Oregon Advisory Opinions September 27, 1963: OAG 63-127 (September 27, 1963)

OAG 63-127.

You advise that both an applicant for an apprentice barber certificate and an applicant for a barber certificate have contended, through their respective attorneys, that each is entitled to a public hearing under ORS 690.240 upon notification of failure of the practical portion of an examination given by the Oregon State Board of Barber Examiners.

The questions specifically raised are in substance whether or not:

(1) Failure to pass an examination by either an applicant for apprentice certificate or an applicant for a barber's certificate constitutes grounds for a public hearing under ORS 690.240 for gross incompetency as set forth in ORS 690.230 (2);

(2) The board must show that the haircut given by the applicant in the examination was grossly incompetent within the meaning of ORS 690.230 (2); and

(3) The board is required to set up standards for the passing of the practical portion of the examination.

Provisions for the examinations for apprentice and barber certificates are found in ORS 690.050 and 690.060. The provisions in ORS 690.050 relating to barbering provide in pertinent part:

"(1) A person is qualified to receive a certificate of registration to practice barbering if he:

"(e) Has passed a satisfactory examination conducted by the board to determine his fitness to practice barbering.

"(2) An applicant for a certificate of registration to practice as a registered barber, who fails to pass a satisfactory examination conducted by the board, must continue to practice as an apprentice for an additional six months, before he is again entitled to take the examination for a registered barber." (Emphasis supplied)

ORS 690.060, relating to apprentice barbers, provides in pertinent part:

"(1) A person is qualified to receive a certificate of registration as a registered apprentice, or to receive his license as a licensed apprentice, if he:

"(e) Has passed a satisfactory examination conducted by the board to determine his fitness to practice as a registered apprentice; and

"(3) An applicant for a certificate of registration to practice as an apprentice who fails to pass a satisfactory examination is required to complete a further course of study of not less than 500 hours, to be completed within three months, of not more than eight hours in any one working day, in a school of barbering approved by the board." (Emphasis supplied)

The legislature, in employing the subjective word "satisfactory," clearly intended to leave to the discretion of the board what is and what is not a passing performance. Ordinarily a "satisfactory examination" means one satisfactory to the examiners conducting the examination. The term was discussed in Tate v. North Pacific College, (1914) 70 Or. 160, 140 P. 743, where the court at page 164 said:

"Among the requirements for a diploma and a degree set forth in the catalogue of the defendant, and set out supra, it is required that the candidate shall 'pass satisfactory examinations.' This means that his

examination shall be satisfactory to the faculty, whose duty it is to conduct the examinations."

Commenting on the conclusiveness of the determination of the examiners, the court at page 167 said:

"* * * The faculties of colleges, who are authorized to examine their students and pass on the question whether the students have performed all the conditions prescribed, to entitle them to degrees, exercise quasi -judicial functions, and their decisions are conclusive, if they act within their jurisdiction, and in good faith, and not arbitrarily."

The court concluded by saying at page 169:

"* * * The power to determine whether the plaintiff was entitled to a degree was vested in the faculty of the defendant. They examined him in the various branches taught by the defendant, and required for graduation, and decided, after such examination, that he was not qualified to receive the diploma or the degree, and the college refused to graduate him. In the absence of proof of bad faith, or misconduct or arbitrary action, on the part of the faculty, their decisions cannot be reversed by the court."

The Oregon case follows the well established general rule as summarized in Mitchell v. McKevitt, (1932) 128 Cal. App. 458, 17 P. (2d) 789, 791:

"* * * as a whole such analysis shows a marked uniformity of decision on the part of courts to leave examinations in the hands of members of boards to whom they have been intrusted. In our opinion, this general view is well supported. The complexities of modern civic life demand that such problems should be determined by the boards and commissions designated by law for that purpose, and the policy of our laws is to allow this to be done with as little interference as is reasonably possible. Maxwell v. Civil Service Commission, 169 Cal. 336, 146 P. 869; Mann v. Tracy, supra [185 Cal. 272, 196 P. 484]. * * *"

See also Pring v. Udall et al., (1934) 95 Colo. 23, 31 P. (2d) 1113; Edde v. Columbia University in City of New York, (1957) 168 N.Y.S. (2d) 643; 14 C.J.S. 1338, Colleges and Universities, § 8.

An interesting case is Raaf v. State Board of Medical Examiners, (1906) 11 Idaho 707, 84 P. 33, 34, where an applicant failing to pass an examination exercised his right under the statute to have the district court review the action of the board in refusing to grant a license. The supreme court in affirming the refusal of the license rested its decision on the grounds that "courts have no jurisdiction under the medical law to examine applicants or review their answers and mark and grade them on such answers; such action being the duty of the medical board."

The questions raised by the unsuccessful candidates for certificates here seem to confuse the issue. The statute first prescribes the qualifications necessary for the granting of a certificate, including the necessity of passing a satisfactory examination. No provision is made for review or public hearing upon failure to pass such examination but rather the statute requires further study or practice to qualify the person for re-examination.

The provisions of ORS 690.230 and 690.240 relate primarily to misconduct of persons otherwise qualified for or holding certificates and they operate additionally to the requirements of ORS 690.050 and 690.060 as the basis for refusal to grant a certificate. The right to public hearing provided by ORS 690.240 applies only to the grounds named in ORS 690.230 for denial, suspension or revocation of a certificate but does not apply the denial of a certificate on the ground that a person has failed to qualify for a certificate as prescribed by ORS 690.050 and 690.060.

Your first question is therefore answered in the negative.

As to your second question, no duty rests upon the board to show that the haircut given by the candidate for a certificate was unsatisfactory, but rather he must prove that the board acted in bad faith, arbitrarily or without jurisdiction.

As to your third question whether the board must set up standards for the passing of the practical examination, we find no such duty imposed by the statute.

"No exact basis or method of grading examination papers is prescribed. This is left, to a considerable extent, to the sound discretion of the board. Indeed it might be very difficult to prescribe by legislative enactment any exact system by which the answer to a given question should be graded * * *.

Or how can a legislature or a court declare, in such a case, the exact percentage which should be allowed for an answer? * * *" Wood v. Board of Education of Washington County et al., (1912) 137 Ga. 808, 811, 74 S.E. 540.

The only standard imposed by the statute is that the examination given be a "satisfactory examination." What constitutes a satisfactory examination is a matter resting in the sound discretion of the board. In our opinion no duty to set up further standards is required of the board.