Bob Ferguson
Other LanguagesAGO 1955 No. 178 -
Attorney General Don Eastvold
LICENSES ‑- BASIC SCIENCES ‑- EXAMINATIONS ‑- RECIPROCITY ‑- MEDICINE, SURGERY AND OSTEOPATHY ‑- EXAMINING COMMITTEE
1. The duties of the examining committee provided for in section 3, chapter 192, Laws of 1955, are to prepare questions, conduct examinations, and grade papers of the applicants for basic science certificate.
2. The director of licenses is the only official authorized to determine when, under applicable provisions of the law, examinations in the basic sciences may be waived.
3. In determining whether the state of Washington should establish reciprocity with any state in waiving basic science examinations the determination must be based upon the equality of the laws and regulations and not upon the manner in which such laws and regulations are administered in the several states.
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December 21, 1955
Honorable Della Urquhart
Director of Licenses
Transportation Building
Olympia, Washington Cite as: AGO 55-57 No. 178
Dear Mrs. Urquhart:
By letter previously acknowledged you have submitted for official opinion a list of eight questions involving the interpretation of the basic science law, chapter 183, Laws of 1927, as amended by chapter 192, Laws of 1955.
We have rephrased some of the questions where we could do so without losing any portion of the question, and the others we quote verbatim as follows:
[[Orig. Op. Page 2]]
1. Referring to RCW 43.74.060 (§ 6, chapter 183, Laws of 1927) you ask: Are the words "the director of licenses may dispense with a second examination . . ." mandatory or directive?
Answer: The word "may" as used in this statute is mandatory.
2. Referring to RCW 43.73.035 (§ 9, chapter 192, Laws of 1955) you ask: Does the phrase "the requirements of the state" refer to all provisions of the basic science law; namely (1) the composition and qualifications of the members of the basic science committee; (2) the scope and nature of the examinations; (3) the manner of conducting examinations; (4) the grades required to pass examinations; (5) the moral and educational qualifications of the examinees.
The answer to subquestions 1, 2, and 5 is yes; the answer to subquestions 3 and 4 is no.
3. Referring to § 4, chapter 192, Laws of 1955 (RCW 43.74.015), § 6, chapter 192, Laws of 1955 (RCW 43.74.025), § 7, chapter 192, Laws of 1955 (RCW 43.74.040), and § 3, chapter 192, Laws of 1955 (RCW 43.47.010), you ask: Should Washington grant reciprocity to candidates from states which do not require that educational training in the healing arts is completed at the time of taking the basic science examination when candidates in our own state do not have this privilege?
The answer will be supplied in our analysis which follows.
4. Should subparagraphs 1 (a) and (3) of § 9, chapter 192, Laws of 1955 (RCW 43.74.035) be interpreted to mean that any candidate seeking reciprocity in the state of Washington must have passed the examination in all of the basic sciences required by another state, and hence would hold a basic science certificate from that state?
The answer is yes.
5. In case subparagraph 1 (b) of § 9, chapter 192, Laws of 1955 (RCW 43.74.035) is interpreted to include the examinations themselves as well as the provisions of the law, is it permissible for the basic science committee [[Orig. Op. Page 3]] to require as a basis for judgment any one of the following?
1. Copies of both the examination questions and answers given by the candidate.
2. Copies of only the examination questions of the particular examination taken by the candidate.
3. Copies of only "representative questions" in the different subjects given in examinations in the state concerned and not necessarily including questions given in the particular examination taken by the candidate.
The answer to all three subquestions is no.
6. With respect to subparagraph 1 (b) of § 9, chapter 192, Laws of 1955, (RCW 43.74.035), should the manner of giving examinations in other states be "equal" to ours with respect to the preservation of anonymity (see RCW 43.74.020 and 43.74.040), and be "written" (see RCW 43.74.030)?
The answer to both parts of this question is no.
7. In RCW 43.74.030 the scope of the material to be covered by the examination is defined as ". . . the elementary principles of the basic sciences as taught at the University of Washington and Washington State College, in one year's instruction of thirty-six weeks, or as taught in one year's instruction of thirty-six weeks at any college or university, accredited by the University of Washington or the equivalent thereof."
Should a determination of the scope of the examinations in other states be a requisite to the granting of reciprocity by the state of Washington?
Answer: No. The scope of the law, not the scope of the examinations, should govern.
8. If subparagraph 1 (b) of § 9, chapter 192, Laws of 1955 (RCW 43.74.035) is interpreted to include the composition and qualifications of the members of the examining committee, should the committee members in other states be likewise ". . . learned respectively in the basic sciences . . ." and appointed from university ". . . faculty lists . . ." as specified in the Washington law (see RCW 43.74.010)?
[[Orig. Op. Page 4]]
The answer to this question is no.
ANALYSIS
In discussing the foregoing questions we must bear in mind that the basic purpose of all laws pertaining to the licensing of persons to practice the healing arts and sciences is the protection and welfare of the public. In interpreting and construing the laws herein involved we should first determine the respective functions and duties of the examining committee and of the director of licenses.
Section 3, chapter 192, Laws of 1955 (which amended RCW 43.74.010) provides, in so far as material hereto, that:
"There shall be a committee of six members learned respectively in the basic sciencesto conduct and assist in conducting basic science examinations of all persons applying for licenses or certificates to practice medicine and surgery, osteopathy, osteopathy and surgery, chiropractic chiropody, or drugless therapeutics." (Emphasis supplied.)
Section 4, chapter 192, Laws of 1955 (RCW 43.74.015), subparagraph 4, provides:
"It may make such rules and regulations, not inconsistent with this chapter, as it deems expedient to carry this chapter into effect."
It is apparent that the subparagraph quoted authorizes the examining committee to promulgate rules and regulations concerning only the examinations which the committee conducts, since its sole function under the law is to prepare the examination questions, conduct the examinations, and grade the papers. All other functions with reference to the administration of the law are vested in the director of licenses. Nowhere in the act is there any provision of law or any intimation in the law that the examining committee shall have any authority or any responsibility in the matter [[Orig. Op. Page 5]] of determining whether or not reciprocity agreements or understandings shall be made with other states.
The reciprocity section of the law is found in § 9, chapter 192, Laws of 1955 (RCW 43.74.035), and provides:
"(1)The director shall waive the examination in the basic sciences when satisfactory proof is submitted to him showing that:
"(a) The applicant has passed an examination in the basic sciences before examiners in basic sciences in those states which have a basic science act.
"(b) The requirements of that state at the time of such examination are at least equal in all respects to those required by this chapter for the issuance of a basic science certificate.
"(c) Like exemption from examination in the basic sciences is granted by such state to persons granted certificates by the committee created by this chapter.
"* * *
"(3) In case an applicant comes from a state which does not examine in all the basic sciences required by this chapter, the director shall waive the examination in the basic sciences in which the other state does examine, if all other requirements at the time of the examination for issuing a basic science certificate in the other state are equal to those required by this chapter. In such a case the applicant shall be examined only in the basic sciences needed for him to fully meet the requirements of this chapter for the issuance of a basic science certificate." (Emphasis supplied.)
[[Orig. Op. Page 6]]
It is noted that paragraph 1 of this section states that the director shall waive the examination in basic sciences. It is clear that the legislature intended that the determination as to the waiving of the examination should be vested solely in the director. The director, before making a determination as to whether reciprocity shall be granted with another state, must satisfy herself (1) that the applicant has passed an examination in another state, (2) that the requirements of that state at the time of such examination were equal in all respects to those required by the laws of the state of Washington, and (3) that a like exemption from examination is granted by such other state to persons who hold certificates from this state.
The director, of course, has the right to seek advice and assistance from any source available to her, and it is perfectly proper for the director to consult the examining committee on such matters. We think, however, it is implicit in the law that the director is not bound to follow such advice and that the determination is the responsibility of the director.
We shall now discuss the questions in substantially the order in which they have been presented.
1. Our answer to this question is that the word "may" as used in the statute (RCW 43.74.060) is mandatory. Although it is true that ordinarily the use of the word "may" in a statute is directory only, while the word "shall" is usually mandatory, it seems to be a common practice of our state legislature to use the words "may" and "shall" more or less interchangeably. The general rule is that the word "may," when employed in remedial statutes or whenever the statute covers the rights of the public and third persons, is used in the mandatory sense. A good statement of this rule is found in the case of State ex rel. Nicomen Boom Co. v. North Shore Boom and Driving Co., 55 Wash. 1. Reading from page 9 of the opinion, our supreme court announced the foregoing rule as follows:
"* * * Primarily, the word should be taken in its ordinary meaning, and be regarded as permissive only. But, after all, its meaning is to be determined in each case from the apparent intent of the statute in which it is employed; so that, in all remedial statutes orwhenever the rights of the public or of third persons depend on the exercise of the power of a court or public [[Orig. Op. Page 7]] officer, or the performance of a duty, and a claimde jure that the power may be exercised exists, it should be construed to mean 'shall.'" (Emphasis supplied.)
See, also, the case ofSpokane County ex rel. Sullivan v. Glover, 2 Wn. (2d) 162.
Referring to our statute (RCW 43.74.060), it is readily apparent that the word "may" was used in the mandatory sense. The statute deals not only with the authority of the director but also covers the rights of third persons, to wit, examinees. Reading the statute as a whole, it is quite apparent that it was the intention of the legislature that an examinee who had already passed a basic science examination with a grade of not less than seventy-five per cent should not be required to take a further examination in that subject.
2. This question refers to § 9, chapter 192, Laws of 1955 (RCW 43.74.035). Our answer to subquestions 3 and 4 of question No. 2 is in the negative for the reason that these questions go beyond a mere comparison of the laws as to their equality and investigate the manner of administering the laws. It is our opinion that such extended inquiry is not proper. Reciprocity must be based upon the equality of the laws themselves and the regulations lawfully promulgated under the laws. If the laws and regulations of another state are equal to ours in all fundamental requirements concerning the granting of certificates, we must assume that those laws will be administered in accordance with law, honestly, efficiently, and effectively.
There is a well-established presumption of law that in the absence of a showing to the contrary all elected or appointed and qualified public officers will perform their duties honestly, efficiently, and in accordance with the law. We indulge this presumption with reference to our own state officials, and if we are to deal in reciprocity with another state we must accord to it the same presumption. The rule as to this presumption is well stated in the case of Barbee Mill Co. v. State, 43 Wn. (2d) 354. Reading from page 355 of the opinion, our court stated:
[[Orig. Op. Page 8]]
"* * * In the absence of evidence to the contrary, public officers are presumed to have performed their duties regularly and legally in compliance with controlling statutory provisions. Blade v. La Connor, 167 Wash. 403, 9 P. (2d) 381; Camp v. Peterson, 191 Wash. 634, 71 P. (2d) 1074; 20 Am. Jur. 174, § 170; and 20 Am. Jur. 180, § 173 * * *"
Under this rule we are bound to the conclusion that if the law of another state is equal to our law, then we must indulge this presumption in favor of reciprocity and should not seek to inquire in detail into the manner in which the law of the other state is enforced and administered.
The answer to subquestions 1, 2, and 5 is yes, for the reason that they pertain to specific and positive requirements of chapter 192, Laws of 1955. This does not mean, however, that the laws of other states must be identical to ours.
3. Question 3 contains assumptions of fact which, so far as our knowledge goes, may or may not exist. Section 3, chapter 192, Laws of 1955 (RCW 43.74.010 as amended), provides that the examining committee shall give examinations only to persons applying for licenses or certificates to practice one of the healing arts. Thus it appears that to obtain a certificate of competency in the basic sciences is not an end in itself. There is no provision in our law creating any profession or practice known as a basic science profession or practice. The sole purpose of the certificate is to serve as one of the prerequisites to obtaining a license to practice one of the healing arts.
Consequently, we do not examine in the basic sciences an applicant who is not seeking such a license. The purpose of this examination, of course, is to demonstrate that the applicant for a license in one of the healing arts has a comprehensive training in and a knowledge of the basic sciences. Therefore, it is our opinion that if the applicant from another state can present a certificate of competency issued under the laws of that state, and if by comparison we find that the laws of such state require examinations demonstrating training and knowledge in the basic sciences as comprehensive as is required by the state of Washington, we should accept such certificate on the basis of reciprocity. It is [[Orig. Op. Page 9]] wholly immaterial whether or not the certificate was obtained by examination given in conjunction with an examination in one of the healing arts or whether it was given as a separate examination.
4. Subparagraph 1 (a) referred to in this question reads as follows:
"The applicant has passed an examination in the basic sciences before examiners in basic sciences in those states which have a basic science act."
This subparagraph, standing alone, might lend some credence to the proposition that the applicant might be admitted upon a showing that he had passed an examination in one of the five basic sciences in five different states. However, when we read chapter 192, Laws of 1955, as a whole, it is apparent that the legislature did not intend such an interpretation of the act. Subparagraph (3) referred to in the question provides that in case the applicant comes from a state that does not require all the basic sciences required by this chapter the director shall waive examination in the basic sciences in which the other state does examine.
The only purpose of the basic science certificate is that of a necessary prerequisite to obtaining a license in one of the healing arts. Our own laws pertaining to the healing arts contain a reciprocity provision as to each of them. Clearly, it is the intention of the law that when an applicant from another state presents his credentials for a license to practice one of the healing arts in this state, he should be required, under the provisions of subparagraph (3) to present a certificate showing that he had passed an examination in the other state as to all the basic sciences examined by that state.
5 and 7. We believe these questions have been answered by what we have said in analyzing questions 2 and 3.
6. We believe that this question has been substantially answered by what we have heretofore said, except as to the question of whether or not the examination required under the basic science act should be written or oral. It is our opinion that this is an academic rather than a legal question. Assuming that the examinations are equally comprehensive, in our opinion it would make no difference whether they were oral or written.
[[Orig. Op. Page 10]]
8. Question 8 refers to the fact that our law (RCW 43.74.010) requires that the examining committee be appointed from university and college faculty members, while the laws of some of the other states do not. To assume that the laws of such states are not equal to ours so far as the requirements of reciprocity are concerned would be equivalent to the assumption that no practitioner of the healing arts could, regardless of his learning, experience, and qualifications, be the equal of a college professor in the matter of giving and grading examinations. We think this is not a sound presumption.
In conclusion, it is apparent that the members of the examining committee and the director of licenses are actuated by the highest motives, and are deeply concerned that the laws pertaining to the healing arts shall be properly and wisely administered, and above all, that the interest of the people be protected. This thought has guided us in preparing the foregoing opinion.
We trust the analysis set forth above will prove to be of assistance to you.
Very truly yours,
DON EASTVOLD
Attorney General
ROY C. FOX
Assistant Attorney General