dissenting:
I agree with the majority that the question we must decide is who must bear the burden of proof when an employee appeals an order terminating his or her employment to the Colorado State Personnel Board. Because I believe the constitution and statutes require the employee to bear that burden, I dissent.
I.
The Colorado Constitution established the state personnel system in Article XII, section 13. Specifically, the constitution states:
A person certified to any class or position in the personnel system may be dismissed, suspended, or otherwise disciplined by the appointing authority upon written findings of ... willful misconduct [or] willful failure or inability to perform his duties.... Any action of the appointing authority taken under this subsection shall be subject to appeal to the state personnel board with the right to be heard thereby in person or by counsel, or both.
Colo. Const, art. XII, § 13(8).
The legislature enacted the State Personnel System Act for the purpose of adopting “a sound, comprehensive, and uniform system of personnel management and administration for employees within the state personnel system as defined by the state constitution.” § 24-50-101, 10B C.R.S. (1988). *711The Act sets forth the applicable procedures for disciplining a certified state employee.
Section 24-50-125(1), 10B C.R.S. (1988), closely resembles the list of disciplinable conduct found in Article XII, section 13(8). Section 125(2) provides that any employee disciplined under subsection (1) must receive notice from the appointing authority “of the action taken, the specific charges giving rise to the action, and the employee’s right to appeal to the board.” § 24-50-125(2). Subsection (3) continues:
[w]ithin ten days after the receipt of the notification ... the employee may petition the board for a hearing on the action taken. Upon receipt of the petition, the board shall grant a hearing to the employee. If the employee fails to petition the board within ten days ... the action of the appointing authority shall be final and not further reviewable.
§ 24-50-125(3). Section 24-50-125(4) describes the appropriate time limits within which the appeal hearing must take place and the decision must be made, but does not describe the procedures to be used. Section 24-50-125.4, 10B C.R.S. (1988), repeats the time limits of section 24-50-125(4) and requires the employee as appellant to “allege with particularity the specific acts appealed and the reasons for the appeal.” Section 24-50-103(6), 10B C.R.S. (1988), establishes the standard of review for an action by the appointing authority.
An action of ... an appointing authority which is appealable pursuant to this article or the state constitution may be reversed or modified on appeal to the board only if at least three members of the board find the action to have been arbitrary, capricious, or contrary to rule or law.
Section 24-4-105, 10A, C.R.S. (1988), sets out procedures applicable to all administrative hearings unless a statute dictates otherwise. Both parties agree that section 24-4-105(7) controls the question to be resolved. Subsection 105(7) places the burden of proof on the proponent of an order.
II.
When interpreting a constitution or statute the court must first look to the language used and give the words of the constitution or statute their ordinary and commonly accepted meaning. A presumption exists that the legislature adopted the language and structure of constitutional provisions by choice and exercised discrimination in selecting the language and structure. White v. Anderson, 155 Colo. 291, 298, 394 P.2d 333, 336 (Colo.1964). When the legislature uses a word with a known legal meaning, it must be assumed the word has such a meaning in the absence of clear intent to the contrary. Westerlund v. Black Bear Min. Co., 203 F. 599, 605 (8th Cir.1913).
The constitution and statutes dictate that the employee “appeal” the appointing authority’s action of dismissal, suspension or other discipline. Section 24-50-125(3), 10B C.R.S. (1988), establishes that the employee is the moving party and petitioner in the appeal hearing. The burden is on the employee to contest the appointing authority’s action and petition for a hearing. A petition for a hearing, as used in section 24-50-125(3), is an appeal of the appointing authority’s action. If the employee does not appeal, the appointing authority’s action is final. Id.
The term appeal is used in a legal context to describe a continuation of an original suit rather than the beginning of a new action. 4 Am.Jur.2d Appeal and Error § 2 (1964). It is “[a] complaint to a higher tribunal of an error or injustice committed by a lower tribunal, in which the error or injustice is sought to be corrected or reversed.” Black’s Law Dictionary 96 (6th ed. 1990). It “is not the same as an ‘action for judicial review’ ” of an agency order. Tassian v. People, 696 P.2d 825, 827 (Colo.App.1984), rev’d on other grounds, 731 P.2d 672 (Colo.1987).
Section 24-4-105(7), 10A C.R.S. (1988), states “the proponent of an order shall have the burden of proof’ in administrative proceedings. “The ‘proponent’ is that party who propounds or proposes something.” Orsinger Outdoor Adv. v. Department of Highway, 752 P.2d 55, 67 (Colo.1988) (citing Black’s Law Dictionary 1097 (5th ed. 1976)).
In an appeal, the petitioner or appellant takes an appeal from a judgment. Black’s Law Dictionary 97, 1146 (6th ed. 1990). *712Lower court decisions are presumed correct and the person claiming error must prove the lower court erred. Hinshaw v. Dyer, 166 Colo. 394, 397, 443 P.2d 992, 993 (1968). The appellant is the “proponent” of an appeal. Administrative law reflects this same principle. A presumption of validity attaches to an agency action and the burden of proof rests upon the challenging party. Colorado Health Care Ass’n v. Colorado Dep’t of Social Serv., 842 F.2d 1158, 1164 (10th Cir.1988). Therefore, the employee, as the appellant, is the proponent of an order seeking relief from the action taken by the appointing authority and has the burden of proof.
The constitution and statutory scheme support the conclusion that these well-established principles apply in this case. The constitution provides “[a]ny action of the appointing authority ... shall be subject to appeal to the state personnel board.... ” Colo. Const, art. XII, § 13(8). Section 24-50-125 tracks the language of the constitution that an employee has a right to appeal. See § 24-50-125(2), (3), (4). The Personnel Board presumes the appointing authority’s action is correct because it can only be reversed or modified if at least three members of the Board find the action to be arbitrary, capricious, or otherwise contrary to rule or law. § 24-50-103(6). The employee is the proponent of an order to the Personnel Board to reverse or modify the appointing authority’s action. Id. Kinchen appealed the action of the appointing authority terminating his employment and should bear the burden of proof in the appeal.
Additionally, Colorado case law places the burden on the employee. Renteria v. State Dep’t of Personnel, 811 P.2d 797 (Colo.1991), addressed the definition of a proponent under section 24^4-105(7) and held the employee was the proponent of the order. “Rente-ria was the moving party before the Panel because he sought an order voiding the reallocation of his position.” Id. at 803. The majority attempts to distinguish this case on the ground that the reallocation is pursuant to a separate statutory section. Maj. op. at 710. It maintains a disciplinary action has allegations of misconduct and issues of credibility unlike a reallocation decision. Id.
This analysis overlooks the fact that both cases fall under section 24-2-105(7). Subsection (7) contains no distinctions between disciplinary and allocation proceedings. The burden of proof provision applies uniformly to all actions before the Colorado State Personnel Board. In Garner v. Colorado State Department of Personnel, 835 P.2d 527, 531 (Colo.App.1992), the court of appeals followed Renteria ⅛ placement of the burden of proof on the person seeking to set aside the agency’s action. The court found “the burden of proof was properly placed on the plaintiff to show the panel that the selection and examination process conducted for the state lottery director position was arbitrary, capricious, or contrary to rule or law.” Id. Both Renteria and Gamer construe section 24-4-105(7) as it applies to administrative appeals under the state personnel system and both placed the burden of proof on the person challenging the agency action.17 These cases are not distinguishable from Kinchen.
Indicative of the misconception under which the majority labors is its holding that “in disciplinary hearings before the Personnel Board the appointing authority is the party bringing the charges against the employee and the propounder of the employee’s dismissal.” Maj. op. at 706. A straightforward reading of the constitution and statutes clearly establishes that the appointing authority does not bring charges against the employee which are to be resolved by the Personnel Board.18 Rather, the appointing authority makes decisions and takes action concerning discipline, and it is only if the employee disagrees with that action and appeals that the Personnel Board has any role to play. In short, the Personnel Board acts as an appellate tribunal not as a tribunal to which the appointing authority must go and seek authority to discipline an employee.
*713The majority acknowledges the employee is the proponent of an order to reverse the disciplinary action but ultimately places the burden of proof on the appointing authority as the proponent of an order affirming the disciplinary action. Maj. op. at 707. This contradicts established principles of administrative law which require the person challenging the agency action to bear the burden of proving error. Colorado Health Care Ass’n v. Colorado Dep’t of Social Serv., 842 F.2d 1158, 1164 (10th Cir.1988).
The majority’s statement that “the scales are not weighted in any way by the appointing authority’s initial decision to discipline the employee” is simply incorrect. Maj. op. at 706. The arbitrary or capricious standard of review tips the scales in favor of the agency. The majority noted the tension between the arbitrary, capricious, or contrary to rule or law standard in section 24-50-103(6) and the requirement that the board make findings of fact and conclusions of law based on the record'. Maj. op. at 706 n. 10. By holding that the hearing officer makes an independent finding of whether the evidence presented justifies a dismissal for cause, the majority disregards the statutory standard of review.19 Id.
The problem lies in the majority’s characterization of the issue appealed by Kinchen. The majority claims the Board has de novo review of whether the appointing authority had just cause to dismiss him. Maj. op. at 706. It allows the implication that an employee receives a de novo hearing to trump the express statutory standard of review.20
Cases from other jurisdictions provide guidance as how to resolve this tension. In Redmond v. United States, 507 F.2d 1007, 1010-11 (4th Cir.1975), plaintiff argued that in a trial de novo, regarding disqualification of participation in the Food Stamp Program, the agency had to prove the facts necessary to justify its actions. Redmond wanted the district court to proceed as if no agency action had been taken. The court held by allowing for a trial de novo, Congress intended nothing more than that the district court would not be bound by the administrative record. Id. at 1011. It did not alter the burden of proof on the plaintiff to show he or she is entitled to relief.
Construing the statutory scheme as a whole, the issue is whether the appointing authority acted arbitrarily, capriciously, or contrary to rule or law in terminating Kin-chen. This incorporates both the statutory standard of review and the de novo review. In Sanchez v. Huntsville Independent School District, 844 S.W.2d 286 (Tex.Ct.App.1992), the court interpreted two statutes one allowing for de novo review and the other imposing a substantial evidence standard. It found the appropriate standard was substantial evidence de novo. Id. at 290. The court placed the burden on the appellant in accordance with general rules of administrative law. Id. “It is the complaining party, in this case the appellant, who has the burden of showing an absence of substantial evidence to support the school district’s decision.” Id. See Arkansas Transit Homes, Inc. v. Stone, 301 Ark. 323, 783 S.W.2d 860, 862 (1990) (court conducting de novo review will not disturb findings unless against preponderance of the evidence).
De novo review is possible for an arbitrary and capricious standard. Joudeh v. United States, 783 F.2d 176, 178 (10th Cir.1986) (on de novo review the court determines whether sanctions were arbitrary and capricious); Haskell v. United States Dep’t of Agriculture, 743 F.Supp. 765, 769 (D.Kan.1990) (“It is well established in this circuit that the USDA’s imposition of sanctions should be upheld on de novo review unless the court finds the Secretary’s choice of sanctions is arbitrary and capricious.”). De novo review of whether the appointing authority acted arbitrarily and capriciously gives effect to all statutory sections.
Review of the Colorado Constitution, the statutes enacted pursuant to the constitution, *714and case law supports the conclusion that on appeal from the action of the appointing authority, the burden is on the employee to establish the authority acted arbitrarily, capriciously, or contrary to rule or law. Therefore, I dissent.
SCOTT, J., joins in this dissent.
. As discussed by the majority, other states have placed the burden of proof on the department. See Maj. op. at 708-709. However, these cases are not persuasive because different constitutional and statutory provisions were applicable.
. The appointing authority administers corrective and disciplinary procedures on charges of misconduct. Rule 7-1-2, 4 CCR 801-1 (1992).
. The court of appeals held the hearing officer implicitly determined the department acted arbitrarily and capriciously by finding Kinchen did not commit the acts for which he was terminated. Kinchen, 867 P.2d at 12.
. Both parties concede review is de novo, therefore it is unnecessary to examine this issue.