oag7-08

J.B. VAN HOLLEN

ATTORNEY GENERAL

Raymond P. Taffora

Deputy Attorney General

114 East, State Capitol

P.O. Box 7857

Madison, WI 53707-7857

608/266-1221

TTY 1-800-947-3529

            September 4, 2008 OAG—7—08  

Mr. Michael J. McKenna

Corporation Counsel
Portage County
1516 Church Street
Stevens Point, WI 54481

Dear Mr. McKenna:

  You indicate that Portage County created the position of county executive in 2005. Since at least 2005, Portage County has had a single county health department as provided in Wis. Stat. § 251.02(1). You advise that, both before and after the election of the county executive, the county health department has been “co-located and combined as the Portage County Department of Health and Human Services, with legislative oversight by the Health and Human Services Board.” Prior to the election of the county executive in 2005, the Portage County Health Officer was supervised in all respects by the Portage County Director of Health and Human Services. Following the election of the county executive in 2005, the director of health and human services has been supervised by the county executive, and the health and human services director has continued to supervise the county health officer.

  You ask, in effect, whether Wis. Stat. § 251.06(4)(b) requires that Portage County create a stand-alone county health department supervised in all respects by the county health officer and whether that statute precludes the county human services director (referred to in your county as the “health and human services director”) from exercising any managerial authority over the county health officer.

  It is my opinion that Wis. Stat. § 251.06(4)(b) does not require that a county create a stand-alone county health department and that Wis. Stat. § 251.06(4)(b) does not preclude the county human services director (referred to in your county as the “health and human services director”) from exercising any managerial authority over the county health officer with respect to the operation of county health department programs.

  Wisconsin Stat. § 46.23(3)(b) provides in part:

  Transfer of other county powers and duties. 1. If a county department of human services is established under par. (a), the county board of supervisors in a county with a single-county department of human services . . . shall transfer the powers and duties of the county departments under ss. 46.22 and 51.42 to the county department of human services. The county board of supervisors in a county with a single-county department of human services . . . may transfer the powers and duties of the following to the county department of human services established under par. (a):

  . . . .

  b. A local board of health for a local health department, as defined in s. 250.01(4)(a)1. or 2. or (c).

  bm. A local health officer for a local health department, as defined in s. 250.01(4)(a)1. or 2. or (c)[.]

  c. A local health department, as defined in s. 250.01(4)(a)1. or 2. or (c).

  Wisconsin Stat. § 46.23(6)(a), which applies to counties without a county executive or county administrator, provides in part: “A county human services director appointed under sub. (5)(f) shall have all of the administrative and executive powers and duties of managing, operating, maintaining and improving the programs of the county department of human services . . . .”

  Wisconsin Stat. § 46.23(6m), which applies to counties with a county executive or county administrator, provides in part:

[T]he county executive . . . shall appoint a county human services director . . . . The appointment is subject to confirmation by the county board of supervisors unless the county board of supervisors, by ordinance, elects to waive confirmation or unless the appointment is made under a civil service system competitive examination procedure established under s. 59.52(8) or ch. 63. The county human services director, subject only to the supervision of the county executive . . . shall:

  (a) Supervise and administer any program for which supervision and administration is authorized under this section.

  Wisconsin Stat. § 59.17(2)(a) provides that the county executive shall “[c]oordinate and direct all administrative and management functions of the county government not otherwise vested by law in other elected officers.”

  Wisconsin Stat. § 250.01(4) provides in part:

  “Local health department” means any of the following:

  (a) In a county with a population of less than 500,000, any of the following:

  1. A county health department established under s. 251.02(1), including a county health department whose powers and duties are transferred to a county department of human services under s. 46.23(3)(b)1.c.

  Wisconsin Stat. § 251.001 provides: “The legislature finds that the provision of public health services in this state is a matter of statewide concern.”

  Wisconsin Stat. § 251.01(3) provides in part: “‘County health officer’ means the position of a local health officer in a single county health department . . . .”