At the November 18, 2020 concurrent meeting of the Reno City Council, Sparks City Council, and Washoe County Board of County Commissioners, elected officials expressed interest in examining the structure and processes of Washoe County Health District (WCHD) and its governing body, the District Board of Health (Board). Specifically, elected officials were interested in increasing their influence on the Board.

Staff identified four potential ways to increase elected officials’ influence on the Board: (1) packing the Board by adding elected Board members; (2) creating a general appellate body within WCHD; (3) terminating the agreement and, as a result, WCHD; or (4) amending the agreement. If the governing bodies choose to pursue changes to WCHD or the Board, only the fourth option, amending the agreement, is a viable path to making such changes.

Packing the Board

One proposal for increasing elected officials’ control of the Board is to add more elected members to the Board, or to pack the Board. NRS 439.390(1) is unambiguous as to the number of Board members: two members from each jurisdiction, plus a physician member. Adding more elected members to the Board would violate Nevada law and is not an option.

Creating an Appellate Body

Another proposal is to establish a general appellate body within WCHD to enable persons to appeal from decisions of the District Health Officer. That alternative is probably not viable. In the statutes and regulations regarding public health, appeals are contemplated in several instances, none of which include the Board creating a general appellate body or hearing general appeals itself.

For example, NRS 439.885(3) allows a health facility to appeal to the State Board of Health when sanctions are imposed against them. NRS 439.588(4) and NAC 439.582 allow a health information exchange to appeal from a decision of the Director of the Nevada Department of Health and Human Services (DHHS) with respect to legally required certifications. NAC 439.300 through NAC 439.395 describe procedures for appeals from disciplinary decisions of the Nevada Division of Public and Behavioral Health. NAC 439.788 and NAC 439.858 govern appeals filed by persons denied certain subsidies by DHHS. The only provision of NRS Chapter 439 or NAC Chapter 439 regarding appeals that mentions a local health district is NAC 439.270, which allows a person to appeal to the State Board of Health if a district board of health denies the person’s request for a variance from State regulations. In short, NRS Chapter 439 and NAC Chapter 439 contain many examples of appeals, but none of them involve an appellate body within a local health district.

While the Board may exercise appellate powers or establish appellate bodies in specific subject matter areas, those powers are created by specific Nevada statutes or regulations. See, e.g., S.B. 4 (Nev. Leg. 32nd Special Sess. 2020) (authorizing health authority to take certain actions with respect to public accommodations facilities and the COVID-19 pandemic); NRS 444.190 (authorizing health authority and local boards of health to enforce provisions of NRS Chapter 444); NRS 446.940 (authorizing local boards of health to adopt regulations regarding food establishments); NRS 445B.275 (authorizing local board of health to appoint an air pollution control hearing board). Therefore, the Board likely does not have authority to hear generalized appeals or create a general appellate body.

One could argue that because no Nevada statute or regulation prohibits a local health district from establishing a general appellate body, the Board or the parties to the interlocal agreement could do so. However, the stronger argument is that because certain types of appeals are expressly allowed, other types of appeals are not permitted. “The maxim ‘expressio Unius Est Exclusio Alterius,’ the expression of one thing is the exclusion of another, has been repeatedly confirmed in this State.” Galloway v. Truesdell, 83 Nev. 13, 26, 422 P.2d 237, 246 (1967). NRS Chapter 439 and NAC Chapter 439 expressly allow certain entities to hear certain types of appeals. The omission of other types of appeals from Nevada law likely means those other types of appeals are not permitted.

Further, the powers of the Board are described in NRS 439.410 and NRS 439.360, neither of which describe appellate powers of any kind. Just like the types of appeals, because the Board’s powers are listed and do not include hearing appeals or establishing an appellate body, “the expression of one thing is the exclusion of another” doctrine means the Board likely does not have such powers. Galloway, 83 Nev. at 26, 422 P.2d at 246. As a result, the Board likely cannot establish a general appellate body.

Terminating the Interlocal Agreement and Establishing a New Health District

Another option, though not a good one, is to terminate the interlocal agreement, which would also terminate WCHD. The parties could then develop a new agreement and a new health district. This option is not advised, particularly during the global COVID-19 pandemic, because only a health district is authorized to perform certain functions. See NRS 439.360; NRS 439.410. Sparks, Reno, and Washoe County lack the infrastructure and staff to perform such functions without WCHD. Further, the State Board of Health must approve the creation of a new health district, meaning it would likely be several months before the parties could establish a new health district. NRS 439.370.

If the governing bodies wanted to pursue termination regardless of these issues, the interlocal agreement allows termination in two circumstances. The agreement may be terminated for any reason upon “written notice of termination 15 days prior to the date of expiration . . . , in which event this agreement shall terminate on the day of expiration.” Section 7(B). The date of expiration is December 31 of any year, meaning that the fifteen-day notice is due on or before December 16. Thus, this termination option could not be exercised until the end of 2021.

Alternatively, any of the parties may terminate the “agreement for cause, including the breach of any provision thereof, upon written notice to the other parties.” Section 7(E). Termination for cause becomes effective sixty (60) days after the parties receive written notice. Id. Because none of the parties is alleged to have breached the agreement, this section does not apply. In short, terminating the agreement and creating a new health district is not a viable option.

Amending the Interlocal Agreement

The only feasible method for restructuring WCHD and the Board is to amend the interlocal agreement. The agreement itself describes how it may be amended: “This agreement may be amended by mutual consent of the parties hereto not later than 90 days before its annual renewal date.” Section 7(D). The renewal date is December 31 of each year, so the agreement may be amended before October 2 of each year. See Section 7(B). The governing bodies could directing their respective staffs to negotiate a proposed amendment to address any concerns the governing bodies may have. The governing bodies could then approve the proposed amended agreement.

The governing bodies may also choose to request that the Board participate in any potential amendment process. Section 7(C) of the interlocal agreement states: “This agreement shall be reviewed annually by the Board, and recommendations for possible amendments may be made to Reno, Sparks and the County.” The Board’s participation could take one of two forms. First, instead of directing their staffs to negotiate an amended agreement, the governing bodies could request that the Board consider and recommend changes to the interlocal agreement. Second, the governing bodies could direct their staffs to negotiate a proposed amendment and present the proposal to the Board for a recommendation to the governing bodies.

In addition to changing provisions regarding Board membership to increase elected officials’ influence on the Board, the governing bodies may choose to make other changes to the interlocal agreement. For example, a potential amendment could change the name of WCHD to more clearly communicate to the public that WCHD is an entity separate from Washoe County. In addition, because the current agreement was originally approved in 1986 and last amended in 1993, a general update to language and terms may be advised.

Regardless of the process chosen to pursue any changes, amending the interlocal agreement is likely to be a months-long process consisting of discussions between the parties’ staffs and WCHD. In the event the governing bodies choose to pursue amending the interlocal agreement, such an amendment must be approved, if at all, by October 2 of any given year.

1. The governing bodies may choose not to pursue amending the interlocal agreement at this time.
2. The governing bodies may request that the Washoe County District Board of Health recommend changes to the interlocal agreement.
3. The governing bodies may direct their respective staffs to negotiate a proposed amendment to the interlocal agreement and present it to the Washoe County District Board of Health for consideration and a recommendation to the governing bodies.
4. The governing bodies may direct their respective staffs to negotiate a proposed amendment for consideration by the governing bodies.

For Alternative 1:    No motion is required if the governing bodies choose not to pursue amending the interlocal agreement.

For Alternative 2:    I move to request that the Washoe County District Board of Health recommend changes to the interlocal agreement to address Board membership and other matters deemed appropriate by the Board.

For Alternative 3:    I move to direct the [Reno City Manager/Sparks City Manager/Washoe County Manager] to negotiate a proposed amendment to the interlocal agreement concerning the Washoe County Health District and present the amendment to the Washoe County District Board of Health for consideration and a recommendation to the governing bodies.

For Alternative 4:    I move to direct the [Reno City Manager/Sparks City Manager/Washoe County Manager] to negotiate a proposed amendment to the interlocal agreement concerning the Washoe County Health District.