Opinion #6645

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. 6645

June 22, 1990

DISTRICT HEALTH BOARDS:

Expenditure of Health and Safety Fund Act monies by district health boards

HEALTH AND SAFETY FUND ACT:

Expenditure of funds by district health boards

HEALTH AND SANITATION:

Expenditure of Health and Safety Fund Act monies by district health boards

A district health board may pay its respective counties with monies received under the Health and Safety Fund Act pursuant to contracts for new services relating to allowable public health prevention programs or services. However, a district health board may not transfer any portion of the monies it receives under the Act to counties within the district merely to enable those counties to defray some of their expenses in respect to other health prevention programs or services that those counties have been or otherwise would be providing.

Honorable Richard A. Sofio

State Representative

The Capitol

Lansing, MI

You have requested my opinion on the question of whether a district health board may utilize Health and Safety Fund Act monies to contract with their member counties to provide new health prevention services not previously being provided by the district health board or its member counties.

The Health and Safety Fund Act, 1987 PA 264, MCL 141.471 et seq; MSA 5.3190(101) et seq ("Act"'), creates a Health and Safety Fund in the State Treasury. The Act requires the State Treasurer to credit the Fund with the proceeds from the excise tax on cigarettes. MCL 141.473; MSA 5.3190(103).

The Act provides for the distribution of monies in the Fund. Section 5 provides initially for certain payments which are intended exclusively for Wayne County. However, pursuant to section 5(c), MCL 141.475(c); MSA 5.3190(105)(c), an 11/17 portion of the remaining proceeds of the Fund:

[S]hall be distributed to each local health department as defined in section 1105 of the public health code, Act No. 368 of the Public Acts of 1978, being section 333.1105 of the Michigan Compiled Laws, in the county receiving the distribution on a per capita basis, based on the most recent decennial census... .

Thus, it is clear that, while all of the counties, except Wayne County, are to have a pro rata share of the 11/17 portion of the remaining proceeds of the fund, the fund money "...shall be distributed to each local health department..."' rather than to the county or to the county board of commissioners. "Local health department"' is defined by section 1105 of the Public Health Code, MCL 333.1105; MSA 14.15(1105), to include not only a single county health department, but also "a district health department created pursuant to section 2415 and its board of health."' A district health department may be comprised of two or more counties.

Section 5(c) of the Act also provides that the distribution to the local health department is "in addition to and is not intended as a replacement for any other state or county payments to these health departments."' The distribution shall be used only for public health prevention programs and services.

Pursuant to the Public Health Code, Sec. 2435(c), MCL 333.2435(c); MSA 14.15(2435)(c), a local health department may:

Enter into an agreement, contract, or arrangement with a governmental entity or other person necessary or appropriate to assist the local health department in carrying out its duties and functions unless otherwise prohibited by law.

Thus, a district health board may choose to contract with any governmental entity, including its respective member counties, or with other persons to assist it in carrying out its duties and functions. Of course, whether to do so is at the election of the district health board.

While the Health and Safety Fund Act requires that monies distributed from the Fund may be used only for public health prevention programs, there is no limitation upon the persons or entities the local health department may employ and pay to provide those services. Thus, a district health board may choose to employ its respective member counties to provide health services and pay for those services with money it received from the Fund provided:

(1) the services are part of public health prevention programs or services which qualify under the Act, and

(2) the use of this money by the district health board to pay its respective counties for services does not serve to replace state or county payments to the district health board.

With regard to this second condition, the Legislature clearly intended that proceeds received from the Fund be in addition to monies appropriated by the state and counties to the district health board to provide health programs and services. It is also clear that the Legislature intended that proceeds from the Fund be distributed to county and district health departments, rather than to the counties or their boards of commissioners. Thus, a district health department may not merely pass funds through to the counties or their boards of commissioners.

It is my opinion, therefore, that a district health board may pay its respective counties with monies received under the Act pursuant to contracts for new services relating to allowable public health prevention programs or services. It is my further opinion, however, that a district health board may not transfer any portion of the monies it received under the Act to counties within the district merely to enable those counties to defray some of their expenses in respect to other health prevention programs or services that those counties have been or otherwise would be providing.

Frank J. Kelley

Attorney General