On appeal from the Superior Court of New Jersey, Chancery Division, Morris County.
Pressler, Dreier and Bilder. The opinion of the court was delivered by Bilder, J.A.D. Dreier, J.A.D. (concurring).
[208 NJSuper Page 416] On this appeal we are asked to decide whether a municipality may satisfy the requirement that it have a full-time health officer, see N.J.S.A. 26:3A2-14, by contractual delegation to a private firm. Defendant Board of Health (Board) has not employed a full-time health officer since April 1983 but has, in substitution, contracted with a private firm to provide the services. The services have since then been provided by two employees of the contractor who are licensed health officers. See N.J.S.A. 26:1A-38 et seq. Under the agreement at least one of these men is available no less than 52 hours a month for regular services to the municipality and is also available on a 24 hour a day, seven day a week basis for emergencies. The State Board of Health (State) contends that such a contracting out of
a health officer's services violates a requirement of the Local Health Services Act that every local health agency be administered by a full-time health officer. See N.J.S.A. 26:3A2-14. It brought an action in the Chancery Division to enjoin the contractual arrangement and either force defendant to employ a full-time health officer or enter into an authorized inter-municipal contract for such services. The State appeals from a judgment upholding the right of defendant to privately contract for the health officer services and dismissing the complaint.
The health officer is the general agent of a local board for the enforcement of State sanitary laws and local ordinances. See N.J.S.A. 26:3-19. By its contract the Board has sought to delegate its governmental responsibilities to a private entity. Absent statutory authority, there can be no such delegation. See Remedial Educ. & Diag. v. Essex Cty. Educ. Ser., 191 N.J. Super. 524, 527-528 (App.Div.1983), certif. den. 97 N.J. 601 (1984). "This is especially true when the agency attempts to subdelegate to a private person or entity, since such person or entity is not subject to public accountability." In Re North Jersey Dist. Water Supply Comm'n, 175 N.J. Super. 167, 206 (App.Div.1980), certif. den. 85 N.J. 460 (1980). We are satisfied that no statutory authority has been granted.
Indeed, the Act implies the contrary. A reading of the statute makes it clear that the health officer is to be an individual on the public payroll. Thus, for example, he is defined as a holder of a license (only individuals can be so licensed) employed by a local health agency to function during all regularly scheduled work hours. N.J.S.A. 26:3A2-3g. He must be employed on a full-time basis. N.J.S.A. 26:3A2-14. He is given Civil Service status, N.J.S.A. 26:3-19.1 and 26:3A2-14, and is referred to as a person, N.J.S.A. 26:3A2-15.
Furthermore, the very nature of the health officer's supervisory duties makes delegation of his responsibilities to a private firm improper. The Board's agreement with the contractor requires the health officer it provides to "direct and supervise
all public health activities and public health employees of the [Board]." These are duties of a discretionary nature and in the absence of specific authority are nondelegable. See DiGirolamo v. Newark, 2 N.J. Tax. 323, 326-328 (Tax Ct.1981). This is a far different situation than contracting for municipal services as specifically authorized by N.J.S.A. 40:48-5, a statute having no relevance to the operation of local boards of health.
The same is true of the enforcement responsibilities which the Board has sought to delegate to the contractor. By law, the health officer has the power to enforce the sanitary laws of the State and ordinances passed by the Board regulating the areas of public health enumerated in N.J.S.A. 26:3-31 by initiating summary actions in municipal court to impose penalties for violations. See N.J.S.A. 26:1A-10 and 26:3-72. As general agent for the Board, he is responsible for inspection and surveillance of restaurants and similar retail food establishments to maintain compliance with sanitary requirements, N.J.A.C. 8:24-9.2(a) and 8:51-3.3; can inspect and license wholesale food and cosmetic establishments, see N.J.S.A. 24:15-13 and N.J.A.C. 8:21-9.3(a)(3); and can, without any court order, embargo and detain foods, drugs or cosmetics which are believed to be dangerous or fraudulent. N.J.S.A. 24:4-12. He also has the power to impose quarantine on persons and places as well as to destroy articles likely to communicate disease. N.J.S.A. 26:4-2. He may apply for warrants to search private premises for any nuisance affecting health, N.J.S.A. 26:3-59, and may summarily remove or abate any nuisance after giving notice to the property owner. N.J.S.A. 26:3-53 and 26:3-61. Such powers can only be exercised by a public official. See Group Health Ins. of N.J. v. Howell, 40 N.J. 436, 445 (1963).
We also agree with the State that the Board's attempt to contract with a private entity for the services of a health officer is barred by the Local Health Services Act. N.J.S.A. 26:3A2-1 et seq. That legislation was enacted to provide relief to small communities who found the operation of a separate health
department not feasible or economically justified by providing a means by which they could enter into regional or county-wide arrangements. Statement attached to Senate Bill 130 (1975). If the Board elects not to employ its own full-time health officer, it is limited to cooperative ...