Morrisey: WV Health officers cannot promulgate rules, orders independently

(The Center Square) – Local health officers in West Virginia cannot legally promulgate rules or orders without going through the local boards of health, according to a formal legal opinion by state Attorney General Patrick Morrisey.

In his opinion, Morrisey wrote that directives promulgated by the officers alone cannot be classified as rules or orders and he is not aware of any statute that would give such directives any legally binding effect.

The Morgan-Berkeley County health official issued letters onAug. 9 and Aug. 11, which stated the department will require universal masks in schools regardless of vaccination status in certain circumstances. The Morgan County and Berkeley County prosecuting attorneys sought guidance from the attorney general on whether they would be legally classified as rules or orders. Because they did not go through the health board, Morrisey determined they were neither.

Morrisey’s opinion does not touch on the substance of the mandate, but only the process by which it was issued.

“The COVID-19 pandemic has created numerous challenges for public officials at all levels of government, especially those tasked with keeping our children safe,” Morrisey wrote. “It is important to take reasonable precautions in this regard, but even well-intentioned policies must be issued in lawful ways. Supervisory oversight and other legal constraints preventing unilateral bureaucratic action maintain political accountability—a particularly important consideration when enacting policies during unusual and fast-changing circumstances.”

Any opinion from the attorney general is not legally binding, but is meant to provide guidance on legal questions.

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