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AGO 1954 No. 344 - November 12, 1954
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Don Eastvold | 1953-1956 | Attorney General of Washington

COUNTY-CITY ‑- NURSING SERVICE ‑- TUBERCULOSIS FOLLOW-UP SERVICE

The City Health Officer of the City of Everett must furnish public health nursing services for the control of communicable and contagious diseases, in general, within the City of Everett and must also provide such service within the City of Everett when necessary to properly carry out the duties set forth in RCW 70.28.030 with respect to the control of tuberculosis.

The city health officer of a first class city may perform the services described in RCW 70.32.050, including post-sanatorium follow-up, but he is not obligated to do so.  If the city health officer does not choose to assume that responsibility, the services must be performed within the city as well as outside it by the county or district health officer.

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                                                               November 12, 1954

John A. Kahl, M.D.
Acting Director
Department of Health
Smith Tower
Seattle, Washington                                                                                                              Cite as:  AGO 53-55 No. 344

Dear Dr. Kahl:

            This is to acknowledge your letter dated October 8, 1954, wherein you request our opinion on the following questions:

            "1. Is it the duty and responsibility of the City Health Officer of the City of Everett (a city of the first class) or the county Health Officer of Snohomish County, in which the City of Everett is located, to furnish public health nursing services for the control of communicable diseases, including tuberculosis, for the City of Everett?

             [[Orig. Op. Page 2]]

            "2. Is it the responsibility of the County Health Officer, or the health officer of the city of the first class, namely Everett, to provide the post-sanatorium public health follow-up as outlined above?"

            Our opinion may be summarized as follows:

            The city health officer of the city of Everett must furnish public health nursing services for the control of communicable and contagious diseases, in general, within the city of Everett and must also provide such service within the city of Everett when necessary to properly carry out the duties set forth in RCW 70.28.030 with respect to the control of tuberculosis.

            The city health officer of a first class city may perform the services described in RCW 70.32.050, including post-sanatorium follow-up, but he is not obligated to do so.  If the city health officer does not choose to assume that responsibility, the services must be performed within the city as well as outside it by the county or district health officer.

                                                                     ANALYSIS

            1. The duties and responsibilities of city and county boards of health with reference to the control of communicable or contagious diseases in general are set forth in Title 70 RCW and chapters 70.04 and 70.06 RCW.

            RCW 70.04.040, provides:

            "He [city health officer] shall promptly take such measures for the prevention, suppression, and control of such diseases as he deems needful and proper * * *"

            RCW 70.06.020, provides:

            "The board of county commissioners of each county shall be a county board of health whose  [[Orig. Op. Page 3]] jurisdiction shall be co-extensive [[coextensive]]with the county,except that it shall have no jurisdiction in cities of the first class."  (Emphasis supplied.)

            RCW 70.06.030, provides:

            "He [county health officer] shall cause proper measures * * * to be taken to prevent, suppress, or control any dangerous, contagious, or infectious disease that may occur within the county."

            Under these statutes the city of Everett, a city of the first class, has the responsibility for controlling communicable or contagious diseases, in general, within the boundaries of that city.  See 1931-1932 AGO 111.  Public health nursing service must be furnished whenever necessary to properly control, suppress or prevent such disease.  The Snohomish county board has no jurisdiction within cities of the first class with respect to the control of diseases other than tuberculosis.  See 1943-1944 AGO 201, 203.

            With particular reference to the control of tuberculosis as distinguished from communicable or contagious diseases in general, the legislature has provided, in part, as follows:

            "Such city boards of health [cities of the first and second class], unless requested by the attending physician not to do so, shall furnish to each patient or to the head of the family where the patient resides, printed instructions for the prevention of the communication of such disease [tuberculosis] to other persons; enforce compliance with RCW 70.28.010; see that the premises occupied by such a patient are kept in good sanitary conditions; and within five days after the death or removal of the patient, see that the premises are thoroughly and properly disinfected."  RCW 70.28.030.

            It is thus the responsibility of the city of Everett to provide public health nursing service within the limits of that city whenever such service is  [[Orig. Op. Page 4]] necessary for proper control of tuberculosis as provided in RCW 70.28.030.

            2. The second question arises under section 5, chapter 66, Laws of 1945 [Cf. RCW 70.32.050], which provides in relevant part that:

            "All arrangements for hospital care, tuberculosis case‑finding and post hospital public health follow-up of known cases of tuberculosis shall be the responsibility of the county or district health officer, except that itmay be the responsibility of the city health officer in each city of the first class.  * * *" (Emphasis supplied.)

            To clarify the legislative intent here, it is helpful to compare the quoted section with that which it amended, section 5, chapter 162, Laws of 1943, which provided in corresponding part that:

            "All arrangements for hospital care, tuberculosis case‑finding and post sanatorium public health follow-up of known cases of tuberculosis shall be the responsibility of the jurisdictional health officer.  * * *" (Emphasis supplied.)

            In 1943, as now, under what is presently RCW 70.06.020, supra, a city health officer was the "jurisdictional officer" in a city of the first class, since jurisdiction had been specifically withdrawn from the county officers.  Therefore the city health officer in 1943 was required, since "shall" is mandatory language when used in a statute, to perform the duties in question.

            The significant change in the 1945 amendment is the substitution of "may" for "shall," in so far as the statute affects city health officers.  "May" when used in a statute is permissive.  If the legislature had intended that city health officers in first class cities must perform these functions, no change would have been necessary.  The unavoidable conclusion must be that city health officers in such cities are not absolutely obligated by law to perform those functions, although they may do so.

             [[Orig. Op. Page 5]]

            Finally, assuming that the functions are to be performed by some authority for all patients or cases within the county, it seems clear that the only absolute obligation to do so rests upon the county or district health officer.  It is possible that a city health officer will reach agreement with the county officer, the former exercising the statutory grant of permissive authority.  If not, the responsibility remains with the county officer.

            We sincerely hope the foregoing analysis will prove to be of assistance to you.

Very truly yours,

DON EASTVOLD
Attorney General


HAROLD J. HUNSAKER
Assistant Attorney General

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