HomeMy WebLinkAboutA001 - Letter from City Attorney dated November 27, 2012 �1
f City Attorney's Office
515 Clark Avenue, P. O. Box 811
Caring People Ames, IA 50010
Quality Programs Phone: 515-239-5146 • Fax: 515-239-5142
Exceptional Service
November 27, 2012
Honorable Ann H. Campbell, Mayor, and
Members of the City Council
Re: Ordinances Providing for Local Board of Health and City Sanitarian
Dear Mayor Campbell and Members of the City Council:
In 1956 the City of Ames enacted an ordinance establishing the Ames Board of Health and
providing for appointment of a permanent city sanitarian. Members of the Board of Health
included the City Council plus a local physician, who was designated the health officer. The
powers of the Board of Health included enforcement of the state health laws and promulgation of
local rules and regulations necessary for the protection of the public health.
Lee Rosebrook, M.D., served as the health officer on the Ames Board of health from 1956 until
his retirement from medical practice in 1987. Following the retirement of Dr. Rosebrook, the
City Council amended the ordinance so that the membership of the Ames Board of Health no
longer included a physician. From 1956 to 1987, the Ames Board of Health rarely met. Since
1987, it is not apparent from the City records that the Ames Board of Health has ever met.
Recent changes to state law make the current City Board of Health ordinance inconsistent with
the Iowa Code, which now requires that a physician serve on all local boards of health. See Iowa
Code §§137.101--137.119, attached. Additionally, since the retirement of Kevin Anderson last
year, the City no longer has a permanent city sanitarian on staff. It is therefore appropriate for
the City Council to consider amending or repealing the ordinance establishing the Ames
Board of Health, and also amending those sections of the Municipal Code referring to the
functions of the City Sanitarian. The powers and duties of the City Sanitarian are sprinkled
throughout the Ames Municipal Code in Chapter 5 (Building Code), Chapter 10 (Garbage and
Refuse), Chapter 11 (Health and Sanitation), and Chapter 22 (Streets and Sidewalks, Vending
Licenses).
Honorable Ann H. Campbell, Mayor, and
Members of the City Council
Page 2
November 27, 2012
Unless the City Council is interested in revising and reactivating the Ames Board of Health, it is
my recommendation that you direct the City Attorney to prepare draft ordinances reassigning
Sanitarian duties to other staff members (Manager's designees) and abolishing the Board of
Health. Upon dissolution of the Ames City Board of Health, the Story County Board of Health
would have the authority to assume jurisdiction over public health matters arising within the City
of Ames. Currently, the City of Ames is one of only two cities in Iowa with a City Board of
Health.
Yours truly,
Digitally signed by
Doug Marek
Date:2012.11.27
17:27:49-06'00'
Douglas R. Marek
City Attorney
cc: City Manager, Fire Chief
Enclosures
I LOCAL BOARDS OF HEALTH, §137.103
CHAPTER 137
LOCAL BOARDS OF HEALTH
[P]Former chapter 137 repealed by 2010 Acts,ch 1036,§22
137.101 Title and purpose. 137.109 Organizational structure of
137.102 Definitions. district board.
137.103 Local boards of health — 137.110 District personnel.
jurisdiction. 137.111 District treasurer and auditor.
137.104 Local boards of health—powers 137.112 District public health fund—
and duties. budget.
137.105 Local boards of health — 137.113 Adding to district.
membership and meetings. 137.114 Withdrawal from district.
137.106 District boards of health— 137.115 Dissolution of county boards.
request to form. 137.116 Emergency
137.107 Request reviewed by state request for funds.
department. 137.117 Penalties—criminal and civil.
137.108 Initial appointment of district 137.118 Individual choice of treatment.
board of health. 137.119 Adoption of rules.
137.101 Title and purpose.
This chapter shall be known and may be cited as the"Local Public Health Governance Act".
The purpose of this chapter is to define the structure, powers, and duties of local boards of
health. This chapter also provides an optional process for counties to merge to form a district
board of health in order to increase efficiencies and enhance the delivery and availability of
public health services.
2010 Acts, ch 1036, §1
137.102 Definitions.
As used in this chapter unless the context otherwise requires:
1. "City board"means a city board of health in existence prior to July 1, 2010.
2. "City health department"refers to the personnel and property under the jurisdiction of
a city board in existence prior to July 1, 2010.
3. "Council" means a city council.
4. "County board" means a county board of health.
5. "County health department"refers to the personnel and property under the jurisdiction
of a county board.
6. "Director" means the director of public health.
7. "District"means any two or more geographically contiguous counties.
8. "District board" means a board of health representing at least two geographically
contiguous counties formed with approval of the state department in accordance with this
chapter, or any district board of health in existence prior to July 1, 2010.
9. "District health department"refers to the personnel and property under the jurisdiction
of a district board.
10. "Iowa public health standards" means Iowa public health standards as defined in
section 135A.2.
11. "Local board of health"means a city, county, or district board of health.
12. "Officers"means a local board of health chairperson,vice chairperson, and secretary,
and other officers which may be named at the discretion of the local board of health.
13. "State board" means the state board of health.
14. "State department"means the Iowa department of public health.
2010 Acts, ch 1036, §2
137.103 Local boards of health—jurisdiction.
1. A city board shall have jurisdiction over public health matters within the city.
2. A county board shall have jurisdiction over public health matters within the county.
3. A district board shall have jurisdiction over public health matters within the district.
2010 Acts, ch 1036, §3
Mon Jan 09 11:22:10 2012 linc_system Iowa Code 2011 + Supplement, Chapter 137 (18, 0)
§137.104, LOCAL BOARDS OF HEALTH 2
137.104 Local boards of health—powers and duties.
Local boards of health shall have the following powers and duties:
1. A local board of health shall:
a. Enforce state health laws and the rules and lawful orders of the state department.
b. Make and enforce such reasonable rules and regulations not inconsistent with law,the
rules of the state board, or the Iowa public health standards as may be necessary for the
protection and improvement of the public health.
(1) Rules of a city board shall become effective upon approval by the council and
publication in a newspaper having general circulation in the city.
(2) Rules of a county board shall become effective upon approval by the county board
of supervisors by a motion or resolution as defined in section 331.101, subsection 13, and
publication in a newspaper having general circulation in the county.
(3) Rules of a district board shall become effective upon approval by the district board
and publication in a newspaper having general circulation in the district.
(4) Before approving any rule or regulation the local board of health shall hold a public
hearing on the proposed rule. Any citizen may appear and be heard at the public hearing. A
notice of the public hearing,stating the time and place and the general nature of the proposed
rule or regulation shall be published in a newspaper having general circulation as provided
in section 331.305 in the area served by the local board of health.
c. Employ persons as necessary for the efficient discharge of its duties. Employment
practices shall meet the requirements of chapter 8A, subchapter IV, or any civil service
provision adopted under chapter 400.
d. Provide the names of all local board of health members and officers to the state
department.
e. Provide minutes of local board of health meetings and reports of the local board of
health's operations and activities to the state department as may be required by the director,
by rule, or by contract.
2. A local board of health may:
a. Provide such population-based and personal health services as may be deemed
necessary for the promotion and protection of the health of the public and charge reasonable
fees for personal health services. A person shall not be denied necessary services within the
limits of available resources because of inability to pay the cost of such services.
b. Provide such environmental health services as may be deemed necessary for the
protection and improvement of the public health and issue licenses and permits and charge
reasonable fees in relation to the construction or operation of nonpublic water supplies or
private sewage disposal systems.
c. Engage in joint operations and contract with colleges and universities, the state
department, other public, private, and nonprofit agencies, and individuals or form a district
health department to provide personal and population-based public health services.
d. , By written agreement with the council of any city within its jurisdiction, enforce
appropriate ordinances of the city relating to public health.
2010 Acts, ch 1036, §4
137.105 Local boards of health—membership and meetings.
1. Membership, terms, compensation, and vacancies.
a. All members of a city board shall be appointed by the council.
b. All members of a county board shall be appointed by the county board of supervisors.
c. All members of a district board shall be appointed by the county board of supervisors
from each county represented by the district. Each county board of supervisors shall appoint
at least one but no more than three members to the district board, and each county board of
supervisors shall appoint the same number of members to the district board. There shall be
no more than one board of supervisors member from any participating county on the district
board.
d. Local boards of health shall consist of at least five members. At least one member shall
be licensed as a physician under chapter 148.
Mon Jan 09 11:22:10 2012 linc_system Iowa Code 2011 + Supplement, Chapter 137 (18, 0)
3 LOCAL BOARDS OF HEALTH, §137.107
e. A local board of health member shall serve for a term of three years. A member is
eligible for reappointment.
f. A local board of health member shall serve without compensation, but may be
reimbursed for necessary expenses in accordance with rules established by the state board
or the applicable jurisdiction.
g. A local board of health member vacancy due to death, resignation, or other cause shall
be filled as soon as possible after the vacancy exists for the unexpired term of the original
appointment.
2. Meetings. A majority of the members of a local board of health shall be considered
a quorum and an affirmative vote of the majority of the members present is necessary for
action taken by a local board of health. The majority shall not include any member who has
a conflict of interest and a statement by the member that a conflict of interest exists shall be
conclusive for this purpose.
2010 Acts, ch 1036, §5
137.106 District boards of health—request to form.
The county boards of any two or more geographically contiguous counties may at any time
submit a request to form a district board to the state department. The formation request shall
be in writing, shall be executed by the county boards of supervisors and the county boards of
health for each county comprising the proposed district board, and shall include but not be
limited to the following required elements:
1. A written narrative that explains how the formation of a district board will increase
organizational capacity and capability to provide population-based and personal public health
services compared with operating as individual county boards.
2. The composition of the district board, including the number of members each county
shall appoint pursuant to section 137.105 and the total number of members on the district
board.
3. Proof of approval by all county boards of supervisors and county boards of health
involved in the request to form a district board and of the elements included in the formation
plan.
4. The service delivery plan.
5. The budget and fiscal plan for the proposed district board. The budget plan shall
include an estimate of proposed expenditures and revenues and an allocation of the revenue
responsibilities of each of the counties participating in the proposed district board.
6. A table of organization.
7. A personnel system description, including identification of the district treasurer and
district auditor and a section which addresses the employment issues contained in section
137.110.
8. The location of the district board offices and workforce throughout the jurisdiction.
9. An inventory of the property and equipment in the custody of each county board and
a description as to whether such property and equipment shall remain in the custody of the
county or shall be transferred to the district board to become property of the district board.
10. A timeline for the adoption of district board rules and regulations.
11. Other criteria as established by rule of the state department.
2010 Acts, ch 1036, §6
137.107 Request reviewed by state department.
The state department shall review requests submitted pursuant to section 137.106. The
state department, upon finding that all required elements are present, shall present findings
to the state board. The state board may approve the formation of a district board and if the
formation is approved, shall notify the county boards from whom the request was received.
2010 Acts, ch 1036, §7
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§137.108, LOCAL BOARDS OF HEALTH 4
137.108 Initial appointment of district board of health.
Upon receipt of notice of approval as a district board, district board members shall be
appointed as specified in section 137.105.
2010 Acts, ch 1036, §8
137.109 Organizational structure of district board.
A district board is a governing body for purposes of chapter 670 and a district health
department is a municipality for purposes of chapter 670. All meetings of a district board
shall comply with the requirements of chapter 21 and all records of a district board and a
district health department shall be maintained in accordance with chapter 22.
2010 Acts, ch 1036, §9
137.110 District personnel.
1. A district board may employ persons as necessary for the efficient discharge of its
duties. A district board shall have all the duties and powers in employing such persons as
a county board of supervisors is granted pursuant to section 331.324, with the exception
of the authority to provide for support of the civil service commission for deputy sheriffs
as specified in section 331.324, subsection 1, paragraph "h". A district board may employ
persons who were employed at the time of the formation of the district board by the counties
represented by the district board, or may employ persons who were not employed by such
counties. The county boards involved shall specify in the request submitted pursuant to
section 137.106 whether the individual counties or the district board will be responsible for
payment of unemployment compensation for any county employees employed by the county
board at the time of formation of the district board but not employed by the district board
following formation.
2. If the district board employs persons who were employed by the counties represented
by the district board at the time of formation of the district board, the district board shall
recognize the term of service of the former county employees for purposes of all employee
benefits offered by the district board to such employees and such employees shall not forfeit
accrued vacation, accrued sick leave, or longevity by becoming district board employees.
3. Persons who were covered by county employee life insurance, accident insurance, and
health insurance plans prior to becoming district board employees pursuant to this chapter
shall be permitted to apply prior to becoming district board employees for life, accident, and
health insurance plans that are available to district board employees so that those persons do
not suffer a lapse of insurance coverage as a result of becoming district board employees.
4. The district board may employ or contract with legal counsel to enforce this chapter and
district board rules, represent and defend the district board and its officers and employees,
provide legal advice to the district board, and perform any other legal duties required by law
or assigned by the district board. The district board may employ or contract with the county
attorney of a county within its jurisdiction.
2010 Acts, ch 1036, §10
137.111 District treasurer and auditor.
Upon establishment of a district board, the district board shall designate a treasurer of a
county within its jurisdiction to serve as treasurer of the district health department, and shall
designate the auditor of the same county to serve as auditor of the district health department.
The treasurer's and the auditor's official bonds shall extend to cover their respective duties
performed on behalf of the district health department. A county treasurer shall not serve
in the capacity of district health department treasurer without consent from the county and
agreement from the treasurer to perform this function, and a county auditor shall not serve
in the capacity of district health department auditor without consent from the county and
agreement from the auditor to perform this function.
2010 Acts, ch 1036, §11
137.112 District public health fund—budget.
1. The district treasurer shall establish a district public health fund from which
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5 LOCAL BOARDS OF HEALTH, §137.117
disbursements may be made in the manner specified for disbursements by law for the
disbursement of county funds.
2. All moneys received by a district board or district health department for local public
health purposes from federal appropriations,state appropriations,local appropriations,fees,
gifts, grants, bequests, or other sources shall be deposited in the district public health fund.
Expenditures shall be made from the fund on order of the district board for the purpose of
carrying out its duties. No more than twenty percent of the unexpended balance remaining
in the fund at the end of each fiscal year shall be maintained in the district public health fund.
The remainder of the unexpended balance shall revert to the general funds of the member
counties in the manner determined by the district board.
3. The district board shall adopt and certify an annual budget in accordance with section
24.17 relating to certification of budgets and section 24.27 relating to protesting budgets.
2010 Acts, ch 1036, §12
137.113 Adding to district.
A county may be added to an existing district board by submission and approval of a
request, as specified in sections 137.106 and 137.107.
2010 Acts, ch 1036, §13
137.114 Withdrawal from district.
A county may withdraw from an existing district board upon submission of a request for
withdrawal to and approval by the state department. The request shall include a plan to
reform its county board or join a different district board, information specified in section
137.106, and approval of the request by the district board and, at the recommendation of the
state department, the state board. Any county choosing to withdraw from the district board
shall commit to the continuity of services in its county by reestablishing its county board
or joining a different district board. The remaining counties in the district shall submit an
application including the information specified in section 137.106 to the state department for
review as provided in section 137.107.
2010 Acts, ch 1036, §14
137.115 Dissolution of county boards.
Upon appointment of a district board, the county boards involved shall be dissolved and
their powers and duties specified in section 137.104 transferred to the district board. All
property and equipment in the custody of the county board shall either remain the property
of the county or shall become the property of the district board, as so provided in the district
board formation request submitted pursuant to section 137.106.
2010 Acts, ch 1036, §15
137.116 Emergency request for funds.
A local board of health may, during a public health disaster as defined in section 135.140
or in preparation for or response to such disaster, request additional appropriations which
may upon approval of the director be allotted from the funds reserved for that purpose to the
extent that funds are appropriated and available. Upon termination of the disaster response,
the local board of health shall report its expenditures of emergency funds to the director.
2010 Acts, ch 1036, §16
137.117 Penalties—criminal and civil.
1. Any person who violates any provision of this chapter or the rules of a local board of
health or any lawful order of the board, its officers, or authorized agents is guilty of a simple
misdemeanor. Each additional day of neglect or failure to comply with such provision, rule,
or lawful order after notice of violation by the local board of health shall constitute a separate
offense.
2. A local board of health may impose a civil penalty not to exceed seven hundred fifty
dollars for each violation of this chapter or the rules of the local board of health or any lawful
order of the board, its officers, or authorized agents. If the violation is a repeat offense, a
Mon Jan 09 11:22:10 2012 linc_system Iowa Code 2011 + Supplement, Chapter 137 (18, 0)
§137.117, LOCAL BOARDS OF HEALTH 6
civil penalty not to exceed one thousand dollars may be imposed. The local board of health
shall impose and enforce such penalties in the manner provided in section 331.307 for county
infractions.
2010 Acts, ch 1036, §17
137.118 Individual choice of treatment.
Nothing in this chapter shall be construed to impede,limit,or restrict the right of free choice
by an individual to the health care or treatment that the individual may select.
2010 Acts, ch 1036, §18
137.119 Adoption of rules.
The state board of health shall adopt rules to implement this chapter. The department is
vested with discretionary authority to interpret the provisions of this chapter.
2010 Acts, ch 1036, §19
Mon Jan 09 11:22:10 2012 linc_system Iowa Code 2011 + Supplement, Chapter 137 (18, 0)