After Tennessee's 2021 Public Chapter 550, who can issue county-wide health mandates: the county mayor or the county health officer?

Plain-English summary

The 2021 General Assembly rewrote the structure of local public-health authority in Tennessee. Before Public Chapter 550, county boards of health adopted county-level health rules and the county health director enforced them. Chapter 550 stripped the rulemaking power from county boards (leaving them in a purely advisory role to the county mayor) and moved the power to issue county-wide health rules to the county health officer, a physician appointed by the state Commissioner of Health.

A Tennessee legislator asked the AG five practical questions about how this new structure operates. AG Slatery's answers, summarized:

1. The county health officer, not the county mayor, holds the rulemaking power. Chapter 550 gave the mayor no new authority over health mandates.
2. A county mayor can override or act in parallel only when a separate statute (like the local-emergency declaration power in § 58-8-104, or a county-specific Private Act predating July 1985) says so. Otherwise the health officer's authority controls.
3. The health officer's mandates can address quarantine, public-establishment closures, and "rules and regulations as are necessary or appropriate." They cannot conflict with the Commissioner of Health's statewide rules, can be wholly displaced by a Governor's emergency executive order, and cannot include any COVID-19 vaccination requirement (per Tenn. Code Ann. §§ 68-5-115, -116).
4. Chapter 550 moved the rulemaking power, but it did not transfer enforcement power. Enforcement of state health rules stays with the county health director. The health officer's only enforcement tools are the narrow "medical enforcement actions" already in § 68-2-609 (quarantines and establishment closures).
5. The Commissioner of Health appoints the county health officer and is the only person with the power to remove that officer, unless a Private Act for the specific county says otherwise.

The opinion's overall picture: under Chapter 550 as it stood in 2021, county-level public-health rulemaking became the job of a state-appointed physician rather than a county elected official, with the state Commissioner of Health and the Governor positioned above the county health officer in any conflict.

Currency note

This opinion was issued in 2021. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What changed when Public Chapter 550 took effect in May 2021?
A: County boards of health lost the power to make rules and dropped to an advisory role. The county health officer (a physician appointed by the state Commissioner of Health) became the official authorized to issue county-wide health rules to protect general health and safety. The county health director kept the role of enforcing the Commissioner's rules.

Q: Can the county mayor override a county health officer's order?
A: Generally no, under this opinion. The AG concluded that a mayor could issue parallel directives only under a specific statute authorizing the mayor to do so (the opinion gave the example of Tenn. Code Ann. § 58-8-104 emergency declarations) or under a pre-1985 Private Act. Outside those paths, the opinion read Chapter 550 as giving mayors no health-mandate power.

Q: Can the county health officer require masks, business-capacity limits, or curfews county-wide?
A: The opinion does not give a yes-or-no answer. It says validity depends on the specific terms of the order, on whether it conflicts with Commissioner of Health rules, and on whether the Governor has issued an executive order on the same subject (which would displace any county action). The officer cannot mandate COVID-19 vaccination.

Q: If the county health officer has the rulemaking power, who enforces the rules?
A: Not the health officer (except for the narrow "medical enforcement actions" in § 68-2-609, which include quarantine and establishment-closure orders). The county health director, who is the administrative head of the county health department, enforces rules of the state Department of Health. Chapter 550 did not move general enforcement power to the health officer.

Q: Can the county mayor fire the county health officer?
A: The AG concluded no, unless a county-specific Private Act said otherwise. The Commissioner of Health appointed the officer under § 68-2-603(c), and the opinion relied on Tennessee case law treating removal as an incident of appointment when the office's tenure is not fixed by statute. The opinion reasoned that a mayor who installed the county health director could not use that connection to remove a health officer the Commissioner appointed.

Q: How does this opinion interact with the Governor's emergency powers?
A: The opinion explained that the Governor's executive orders during a declared emergency have the force of law and preempt local action on the same subject. AG Slatery cited the earlier Op. 20-07 for that proposition. So under the opinion's analysis, during a declared state-level emergency the Governor's orders would override county health officer rules wherever the two covered the same ground.

Q: Does any of this apply to private employers or schools?
A: Not directly. This opinion addresses county-government authority. Private employers can adopt their own workplace rules subject to federal employment law (see TN AG Op. 21-16 on COVID-19 vaccination as a condition of employment). Public schools are governed by separate education-code provisions and Department of Education rules.

Background and statutory framework

Tennessee's local public-health system has three county-level pieces. The county health department is run by a county health director, who is the administrative officer and is appointed by the Commissioner of Health in concurrence with the county mayor (§ 68-2-603(a)). The Commissioner also separately appoints a county health officer, who is a licensed physician and is "responsible for providing medical direction including medical enforcement actions" (§ 68-2-603(c)). And the county legislative body may establish a county board of health to govern policy and budget for the department (§ 68-2-601).

For decades the board of health adopted county rules and the health director enforced them. Chapter 550 changed two things: it stripped the rulemaking power from boards and made them advisory only, and it added rulemaking ("rules and regulations as are necessary or appropriate to protect the general health and safety of the county") to the list of orders the health officer can issue under § 68-2-609. It did not change the structure of enforcement authority. So after Chapter 550, the rulemaking and enforcement powers, once concentrated in the county system, are split: the physician health officer makes rules, the administrative health director enforces general state rules, and county boards just advise the mayor.

Several statutes constrain the county health officer's reach. § 68-5-103 makes county officials' authority over communicable diseases subordinate to the Department of Health's rules. § 4-5-221(c) gives state administrative rules the force of law. §§ 68-5-115 and -116 prohibit any government body from requiring COVID-19 vaccination. And the broader emergency-management chapter authorizes the Governor to displace county-level public-health action with executive orders during declared emergencies.

For removal of county health officers, the AG's analysis rests on a long line of Tennessee cases (Gillespie, Williams v. Boughner, Gamblin, Brock v. Foree) holding that removal is an incident of appointment when statute does not fix tenure. § 68-2-603(c) does not fix tenure, so removal authority follows appointment authority, which sits with the Commissioner of Health. The exception is when a Private Act predating July 1985 specifies a different appointment-and-removal scheme; § 68-2-606 preserves those Private Acts.

Citations

• 2021 Tenn. Pub. Acts, ch. 550 (transferring rulemaking from county boards to county health officers)
• Tenn. Code Ann. § 68-2-601 (county boards of health, post-Chapter 550 advisory role)
• Tenn. Code Ann. § 68-2-603 (county health director and county health officer)
• Tenn. Code Ann. § 68-2-606 (preservation of Private Acts in effect on July 1, 1985)
• Tenn. Code Ann. § 68-2-609 (powers of county health officer)
• Tenn. Code Ann. § 68-5-103 (county duty to carry out state rules on communicable diseases)
• Tenn. Code Ann. §§ 68-5-115, -116 (prohibitions on COVID-19 vaccination mandates)
• Tenn. Code Ann. § 4-5-221(c) (state administrative rules have force of law)
• Tenn. Code Ann. § 58-8-104 (Mutual Aid and Emergency and Disaster Assistance Agreement Act)
• Strader v. United Family Life Ins. Co., 218 Tenn. 411, 403 S.W.2d 765 (1966)
• Woodroof v. City of Nashville, 183 Tenn. 483, 192 S.W.2d 1013 (1946)
• Gillespie v. Rhea Cnty., 191 Tenn. 487, 235 S.W.2d 4 (1950)
• Williams v. Boughner, 46 Tenn. 486 (1869)
• Gamblin v. Town of Bruceton, 803 S.W.2d 690 (Tenn. Ct. App. 1990)
• Brock v. Foree, 168 Tenn. 129, 76 S.W.2d 314 (1934)
• Arnwine v. Union County Bd. of Educ., 120 S.W.3d 804 (Tenn. 2003)
• Elliott Nat'l Bank v. Western and Atl. R.R., 70 Tenn. 676 (1879)

Subject

Authority Issues Involving County Health Departments

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2021/op21-15.pdf

Original opinion text

Authority Issues Involving County Health Departments

Question 1
Does 2021 Tennessee Public Acts, chapter 550 give the county mayor or the county health officer authority to issue county-wide health mandates?

Opinion 1
Public Chapter 550 gives the county health officer, not the county mayor, authority to issue county-wide health mandates necessary to protect the general health and safety of the citizens of the county.

Question 2
If the county health officer has authority to issue county-wide health mandates, who prevails if there is a conflict between the county health officer and the county mayor regarding such mandates? Can the county mayor countermand a health regulation issued by the county health officer?

Opinion 2
When there is a special statute, like a Private Act, that gives the county mayor authority to issue a county-wide mandate to protect the public health under specified circumstances, the authority granted under that statute prevails. But in most instances the county health officer will be the official authorized to issue county-wide health mandates by virtue of the recent passage of Public Chapter 550.

Question 3
How far does the authority to issue county-wide health mandates extend? Is the institution of business-capacity limits or county-wide curfews permissible? May face coverings in public spaces be mandated?

Opinion 3
A county health officer's ability to issue county-wide health mandates pertaining to communicable diseases via rules and regulations is limited, and can even be foreclosed, by state law. Thus, the validity of any county-wide health mandate issued by a county health officer would depend on its particular terms and applicable state law, including rules and regulations promulgated by the Commissioner of Health.

Question 4
If the county health officer has the authority to issue county-wide health mandates, what power does the county health officer have to enforce such mandates?

Opinion 4
Public Chapter 550 transferred the power to issue rules and regulations from county boards of health to county health officers, but the legislation did not transfer the power to enforce those rules and regulations, an enforcement power formerly held by county health directors, to county health officers.

Question 5
In light of Tenn. Code Ann. § 68-2-603, which states that the county health officer is appointed by the Tennessee Commissioner of Health, may a county mayor remove the county health officer from office without the permission of the Commissioner if the county health director, who was appointed by the county mayor, hired the county health officer?

Opinion 5
The Commissioner of Health is the sole person authorized to appoint the county health officer. Because the right of removal from office is an incident to the right of appointment when the tenure of an office is not prescribed by statute or the Tennessee Constitution, only the Commissioner of Health may remove a county health officer under Tenn. Code Ann. § 68-2-603. Accordingly, a county mayor may not remove the county health officer without the permission of the Commissioner of Health unless another law, i.e., a Private Act, gives the county mayor the power to do so.

ANALYSIS

1. & 2. Authority of County Health Officers and County Mayors to Issue County-wide Health Mandates Following the Passage of Public Chapter 550

a. Structure of County Health Departments

Each county in Tennessee is required to establish a county health department, which is headed by, and under the immediate direction of, a "county health director." Tenn. Code Ann. § 68-2-603(a)(1). The county health director acts as the administrative officer of the county health department, implements the programs of the state department of health, and enforces rules and regulations established by the Tennessee Commissioner of Health. Id. §§ 68-2-603(a)(2), (b). The county health director is appointed by the Commissioner of Health, in concurrence with the county mayor. Id. §§ 68-2-603(a)(2), (6).

The Commissioner of Health is also authorized to appoint a "county health officer" who is "responsible for providing medical direction including medical enforcement actions." Id. § 68-2-603(c). The county health officer is empowered to order certain actions, such as quarantine and the closure of public establishments in specified instances. Id. § 68-2-609.

County legislative bodies have the authority to establish county boards of health. Id. § 68-2-601. These boards govern the policies of county health departments and are tasked with establishing annual budgets for the county health departments. Id. § 68-2-601(f)(1), (4). For years, these boards have had the additional power to (1) enforce rules and regulations promulgated by the Commissioner, and (2) adopt rules and regulations as may be necessary to protect the general health and safety of the citizens of the county. See 1985 Tenn. Pub. Acts, ch. 172, § 1 (formerly codified at § 68-2-601(f)(2), (3)). But since the passage of Public Chapter 550, effective May 26, 2021, county boards of health no longer have these two additional powers. 2021 Tenn. Pub. Acts, ch. 550, § 1.

b. Public Chapter 550

With the passage of Chapter 550, county boards of health now have just an advisory role; they advise the county mayor on the enforcement and adoption of rules and regulations. See id. (codified at Tenn. Code Ann. §§ 68-2-601(f)(2), (3)).

Chapter 550 also made significant changes to the powers and duties of the county health director and the county health officer. Formerly, the county health director had the duty to enforce the regulations of the county board of health and the Tennessee department of health in counties which did not establish a board of health. See Tenn. Code Ann. §§ 68-2-603(a)(2), (b) (2013). Now, the power to enforce the rules and regulations of the Tennessee department of health is vested solely in the county health director, and the county health director no longer has a duty to enforce the regulations of the county board of health since the board presently has no power or duty to adopt regulations. See 2021 Tenn. Pub. Acts, ch. 550, §§ 2, 3 (codified at Tenn. Code Ann. §§ 68-2-603(a)(2), (b)). And the power to adopt rules and regulations as may be necessary to protect the general health and safety of the citizens of the county was added to the list of actions that the county health officer may "order." See id., § 4 (codified at Tenn. Code Ann. § 68-2-609(4)).

Accordingly, the county health officer is now the official with the authority to issue county-wide health mandates necessary to protect the general health and safety of the citizens of the county. While Chapter 550 did make county boards of health advisory to county mayors, the legislation bestowed no additional powers on county mayors. In short, Chapter 550 transferred all power to promulgate rules and regulations from county health boards to county health officers.

Consequently, any authority for a county mayor to issue a county-wide health mandate would have to come from another statutory source. See 63C Am. Jur. 2d Public Officers and Employees § 222; see also Elliott Nat'l Bank v. Western and Atl. R.R., 70 Tenn. 676, 680 (1879). For example, the Mutual Aid and Emergency and Disaster Assistance Agreement Act of 2004 authorizes a county mayor "to declare a local state of emergency affecting such official's jurisdiction by executive order consistent with and governed by § 58-2-110(3)(A)(v)." Tenn. Code Ann. § 58-8-104(a). Upon declaring such a local state of emergency, "the county mayor may, in the interest of public health, safety, and welfare, issue orders to direct and compel the evacuation of the entire unincorporated area of the county or any portion thereof." Id. § 58-8-104(e). In this instance, a county mayor's evacuation order issued in conformance with Tenn. Code Ann. § 58-8-104 would not only be authorized but would also take precedence over any local rule or regulation to the contrary issued by the county health officer. See Strader v. United Family Life Ins. Co., 218 Tenn. 411, 417, 403 S.W.2d 765, 768 (1966); Woodroof v. City of Nashville, 183 Tenn. 483, 488, 192 S.W.2d 1013, 1015 (1946).

In short, when there is a special statute that gives the county mayor the authority to issue a county-wide mandate to protect the public health under specified circumstances, the authority granted under that statute prevails. But in most instances, the county health officer will be the official who possesses the authority to issue county-wide health mandates by virtue of the recent passage of Chapter 550.

3. Extent of County Health Officer's Authority to Issue County-wide Health Mandates

Even so, a county health officer's ability to issue county-wide health mandates pertaining to communicable diseases via rules and regulations is limited, and can even be foreclosed, by state law.

First, the authority of the county health officer is limited by the rules and regulations promulgated by the Commissioner of Health to prevent the spread of communicable diseases, since it is the duty of all county health authorities "to carry out such rules and regulations as the department of health may prescribe for their object the prevention and restriction of [communicable] diseases." Tenn. Code Ann. § 68-5-103. Accordingly, a county health officer cannot issue rules and regulations that are inconsistent with those promulgated by the Commissioner. See Tenn. Code Ann. § 4-5-221(c).

Second, the governor has the power to displace any, or all, authority that a county health officer might otherwise have to issue rules and regulations. As explained in Tenn. Att'y Gen. Op. 20-07 (Apr. 27, 2020), "[t]he General Assembly has vested the Governor with exclusive responsibility and authority to assume control over all aspects of the State's response to an emergency such as the COVID-19 pandemic. Because the executive orders that the Governor issues pursuant to that authority have the force and effect of law, the Governor's directives in response to an emergency supersede and preempt any action taken by political subdivisions of the State."

Third, state law directly prohibits certain health mandates altogether. For instance, no governmental entity or officer is permitted to require a person to receive an immunization, vaccination, or injection for the SARS-CoV-2 virus or any variant of the SARS-CoV-2 virus. Tenn. Code Ann. §§ 68-5-115, -116.

In sum, the validity of any rule or regulation issued by a county health officer would depend on its particular terms and applicable state law, including rules and regulations promulgated by the Commissioner of Health.

4. Enforcement Authority of County Health Officers

Before the passage of Chapter 550, county boards of health had the authority to issue rules and regulations, and the county health director had the authority to enforce those rules and regulations. While Chapter 550 transferred the power to issue rules and regulations from county boards of health to county health officers, it did not transfer the power to enforce those rules and regulations to county health officers. The only enforcement power of county health officers remains confined to "medical enforcement actions."

5. Authority to Remove the County Health Officer

The Commissioner of Health is authorized to appoint county health officers under Tenn. Code Ann. § 68-2-603(c). The statute, though, does not address removal of these officers, nor does it prescribe a term of office for these officers. In this instance, Tennessee courts have consistently held that the power to remove is an incident of the power to appoint when the tenure of office is not prescribed by statute or the Tennessee Constitution. Gillespie v. Rhea Cnty., 191 Tenn. 487, 493, 235 S.W.2d 4, 7 (1950); Williams v. Boughner, 46 Tenn. 486, 492 (1869); cf. Gamblin v. Town of Bruceton, 803 S.W.2d 690, 693 (Tenn. Ct. App. 1990) (citing Brock v. Foree, 168 Tenn. 129, 131, 76 S.W.2d 314, 315 (1934)). Accordingly, the power to remove a county health officer under Tenn. Code Ann. § 68-2-603 lies with the Commissioner of Health.

The scenario presented in which a mayor appoints a county health director, who, in turn, "hires" the county health officer, is not contemplated by Tennessee's statutory scheme. Since 1985 when the General Assembly overhauled the law governing the provision of local health services in this State, the Commissioner of Health has been the only official expressly identified as having the authority to appoint county health officers. 1985 Tenn. Pub. Acts, ch. 172, § 3 (codified at Tenn. Code Ann. § 68-2-603(c)). It is, however, possible that law other than Tenn. Code Ann. § 68-2-603 could apply. For instance, Private Acts relative to county boards of health and county health departments in effect on July 1, 1985, remain in effect. Tenn. Code Ann. § 68-2-606. If such a Private Act for a particular county provides for the appointment of the county health director by the mayor and the hiring of the county health officer by the county health director, the terms of that Private Act governing the removal of the county health officer would apply, see, e.g., Arnwine v. Union County Bd. of Educ., 120 S.W.3d 804, 807 (Tenn. 2003), in which case the county mayor could remove the county health officer without the consent of the Commissioner if the Private Act gives the county mayor the power to do so.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

LAURA T. KIDWELL
Assistant Solicitor General

Requested by:
The Honorable Dave Wright
State Representative
425 Rep. John Lewis Way N.
Suite 588 Cordell Hull Building
Nashville, Tennessee 37243