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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6196 December 16, 1983 HEALTH AND SANITATION: Approval of changes in district health department sanitary code regulations PUBLIC HEALTH CODE: District health department--approval of changes in sanitary code requlations The amendment of district health department sanitary code regulations must be approved by the county board of commissioners of each county comprising the district, even though the amended regulation may apply to or affect only one of the counties in the district. Honorable Pat Gagliardi State Representative The Capitol Lansing, Michigan You have requested my opinion whether changes in sanitary code regulations adopted by a district board of health which affect only one county of the four-county district health department require the concurring vote of all of the respective county boards of commissioners within the district or only the concurring vote of the county board of commissioners of the county where the changes will take effect along with the approval and adoption by the 'local health department board.' You advise that four counties have established a multi-county district health department. More specifically, you further advise: 'The District Board adopted certain sanitary code regulations governing septic systems and had one code which applied in three counties and a slightly different code which applied in the fourth county. . . . The fourth county now desires to have some changes in its sanitary code which will still be a slightly different sanitary code for that county than the one in effect in the other three counties. The changes will affect only the one county.' In Const 1963, art 4, Sec. 51, the people have provided: 'The public health and general welfare of the people of the state are hereby declared to be matters of primary public concern. The legislature shall pass suitable laws for the protection and promotion of the public health.' 1978 PA 368, Part 24, Sec. 2401 et seq; MCLA 333.2401 et seq; MSA 14.15(2401) et seq, provides, in part, for the establishment of local health departments on a district-wide basis incorporating two or more counties or two or more counties and a single city. 1978 PA 368, Sec. 2415, supra, provides: 'Two or more counties or a city having a population of 750,000 or more and 1 or more counties, by a majority vote of each local governing entity and with approval of the department, may unite to create a district health department. The district board of health shall be composed of 2 members from each county board of commissioners or in case of a city-county district 2 members from each county board of commissioners and 2 representatives appointed by the mayor of the city. With the consent of the local governing entities affected, a county or city may have a greater number of representatives.' Pursuant to the provisions of 1978 PA 368, Sec. 2441(1), supra, district health departments are authorized to adopt regulations necessary to carry out their duties. This subsection provides: 'The regulations shall be approved or disapproved by the local governing entity. The regulations shall become effective 45 days after approval by the local health department's governing entity or at a time specified by the local health department's governing entity. The regulations shall be at least as stringent as the standard established by state law applicable to the same or similar subject matter. Regulations of a local health department supersede inconsistent or conflicting local ordinances.' Under the above provisions, a district health department may adopt regulations to aid it in implementing or carrying out its duties, but those regulations will become effective only if and when they have been approved by the 'local governing entity.' 1978 PA 368, supra, 2406, in pertinent part, defines a 'local governing entity' to be: '(a) In case of a single county health department, the county board of commissioners. '(b) In case of a district health department, the county boards of commissioners of the counties comprising the district.' Thus, in a four-county district health department, such as you describe in your request, the local governing entity consists of the county boards of commissioners of the four counties comprising the health department district. On the basis of this definition, it is necessary for the boards of commissioners of all of the counties within the district to approve any change in the sanitary code, even though the changes proposed affect only one county of the entire health district. At issue in connection with your inquiry is whether such a procedure is consistent with or authorized under the provisions of 1978 PA 368, Sec. 2415, supra. Analysis of 1978 PA 368, Sec. 2415, supra, discloses that it is directed to the establishment of a multi-county district health department. In that context, the 'local governing entity' has reference to each individual county or city within the local health district. It is limited in scope to the procedures for establishing district health departments, being concerned solely with the incorporation stage of such districts. The point in time which it addresses predates, in the context of your inquiry, the existence of a district health department. Therefore, the local governing entities are the authoritative bodies within the counties and/or cities seeking to establish multi-county district health departments. Once the district health department is established, the 1978 PA 368, Sec. 2406, supra, definition, i.e. the governing entity consists of 'the county boards of commissioners of the counties comprising the district,' becomes applicable to all actions taken by the district health department in the promulgation of regulations. It is my opinion, therefore, that regulations of a multi-county district health department prescribed pursuant to 1978 PA 368, Part 24, supra, to implement or carry out the duties of the district health department must be approved by each of the county boards of commissioners of the counties comprising the district, even though the regulations may apply to or affect only one county of the entire district. Frank J. Kelley Attorney General
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