Does a West Virginia local board of health have to use the state Division of Personnel's merit system, and can it be required to pay for those services?

Official title

Opinion of the Attorney General's Office Regarding a County Board of Health's Participation in the West Virginia Division of Personnel Merit System

Plain-English summary

In summer 2014 the West Virginia Division of Personnel told every local board of health in the state that, if it wanted to keep using the state merit system, it had to sign a standard service level agreement (SLA). Behind that was a January 2014 master agreement between WVDOP and the State Department of Health (Bureau of Public Health) setting up the SLA framework and including a fee schedule. The Jefferson County Board of Health was unhappy and asked its prosecutor to challenge the arrangement.

The AG worked through three questions. First, must a local board of health use the state's merit system? No. W. Va. Code § 16-2-11(b)(2) requires that the board's employees be covered by some merit system, but the board has a choice between the WVDOP system and its own equivalent system, with the appointing authority's approval. Use of the WVDOP system is one option, not a mandate.

Second, could the State Department of Health enter the master agreement with WVDOP? Yes. W. Va. Code § 29-6-17(a) authorizes WVDOP's director to "enter into an agreement with the state department of health for the inclusion of personnel of local health departments under the classified service system." The master agreement creates the framework. It does not by itself require any local board to sign an SLA. It just sets the terms if a board chooses to participate.

Third, could WVDOP demand reimbursement for its services? Yes. § 29-6-17(a) is explicit: "Any . . . agreement[]" between WVDOP and a "municipality or other political subdivision of the state" "shall provide for the reimbursement to the state of the reasonable cost of the services and facilities furnished, as determined by the director." Local boards of health are political subdivisions under W. Va. Code § 29-12A-3(c). So a fee schedule and reimbursement requirement are not optional features of an SLA, the statute requires them.

The opinion's bottom line: a local board of health can opt out of the state merit system entirely if it sets up its own equivalent, but if it stays in the state system it must reimburse the state.

Currency note

This opinion was issued in 2014. 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 is a "merit system" in this context?

A: A merit-based personnel system is a structured hiring, promotion, discipline, and termination scheme that requires decisions to be based on objective qualifications rather than political patronage. It typically includes job classifications, written exams, ranked applicant lists, and just-cause protections against firing. The state Division of Personnel runs West Virginia's standard classified service merit system. Local boards of health can plug into that or run their own equivalent.

Q: Why did the legislature give local boards of health the option to set up their own system?

A: The opinion does not say, but the structure recognizes that local public health work has its own staffing patterns and pay scales that may not fit cleanly into a statewide classification scheme. Allowing a local board to adopt the state system "in whole or in part" preserved flexibility while still requiring the merit-based principles.

Q: Does the AG opinion mean a local board of health can simply stop using WVDOP services without consequence?

A: It can, but it must run its own equivalent merit system. It cannot drop merit-based principles altogether. Under § 16-2-11(b)(2), eligible staff must be covered by some merit system. Setting up a freestanding system requires the local board to write rules, classifications, examination procedures, and discipline standards, and to keep them administered. That overhead is part of the trade-off.

Q: What does the master agreement between WVDOP and the State Department of Health actually do?

A: It creates the framework under which a local board can sign a service level agreement with WVDOP for merit-system services. It is not self-executing. No local board is bound until it signs its own SLA. The master agreement also includes the fee schedule applicable to any SLA.

Q: Can a local board negotiate the fee?

A: The opinion did not say, but § 29-6-17(a) requires the reimbursement to cover "reasonable cost . . . as determined by the director" of WVDOP. The statute leaves the determination of cost to the director, which suggests the local board's use to negotiate is limited. A local board that finds the fee unreasonable would more likely opt out and run its own system.

Q: Who is responsible for ensuring local board of health employees are protected by some merit system?

A: The local board itself, under § 16-2-11(b)(2). The county commission creates the board if no other local board exists, but the merit-system obligation runs to the board itself. If a local board fails to set up either the WVDOP system or an approved alternative, its employee actions may be exposed to challenge.

Q: Did the AG say whether the WVDOP system is required to be more thorough than a board's homegrown alternative?

A: Indirectly. The statute says an alternative system "may be similar to the state merit system" and may incorporate "all, or any portion of any order, rule, standard, or compensation rate in effect in the state merit system as may be desired and as is properly applicable." The "appointing authority's" approval is required. The statute contemplates substantive equivalence; it does not specify exact parity.

Background and statutory framework

W. Va. Code § 16-2-3 requires each county commission to establish a county board of health where no other local board exists. The board is governed by W. Va. Code §§ 16-2-1 et seq.

W. Va. Code § 16-2-11(c) charges the board with "protecting the health and safety, as well as promoting the interest of the citizens of West Virginia." Subsection (b)(2) gives the board the power to "employ or contract any technical, administrative, clerical or other person" needed to do that work, and requires that "eligible staff employed" be covered by a merit system. The board may either (a) elect that staff "be covered by the rules of the division of personnel under section six, article ten, chapter twenty-nine of this code" (the WVDOP system), or (b) "establish and adopt a merit system for its eligible employees" with the consent of the appointing authority. The alternative system "may be similar to the state merit system" and may borrow rules from it.

W. Va. Code § 29-6-17(a) authorizes the WVDOP director, "subject to the approval of the board," to enter agreements with the State Department of Health for inclusion of local health-department personnel in the state classified service. The same statute requires that "[a]ny . . . agreement[]" between WVDOP and any "municipality or other political subdivision of the state" "shall provide for the reimbursement to the state of the reasonable cost of the services and facilities furnished, as determined by the director."

A local board of health is a "political subdivision" under W. Va. Code § 29-12A-3(c).

The AG concluded that the master agreement was lawfully entered into under § 29-6-17(a), and that the SLA-plus-fee-schedule structure was not only permissible but statutorily required. The local board's only true alternative was to opt out and run its own merit system, "subject to the approval of the appointing authority."

Citations

• W. Va. Code § 5-3-2 (AG advisory authority)
• W. Va. Code §§ 16-2-1 et seq. (county boards of health)
• W. Va. Code § 16-2-3, § 16-2-11(b)(2), (c)
• W. Va. Code § 29-6-17(a) (WVDOP/state health agreement, reimbursement)
• W. Va. Code § 29-12A-3(c) (definition of political subdivision)

Source

• Landing page: https://ago.wv.gov/media/18066/download?inline
• Original PDF: https://ago.wv.gov/media/18066/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

December 3, 2014

The Honorable Ralph A. Lorenzetti, Jr.
Prosecuting Attorney
Jefferson County
P.O. Box 729
Charles Town, West Virginia 25414

Dear Prosecutor Lorenzetti:

You have asked for an Opinion of the Attorney General regarding the Jefferson County Board of Health's participation in the West Virginia Division of Personnel ("WVDOP") Merit System. This Opinion is being issued pursuant to West Virginia Code § 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 recent correspondences with the Office of the Attorney General.

According to your letter, in the summer of 2014 "every local Board of Health in West Virginia was required by the WVDOP to sign a standard service level agreement" in order to continue to participate in the WVDOP's merit system. You further explain that the service level agreement "was required pursuant to an agreement executed between the State Department of Health and the WVDOP." As the statutory attorney for the Jefferson County Board of Health, you were provided a copy of both that agreement and the service level agreement for review. Based upon that review you have now sought this Opinion to address your concerns as to whether the Board of Health must enter into a service level agreement with the WVDOP to ensure its employees are covered by the WVDOP Merit System.

Your letter raises three legal issues, which are addressed in turn below.

(1) Is a local board of health statutorily obligated to utilize the WVDOP Merit System?
(2) May the West Virginia Department of Health and Human Resources, Bureau of Public Health enter into an agreement with the WVDOP requiring the provision of merit system services to local boards of health?
(3) May the WVDOP require local boards of health who utilize its merit system to reimburse the WVDOP for the costs of providing services under the merit system?

The county commission of each county in West Virginia is required to establish a county board of health, if there is no other local board of health "established and responsible for public health" in that county. W. Va. Code § 16-2-3. A county board of health "shall be organized pursuant to and with the powers and duties prescribed" by W. Va. Code §§ 16-2-1 et seq. Id. You have indicated that the Jefferson County Board of Health is one such entity. As such, it is both created and governed by the provisions of W. Va. Code §§ 16-2-1 et seq.

Question One: Is a local board of health statutorily obligated to utilize the WVDOP Merit System?

Local boards of health are "charged with protecting the health and safety, as well as promoting the interest of the citizens of West Virginia." W. Va. Code § 16-2-11(c). To accomplish this mission, local boards of health are statutorily provided a variety of powers. One such power is to "employ or contract any technical, administrative, clerical or other person" necessary to carry out the board's work. W. Va. Code § 16-2-11(b)(2). Further, "eligible staff employed" by a board must be covered by a merit system. Id.

Under West Virginia Code § 16-2-11(b)(2), local boards of health have a choice as to how to establish a merit system. First, the boards can choose that "eligible staff employed by the board shall be covered by the rules of the division of personnel under section six, article ten, chapter twenty-nine of this code." W. Va. Code § 16-2-11(b)(2). This means the local board of health would be covered by WVDOP's merit system. Second, "in the alternative and with the consent and approval of the appointing authority, [the local boards may] establish and adopt a merit system for its eligible employees." Id. (emphasis added). Such an "alternative" merit system "may be similar to the state merit system and may be established by the local board by its order, subject to the approval of the appointing authority, adopting and making applicable to the local health department all, or any portion of any order, rule, standard, or compensation rate in effect in the state merit system as may be desired and as is properly applicable." Id.

As a result, a local board of health is statutorily required to utilize some merit based system for its eligible employees, it is not statutorily required to utilize the WVDOP merit system. Instead, a board of health has the option of either using the WVDOP merit system or establishing and adopting its own merit system, assuming all statutory conditions are satisfied.

Question Two: May the West Virginia Department of Health and Human Resources, Bureau of Public Health enter into an agreement with the WVDOP requiring local boards of health to enter into further agreements with WVDOP?

In January 2014, the WVDOP and the West Virginia Department of Health and Human Resources, Bureau of Public Health ("State Department of Health") entered into an "Agreement Regarding Local Health Departments." The Agreement serves "as the basis for the establishment of Service Level Agreements ('SLAs') between [WVDOP] and Local Health Departments." The Agreement was entered into pursuant to West Virginia Code § 29-6-17(a), which provides in relevant part: "Subject to the approval of the board, the director [of the WVDOP] may enter into an agreement with the state department of health for the inclusion of personnel of local health departments under the classified service system established by this article." Id.

The Agreement, which the State Department of Health entered into pursuant to this authority, merely provides that any SLAs that local boards of health enter into with WVDOP "will enable the provision of the services and facilities of the WVDOP to local health departments in the administration of personnel on merit principles, and further the ability of local health departments to participate in the classified service."

Accordingly, the premise of your question, whether the State Department of Health can "enter[] into an agreement that requires additional agreements with the local boards of health," does not apply to the Agreement. The Agreement does not "require[] additional agreements" from local boards of health; it merely creates the framework within which local boards of health can contract with WVDOP, if those boards choose to use WVDOP's services. That is an entirely permissible exercise of the State Department of Health's authority under Section 29-6-17(a).

Question Three: May the WVDOP require local boards of health who utilize its merit system to reimburse the WVDOP for the costs of providing services under the merit system?

The Agreement further provides a fee schedule applicable to all local heath boards, where the board voluntarily chooses to enter into SLAs with WVDOP. Section 29-6-17(a) specifically provides that "[a]ny . . . agreement[]" entered into between any "municipality or other political subdivision of the state" and WVDOP "shall provide for the reimbursement to the state of the reasonable cost of the services and facilities furnished, as determined by the director." Id. (emphases added).

As your letter notes, a local board of health is a "political subdivision." Accord W. Va. Code § 29-12A-3(c) (defining "[p]olitical subdivision").

Accordingly, under the plain terms of Section 29-6-17(a), if a local board of health chooses to enter into an SLA with WVDOP, in order to obtain WVDOP's services, that agreement must include a provision to reimburse WVDOP for the services provided to the board. The fact that the Agreement provides a fee schedule that will apply to any SLA entered into between a local board and WVDOP is thus not only permissible, but entirely consistent with the statutory mandate. There appears to be no basis in law or policy why a local board should be permitted to receive the service of the WVDOP for free, where identical WVDOP services must be reimbursed by any other "municipality or other political subdivision of the state."

Sincerely,

Patrick Morrisey
Attorney General

Elbert Lin
Solicitor General

Misha Tseytlin
Deputy Attorney General

Steven Travis
Assistant Attorney General