If the board of county commissioners assumes the powers and duties of the local board of health, what new powers or duties do commissioners acquire?
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.
