dissenting.
I respectfully dissent.
The Board here violated both the specific statutory procedure set out in the “Dental *1338Practice Law of. Colorado,” § 12-35-101 et seq., C.R.S.1973, and the due process rights of the petitioner when the hearing officer conducted the hearing jointly with the Board and then attended the Board’s deliberations as “legal advisor.”
The dental board has the power to appoint a hearing officer “on a full-time or part-time basis to conduct any hearings required by this article.” Section 12-35-107(l)(g), C.R.S.1973. The hearing officer is “to take evidence and to make findings and report them to the board.” Section 12-35-108, C.R.S.1973. The hearing officer is appointed under the authority of § 24-30-1003, C.R.S.1973 (1981 Cum.Supp.) of the Colorado Administrative Procedure Act and, as specifically recognized by the hearing officer here,1 the proceeding is governed by § 24-4-105, C.R.S.1973 of that Act.
In its decision and order the Board stated: “Don P. Stimmel, Hearing Officer assigned to the case from the Department of Administration, presided over all pretrial proceedings and over the hearing as the Board’s legal advisor, ruled upon admissibility of evidence, and was present as an ad-visor during the deliberations following the hearing.” However, the record discloses that in the pretrial proceedings when the petitioner presented a motion to disqualify the board of dental examiners, it was the Board who ruled upon the motion and denied it. Furthermore, in conducting the hearing, it was the Board, after a conference with the hearing officer, who ruled on such matters as to whether evidence, i.e., the dentures in question, should be suppressed.
The Colorado APA provides that “[a]t a hearing only one of the following may preside: The agency or if otherwise authorized by law, a hearing officer who if authorized by law may be a member of the body which comprises the agency.” Section 24-4-105(3), C.R.S.1973. (emphasis added).
Thus, the statute presents three options for the conducting of a hearing. First, the agency itself may preside. Second, the agency may appoint a hearing officer, and third, if authorized by law, the agency may choose a member of its own body to preside at the proceeding as a hearing officer. Here, pursuant to its enabling statute, the Board chose the second option.
If the Board had selected the first option, then § 24-4-105(4), C.R.S.1973, provides that “[i]n the event more than one person engages in the conduct of a hearing, such persons shall designate one of their number to perform such of the above functions as can best be performed by one person only .... ” This is the only instance in which this portion of the statute is triggered since the statute has already specified that only one, either a hearing officer or the agency can conduct the hearing.
The Board stated that the hearing officer attended its deliberations as “legal advisor.” This function of the hearing officer extends beyond the powers of the hearing officer as defined by the statute. Rather, this function is to be performed by the attorney general who is directed to “counsel with and advise the board in connection with its duties and responsibilities under this article.” Section 12-35-133, C.R.S.1973.
Furthermore, the statute provides that “the board may employ private legal counsel, subject to appropriations, on a part-time basis to assist the board in carrying out its powers and duties .... ” Section 12-35-107(2), C.R.S.1973 (1981 Cum.Supp.). This section also states that licensing fees shall be in a sufficient amount to pay for such counsel. The statute does not indicate that the hearing officer is to be used in such a capacity. “[A]s in the case with any administrative agency, the board must strictly comply with its enabling statute.” Sherrerd v. Johnson, 32 Colo.App. 367, 511 P.2d 923 (1973); Public Utilities v. Colorado Motorway, 165 Colo. 1, 437 P.2d 44 (1968).
*1339The federal APA and the Colorado APA differ notably in the weight that is to be given the hearing officer’s determination. The federal APA states that “[o]n appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision ... . ” 5 U.S.C.A. § 557(b) (1977). Thus, on review, the federal agency can substitute its own judgment on all questions that the hearing officer decided, including questions of fact and credibility of the witnesses. K. Davis, 3 Administrative Law Treatise § 17:16 (1981).
The Colorado statute, in contrast, provides that “[t]he findings of evidentiary fact, as distinguished from ultimate conclusions of fact, made by the hearing officer shall not be set aside by the agency on review of the hearing officer’s initial decision unless such findings of evidentiary fact are contrary to the weight of the evidence.” Section 24-4-105(15)(b), C.R.S.1973 (1981 Cum.Supp.). The agency, under this statute, then has the option of remanding the decision to the hearing officer for further proceedings, to affirm, to set aside, or to modify the order in conformity with the findings of fact and law, but it does not have the option of conferring with the hearing officer as was done here.
In light of the procedure set out in the statute, which carefully delineates the duties of the hearing officer and the agency where both are used, the intermingling of the duties of the hearing officer and the agency as was practiced here, thwarts the stated intent of the statute to provide a fair and impartial decision and, thus, violates the test as to whether the petitioner was accorded fundamental fairness in accordance with due process of law. Section 24-4-105(1), C.R.S.1973 (1981 Cum.Supp.). See also Mountain States Telephone & Telegraph Co. v. Department of Labor, 184 Colo. 334, 520 P.2d 586 (1974); Sigma Chi Fraternity v. Regents of University of Colorado, 258 F.Supp. 515 (D.Colo.1966).
If the General Assembly had intended a procedure in which the hearing officer could confer with the agency, it would have so provided. The federal APA in addressing the issue of separation of functions explicitly states that the employee who presides at the taking of the evidence is not prevented from consulting with a member or members of the agency. 5 U.S.C.A. § 554(d) (1977). See also K. Davis, 3 Administrative Law Treatise § 18:5 (1981). The Colorado APA does not contain a parallel section.
The hearing officer is an independent adjudicatory officer and it is his, and only his, responsibility to determine the evidentiary facts. For instance, the role of the federal hearing examiner has been described as being “ ‘functionally comparable’ to that of a judge.” Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). I would adopt that description to characterize the hearing officers under the Colorado APA. The procedure the Board practiced here destroys that independence. Even in the absence of any showing that the improper communication biased the Board against the dentist, the appearance of impropriety inherent in such an intermingling of functions mandates that it not be ignored. See Zuviceh v. Industrial Commission, 37 Colo. App. 249, 544 P.2d 641 (1975).
In my opinion, the structure of the statutes and the purpose behind them, mandate that the rule of Weissmann v. Board of Education, 190 Colo. 414, 547 P.2d 1267 (1976) should apply to hearing officers. In Weissmann, the Supreme Court set up a prospective rule only, which it did not apply in the case before it, because of the various factors set out in the majority opinion, and because of the overwhelming evidence against the teacher in that case. However, in listing these factors it was not establishing exceptions to the rule, thereby condoning violations of due process. As the Court clearly stated in Weissmann, the purpose behind the rule was not only to prevent any impropriety or unfairness, but “to avoid any appearance of impropriety or unfairness.” Weissmann, supra (emphasis added).
*1340I would reverse and order the charges dismissed.
. At the beginning of the proceeding, the hearing officer stated: “This hearing has been called pursuant to the Administrative Procedures Act and will be conducted according to the provisions of that act.” The Board expressed no opposition to this statement.