dissenting.
I respectfully dissent.
The due process rights of this teacher were violated when the Board “retired in private to deliberate regarding his employment” accompanied by the principal and superintendent who had testified as adverse witnesses against the teacher during the evidentiary hearing. See Weissman v. Board of Education, infra; Commonwealth Department of Education v. Oxford Area School District, 24 Pa.Cmwlth. 421, 356 A.2d 857 (1976). Immediately following the closed meeting (“executive session”) the Board returned to the public meeting and voted for dismissal of the teacher without any further discussion.
“The essence of procedural due process is fundamental fairness,” Mountain States Telephone & Telegraph Co. v. Department of Labor & Employment, 184 Colo. 334, 520 P.2d 586 (1974). It serves the dual purpose of conveying to the individual the feeling that he has been treated fairly, as well as minimizing the risk of a mistake in deprivation of a property interest. Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed. 252 (1978).
In Gonzales v. McEuen, 435 F.Supp. 460 (C.D.Cal.1973), the court held that high school students had been deprived of due process of law when the superintendent, who by statute was chief adviser of the Board, sat with the Board during its deliberations on the issue of the expulsion of the students. The court noted that the superintendent was also “the chief of the ‘prosecution’ team, to wit, the District.” The court based its conclusion on the following analysis:
“Defendants’ counsel maintain that Mr. McEuen [superintendent] did not participate in the deliberations and did no more, perhaps, than serve cookies and coffee to the Board members. Whether he did or did not participate, his presence to some extent might operate as an inhibiting restraint upon the freedom of action and expression of the Board. Defendants argue that there is no evidence that Mr. McEuen influenced or biased the Board. Proof of subjective reasoning processes are incapable of corroboration or dispro-val. Plaintiffs should not be forced to rely upon the memory or sense of fairness of Superintendent McEuen or the Board as to what occurred there. Perhaps Mr. McEuen’s physical presence in deliberation becomes more offensive because of the pre-hearing comments which showed something less than impartiality, [footnote omitted].
The court concludes that the process utilized by the Board was fundamentally unfair. This raises a presumption of bias. In view of the alternatives for the selection of an impartial hearing body it would have been more reasonable to provide procedures that insured not only that justice was done, but also that it appeared to have been done.”
This analysis is consistent with Weissman v. Board of Education, 190 Colo. 414, 547 P.2d 1267 (1976), in which the Supreme Court stated: “Courts which have considered the problem have suggested that a *747school board’s attorney, who has taken part in the adversary proceedings in the role of prosecutor, should not be present during the board’s deliberations.... We agree. In the future counsel who has played such a role in the proceedings should take no part in the final deliberations of the board, in order to avoid any appearance of impropriety or unfairness.” (emphasis added). See also Sharon City School District v. Hudson, 34 Pa.Cmwlth. 278, 383 A.2d 249 (1978); White v. Board of Education, 54 Hawaii 10, 501 P.2d 358 (1972).
It is important to note that Weissman stated a definitive prospective rule for teacher’s dismissal proceedings which is applicable here. Weissman did not apply the rule in the case before it because of the substantial evidence in that record. However, it did not, in noting that the attorney in Weissman did not vote, set up an exception to the rule.1 In essence, Weissman held that under the circumstances there presented, the attendance of the attorney was harmless error. We can not and should not excuse violations of the rule in Weiss-man, especially here where Weissman had been in existence for almost four years pri- or to the hearing by the Board. To do so is to nullify Weissman and the due process safeguards it compels.
In his report, the hearing officer stated that it was his feeling that the charges would not have been brought had not the school administration thought that the physical contact with the female students was sexually provocative or exploitive and this was not so. He also stated, had he the authority, he would recommend a one year probation, a sanction which the Board had the authority to impose but which he recognized that he did not have. Section 26-63-117(10), C.R.S.1973 (1980 Cum.Supp.). However, not having that authority and finding the neglect and insubordination by the teacher’s failure to heed changes in his behavior recommended by the Board, he recommended that the teacher be dismissed. The purpose behind the Teacher Employment Dismissal and Tenure Act is to limit, in a significant way, “the school board’s previously unrestricted power of dismissal, and to ensure that tenured teachers ‘[are] not discharged except for good cause, impartially and fairly determined in accordance with the requirements of due process of law.’ ” Lovett v. Blair, 39 Colo.App. 512, 571 P.2d 731 (1977), aff’d, 196 Colo. 118, 582 P.2d 668 (1978). Based on the record before us, I cannot conclude that the dismissal of the teacher here met these basic requisites.
The denial of due process of law does not stem from the fact that the superintendent preferred the original charges against the teacher but from the fact the superintendent and principal testified as adverse witnesses in the evidentiary hearing before the hearing officer. Commonwealth Department of Education v. Oxford Area School District, supra.
In the absence of any explanation by the Board as to the purpose of the superintendent and principal attending the deliberations, I cannot attribute an innocent interpretation. Both the superintendent and principal had already testified adversely against the teacher. I cannot perceive their presence before the Board as anything other than a furtherance of that previous testimony, neither announced nor commented upon by the Board. We have previously held that in an administrative setting, the body involved in the decisional process, here the Board, does not have authority to receive ex parte communications, even without any showing that the improper communication biased it. Zuviceh v. Industrial Commission, 37 Colo.App. 249, 544 P.2d 641 (1975).
Under the circumstances here, a remand to the Board for a fair and impartial decision would be futile. See generally A. Jaf-fee, Judicial Control of Administrative Action at 589. I perceive of no circumstances *748under which the same Board would be purged of its taint of partiality which resulted in the decision that did not meet the basic requisites of due process of law and which was based upon insubstantial factual evidence. Here, where “the decision makers are laymen who (unlike a judge) have not been trained in professional commitment to an exacting, detached and disinterested appraisal of the evidence there is the obvious danger that they will not be fair and impartial. This danger is compounded when officials have previously adjudicated the charges.” Rosario v. Amalgamated Ladies Garment Union, 605 F.2d 1228 (2d Cir.1979), cert. denied 446 U.S. 919, 100 S.Ct. 1853, 64 L.Ed.2d 273 (1980) (construing due process standards for labor union tribunal governed by the Labor Management Reporting and Disclosure Act).
Since the due process rights of the teacher were violated when the principal and the superintendent attended the executive session of the Board, I would hold the order dismissing the teacher to be null and void, and would direct that the teacher is entitled to full back pay including benefits and reinstatement. Section 22-63-117, C.R.S. 1973.
. The record here is devoid of any explanation as to the presence of the principal and the superintendent at the executive session or whether they participated in the closed session. The only basis for the majority’s conclusion that the superintendent and principal did not vote is that they were not listed on the roll call in the Dismissal Order and Board Resolution, and, presumptively, because dismissal, by statute, is a power reserved to the Board.