OFFICIAL OPINION No. 34

OFFICIAL OPINION No. 34 Municipalities-Local Health Administration Law-Exemption from jurisdiction of County Department of Health-State grants-State Department of Health. 1. A municipality exempt from the jurisdiction of a Department of Health of a county in which such municipality is located is one which, under the provi- sions of the Local Health Administration Law, the Act of August 24, 1951, P. L. 1304, 16 P. S. § 12001 et seq., is a municipality as defined in § 3 of the said act which meets the following conditions: a. At the time of the establishment of the county Department of Health, the municipality in question had its own Department or Board of Health; and b. That the State Department of Health was not, at the time of the establishment of the county Departmel!lt of Health, performing the local administration of health laws in the municipality. 2. A municipality exempt from the jurisdiction of a Department of Health in a county in which such municipality is located may receive State grants, as pro- vided in § 25 of the Local Health Administration Law, if it meets the conditions set forth in that section, more particularly those conditions set forth in subsec- tion (b) . OPINIONS OF THE ATTORNEY GENERAL 151 3. Neither the Department of Health of this Commonwealth nor any county Department of Health may declare a municipality not to be exempt from the jurisdiction of the county Department of Health for the reason that such munici- pality does not meet the requirements necessary to receive State grants as pro- vided in § 25 (b) of the act, since this section pertains to the making of grants alone and not to the determination of whether a given municipality is not "an exempt municipality." 4. If a municipality has its own Department or Board of Health prior to the establishment of a county Department of Health in the county in which it is located, the Department of Health of this Commonwealth cannot declare such a municipality exempt from the jurisdiction of the county Department of Health, unless the Department of Health of this Commonwealth has been performing the local administration of the Health laws in such municipality at the time of the establishment of the county Department of Health. Harrisburg, Pa., November 1, 1957. Honorable Berwyn F. Mattison, Secretary of Health, Harrisburg, Pennsylvania. Sir: You have requested advice of this department as to the mean- ing of the term "municipalities exempt from the jurisdiction of county departments of health" as it occurs in the Act of August 24, 1951, P. L. 1304, the "Local Health Administration Law,'' 16 P. S. §§ 12001- 12028. Specifically, you have asked whether a proposed letter to be sent by the Department of Health to municipalities in Allegheny County that have not joined the Allegheny County Department of Health is in conformity with the "Local Health Administration Law." The final paragraph of the proposed letter reads as follows: "As of January 1, 1957, our records do not indicate that the City * * * was fulfilling its responsibility for administering all the State's laws and regulations that it was empowered to enforce; and, accordingly does not qualify as an exempt municipality. Unless you furnish evidence that [name of city] does quality as an exempt municipality within 30 days, we will consider [name of city] to, in fact, be within the jurisdiction of the Allegheny County Health Department which will be expected to provide those services mentioned above." The question is whether the Department of Health of the Common- wealth or the department of health of a county in which a munic- ipality is located may declare the municipality not to be exempt from the jurisdiction of the county department of health for the reason that such municipality was not fulfilling its responsibility of administering all the state laws and regulations pertaining to health that it was 152 OPINIONS OF THE ATTORNEY GENERAL empowered to enforce. This question can only be answered by an examination of the entire "Local Health Administration Law." Section 3, clause (h) of the "Local Health Administration Law,'' supra, defines a municipality as any city, borough, incorporated town and township of the first class. Section 3 of the Act does not define the term "municipalities exempt from the jurisdiction of the county departments of health." However, §§ 13 and 14 of the Act establish the criteria which must be considered in determining whether a munic- ipality, as defined in § 3 (h) of the Act, is to be considered exempt from the jurisdiction of the county department of health. These sections provide as follows: "Jurisdiction of County Departments of Health-The juris- diction of an established county department of health in the county or counties which have established it shall extend to all townships of the second class, to all municipalities which do not have departments or boards of health at the time of the establishment of the county department of health, to all municipalities or parts of municipalities in which the local administration of health laws at the time of the establishment of the county department of health is being perf armed by the State Department of Health for any reason whatsoever, to all municipalities which dissolve their departments or boards of health in accordance with Section 15 of this act, and to certain parts of municipalities as provided in Sections 15 and 16 of this act." (Emphasis Added) "Municipalities Exempt From Jurisdiction of County De- partments of Health-Any municipality having a department or board of health at the time of the establishment of a county department of health in the county in which the municipality is located, or in a county in which part of the municipality is located, shall be exempt from the jurisdiction of the county department of health; except that any municipality in which the local administration of health laws, at the time of the establishment of the county department of health, is being perf armed by the State Department of Health for any reason whatsoever shall not be e::cernrt from the jurisdiction of the county department of health." (Emphasis Added) Thus, a municipality, as defined in § 3 (h) of the act, is exempt from the jurisdiction of the county department of health in the county in which it is located if and only if the following conditions are met: 1. At the time of the establishment of the county depart- ment of health the municipality in question had its own de- partment or board of health; and OPINIONS OF THE ATTORNEY GENERAL 2. That the State Department of Health was not at the ·time of the establishment of the county department of health, performing the "local administration of health laws" in the municipality. 153 It is not difficult to determine whether the first condition is met since a mere checking of the records of the municipality in question would reveal whether or not that municipality had a department or board of health at the time of the establishment of the county department of health in which it is located. In order to determine whether the municipality in question meets the second condition it is necessary for your department to determine whether at the time of the establishment pf the county department of health, the State Department of Health was performing the local administration of health laws in that munic- ipality. It is not enough that the municipality in question was not perform- ing all those health functions that it is empowered to perform. It must affirmatively appear that your department was performing those health functions, at the time the county department of health is es- tablished. This conclusion follows from a consideration of §§ 13, 14, 15, and 25 of the act. Sections 13 ·and 14, above quoted, set forth the criteria for determining whether a municipality is exempt. Section 15 provides a method whereby an exempt municipality may, by dissolving its own department or board of health, become subject to the county depart- ment of health. Section 15 also provides that an exempt municipality may receive grants under the provisions of the act if it meets criteria set forth in § 25 (b) of the act, which criteria are as follows: "* * * The Secretary of Health shall approve the payment of any quarterly installment of an annual grant to a county department of Health or to a municipality eligible under § 15 of this act only if he finds: "(1) that such county department of health or municipality is complying with any and all regulations of the State De- partment of Health prescribing minimum public health activi- ties, ·minimum standards of performance of health services, and standards of personnel administration on a merit basis; and "(2) that such county department of health or municipality is accomplishing the purpose described in § 2 of this act." Section 15 recognizes that exempt municipalities may receive state grants as provided in § 25. This negates any inference that the criteria 154 OPINIONS OF THE ATTORNEY GENERAL in § 25 determine whether a municipality is exempt. These criteri& refer only to the eligibility of an exempt municipality to receive state aid. If a municipality in a county in which there is a department of health established is exempt, for reasons above stated, it is still neces- sary to determine whether that municipality is entitled to receive state grants. This last determination can only be made with reference to the provisions of § 25 of the act. Therefore, this department is of the opinion and you are accordingly advised that neither your department nor a county department of health may declare a municipality not to be exempt from the juris- diction of the county department of health in the county in which it is located unless such municipality fails to meet either of the follow- ing conditions: I. At the time of the establishment of the county depart- ment of health the municipality in question had a department or board of health. 2. At such time your department was not performing the local administration of health laws in that municipality. Further, you are advised that the proposed letter to be sent to municipalities which have not joined the Allegheny County Health Unit does not conform to the provisions of the "Local Health Ad- ministration Law" since it fails to indicate that your department was performing the "local administration of health laws" in these munic- ipalities at the time of the establishment of the Allegheny County Health Department. Very truly yours, DEPARTMENT OF JUSTICE, JOSEPH L. COHEN, Deputy Attorney General. THOMAS D. McBRIDE, Attorney General.