CHARLESTON — West Virginia Attorney General Patrick Morrisey has issued an opinion distinguishing the legal authorities of local health officers and boards of health.
Local prosecutors Catie Wilkes Delligatti and Daniel M. James, of Berkeley and Morgan counties, respectively, had questioned the legal effect of two letters from a local health officer.
Morrisey and the AG's office concluded state law does not empower local health officers to promulgate rules or orders on their own and that such action must come from the local board of health.
Morrisey
“The COVID-19 pandemic has created numerous challenges for public officials at all levels of government, especially those tasked with keeping our children safe,” Morrisey wrote in the opinion dated September 29. “It is important to take reasonable precautions in this regard, but even well-intentioned policies must be issued in lawful ways. Supervisory oversight and other legal constraints preventing unilateral bureaucratic action maintain political accountability — a particularly important consideration when enacting policies during unusual and fast-changing circumstances.”
The prosecutors’ request stemmed from two letters, in which the Morgan-Berkeley County Health Officer stated that the two-county health department would require universal mask use in schools for all individuals under certain circumstances.
The AG's office concluded the letters, issued Aug. 9 and Aug. 11, constituted neither a rule nor an order because the local health officer lacked authority to issue binding, unilateral directives.
The opinion says state law charges a health officer with administering the rules and orders of the local health board to which he or she reports. The officer may not serve as a voting member of the board.
Furthermore, none of the powers that state law allows a health board to delegate to its officer include authorizing the officer to issue his or her own rules and orders, the opinion concludes.
Morrisey says West Virginia’s distinction between local health boards and officers reflects America’s constitutional system of separating legislative, executive and judicial powers.
The opinion specifically notes that its conclusions do not depend upon the subject or substance of the Morgan-Berkeley officer’s letters, but rather, the conclusion was reached solely because of the identity of the letters’ issuer.
The opinion also does not address whether a directive issued by a local board of health addressing this subject would constitute a rule or order. It explains that evaluating such a directive would depend on several case-specific factors, including whether the board had declared a quarantine pursuant to state law.
Putnam County also has faced such an issue in recent weeks.
County Health Officer E. Michael Robie twice has submitted a letter to the Board of Education recommending the use of masks in schools and on buses. But because the letters came from Robie and not the Board of Health, the school board didn't have to follow the recommendation. And Board of Health Chairwoman Cindy Farley has said her panel is leaving the choice up to the school board.
