In West Virginia, can a local county health officer issue a binding mask requirement or other public-health rule on his own, or does it have to come from the local board of health?
Official title
Opinion of the Attorney General Regarding the Legal Authority of Local Health Officers
Plain-English summary
Two county prosecutors asked the West Virginia AG whether a local health officer can issue binding directives on his own. The setting was specific: in August 2021, the Morgan-Berkeley County health officer sent letters declaring that the joint health department "will require universal mask use in schools" under certain circumstances, and called that requirement an "order" he had authority to issue under W. Va. Code §§ 16-3-1 and 16-3-2.
The AG's answer cuts under that framing. Before deciding whether the letters were technically "rules" (which require county-commission approval) or "orders" (which do not), the AG asked the threshold question: does the health officer have authority to issue rules or orders at all? The conclusion was no. West Virginia statute gives that authority to the local board of health, not to the officer who reports to it. The officer's job, in the AG's words, is to "administer" the rules and orders the board adopts. The August letters were not signed by the board; they did not satisfy the statutory requirements to be either a rule or an order; they had no binding legal effect.
The opinion is careful to flag that the conclusion depends entirely on who issued the letters, not what the letters said. A directive from the actual board of health on the same subject would be a different question, one the opinion did not reach.
What this means for you
For local boards of health
The AG's reading puts the burden of public-health rulemaking squarely on the board, not on the executive officer who reports to it. If you want a directive to have legal force, the board itself must adopt it on the record, following the statute's procedural requirements (which now include county-commission approval after the 2021 amendment, codified as 2021 W. Va. Acts c. 213).
If your local health officer has been issuing letters or directives that look like binding requirements, those documents likely have no legal effect under this opinion. Bring them to the board for proper adoption (and county-commission approval if they qualify as rules).
For local health officers
You are an executive, not a legislator. Your statutory job under § 16-2-13(a) is to administer the rules and orders the board adopts. You can issue guidance, recommendations, advisory letters, and case-specific public-health communications that the underlying statute already authorizes. What you cannot do, under this opinion, is issue a generally applicable mandate on your own that purports to bind individuals or institutions.
The opinion notes a narrow exception: under W. Va. Code St. R. §§ 64-7-2.10 and 16.4.a, a local health officer has limited authority to "implement the prevention and control methods specified by the protocols in the West Virginia Reportable Diseases Protocol Manual" or as developed in consultation with the Bureau for Public Health Commissioner. If you are invoking that authority, document the protocol you are following and any consultations with the Commissioner.
For school administrators receiving a directive from a local health officer
If you receive a letter purporting to require masking, exclusion, or other measures, look at the signature line. Was it issued by the board of health (typically with a board action reference and chair/secretary signatures), or by the health officer alone? If the latter, this opinion suggests the directive has no binding effect on its own.
That does not mean you should ignore public-health guidance. It means you should treat a unilateral health-officer letter as a recommendation, and ask whether the local board has acted (or whether the underlying conduct is otherwise required by state law, statewide health rule, or your own school district's policy).
For county commissions
The 2021 amendment (Acts c. 213) added a county-commission approval step for board-of-health rules. This opinion confirms that approval right and adds the further point that the statute reserves rulemaking power to the board itself. If a board attempts to delegate its rulemaking power to the health officer, the AG's reading suggests that delegation is not authorized by the Code.
For county prosecutors deciding whether to enforce a local health-officer directive
Under this opinion, you have a strong legal argument that a directive issued unilaterally by a health officer (not adopted by the board) is not enforceable as a "rule" or "order." Before charging or filing for civil enforcement, verify the source of the directive.
Common questions
What's the difference between a board-of-health "rule" and an "order"?
A rule (W. Va. Code § 16-2-11(b)(3)(A)) is a generally applicable measure adopted by the board to protect public health; it must be consistent with state public-health law and DHHR rules and (after the 2021 amendment) approved by the county commission or other appointing entity. An order (W. Va. Code § 16-3-2) is the board's quarantine power, used to address specific situations; it does not need county-commission approval, but the state director of health can lift it.
Why does the AG focus on who issued the letter rather than what it said?
Because under the statute, both rules and orders must come from the board, not the officer. The substance does not matter if the issuer lacked authority. The AG framed this as the threshold question and answered it first.
Can a local board of health delegate its rulemaking power to its health officer?
The AG suggests not. Section 16-2-13(b)(1) explicitly says the officer cannot serve as a voting member of the board. The opinion treats that prohibition, plus the absence of any statutory delegation authority, as a deliberate separation between the legislative function (rulemaking) and the executive function (administration).
Did this opinion address whether a properly adopted board mask directive would be enforceable?
No. The opinion expressly notes that whether a directive issued by a local board addressing this subject would constitute a rule or order "would depend on several case-specific factors, including whether the board had declared a 'quarantine' pursuant to Section 16-3-2." That question is left open.
Does Executive Order 22-20 still give local health departments emergency authority?
The opinion notes that EO 22-20 had previously given local health departments authority to "establish and enforce" certain COVID-19 protocols, but EO 22-20 was terminated by EO 12-21 on April 20, 2021. As of the date of the opinion (September 29, 2021), that emergency-order delegation was no longer in effect.
Background and statutory framework
West Virginia's public-health enforcement framework distributes authority across three levels:
State level. The Department of Health and Human Resources (DHHR) and the Bureau for Public Health Commissioner promulgate statewide rules and protocols. The Reportable Diseases Protocol Manual is developed at this level.
Local board of health. Each local board adopts rules necessary for public health in its service area, subject to (a) consistency with state law and DHHR rules and (b) county-commission approval added by the 2021 amendment (Acts c. 213). The board may also issue quarantine orders under § 16-3-2.
Local health officer. The board's executive officer administers the board's rules and orders, but cannot vote on the board itself. § 16-2-13(a), (b)(1).
The AG's reasoning rests on two pillars:
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Statutory text. The Code consistently assigns rulemaking and orders to the "board," not the "officer." There is no provision authorizing delegation of this power.
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Separation-of-powers principle. The opinion cites State ex rel. State Bldg. Comm'n v. Bailey for the "general rule inherent in the American constitutional system" of separating legislative, executive, and judicial powers, and State ex rel. Meadows v. Hechler for the principle that rulemaking is "a legislative power that only comes under the executive department's bailiwick upon the delegation" of such power. The 2021 amendment, which added county-commission oversight of board rules, strengthens rather than weakens this separation.
Citations
- W. Va. Code § 5-3-2 (Attorney General's authority to advise prosecuting attorneys)
- W. Va. Code §§ 16-1-2, 16-3-2 (state director's authority to lift local quarantine)
- W. Va. Code § 16-2-11(b)(3)(A), (C)-(E) (local board of health rulemaking with county-commission approval)
- W. Va. Code § 16-2-13(a), (b)(1) (local health officer's administrative role; non-voting status)
- W. Va. Code § 16-3-1 (state public health authority)
- W. Va. Code § 16-3-2 (local board of health quarantine power)
- W. Va. Code § 29A-3-12 (legislative approval of state agency rules)
- W. Va. Code St. R. §§ 64-7-2.10, 16.4.a (local health officer authority under Reportable Diseases Protocol Manual)
- 2021 W. Va. Acts c. 213 (county-commission approval of local board of health rules)
- State ex rel. State Bldg. Comm'n v. Bailey, 151 W. Va. 79, 150 S.E.2d 449 (1966) (separation of powers)
- State ex rel. Meadows v. Hechler, 195 W. Va. 11, 462 S.E.2d 586 (1995) (rulemaking as a legislative power; delegation required for executive exercise)
Source
- Landing page: not separately published (the PDF is the official record)
- Original PDF: https://ago.wv.gov/media/17651/download?inline
Original opinion text
State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General
(304) 558-2021
Fax (304) 558-0140
September 29, 2021
The Honorable Daniel M. James
Morgan County Prosecuting Attorney
77 Fairfax Street, Suite 301
Berkeley Springs, WV 25411
The Honorable Catie Wilkes Delligatti
Berkeley County Prosecuting Attorney
380 West South Street, Suite 1100
Martinsburg, WV 25401
Dear Prosecutors James and Delligatti:
You have asked for an Opinion of the Attorney General about whether a letter from your local health officer constitutes a "rule" or an "order." This Opinion is being issued pursuant to West Virginia Code Section 5-3-2, which provides that the Attorney General "may consult with and advise the several prosecuting attorneys in matters relating to the official duties of their office." To the extent this Opinion relies on facts, it is based solely on the factual assertions set forth in your correspondence with the Office of the Attorney General.
In your request, you explain that the Morgan-Berkeley County Health Officer issued letters on August 9 and 11, 2021, which stated that the combined Morgan-Berkeley County Health Department "will require universal mask use in schools for all individuals" under certain circumstances. You indicated that the Officer believes these letters constitute an "order," and that "he has the authority to enter such an order pursuant to W. Va. Code §§ 16-3-1 and 16-3-2." You also note that members of the community have questioned whether the letters should be treated as a "rule" rather than an "order," and thus subject to approval or disapproval by the county commission "pursuant to W. Va. Code § 16-2-11(3)(H)."
Your request thus turns on the legal distinction between a local health "rule," subject to approval or disapproval by a county commission, and a local health "order." Nevertheless, the circumstances you have laid out present a threshold issue about whether a local health officer has authority to issue rules or orders in the first place:
Does a local health officer have the authority to issue rules or orders unilaterally, or must rules and orders be issued by local boards of health?
We conclude that local health officials are not empowered to promulgate rules or orders on their own. Accordingly, we conclude that the August 9 and 11 letters are neither a rule nor an order because the Officer lacked authority to issue binding, unilateral directives.
Discussion
Your questions address two different types of local health directives. First, local health "rules" "that are necessary and proper for the protection of the general health of the service area and the prevention of the introduction, propagation, and spread of disease" are "[a]dopt[ed] and promulgate[d]" by "[e]ach local board of health." W. Va. Code § 16-2-11(b)(3)(A). Such rules must be "consistent with state public health laws and the rules of the West Virginia State Department of Health and Human Resources," and must be "approved, disapproved, or amended and approved by the county commission" or other appointing entity that oversees the promulgating board. Id. § 16-2-11(b)(3)(A), (C)-(E). Second, a local health "order" is "made by [a local] board" pursuant to the "[p]owers of county and municipal boards of health to establish quarantine." W. Va. Code § 16-3-2. Such a quarantine may be lifted by the state director of health if he or she finds it is not necessary. W. Va. Code §§ 16-1-2, 16-3-2.
Critically, both rules and orders are issued by a local board of health, not a local health officer. W. Va. Code §§ 16-2-11(b), 16-3-2. Indeed, a local health officer is charged with "administer[ing] . . . the rules and orders of the local board," and may not even serve as a voting member of the board to which he or she reports. Id. § 16-2-13(a), (b)(1) (emphasis added). More generally, none of the powers that the Code provides "may be delegated" to a "local health officer" include authorizing these officers to issue their own "rules" or "orders." See id.
The distinction between the local board and executive officer reflects the "general rule inherent in the American constitutional system" of separating legislative, executive, and judicial powers. State ex rel. State Bldg. Comm'n v. Bailey, 151 W. Va. 79, 85, 150 S.E.2d 449, 453 (1966). "Rule-making" is a legislative power that only "comes under the executive department's bailiwick upon the delegation" of such power from the corresponding legislative body. State ex rel. Meadows v. Hechler, 195 W. Va. 11, 15, 462 S.E.2d 586, 590 (1995). And because local boards of health are not authorized to make such delegations, it would be inconsistent with this framework to allow "the executive officer" tasked with "administer[ing] . . . rules and orders," W. Va. Code § 16-2-13(a), to also enact new rules and orders unilaterally. Further, the Legislature has recently strengthened this distinction by increasing oversight of boards when exercising their rulemaking power. See 2021 W. Va. Acts c. 213 (enacting requirement that local board of health rules be approved by municipal or county governing bodies). This new system of legislative oversight mirrors protections that have long existed at the state level to ensure accountability for agencies tasked with delegated rulemaking powers. See W. Va. Code § 29A-3-12 (providing for legislative approval of agency regulations). It is unlikely that the Legislature would have intended the county-level system to include a "backdoor" through which a board's executive officer could implement rules independent from this oversight.
Because nothing in the August 9 or 11 letters suggests that they were issued by the Morgan-Berkeley Board of Health, we therefore conclude that they do not satisfy the statutory requirements to be either a rule or an order. We note that this conclusion does not depend on the subject or substance of the letters themselves, but was reached solely because of the identity of the issuer. Nor does this Opinion address whether a directive issued by a local board of health addressing this subject would constitute a rule or order. Evaluating such a directive would depend on several case-specific factors, including whether the board had declared a "quarantine" pursuant to Section 16-3-2.
More broadly, we are not aware of any other statute that would give these letters binding legal effect. Although the Governor's Executive Order 22-20 previously gave your local health department the authority to "establish and enforce" certain protocols related to the COVID-19 pandemic, this Order was terminated on April 20, 2021. Similarly, it is true that a local health officer has power in some circumstances to "implement the prevention and control methods specified by the protocols in the West Virginia Reportable Diseases Protocol Manual . . . or developed in consultation with the Commissioner [of the Bureau for Public Health of the West Virginia Department of Health and Human Resources]." W. Va. Code St. R. §§ 64-7-2.10, 16.4.a. The facts you describe, however, do not suggest that this power has been invoked here: The local health officer's letters did not refer to any protocol in that manual, nor did they allude to any consultations between the local health officer and the Commissioner of the Bureau for Public Health.
The COVID-19 pandemic has created numerous challenges for public officials at all levels of government, especially those tasked with keeping our children safe. It is important to take reasonable precautions in this regard, but even well-intentioned policies must be issued in lawful ways. Supervisory oversight and other legal constraints preventing unilateral bureaucratic action maintain political accountability, a particularly important consideration when enacting policies during unusual and fast-changing circumstances.
Sincerely,
Patrick Morrisey
Attorney General
Lindsay See
Solicitor General
cc: Anthony Delligatti, Berkeley County Legal Director