specially concurring:
I write to pass on to the Board, using the words of my high school English teacher, Mrs. Murphy, a word to the wise. A tribunal that is too close to an issue, or which has a financial stake in the outcome, may find its impartiality impaired. While neither party has directly raised the issue of impartiality in this proceeding, some troublesome factors do appear in the record.
In the initial proceeding, which led to the first appeal, the hearing officer did a good job of winnowing through the large number of charges made against Haw to determine which were supported by the evidence and which were not. The Board upheld the hearing officer’s findings but then went on to impose an award of costs and attorney fees in the sum of $116,067.05 against Haw, without giving him an opportunity to be heard. The award of costs and fees was vacated on due process grounds and the case was remanded for further consideration of the issue.
On remand, the Board held a hearing on the issue of costs and fees, without the assistance of a hearing officer. Despite the fact that Haw prevailed on the majority of the charges against him, the Board again imposed a sizable award against Haw, this time in the sum of $115,755. In its order the Board recited that it had “considered the fact that costs and attorney fees incurred in investigating and prosecuting complaints against a physician are paid by licensing fees and concluded the Board has a responsibility to recoup such expenses, if appropriate.” It appears that the Board might have been somewhat too mindful of recouping all of the license fees and a little less mindful than it should have been in determining a “reasonable” award.
In order to assure impartiality on the second remand, the Board would be well advised to employ the services of the hearing officer in determining an appropriate award of costs *56and fees. The hearing officer did a good job of separating the wheat from the chaff with regard to the substantive issues in the first go-around and would more than likely perform a similar service on the issue of costs and fees. The use of a hearing officer would provide some separation between the Board’s responsibility to fashion a reasonable award and its interest in recouping the licensing fees paid by its membership. At the very least, employment of a hearing officer would avoid the appearance of partiality.