concurring, in which GOLDEN, Justice, joins.
I concur in the decision of the court, but write further to explain that I would have decided this appeal based on a somewhat different analysis. The majority determines that a reversal cannot be secured because the record fails to establish any issue of impartiality. My concern with that approach is that the essential issue is a factual matter of the record. The office of the Attorney General provided both the prosecutor and the “independent administrative hearing officer.”
I would affirm the decision on the basis of waiver by the appellee. The hearing was regularly scheduled before the State Transportation Commission of Wyoming. Appropriate notice was given to appellee of the time and place. I would conclude that the appellee either had to appear at that hearing to make his objection known at that time regarding the status of the inde*499pendent hearing officer or, by failing to appear, he waived the objection.
The principle I espouse is that advance notice of a challenge to impartiality is appropriate and certainly desirable, but the formal ruling must be made by the deciding commission. Consequently, the contestant is required to appear at a scheduled hearing addressing objection on the record. Otherwise, in failing to appear when the challenge can be properly presented and decided, the right to require a decision on the challenge is waived.
I reach the same point of departure as does the majority in its analysis of failure of proof, but mine is emplaced in waiver since the essential status from which the challenge was made results from uncontested facts found in this record. Consequently, I agree with the majority in its decision on the issues presented, except I apply a waiver impedance to the right of appellee to secure a reversal of the action of the commission. Armed Forces Co-op. Insuring Ass’n v. Department of Insurance, 622 P.2d 1318, 1327 (Wyo.1980); Board of Trustees, Laramie County School Dist. No. 1 v. Spiegel, 549 P.2d 1161 (Wyo.1976). See also Gold v. Board of County Com’rs of Teton County, 658 P.2d 690, 696 (Wyo.1983).