dissenting.
The record shows respondent rendered a final agency decision in a case in which he adjudicated contested issues of fact regarding his own testimony and credibility. The perception of partiality created by this procedure, as recognized by Judge Wynn in his dissenting opinion at the Court of Appeals, departs from constitutional principles of fairness and due process.
The majority opinion infringes upon a cornerstone principle of procedural due process. “[0]ur system of law has always endeavored to prevent even the probability of unfairness. To this end no [person] can be a judge in his own case and no [person] is permitted to try cases where he has an interest in the outcome.” In re Murchison, 349 U.S. 133, 136, 99 L. Ed. 942, 946 (1955).
In the present case, an administrative law judge (ALJ) concluded “[petitioner did not voluntarily resign” and “[r]espondent did not have just cause, procedurally or substantively, to terminate [p]etitioner’s employment as an Animal Control Officer II.” The State Personnel Commission (SPC) similarly concluded “[petitioner did not voluntarily resign” and “[r]espondent did not establish just cause for termination of the [petitioner’s employment.” After two impartial tribunals found in favor of petitioner, respondent, as Chatham County Health Director (Health Director) and a party to the action, rendered a final decision against petitioner holding “[petitioner resigned his position voluntarily and was not terminated by [r]espondent.”
In refusing to adopt the findings of the two earlier tribunals, respondent relied upon his own personal knowledge and bias as a party to the action and in his capacity as Health Director. The perception of partiality exhibited by respondent’s adverse decision against petitioner is visibly reflected in his final decision, which states:
[I]t is evident that either Mr. Sherman or Mr. Hearne are [sic] lying about certain points. The Health Director finds Mr. Sherman’s testimony on these points to be credible. Consequently, the Health Director declines to adopt the ALJ’s recommended findings of fact on these points which are based on *619[petitioner's testimony, or which are not based on Mr. Sherman’s credible testimony.
The perception created by respondent’s service as judicial arbiter in his own case does not promote confidence in our judicial system as, indeed, “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 14, 99 L. Ed. 11, 16 (1954).
Although I recognize that the instant appeal arises out of an administrative determination, “ ‘[the United States Supreme Court] has never held . . . that administrative officers, when executing the provisions of a statute involving the liberty of persons, may disregard the fundamental principles that inhere in ‘due process of law’ as understood at the time of the adoption of the Constitution.’ ” Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 161, 95 L. Ed. 817, 848 (1951) (Frankfurter, J., concurring) (quoting Kaoru Yamataya v. Fisher, 189 U.S. 86, 100, 47 L. Ed. 721, 725-26 (1903)). “A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases.” In re Murchison, 349 U.S. at 136, 99 L. Ed. at 946; see Randall T. Shepard, Campaign Speech: Restraint and Liberty in Judicial Ethics, 9 Geo. J. Legal Ethics 1059, 1083-92 (1996). As we have succinctly stated, “[a]n unbiased, impartial decision-maker is essential to due process.” Crump v. Board of Educ., 326 N.C. 603, 615, 392 S.E.2d 579, 585 (1990).
The majority holds, in the instant case, that the determinative facts as to whether petitioner voluntarily resigned are not in dispute, and thus, respondent did not have to weigh his own credibility with regard to the facts. The AU and the SPC both made findings of fact, however, supporting the conclusion that petitioner did not voluntarily resign. Furthermore, on judicial review from the administrative determination, the trial court concluded “the finding of fact in [respondent’s] decision, that petitioner voluntarily resigned, is not supported by substantial evidence in the whole record.” Consequently, numerous material facts were in dispute regarding the details surrounding petitioner’s alleged resignation.
I am troubled by the majority’s selective recitation of certain portions of the record testimony to justify its conclusion that respondent did not have to weigh his own credibility. By doing so, the majority ignores the perception of partiality inherent in the termination procedure utilized by respondent. In addition, the majority’s decision to reweigh the evidence ignores our long-standing rule that *620appellate courts should not disregard findings of fact when they are supported by competent evidence, as here, even if the evidence would also support a contrary result. See Scott v. Scott, 336 N.C. 284, 291, 442 S.E.2d 493, 497 (1994). Therefore, the majority errs by disregarding the findings of the ALJ and the SPC that petitioner did not voluntarily resign.
Finally, I disagree with the majority’s conclusion that petitioner should have moved to have respondent recuse himself pursuant to N.C.G.S. § 150B-36(a). First, since respondent served as Chatham County Health Director, he was necessarily the “local appointing authority” under N.C.G.S. § 126-37(bl). I note, and the majority does not disagree, that the Administrative Procedure Act does not provide for an alternative or substitute arbiter in the event of respondent’s recusal. Therefore, any attempt by petitioner to request that respondent recuse himself would have in fact been “clearly useless” and, therefore, no procedural bar to the viability of petitioner’s due process claim before this Court. See UDC Chairs Chapter v. Board of Trustees, 56 F.3d 1469, 1475 (D.C. Cir. 1995).
Second, the record reflects, as noted at oral argument, that respondent simply mailed his final decision to petitioner almost three months after the SPC adopted the ALJ’s recommendation that petitioner be reinstated, thereby depriving petitioner of any opportunity to be heard prior to issuance of a final agency decision which wholly rejected the SPC’s recommendation, and, perhaps even more important, depriving petitioner of any notice that respondent intended to serve as final arbiter over a contested case in which he had personal knowledge and bias as a party to the action.
Our constitutional guarantees of due process are paramount to the provisions of the Administrative Procedure Act, and, in any event, courts should “indulge every reasonable presumption against waiver” of a constitutional right. See Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 81 L. Ed. 1177, 1180 (1937); see also 2 Chester J. Antieau & William J. Rich, Modern Const. Law § 35.03 (2d ed. 1997) (“Facts needed to establish an effective waiver [of due process rights], however, must be specifically proven.”).
Put simply, after publication of the majority opinion, North Carolina’s local government employees will retain little constitutional due process protection against fundamentally biased termination procedures. By adjudicating material factual issues in which respondent was personally involved and thereafter weighing the credibility of *621his own testimony, respondent violated petitioner’s constitutional due process rights.
Accordingly, I respectfully dissent.