dissenting.
I respectfully dissent as to part I of the majority’s opinion which concludes that the Board’s consideration of public comment was mere “harmless error.” I would remand this matter to the Board to reconsider the hearing officer’s report without receiving public comment and without considering such comment as it has already received.
In Cordova v. Lara, 42 Colo.App. 483, 600 P.2d 105 (1979) and in Merritt v. Consolidated School District No. 8, 522 P.2d 137 (Colo.App.1974) (not selected for official publication), this court held that the Board’s consideration of extraneous information was improper and undermined the purpose of the Teacher Tenure Act. In both instances we remanded the cause for further proceedings and did not require the teacher to show prejudice. In my view, the majority here has implicitly overruled those cases and, while recognizing the unquestioned impropriety of the Board’s conduct in considering public comment, has, nevertheless, concluded that no new hearing is required. I see no reason to depart from the existing rule.
Moreover, even if we were to use the majority’s rationale, I believe the teacher here has shown prejudice. The record unequivocally supports petitioner’s allegation that the public comment, which was objected to by petitioner’s attorney, the school administration’s attorney, and by the Board’s advisory counsel, plainly influenced the ultimate decision of the Board. Indeed, the Board member who made the motion to dismiss petitioner prefaced his motion with the opinion that: “Here, with as much public comment as we have ... I do not think we can send a mixed signal to the community_”
Consequently, I would require the Board to render a new decision based only on the record and arguments of counsel.