OFFICES AND OFFICERS ‑- COUNTY ‑- HEALTH OFFICER ‑- FEE FOR EXAMINATION OF MENTALLY ILL PERSONS.

OFFICES AND OFFICERS ‑- COUNTY ‑- HEALTH OFFICER ‑- FEE FOR EXAMINATION OF MENTALLY ILL PERSONS.

A county health officer may be paid a fee for examination of persons suspected of being mentally ill but not be paid per diem for his attendance and testimony on the mental illness complaint.

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                                                                 January 21, 1959

Honorable Arnold R. Zempel
Prosecuting Attorney
Snohomish County
County Courthouse
Everett, Washington                                                                                               Cite as:  AGO 59-60 No. 3

Dear Sir:

            This will acknowledge receipt of your recent letter in which you inquire as follows:

            "May a county health officer be paid a fee for examination of persons suspected of being mentally ill?"

            The answer to your question is in the affirmative subject to the qualifications indicated in the analysis.

                                                                     ANALYSIS

            The statutory provision concerning county health officers are codified in chapter 70.06 RCW.  Previous opinions of this office have indicated that the county health officer appointed pursuant to RCW 70.06.020 is a public officer within the purview of Article II, § 25 of the Washington Constitution.  (See AGO 55-57, No. 191 addressed to the Washington State Association of County Commissioners [[on January 25, 1956]].)

            Unlike the director of public health of a city-county health district (RCW 70.08.040), there is no express requirement that a county health officer devote his full time to the discharge of the duties of that office.

             [[Orig. Op. Page 2]]

            It is accordingly our opinion that if a county board of health administratively determines that the duties of the health officer of the particular county do not require such physician to devote his full or entire time to that office, there are no state statutes or constitutional provisions which would so require.  Whether or not the conducting of examinations of persons suspected of being mentally ill would be incompatable with the duties or responsibility of county health officer in a particular situation, is a factual question which would have to be determined locally where all facts are available or easily determined.

            The powers and duties of a county health officer are delineated in RCW 79.06.030.  Without indulging in a lengthy quotation from this statutory provision, suffice it to say that the law does not require a county health officer as part of the duties of that office to examine persons who are suspected of being mentally ill and attend superior court mental illness hearings.  Likewise, chapter 71.02 RCW pertaining to mental illness does not require that a county health officer examine persons suspected of being mentally ill or that he testify in appropriate court hearings.  The appropriate mentally illness statute (RCW 71.02.170) does not designate any particular physician either by name or title.

            Where the compensation for particular services is not fixed by law, and where an officer can show that he did such work at the request of proper authority and that it was meritorious and that it might as appropriately have been performed by a private individual, for which the latter would have been entitled to compensation, his charges for such services may be allowed.  City of Tacoma v. Lillis, 4 Wash. 797.  See also, State ex rel. Ames v. Gasch, 9 Wash. 226; Franklin County v. Barnes, 68 Wash. 488, 123 Pac. 779.

            We have carefully examined RCW 42.16.020 which prohibits a salaried public officer from receiving per diem for attending or testifying on behalf of the state or any of its political subdivisions at any judicial proceedings in any court.

            We are in accord with the conclusion reached in a prior opinion of this office to the Honorable Lee J. Reynolds, Prosecuting Attorney for Clallam County (AGO 55-57 No. 253) [[on April 27, 1956]]that a county health officer may not be paid witness fees for attendance at an insanity hearing.  However, we conclude further that RCW 42.16.020 has no application in the event the county health officer is paid for his professional services rendered in examining individuals suspected of being mentally ill and preparing reports of his examination as contemplated by RCW 71.02.170.  This view is consistent with a prior opinion of this office dated February 19, 1920, addressed to the Whatcom County Prosecuting Attorney.

             [[Orig. Op. Page 3]]

            In accordance with the foregoing, we conclude that a county health officer may be paid for services rendered the superior court in connection with examination of persons suspected of being mentally ill.  He may not, however, be paid per diem for his attendance and testimony on the mental illness complaint.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

OLIVER J. NEIBEL, JR.
Assistant Attorney General