Hiring, firing, prison food, double jeopardy, and contempt of Court--a smorgasbord of cases. (Legal Briefs).

Who has the authority to hire, fire, promote, or demote you? For an individual environmental health worker, that authority is generally specified in a personnel manual and is clearly understood. Yet sometimes no personnel manual exists, or the manual is silent, vague, or ambiguous about the actual possessor of the authority. Occasionally, the manual is written by one agency but used by another, which leaves the entire issue cloudy Also, if a governmental entity is split, with part favoring an employee and part not doing so, the question may arise as to who actually has the authority The first case discussed in this column concerns a dispute between an Iowa county board of supervisors and the county board of health over who has authority to fire, hire, and promote environmental health personnel.

The second case gives some insight into a convict's right to wholesome food. Case 3 concerns the double jeopardy clause of the U.S. Constitution. The question in that case is whether someone who accepts a civil penalty from a local health department can then be prosecuted for a federal crime involving the same conduct.

Usually, environmental health departments have criminal and civil remedies for violations of state law or local ordinances. Case 4 shows how an Ohio court's contempt power was used to obtain compliance from a homeowner with respect to his malfunctioning onsite sewage disposal system. The case also shows the need for patience, however.

The final case involves the doctrine of preemption. The issue is whether Michigan state law and regulations about migrant-labor housing preempt a township's zoning ordinance.

Case #1: Board of Health Has Personnel Powers (1)

The Warren County Board of Health became unhappy with the performance of its environmental health director and terminated him. Then the board hired a replacement. Meanwhile, it gave a secretary a pay raise.

The county board of supervisors, however, refused to approve the pay raise and refused to enforce the termination. The supervisors believed the board of health had delegated personnel authority to them. So the replacement director, the secretary, and the health board sued.

Several years earlier, the supervisors had developed a county employment manual and a county classification and pay plan. The board of health had accepted the manual and plan. Indeed, the health board had even allowed the supervisors to hire some of its employees.

Iowa counties have home rule. (For more information about home rule, See F. Grad's Public Health Law Manual [1990], p. 18.) By state statute, however, boards of health have authority over public-health matters and "may employ persons as necessary for the efficient discharge of its duties."

Several general rules of law were applicable. Whoever is authorized to hire personnel has implied authority to fire them, Another rule is that any delegation of local government authority must be authorized by statute, and the mere exercise of authority by another agency does not in itself prove a delegation. Government functions are not normally subject to delegation by mere acquiescence or default. Once an agency delegates its authority, however, the authority binds the agency unless revoked a procedure of the same type as the one that created the delegation.

In this case, there was no direct delegation of authority over personnel by the board of health. The mere acquiescence by the health board to personnel decisions and actions by the board of supervisors did not constitute a delegation. Since the board of health never officially delegated authority over personnel matters, it retained the power to fire, hire, and promote employees.

Case #2: Prisoners' Food Rights (2)

The Eighth Amendment to the U.S. Constitution prohibits cruel and unusual punishment of prisoners. A prisoner at the Allred Unit of the Texas Department of Criminal Justice in Iowa Park, Texas, sued the warden for $19 million because he was served sour milk with a meal. There was no evidence or allegation of a foodborne disease.

To satisfy the Eighth Amendment, a state must furnish its prison inmates with reasonably adequate food. A violation of the Eighth Amendment occurs if a deprivation of food denies an inmate the "minimal civilized measure of life's necessities." A court considers the "amount and duration of the deprivation." Previously another court had decided that a single incident of food poisoning was insufficient to constitute an Eighth Amendment violation. So this prisoner's case was dismissed; a single incident of sour milk was insufficient to constitute violation of food rights.

Case #3: No Double Jeopardy (3)

A Las Vegas hotel hired a company, AB-HAZ, to supervise the removal of all asbestos material at its building before demolition. Later, the Clark County, Nevada, Health District issued a notice of violation to AB-HAZ for violation of air pollution control regulations during the asbestos removal. Then AB-HAZ and the health district entered a settlement agreement in which the company paid an $18,000 civil penalty.

Two years later, a U.S. grand jury indicted AB-HAZ, its president, and two other employees on two counts of violation of the federal Clean Air Act. The indictment alleged that the defendants at the Las Vegas hotel site had knowingly violated federal work practice standards for the removal of asbestos-containing materials by causing quantities of asbestos-containing debris to be left behind in the building immediately before demolition and that the debris should have been gathered, while wet, and placed in leak-proof containers for proper disposal. The defendants moved to dismiss the indictment based on double jeopardy. (For more information on double jeopardy see F. Grad's Public Health Law Manual [1990], pp. 64 and 220.)

There is a long-established legal principle called the separate sovereign doctrine. Under this principle, a single act that violates the laws of two separate sovereigns constitutes two separate crimes, and prosecution of an individual for both crimes does not violate the double jeopardy clause. Each state and the United States constitute separate sovereigns, and no double jeopardy results if each draws its authority to punish an offender from distinct sources of power.

Nonetheless, the defendants claimed double jeopardy because the state of Nevada and the Clark County Health District operated with delegated federal authority over hazardous air pollutants (HAP) pursuant to 42 U.S.C. [section] 7412.

The federal Clean Air Act does not preempt state authority The act does, however, invite states and local agencies to jointly participate with the U.S. Environmental Protection Agency (U.S. EPA) in HAP regulation and enforcement. If a state or local plan is at least as stringent as U.S. EPA's, then it is approved, and U.S. EPA delegates responsibility for implementing and enforcing the plan's standards. Yet the actual actions taken to implement and enforce an approved plan are those of the state or local government.

An almost identical situation arose in Louisville, Kentucky, in 1990. In U.S. v. Louisville Edible Oil Prod., Inc., 926 F.2d 584 (6th Cir. 1991), fines by the Jefferson County Air Pollution Control District for violations of asbestos regulations did not constitute double jeopardy with respect to a subsequent U.S. criminal prosecution for Clean Air Act violations. Since the penalties assessed by the Clark County Health District were based on Nevada law, the double jeopardy clause was inapplicable.

Although this case concerned double jeopardy involving the Clean Air Act, the same issue could arise in cases involving state laws or local ordinances on water pollution and the federal Clean Water Act (33 U.S.C. [section] 1319), hazardous or solid waste disposal and the Resource Conservation and Recovery Act (42 U.S.C. [section] 6928), or any other state or local environmental laws for which there is a federal law containing criminal penalties. The possibility of dual prosecutions sometimes explains why polluters are reluctant to enter settlement agreements while potential federal charges are unresolved.

Case #4: Contempt Power and Patience (4)

On February 11, 1997, the Environmental Division of the Franklin County, Ohio, municipal court issued a permanent injunction to certain property owners requiring that they immediately discontinue the use of the onsite sewage disposal system on their property, that they vacate the property and that they keep the property unoccupied until a sanitary sewer was installed. Two months later, the owners were found in contempt of court for failure to comply Then the owners agreed to vacate the property, prohibit its occupancy, cancel utility services, and allow unannounced inspections.

Over four years later, the property and the sewage disposal system had not been repaired, and the property still was occupied, with water coming inside from a well. At a hearing on a contempt petition made by the board of health, the court found beyond a reasonable doubt that the owners were in contempt despite testimony by the owners that they did not know anyone was occupying the house. The court fined the owners $1,000 for contempt. (For more information on contempt of court, see E Grad's Public Health Law Manual [1990], pp. 190-191.)

Contempt power is inherent in a court as necessary to the exercise of the court's judicial function. Furthermore, the trial court was not required to believe the testimony of the owners. Since there were ample facts to support the contempt charge, the judge's decision was upheld.

The judicial power to enforce injunctions by holding a violator in contempt is potent and forceful. Its use, however, often requires patience and perseverance on the part of the health department.

Case #5: Zoning Ordinance Not Preempted By Migrant Labor Housing Laws (5)

Are a township's zoning ordinances preempted by state statutes and administrative rules regarding migrant-labor housing? A farmer in Dayton Township of Newaygo County Michigan, raised fruits and vegetables that required harvesting by hand. Harvesting was typically done each year by 40 to 50 migrant workers. The farmer provided housing for the migrant laborers and wanted to add three additional units.

The Michigan Department of Agriculture granted preliminary approval, but notified the farmer that he needed a special exception-use permit from the township because the existing zoning did not specifically allow migrant-labor housing. Instead of seeking the special exception, the farmer sued the township, claiming that the zoning restrictions were preempted by state laws pertaining to migrant-labor housing.

In Michigan, state law preempts an ordinance if the state statute completely occupies the field that the ordinance attempts to regulate or if the ordinance directly conflicts with a state statute. A local ordinance also is preempted if a state statute specifically states itself as exclusive. Preemption may be implied on the basis of the state statute's legislative history or the pervasiveness of the state regulatory scheme; or the nature of the regulated subject matter may entail preemption because exclusive state regulation is required to achieve necessary uniformity (For more on preemption, see F. Grad's Public Health Law Manual [1990], p. 22.)

The state public-health statute and rules, however, regulate the location of a camp only in terms of the relationship between location and other conditions that would affect the health and safety of the camp's occupants. Indeed, the statute specifically states that the camp operator must comply with all other construction and zoning laws.

The Michigan occupational health laws do not address camp location. So camp location is unregulated by state statute and regulations.

Uniform regulation regarding the condition of housing is necessary in Michigan. Inspectors need to apply the same housing standards throughout the state. Nevertheless, the location of housing units generally involves the unique residential, commercial, and agricultural characteristics and needs of each local government. The township zoning ordinance restricting the location of migrant-labor housing was found to be valid since there was no direct conflict with state law and no obvious need for preemption.

The result in this case might have been different if the farmer had applied for a special exception and had been rejected. Such a denial might have raised issues of discrimination and due process as well as violation of the federal Fair Housing Act, 42 U.S.C. 3601 et seq.

Editor's note: Readers who have questions about cases discussed in Legal Briefs may contact Mr. Sikora by e-mail at [e-mail].

References

(1.) Warren County Bd. of Health v. Warren County Bd. of Supv., No. 144/01-1732 (Iowa Sup. Ct. 2002) http://www.loislaw.com (Jan. 3, 2003).

(2.) James v. Woody, No. 7:02-CV-234-R (N.D. Tex. 2002) http://www.loislaw.com (Jan. 3, 2003).

(3.) U.S. v. Price, No. 02-10196 (9th Cir. 2002) http://www.loislaw.com (Jan. 3, 2002).

(4.) Franklin County Dist. Bd. of Health v. Sturgill, No. 02AP-306 (Ohio Ct. App. 2002) http://www.loislaw.com (Jan. 3, 2003).

(5.) Ferns Orchards, Inc. v. Dayton Town ship Bd., 253 Mich. App. 129 (2002) http://www.loislaw.com (Jan. 3, 2003).