When a North Carolina local health department sanitation inspector inspects migrant labor housing, is the inspector acting for the state or just for the county?

Plain-English summary

The Chairman of the North Carolina Farm Worker Council asked whether local sanitation inspectors are State officers, employees, or agents when they inspect migrant labor camps and issue permits under Chapter 130A, Part 5. The AG answered yes. The opinion says inspectors employed by local health departments conduct these inspections on behalf of the Department of Human Resources. They enforce rules adopted by the Commission for Health Services and carry out an inspection program that, in the AG's words, the Department "alone is authorized to perform."

For inspections under those statutes, the AG concluded that the inspectors serve as "officers, employees or agents of the State" while acting within the scope of their authority. The opinion says the State Tort Claims Act covers them in that role and that the Industrial Commission has jurisdiction to hear claims involving them. It does not decide that the State owes damages whenever an inspector is negligent. The opinion expressly says: "In every instance the liability of the Department of Human Resources depends upon the application of the principles of agency and respondeat superior to the facts in the case under consideration."

The AG relied on Vaughn v. Department of Human Resources, a case involving county social services employees placing a foster child. As the opinion describes it, the Department's right to control how the county director performed that duty gave the Industrial Commission jurisdiction to hear the negligence claim. The AG found the Vaughn requirements met for migrant housing inspections under Part 5.

Currency note

This is a 1987 interpretation of the statutes and inspection program discussed in the opinion. Check current law and agency responsibilities before using it for a present claim. The opinion itself says it is "limited to the statute and particular program of inspection at issue" and expresses no view about other inspection programs.

Background and statutory framework

The opinion identifies three steps in the statutory program. G.S. 130A-239 requires the Commission for Health Services to adopt migrant housing sanitation and safety rules, including a permit and inspection program. G.S. 130A-241 authorizes the Department of Human Resources to enter and inspect migrant housing. G.S. 130A-242 requires permit applications to go to the local health department for the area where the housing will be located. The opinion also notes that G.S. 130A-39 allows local boards to adopt more stringent regulations.

This allocation of work explains the answer to the Farm Worker Council's question: although local health department employees perform the inspections, the AG characterized their work under Part 5 as carrying out the State agencies' rules and inspection authority. The opinion does not decide permit-denial remedies, personal immunity, or liability of a county.

Common questions

Who handles a tort claim involving a local inspector's migrant housing inspection?

The opinion says the Industrial Commission has jurisdiction to hear and determine State Tort Claims Act claims involving inspectors performing these inspections under Part 5. Whether the Department is liable requires applying agency and respondeat superior principles to the facts of the particular case.

Does the answer cover every inspection a local health department performs?

No. The opinion expressly limits its conclusion to this statute and migrant housing inspection program and declines to address other inspection laws or programs.

Does the opinion decide who pays for a wrongful permit denial?

No. It addresses the inspectors' status and the Industrial Commission's jurisdiction over claims involving their inspections. It gives no answer about remedies for a denied permit.

Source

• Landing page: https://ncdoj.gov/opinions/farm-worker-council-status-of-local-sanitation-inspectors/

Citations

• N.C.G.S. § 130A-2 (definitions)
• N.C.G.S. § 130A-239 (Commission for Health Services rulemaking on migrant housing)
• N.C.G.S. § 130A-241 (Department of Human Resources inspection authority)
• N.C.G.S. § 130A-242 (permit application to local health department)
• N.C.G.S. § 130A-39 (local more-stringent regulations)
• N.C.G.S. § 143-291 et seq. (State Tort Claims Act)
• Vaughn v. Department of Human Resources, 296 N.C. 683, 252 S.E.2d 792 (1979)

Original opinion text

Requested By:

Bob Everett, Chairman North Carolina Farm Worker Council

Question:

Are local sanitation inspectors officers, employees or agents of the State when conducting inspections of migrant labor camps and issuing permits pursuant to G.S. 130A, Part 5?

Conclusion:

Yes.

Chapter 130A of the General Statutes of North Carolina contains Public Health Statutes. G.S. 130A-2 defines "commission" as the "Commission" for Health Services and "department" as the "Department for Human Resources".

G.S. 130A, Part 5 includes sections 238 through 244 and contains provisions of the public health laws relating to migrant housing. G.S. 130A-239 requires the Commission for Health Services to adopt rules concerning the sanitation and safety of migrant housing. These rules are required to include the issuance of a permit by the Department of Human Resources and the establishment of an inspection program for migrant housing. G.S. 130A-241 authorizes the Department of Human Resources to enter and inspect any migrant housing. G.S. 130A-242 requires a written application for a migrant housing permit to be made to the local health department having jurisdiction over the area in which the proposed housing is to be located.

In practice, sanitation inspectors employed by the local health department conduct inspections of migrant housing on behalf of the Department of Human Resources. In conducting these inspections, the local inspectors are enforcing rules and regulations adopted by the Commission for Health Services and carrying out an inspection program which the Department of Human Resources alone is authorized to perform. Both the Commission and the Department are state agencies. As such, the local inspectors are serving as officers, employees or agents of the State while acting within the scope of their office, employment, service, agency or authority in performing migrant housing inspections. In our opinion, the local sanitation inspectors are covered by the State Tort Claims Act, G.S. 143-291, et seq. when performing such inspections under the referenced statutes.

In Vaughn vs Department of Human Resources, 296 N.C. 683, 252 S.E.2d 792 (1979), our Supreme Court held that the Industrial Commission had jurisdiction to hear and determine a claim alleging negligence by county social services employees in the placement of a foster child where the Department of Human Resources had the right to control the manner in which the county director executed his obligation to place children.

G.S. 130A, Part 5 directs the Commission for Health Services to adopt rules and regulations pertaining to sanitation and safety, inspection and permitting of migrant housing. Note: G.S. 130A 39 authorizes local Boards to adopt more stringent regulations. The requirements set forth by the Supreme Court in Vaughn are met with regard to local sanitation inspectors acting pursuant to G.S. 130A, Part 5, in our opinion. The Industrial Commission has jurisdiction to hear and determine claims under the State Tort Claims Act involving such inspectors. In every instance the liability of the Department of Human Resources depends upon the application of the principles of agency and respondeat superior to the facts in the case under consideration.

Vaughn v Department of Human Resources, 296 N.C. 683, 692.

This opinion is limited to the statute and particular program of inspection at issue. It is not to be construed as an expression of opinion regarding other statutes or programs of inspection.

LACY H. THORNBURG ATTORNEY GENERAL

Steve Nimocks Special Deputy Attorney General