dissenting in part and concurring in part:
I agree that the legal principles set forth in section I of the court’s opinion are those pertinent here. However, I disagree with the application of those standards to the facts of this case and, therefore, respectfully dissent to that part of the opinion.
The deposition issue presented by the teacher and upon which we granted certio-rari review is a narrow one: Whether the hearing officer abused her discretion in refusing to allow the teacher to take the deposition of the student with whom the teacher was alleged to have had sexual contact. In denying the teacher’s request to depose twelve potential witnesses, including the student, the hearing officer stated:
The hearing officer must note that the deposition procedures set forth in C.R. C.P. 30 is in fact highly impracticable in the context of a hearing conducted pursuant to the Teacher Employment, Dismissal, and Tenure Act, C.R.S. 1973, 22-63-101, et seq., as amended. The right of the hearing officer to grant continuances is specifically subordinated to the time limitations set forth in C.R.S. 1973, 22-63-117(5), as amended. The hearing officer cannot compel the waiver of these time limits in order to accommodate the transcription of a deposition and its submission to the witness for signature pursuant to C.R.C.P. 30. The hearing officer must therefore decline to authorize the taking of oral depositions in this action.
This rationale is seriously flawed in view of the fact that the time requirements were waived by the parties. In her prehearing order, the hearing officer stated:
Upon the ruling of hearing officer Lynn Davidson that the provisions of C.R.S. 1973, 22-63-117, as amended, concerning the holding of hearing within 25 days and adoption of findings within 30 days of the selection of the hearing officer, are waivable through the mutual agreement of the parties, it was so agreed that the provisions be waived.
Thus, the hearing officer abused her discretion by relying on time limitations which had been waived as a basis for denying the discovery deposition sought by the teacher.
Moreover, the teacher was prejudiced by the denial of his request to take the deposition of the student. The only testimony at the dismissal hearing concerning the alleged sexual contact was given by teachers who observed “silhouettes” of the teacher and the student. There was no testimony from either of the participants to the alleged misconduct. The teacher could not testify without waiving his privilege against self-incrimination. The student was not called to testify. The board contends that the teacher was not prejudiced because he could have called the student and, in fact, had listed him as a possible witness. This argument has little merit when one reviews the record. The student clearly was suffering from serious emotional problems and was continually lying and fabricating stories. Obviously, in these circumstances, no reasonable and competent attorney would have called the *1103student as a witness without first deposing him for the purpose of evaluating his potential testimony. In my view, the denial of the deposition request constitutes a serious abuse of discretion which prejudiced the substantial rights of the teacher. Therefore, I would reverse the judgment of the court of appeals.