dissenting.
I respectfully dissent. I believe that Mahlon Love, Chairman of the State Police Board, should have recused himself from presiding over Mr. Lujan’s termination hearing. I would reverse and remand for a new hearing.
It is the general rule in New Mexico that “[a] judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including * * * where: (a) he has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding. * * * ” NMSA 1978, Code of Judicial Conduct Canon 3(C) (Supp. 1982). Such a rule is based on the principle that “the administration of justice should reasonably appear to be disinterested as well as be so in fact.” Public Utilities Commission v. Pollak, 343 U.S. 451, 467, 72 S.Ct. 813, 823, 96 L.Ed. 1068 (1952) (Frankfurter, J., not participating) (emphasis added).
The principles behind disqualification requirements apply to adjudicatory procedures of an administrative tribunal as well as to a court. Wall v. American Optometric Association, Inc., 379 F.Supp. 175 (N.D.Ga.), aff’d mem., 419 U.S. 888, 95 S.Ct. 166, 42 L.Ed.2d 134 (1974); 1 Am.Jur.2d Administrative Law § 63 (1962). New Mexico applies these principles to administrative proceedings. Reid v. New Mexico Board of Examiners, 92 N.M. 414, 589 P.2d 198 (1979). The basis for the standard for disqualification of an administrative hearing officer which is set forth in Reid is that “our system of justice requires that the appearance of complete fairness be present.” Reid, 92 N.M. at 416, 589 P.2d at 200.
In the instant case, as in Reid, there was an appearance of impropriety. Although Mr. Love did not vote on the issue of termination, he did preside over the hearing. Mr. Love also was present during the Board’s deliberations on the issue of whether he should be disqualified. A review of the record reveals that Mr. Love thought that Mr. Lujan might have been trying to agitate him when Mr. Lujan refused to issue him supplies without appropriate authorization. In addition, at the beginning of the hearing, Mr. Love was a potential witness against Mr. Lujan. I would hold that because there was an appearance of impropriety, Mr. Love’s failure to recuse himself constituted reversible error. I would reverse and remand for a new hearing before a State Police Board free from even the appearance of partiality.