(dissenting). We respectfully dissent. Defendant Kurtz was denied his right to an unbiased decisionmaker at the board hearing.1
i
Less than four years ago, this Court examined a challenge similar to the one before us today. In Ferrario v Escanaba Bd of Ed, 426 Mich 353; 395 NW2d 195 (1986), a teacher alleged that the bias of the school board presiding over his pretermination hearing denied him his constitutional right to due process. The Court assumed in that case that the constitutional right to due process of law included the right to an impartial decisionmaker at the board hearing, articulated the test to be used in determining whether the right had been violated, and applied that test. Although the Court did not specify whether the basis for that right was the United States Constitution, Michigan’s Constitution, or both, it relied on cases interpreting the federal constitution._
*96Today, despite the absence of any challenge by the parties, at any point in the history of this case, to the source or viability of the right recognized in Ferrario or the test adopted and applied there, the majority impliedly discards much of the reasoning in that case.
The majority finds that " 'all the process that is due’ ” under the federal constitution at Kurtz’ pretermination hearing is defined in Cleveland Bd of Ed v Loudermill 470 US 532; 105 S Ct 1487; 84 L Ed 2d 494 (1985), and includes only notice of charges, an explanation of the charging party’s evidence, and an opportunity to respond. Ante, pp 78-79, 85-86. The majority concludes that Louder-mill’s requirements were met in this case before even reaching the question whether Kurtz’ right to an impartial decisionmaker was denied.2 Clearly, under the majority’s opinion, the right to an impartial decisionmaker at a pretermination hearing under the tenure act, assumed in Ferrario to be mandated by the federal constitution, is not part of the federal constitution’s protections. Because the majority goes on to explain why Kurtz’ right to an impartial decisionmaker under Ferrario has not been denied, see ante, pp 88, 94, it may yet be prepared to recognize that the right has its source elsewhere, perhaps in the state constitution or the act itself.3 However, the majority’s earlier applica*97tion of Loudermill belies its later claim that it is not deciding in this case whether that right is preserved by the federal constitution. Part n of the majority’s opinion is irreconcilable with its concluding sentence purporting to avoid the question whether federal constitutional requirements of due process under Loudermill conflict with the requirements of Ferrario.4
Ferrario was a unanimous decision of this Court, joined by the author of today’s majority opinion. Without prompting by the parties, the majority now reaches out to undermine the federal constitutional roots of that case.5 Regardless of whether *98Ferrario’s reasoning is still shared by a majority of the Court today, it should not be revisited without adequate briefing and argument from the parties.
We therefore agree completely that we should "save for another day the question whether, and to what extent, Loudermill and Ferrario are in conflict.” It is unfortunate that the majority is unable to resist addressing it anyway.
ii
Setting aside debate over whether it is stare decisis, the federal constitution, the state constitution, or the statute itself that requires that we apply in this case Ferrario’s test for the right to an impartial decisionmaker at the board hearing, we dissent from the majority’s conclusion that the right was not denied here.
Ferrario set out the test to detect the presence of impermissible bias at a board hearing. Contrary to the majority’s present analysis, see ante, pp 88-89, we explicitly rejected the proposition that actual bias must be shown. Ferrario, supra, pp 379-380. Instead, we recognized that in some situations even the risk or probability of bias may be constitutionally unacceptable. Id., p 380 (citing Crampton v Dep’t of State, 395 Mich 347, 353; 235 NW2d 352 [1975]). Crampton stated, and Ferrario implied, that in some cases pecuniary interest can provide a basis for imputed bias even without a showing of actual bias. Crampton, supra, pp 351-352; Ferrario, supra, pp 374, 380. We believe the case before us is such a case._■
*99Testimony before the Tenure Commission established that each counsel’s law firm had been employed by the local school district for many years before the present case arose. The hearing officer testified that the school district was billed monthly for the time expended by members of the firm and that the district was billed for the total number of hours he and his partner worked on this matter with no separate billing or breakdown to reflect the different roles performed by each. Because of the firm’s joint billing procedure, the two attorneys were essentially both retained and paid by the local school district. The employment of both attorneys furthered their financial interests and the financial interests of their law firm.
The hearing, officer was called upon to rule on procedural motions and evidentiary objections raised by an attorney with whom he had an ongoing financial and professional relationship. After the close of proofs, the hearing officer prepared an outline of the disputed factual issues for the school board to consider during the deliberations. He then attended the deliberations, answered questions on legal points, and took notes, which he used to draft the board’s decision.
Although we agree with the majority that a review of the record in this case demonstrates that .the hearing officer conducted himself in a professional manner with no overt bias, we are unable to conclude with any confidence that the procedure satisfied the guarantee of a fair hearing established in Ferrario and Crampton. The procedure generated both an appearance and a probability of unfairness and biased decision making that is inconsistent with the guarantee of an impartial decisionmaker, whether the basis of that guarantee be a constitution or the tenure act itself.
The majority concludes that the hearing officer *100was not a decisionmaker because his participation in the deliberations and decision of the board could not have improperly influenced the outcome of the hearing. Its conclusion is apparently based on its belief that any influence the hearing officer exerted on the board’s decisions could not have been improper, and, even if it was, the board was able to "resist” that influence.
In our view, the potential for the hearing officer’s advice to the board being colored by his pecuniary interest in continuing good relations between the school board and his firm is obvious. For instance, the hearing officer might have been more likely than an independent adjudicator to advise the board that the argument or evidence presented by his partner was sufficient to meet legal or factual burdens.
We also disagree with the majority’s suggestion that a school board should have to resist the influence of a person affiliated with counsel for one of the parties during the deliberating process. There is simply no way to determine the extent to which the hearing officer’s participation in the board’s decision making may have influenced the ultimate decision of the board. The deliberations of a controlling board must be free from improper influence by either party. Once the hearing officer attended and participated in the board’s deliberations by offering legal advice, the potential for bias was neither remote nor insubstantial.
Such a threat to the independence of the decision-making body by an attorney with a direct connection to the charging party does not further fair adjudicative procedures, be they mandated by statute or constitution, and certainly does little to preserve the appearance of fairness.6 Our system *101of justice will not tolerate such a risk.7
Furthermore, we find it particularly significant that the board could have easily eliminated the substantial threat of bias in this case if it had selected an independent attorney from another law firm to serve as its hearing officer and legal advisor. It is difficult to imagine a legitimate reason for a local school board to prefer to select a hearing officer from the firm that represents one of the parties rather than from an independent source, and the majority fails to suggest one. If a local school board decides to hire an attorney to serve as hearing officer or legal advisor in a hearing under the tenure act, and we do not intend anything in this opinion to discourage boards from doing so,8 that attorney should be independent of the counsel for the charging party._
*102III
Despite our disagreement with the majority’s conclusions about the teacher’s claim of impermissible bias, we agree that the only remedy that can be afforded the teacher is a remand to the State Tenure Commission for review of the merits de novo. An award of back pay based on a procedural error at the board hearing before the commission determines whether the teacher was suspended for cause would be inconsistent with past precedent. See Ferrario; Pounder v Harper Woods Bd of Ed, 402 Mich 91; 260 NW2d 287 (1977); Shiffer v Gibraltar Schools, 393 Mich 190; 224 NW2d 255 (1974). Although the procedures employed by the board in the present case present an unacceptable risk of bias, there has been no determination yet by the Tenure Commission that Kurtz was arbitrarily or capriciously suspended.
A hearing de novo is adequate to remove the taint of an initial decision made by a biased tribunal. The commission has the statutory power to subpoena witnesses to take additional testimony and may make independent findings of fact. Rehberg v Melvindale, Ecorse Twp Bd of Ed, 345 Mich 731, 737; 77 NW2d 131 (1956). All questions of law and fact decided by the controlling board are subject to review and determination de novo, and the school district continues to bear the burden of showing reasonable and just cause for the discipline imposed. Comstock Public Schools v Wildfong, 92 Mich App 279, 284-285; 284 NW2d 527 (1979). If Kurtz prevails before the Tenure Commission on remand, back pay subject to mitigation under Shiffer, supra, is available.
IV
In this case the specific and identifiable financial *103and professional relationship between the hearing officer and counsel for the charging party raised a substantial likelihood of biased decision making. The procedure adopted by the school board deprived the teacher, confronted with the potential loss of his livelihood and his profession, of the assurance that his case would be conducted before and decided by an arbiter who is not predisposed or otherwise improperly influenced to decide against him. The potential for bias present in this case could have been avoided without undue financial or administrative burden by selecting an independent attorney to serve as hearing officer and legal advisor. By approving of the board’s procedure, the majority invites abuse at the board level and disregards the act’s purpose of minimizing unfair treatment of tenured teachers by local boards.
Consequently, we would reverse the decision of the Court of Appeals and remand the case to the Tenure Commission for a review de novo of the merits.
Archer, J., concurred with Cavanagh, J. Boyle, J., concurred only in the result reached by Cavanagh, J.At the hearing, Kurtz sought voir dire of both the board members and the hearing officer for bias. The hearing officer allowed the voir dire of the board members, but refused to allow himself to be questioned. After questioning each of the seven board members present, Kurtz challenged three board members for bias. The hearing officer denied these challenges. Kurtz does not contest the hearing officer’s rulings regarding the board members in this Court.
Ante, pp 87-88. ("Notwithstanding the fact that Kurtz’ pretermination hearing comported with the standards set forth in Loudermill, the dissent argues that Kurtz nevertheless was not afforded due process of law because he was denied his 'right to an impartial decisionmaker.’ ”)
Although the parties in this case failed to argue an alternate basis for the right, we note that even if it were true, as the majority contends, that due process affords a tenured teacher no more than the right to appear and be heard before the local board prior to his termination, the tenure act itself grants him much more than that. Under the act, a teacher is entitled to written notice of the charges against him and at least thirty days in which to prepare a defense to *97those charges, § 102, to he presented at a full, public hearing before the local board, at which the teacher has the right to representation by an attorney, § 104. At the hearing, testimony is given under oath or affirmation and the parties and the board have the right to
subpoena witnesses. A full stenographic record of the proceeding is made and provided to the parties, and the written decision of the hoard, which must be prepared within fifteen days of the hearing, must be concurred in by a majority of the board. Id.
These are not the attributes of " 'an initial check against mistaken decisions.’ ” Ante, p 86 (Bbickley, J.). Rather, they describe a proceeding that is quasi-judicial in nature, and while the right to an impartial decisionmaker at that proceeding is not plainly provided in the statute, such a right must be implied. Such elaborate procedural safeguards prior to termination would be wholly unnecessary if the Legislature actually intended only one fair hearing, in front of the Tenure Commission, after discharge or demotion. The existence of the safeguards, therefore, clearly indicates a legislative intent to provide a fair hearing not only after, but also before, such action. As we stated in Tomiak v Hamtramck School Dist, 426 Mich 678, 688; 397 NW2d 770 (1986), the right to notice and a hearing before discharge or demotion is the act’s "primary protection for a tenured teacher.” A hearing before a biased decisionmaker, however, is no protection at all.
The majority’s conclusion that due process mínimums are lower in the pretermination, as opposed to the post-termination, setting also conflicts with Ferrario’a reasoning. Ferrario made no such distinction, relying on pre- and post-termination cases.
This Court’s recognition of a constitutional right to an impartial decisionmaker at a predeprivation hearing subject to de novo review extends beyond Ferrario. A case upon which the Ferrario Court relied heavily, Crampton v Dep’t of State, 395 Mich 347; 235 NW2d 352 (1975), involved the alleged risk of bias at a predeprivation hearing involving a driver’s license. Like the hearing before the school board *98under the tenure act, the hearing in Crampton was reviewed de novo by another decisionmaker. Yet the Crampton Court applied to the predeprivation hearing the constitutional standards for an impartial decisionmaker that the United States Supreme Court had enunciated for decisionmakers who are not subject to de novo review. The majority’s opinion sua sponte undermines Crampton as well.
As the authors of a recent Yale Law Journal article commented, *101"[f]ew situations more severely threaten trust in the judicial process than the perception that a litigant never had a chance because the decisionmaker may have owed the other side special favors.” Redish & Marshall, Adjudicatory independence and the values of procedural due process, 95 Yale L J 455, 483 (1986).
Cf. In re Schlossberg, 388 Mich 389; 200 NW2d 219 (1972). Although this case, unlike Schlossberg, did not come to this Court on appeal from the State Bar Grievance Board, reference to the Rules of Professional Conduct is no less appropriate.
The comment to MRPC 1.10, which concerns the imputed disqualification of attorneys, states that the "rule of imputed disqualification . . . gives effect to the principle of loyalty to the client as it applies to lawyers who practice in a law firm. Such situations can be considered from the premise that a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client or from the premise that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer is associated.”
In view of the duty of loyalty and the premise that "a firm of lawyers is essentially one lawyer,” MRPC 1.7, addressing conflicts of interest, is also relevant.
Because board counsel was employed by the board in a quasi-judicial role, Canon 3 of the Code of Judicial Conduct, which admonishes judges to perform the duties of their judicial offices impartially and diligently, also applies.
See MCL 380.1253; MSA 15.41253 (authorizing the board to employ an attorney to represent the school district or board and to render other legal service for the welfare of the school district).