Updates from the Shelby County Commission

Questions about the proposed Board of Health

Shelby County government is seeking to re-institute a Board of Health that was abolished in 1911.

The first question that comes to mind is the most obvious one: After 109 years, does Shelby County really need a board of health?

The answers to that question have varied, the board and its powers have been described in different ways, and the proposal has gone through multiple drafts.

If the Health Department were merely seeking advisory input from healthcare professionals in the midst of a public health crisis, I would be glad to offer my speedy assent. But additional clarity is needed on what exactly the proposed board’s powers, duties and purpose would be.

My additional questions and concerns are as follows:

  • Would this proposal expand the authority of the Shelby County Department of Health?
  • Would this proposal diminish the representative power of elected officials and shift governance to unelected people?
  • Would this proposal give a volunteer Board of Health authority over the county Health Director or county Health Officer?
  • Would this proposal interfere with the authority of municipal governments?
  • Would this proposal place important policy decisions at a further remove from the general public?
  • Would this proposal inflate the cost of county government?

While some uncertainty remains, the county attorney has provided answers that address many of the concerns expressed by constituents and myself.

Below is an email sent to members of the County Commission by County Attorney Marlinee Iverson. I have added emphasis to some key lines.

Chairman Billingsley and Commissioners,

Several of you have asked about the Board of Health resolution. I understand Dr. Haushalter may be reaching out to you on an individual basis as well to provide policy rationales for why it would benefit the County to have such a board.

I am writing to respond to your questions and provide some additional background from a legal point of view. I also just left a meeting with the municipal attorneys, and they did not voice any objection to it. They only wanted their clients to know more about it. The board will not replace the input that these mayors currently have through their meetings with the health department’s team.

One obvious benefit to having a Board of Health would be the application of the Tennessee Open Meeting laws. This would create an open and transparent place for board members having medical expertise to advise on policy implemented through the health director and health officer while also allowing any of you and the public to be present and participate.

The resolution creating the board does not change, grant, or take away any authority that the Health Department doesn’t already have. Instead, it provides the Department with another “tool” in its toolbox, namely the input of other medical professionals in the County who are appointed by the county mayor and approved by all of you. Also, creating such an entity clears any ambiguity regarding Shelby County and the Shelby County Health Department’s authority to respond to public health crises, including the current pandemic. At all times, the Shelby County Health Department exists as an extension of the Tennessee Department of Health and thus has certain obligations to coordinate with state agencies, including, but not limited to, The Tennessee Department of Health and the Tennessee Emergency Management Agency. Creation of the board would incorporate private acts that predate the state law (see Tenn. Code Ann. § 68-2-606), but also make it abundantly clear that Shelby County health initiatives may move forward with limited need for state involvement. By creating a board of health, Shelby County would be joining other counties, such as Davidson and Knox, which have boards as well.

Ultimately, the way I understand the mechanics of how the board would effectively operate is that it will serve in an advisory capacity, pulling on the knowledge of several medical providers to develop sustainable public health initiatives through the director of health and health officer.

I am happy to provide further information. Please let me know what is most helpful.

Thank you,

Marlinee Iverson

There are several important points to note from Iverson’s message:

  • The proposal would not reduce municipal government input and access.
  • The Board’s discussions and decisions would occur in the public domain, in contrast to how such business takes place currently.
  • The Department of Health’s authority and powers would not expand.
  • The Board would serve in an advisory capacity.

Additionally, conversations with the County Attorney’s office reveal the following added benefits:

  • Members of the Health Board would be nominated by an elected mayor and approved by representative members of the elected legislative body. This is in contrast to how the COVID-19 Task Force was assembled.
  • The general public would be allowed to listen to, attend and participate in the meetings of the Board of Health. Again, this is in contrast to how the COVID-19 Task Force operates.
  • Members of the Board of Health would be unpaid volunteers.
  • Decisions of the Health Department would be subject to public discussion, in contrast to how the Health Department’s orders are currently determined.

I also followed up with the County Attorney about the Knox County Board of Health, which she referenced in her email. In Knox County, their board passed a mask mandate over the objection of the county mayor. He also had to make a special effort to open the board’s meetings to public comment.

In response, Ms. Iverson states that the Knox County board “is slightly different from what we are proposing for Shelby” because the Knox County health director “shall report to, and work in concert with, the county board of health.” Under the Shelby County Charter, the Health Director would be advised by the board, rather than report to it.

Still, some of my concerns remain, as the resolution states that the Board of Health would “govern the policies” of the Health Department, would “adopt rules and regulations,” and would have the authority to “enforce such rules and regulations.” Those powers sound more than advisory in nature.

So while I’m happy to hear that the Health Department’s powers would not expand, that there would be more public oversight and input involved, that there would be representative checks in place, that municipal access and authority would not be reduced, and that the board would be advisory in nature, I’m having a hard time squaring the board’s stated powers and duties with its intended advisory function.

I’d like to know what you think.