Request By:
Charles E. Hume
Administrator
Bowling Green-Warren County Health Department
P.O. Box 737
Bowling Green, Kentucky 42101
Opinion
Opinion By: Robert F. Stephens, Attorney General; Mark F. Armstrong, Assistant Attorney General
We are in receipt of your letter in which you ask our opinion of your authority as Administrator of the Bowling Green-Warren County Health Department ("department"). Your questions are based upon the following facts.
The department, a city-county health department in a county containing a city of the second class, has no health officer. You are the Administrator of the department and, as such, are responsible for the operation of the department pursuant to the general directions given to you by the local board of health. A malfunctioning septic tank at a public school is presently creating a substantial risk of danger to health of the school children.
Based on these facts, you ask:
"Does the administrator of the city-county health department have the authority to issue [a] written order to the school system to correct the malfunction in the sewage system and alleviate the health hazard.
"Or is this authority reserved specifically for the health officer or board of health. "
A city-county board of health and department has the same powers and duties which are possessed by county boards and departments of health, KRS 212.670. There are several statutes giving local boards and departments of health authority to correct unsanitary conditions, see KRS 212.210(1) and (2) and 212.230(1)(c). Accordingly, we are of the opinion that the department has jurisdiction to correct the unsanitary conditions which presently exist on school property.
The local board of health has authority to employ persons necessary to carry out the work of the department, KRS 212.660(1). Accordingly, we are of the opinion that you have the authority to issue an order in the name of the department to the school directing it to correct the unsanitary condition. We stress, however, that the order issued is to be in the name and under the authority of the department and not pursuant to your authority, compare KRS 212.245(6).
You also ask this question:
"Does the administrator of the city-county health department have the authority to issue written orders to the school system to install an alternate sewage system if the present system cannot be repaired sufficiently.
"Or is this authority reserved specifically for a health officer or board of health. "
As noted above, it is our opinion that the Administrator does not have authority to issue orders in his name but rather all orders must be issued in the name and under the authority of the board or the department.
We need also point out, however, that neither the board nor the department has authority to order the school to install an alternative system, see
Purnell v. Maysville Water Co., 193 Ky. 85, 234 S.W. 967 (1921). Rather, the order issued by the board or department may only direct the school to correct the unsanitary condition. The school retains discretion as to the means of correcting the condition.
You also ask this question:
"Does the administrator of a city-county health department have the authority to seek injunctive relief, under KRS 212.245, or any other provision of the statutes, to close a school if, in his opinion, written orders have been ignored and a health hazard exists.
"Or is this authority reserved for a health officer or the board of health. "
The board or department has authority to seek injunctive relief, KRS 212.715, or make a criminal complaint, KRS 212.990. The board or department may order the school closed, KRS 212.245(5) and (6), and KRS 212.210. The Administrator may not act on his own authority and must proceed in the name and under the authority of the board or department.
Your final question is:
"Does the administrator of a city-county health department have the authority to initiate legal action against the superintendent and/or board of education for refusal to obey a written order under KRS 212.715, or any other provision of the statutes.
"Or is this action reserved for a health officer or the board of health. "
Only the board or department may institute any legal action. The role of the Administrator is to act in the name and under the authority of the board or department.
Summary: We are of the opinion that the board or department has authority to order the school to correct the unsanitary conditions existing on school property, to order the school closed, and to institute legal action against the school system. The Administrator does not have the authority but may only act in the name of and under the authority of the local board or department of health.