FARMINGTON — The Davis County Board of Health is not about to give up thefight for fluoride.
In a letter authorized at a special board meeting Friday, chairwoman Beth Beck asked the Davis County Commission to consider new arguments for putting fluoride on the Nov. 7 ballot.
“I’m hopeful,” Beck said. “The commission wants to put this on the ballot if they think they can do it without any complications.”
Two weeks ago, commissioners backed away from a ballot measure after their attorney warned of the potential for litigation because of ambiguity in a new state law.
The Utah Association of Counties — joined by Davis, Weber and Utah county commissioners — called on the Legislature to fix language in Senate Bill 158. The new law gives the three second-class counties the right to conduct countywide elections on fluoridation.
Salt Lake County had been given the same right in 1998, and this week proponents announced they have gathered enough petition signatures to put fluoridation on November’s ballot in the state’s most populous county. County commissioners previously had refused to put the issue directly to voters.
Fluoride proponents, including health boards, had hoped to get the issue on ballots in four counties this fall.
Utah County’s commission was not hot on the idea, though. Davis and Weber commissions had been inclined to put fluoridation before voters until a legal opinion last month by Gerald Hess, Davis County’s chief civil deputy attorney.
The hang-up Hess identified is SB158’s proviso that allows “functionally separate” water systems to opt out of fluoridation if the majority of voters in the system vote no.
Hess warned that commissioners could be inviting a lawsuit if a water district wants to claim it is “functionally separate” because the county has no way to determine which votes come from which water system users.
The bill does not define “functionally separate,” and Hess said the plain meaning of the term would be a system that can function separately from any other water system.
But the health board turned to its environmental health division and the state’s Office of Legislative Research and General Counsel to show that there is little risk of a lawsuit.
In an opinion earlier this week, Keith Woodwell, associate general council in the Office of Legislative Research and General Counsel, said county commissions simply should consider the intent of the Legislature.
Woodwell listened to tapes and reviewed transcripts of legislative committee hearings. “It seems clear that the Legislature intended the phrase. . . to mean a water system with an independent water supply which does not receive water from or supply water to other public water systems,” he wrote.
Under that definition, there are no functionally separate water systems in Davis County, said Richard Harvey, the county’s interim health director and longtime director of environmental health. Each of the 20 systems uses water from the Weber Basin Water Conservancy District to some extent, he said.
All three Davis County commissioners were unavailable for comment Friday. Hess said he is reviewing the new information to decide whether to amend his legal opinion.
“It may be still that the better thing would be to go back to the Legislature and seek modification of the language,” Hess said. Craig Heninger, Weber County’s acting health director, said two weeks ago that the health board there is not pressing the issue because Weber commissioners are wary of a ballot measure in the absence of a definition for “functionally separate.”
In Utah County, members of Utahns for Better Dental Health failed to garner enough petition signatures to force fluoridation onto any city ballots.
Besides Salt Lake County, four Cache County cities will have fluoridation on November’s ballot. Those are Logan, Providence, Nibley and Smithfield.