Opinion No. Oag 8-83, (1983)

WILLIAM G. THIEL, Corporation Counsel Eau Claire County

You advise that your county has had a city-county health department and city-county board of health for over thirty-five years pursuant to chapter 140, Stats., and that questions have been raised whether the county board of supervisors has power to establish compensation for such health department and board of health. You ask:

1. Does section 140.09 (5), (6), Stats., authorize the county board of supervisors, in a county which participates in a city-county health department operated under the direction of a city-county board of health, to determine per diems or other compensation to be paid members of such board of health?

In my opinion the answer is yes.

2. Does said board of supervisors have authority to establish the salaries and other compensation for employes of such city-county health department?

In my opinion the answer is yes.

Section 140.09 (1)(a), (b) provides:

(1) DEFINITIONS. As used in this section:

(a) "County health department" and "county board of health" refer to a single county health department or board of health, a multiple county health department or board of health, or a city-county health department or board of health.

(b) "County health officer" refers to the position of a health officer either in a county health department, multiple county health department or city-county health department.

Section 140.09 (2) provides in part: "POWER OF COUNTY BOARD. Any county board may organize a single county department of health, or a city-county department of health or may join with one or more adjacent counties to organize a multiple county department of health."

Section 140.09 (3)(c) empowers a county board and a city council for a city located in such county to organize a joint city-county department of health "managed by a board of health consisting of 8 members," four being appointed by the mayor and council and four by the county board chairman with approval of the county board.

Section 140.09 (5) provides:

ORGANIZATION OF BOARD OF HEALTH. The board of health of each county, multiple county or city-county unit shall immediately after appointment meet and organize by the election of one of its members as president and one as secretary, to hold office for a term of one year. The county board may determine appropriate compensation or reimbursement for expenses of board of health members.

Prior to May 12, 1976, subsection (5) provided that "[m]embers shall serve without compensation but may be reimbursed for their actual and necessary expenses." In 63 Op. Att'y Gen. 196 (1974), it was stated that in view of this restriction a county board of supervisors could not authorize compensation for members of a county board of health. Shortly thereafter the Legislature enacted chapter 234, Laws of 1975, which deleted the sentence quoted above and added: "The county board may determine appropriate compensation or reimbursement for expenses of board of health members." In my opinion the words "county board" refer to the county board of supervisors. The section expressly includes "[t]he board of health of each . . . city-county unit . . . ."

Section 140.09 (14) provides that the board of health of a city-county health department shall annually submit its budget to the county board and city mayor for appropriations by such separate units of government. Subsection (6), which defines the powers of a "county board of health" and, by reason of section 140.09 (1)(a), includes a city-county board of health, does not delegate or reserve power over the compensation of health department employes to the county or city-county board of health. On the contrary, leaving no room for power by implication, it specifically provides: "The county board of supervisors shall determine compensation of health department employes."

Section 140.09 was originally created by chapter 511, Laws of 1947. In my opinion, the statute intended that a county health department be for most purposes a county agency, even though it was created by the county board of supervisors pursuant to section 140.09 (2) in the form of a city-county health department through the cooperative efforts of the participating city council. Section 140.09 (3)(c) does give the city some input with regards to the selection of members of the board which manages the health department in certain areas and section 140.09 (14) reserves to the city council the amount to be appropriated to fund such department. However, by reason of subsections (7), (10) and (11), there is a county health officer rather than a city-county health officer, and jurisdiction within such city is in the county department of health. By implication, a city participating in a city-county health department cannot withdraw from a city-county health department unless it had a full-time health department prior to its decision to participate in the city-county health department. See sec. 140.09 (17), Stats.

The county board of supervisors should consult and cooperate with the city council of the participating city and with the city-county board of health with respect to the exercise of such powers in view of the need for joint funding and the economic and other benefits which may accrue from the utilization of one rather than two health departments and boards of health.

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