(specially concurring).
I agree with the result and analysis of the majority opinion except for the discussion concerning Petitioner’s contention that the burden of persuasion was improperly placed upon him during the post-termination hearing. In my opinion, the record supports Petitioner’s claim that the hearing officer erred in requiring him to carry the burden of proof at the termination hearing.
In the instant case, the hearing officer required Petitioner to proceed first with the evidence. This procedure improperly shifted the burden of proof upon Petitioner, since the order of presentation of evidence generally follows the burden of proof. See Newell v. Richards, 323 Md. 717, 594 A.2d 1152, 1160 (1991); American Ice Co. v. Fitzhugh, 128 Md. 382, 97 A. 999, 1000 (1916); see also Brownlee v. Williams, 233 Ga. 548, 212 S.E.2d 359, 364 (1975).
In administrative proceedings involving the termination of an employee, as in judicial actions, the burden of proof is generally upon the party asserting the affirmative of an issue. See Florida Dep’t of Health & Rehabilitative Servs., Div. of Health v. Career Serv. Comm’n, 289 So.2d 412, 414-15 (Fla.Dist.Ct.App.1974) (law requires agency which has terminated employee based upon stated reasons to carry the burden of proving such allegations); see also Johnson v. Department of Police, 575 So.2d 440, 443 (La.Ct.App.1991) (burden of proof on appeal as to factual basis for disciplinary action is on the appointing authority); Thompson v. Secretary of State, 19 Or.App. 74, 526 P.2d 621, 624 (1974) (public employer required to establish facts to support charges supporting dismissal or suspension of employee); Western Ctr., Dep’t of Pub. Welfare v. Hoon, 143 Pa. Cmwlth. 212, 598 A.2d 1042, 1044 (1991) (appointing authority has burden of proving existence of just cause for removal of employee); cf. Anaya v. New Mexico State Personnel Bd., 107 N.M. 622, 628, 762 P.2d 909, 915 (Ct.App.1988) (agency action resulting in termination of employee for unsatisfactory work performance held supported by substantial evidence). See generally Wallace v. Wanek, 81 N.M. 478, 468 P.2d 879 (Ct.App.1970) (party who alleges the affirmative must prove such contention).
I would not rest reversal here solely upon the hearing officer’s exclusion of the evidence sought to be presented by Petitioner. In my opinion, the termination proceeding conducted below also improperly placed the burden of proof upon Petitioner; hence, the proceeding violated procedural due process.