(concurring in part and dissenting in part). I concur in the majority’s finding that the case be reversed and remanded in order that the commission can review the merits of the school board’s disciplinary action.
However, I dissent from the majority opinion as it relates to the due process rights of Kurtz. Rudimentary due process contemplates a hearing before an impartial decision maker. It appears to me that it is repugnant to fairness and propriety that attorneys from the same law firm who are ap*341pointed by and paid by the same source, in this case the school board, represent both school board and the petitioner. I am therefore in favor of the adoption of a per se rule against situations in which the charging body and the factfinder are represented by attorneys who are from the same law firm.
Moreover, even accepting the majority’s rule that "[t]o succeed with a due process challenge, a tenured teacher must show actual bias in the proceedings or a risk or probability of unfairness that is too high to be constitutionally tolerable,” I conclude that reversal is required. The majority admits that the hearing officer, attorney Pollard, denied Kurtz’ motion to voir dire Pollard. Thus, the hearing officer prevented Kurtz from establishing what the majority deems is necessary to uphold a due process challenge: actual bias or an intolerable risk of unfairness. Stated otherwise, it seems constitutionally intolerable to permit a hearing officer to deny a teacher’s request to voir dire the hearing officer when the hearing officer is employed by the same attorney firm that represents the school district.
I would affirm the conclusion reached by the State Tenure Commission.