A-77(b)(1) (establishing the office of human services director for a county with a consolidated human services agency).
[3]G.S. 130A-40(a) (“A local board of health … shall appoint a local health director); 130A-45.4 (“A public health authority board … shall appoint a public health authority director”).
[4]G.S. 153A-77(e).
[5]G.S. 130A-43(c).
If the county abolishes its board of health and transfers the board’s powers and duties to the county commissioners, but maintains a county health department, the employees are appointed by the local health director[1] and are subject to the State Personnel Act.[2]
[1]G.S. 130A-41(b)(12).
[2]G.S. 126-5(a)(2)c. (providing that the provisions of the State Personnel Act apply to employees of county health departments and district health departments).
If the county forms a consolidated human services agency, the employees are appointed by the consolidated human services director with the county manager’s approval.[1] The employees are not subject to the State Personnel Act.[2]
[1]G.S. 153A-77(e)(1).
[2]G.S. 153A-77(d); see also G.S. 126-5(a)(2) (“An employee of a consolidated human services agency created pursuant to G.S. 153A-77(b) is not considered an employee of an entity listed in this subdivision.”).
