The majority applies to the defendants a standard which the constitution does not demand of them, and it reaches a result which is inconsistent with the application of the proper standard. Therefore, I dissent. *Page 565
The plaintiff, a female teacher at Norwich Free Academy, after a full administrative hearing before the eight members of the board of trustees of the academy, was found, inter alia, to have had intimate physical contact with one of the minor students of the academy; to have provided alcoholic beverages to several such minor students, including the one with whom she had intimate contact; to have consumed alcoholic beverages with them; to have permitted them to consume such beverages in her presence; and to have taken a student, who was inexcusably absent from class, to an athletic event and later to have covered for him by writing a note. On the basis of these findings, which she does not challenge on this appeal, the board of trustees terminated her contract of employment.
On appeal to the Superior Court, the plaintiff challenged the participation in the administrative proceeding of two of the members of the board on the ground that they were also members of the law firm that represented the academy in other, unrelated matters. One of the challenged members, Wayne G. Tillinghast, when requested by the plaintiff to disqualify himself from the administrative proceedings, had made remarks on the record which were subject to an interpretation calling into question his impartiality; the other challenged member, James J. Dutton, made no such remarks. The trial court heard evidence and specifically found that the law firm of which Tillinghast and Dutton were members represented the academy from time to time on relatively minor real estate matters; that the firm considered the academy as a representative client for purposes of advertising and legal publication; that at the time of the administrative hearing one of the other members of the firm was retained by the academy's insurer to represent it in a tort suit; that Tillinghast was not prejudiced against the plaintiff and had not prejudged the case; and that there was no evidence that *Page 566 Dutton was prejudiced against the plaintiff or unfair to her in any way. The plaintiff does not challenge these critical findings on this appeal.
Her sole claim before us is that the participation of Tillinghast and Dutton in the administrative hearing violated her due process rights under thefourteenth amendment to the United States constitution. I can only read the majority opinion as resting on the proposition that the due process test for disqualification of an administrative adjudicator is equivalent to the test for disqualification of a judge. That this is the gist of the opinion is clear from the following sentence, which ends the critical paragraph of the majority opinion: "When administrators act in a quasi-judicial capacity, as the board in this case did, their functions and that of judges most closely merge and the judicial model to test impropriety becomes an acceptable one." Petrowski v. Norwich Free Academy, supra, 560.
I agree that had Tillinghast and Dutton been judges participating in a judicial proceeding, they would have been disqualified, because the relationship between their law firm and the academy would have violated the governing standard for judicial disqualification, which is the reasonable appearance of impropriety. "`The question is not whether the judge is impartial in fact. It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question his [or her] impartiality, on the basis of all of the circumstances.'" Papa v. New Haven Federation of Teachers, 186 Conn. 725, 746,444 A.2d 196 (1982).
The majority, however, draws an equation between the standard governing judicial disqualification and the due process standards governing disqualification of administrative adjudicators. The principal authorities offered for this startling proposition are several passages *Page 567 from a law review article; Strauss, "Disqualifications of Decisional Officials in Rulemaking," 80 Colum. L. Rev. 990 (1980); and from a passage from Withrow v. Larkin, 421 U.S. 35, 46-51, 95 S. Ct. 1456,43 L. Ed. 2d 712 (1975). I can find no support in any of those passages for the majority's thesis of equality. In fact, the most telling part of one of those passages, rather than supporting the equation, contradicts it: "Yet the Supreme Court does not appear to have concluded that only those official functions that would also be performed by a judge consistent with judicial duty are consistent with fairness in adjudicative activities." Strauss, supra, 1021-22. (Emphasis in original.) And the only references in Withrow v. Larkin, supra, are to the proposition that conduct by an administrator which would not require disqualification if he were a judge is, a fortiori, not constitutionally impermissible for the administrator. This is a far cry from the proposition of the majority, namely, that the standard for impartiality for a judge is what must be applied, as a matter of due process of law, to the issue of disqualification of an administrative adjudicator.
The proposition of the majority is contrary to the law. "The fact that [an administrative hearing officer] might have been disqualified as a judge . . . does not, either in principle or under the authorities, infect the hearing with a lack of due process." Lopez v. Henry Phipps Plaza South, Inc., 498 F.2d 937, 944 (2d Cir. 1974); see also comment, "Disqualification of Federal Judges for Bias or Prejudice," 46 U. Chi. L. Rev. 236, 237 n. 6 (1978) ("the subject of judicial disqualification in the federal courts is governed by statutes that establish a more stringent standard than the Constitution demands"), citing United States v. Haldeman, 559 F.2d 31,130 n. 276 (D.C. Cir.), cert. denied, 431 U.S. 933,97 S. Ct. 2641, 53 L. Ed. 2d 250, reh. denied, 433 U.S. 916, *Page 568 97 S. Ct. 2992, 53 L. Ed. 2d 1103 (1977)1; Schweiker v. McClure, 456 U.S. 188, 197 n. 11,102 S. Ct. 1665, 72 L. Ed. 2d 1 (1982) ("The District Court's analogy to judicial canons . . . is not apt. The fact that a hearing officer is or was a carrier employee does not create a risk of partiality analagous to that possibly arising from the professional relationship between a judge and a former partner or associate.") Thus, much of the majority opinion is simply beside the point.
The proper standard by which a due process claim of administrative disqualification is to be judged is stated in one of the United States Supreme Court cases which the majority opinion cites but does not discuss. "Mathews v. Eldridge, 424 U.S. 319, 335 [96 S. Ct. 893,47 L. Ed. 2d 18] (1976), makes three factors relevant to such an inquiry: `First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.'" Schweiker v. McClure, supra, 193-94; Santosky v. Kramer, 455 U.S. 745, 751, 102 S. Ct. 1388,71 L. Ed. 2d 599 (1982); see also McGaffin v. Roberts,193 Conn. 393, 412-13, 479 A.2d 176 (1984) (Parskey, J., dissenting) (quoting the three-part test articulated by Mathews v. Eldridge, supra, and Schweiker v. McClure, supra). Applying this test to the facts of this case, I conclude that the plaintiff's due process rights were not violated.
The plaintiff's private interest in her continued employment as a teacher is, of course, weighty and is *Page 569 entitled to due process protection. Lee v. Board of Education,181 Conn. 69, 72, 434 A.2d 333 (1980). The risk of an erroneous deprivation of that interest through the procedure used, namely, the participation of Tillinghast and Dutton, and the probable value of additional and substitute procedural safeguards, did not require, however, the disqualification of either Tillinghast or Dutton in this case.
The trial court, after a full evidentiary hearing, specifically rejected the plaintiff's factual claim that Tillinghast and Dutton might be fearful of losing the academy as a client by not sustaining the charges against the plaintiff. The court also specifically found that Tillinghast was not prejudiced against the plaintiff, and had not prejudged the case, and that there was no evidence that Dutton was prejudiced against the defendant or unfair to her. It is axiomatic that "the burden of establishing a disqualifying interest rests on the party making the assertion." Schweiker v. McClure, supra, 196. Thus, the plaintiff did not carry any factual burden of showing actual harm to her by the participation of Tillinghast and Dutton.
Moreover, it is very significant that the plaintiff chose to have her case adjudicated by the academy's trustees, rather than, as was also her option, by a three person "impartial hearing panel" chosen as follows: one person chosen by the plaintiff, one chosen by the board, and one chosen by the two selected by her and by the board. General Statutes (Rev. to 1983) 10-151 (b). Thus, she chose as her panel a group of people who already had a fiduciary duty, as members of the board of trustees, to the academy. The procedure established by General Statutes (Rev. to 1983) 10-151 (b) rests on the "presumption that hearing officers who decide [such] claims are unbiased"; Schweiker v. McClure, supra, 195; a presumption that, unless rebutted, underlies the entire process of administrative adjudication. *Page 570 Id.; Withrow v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456,43 L. Ed. 2d 712 (1975). This statutory scheme and, indeed, the law of administrative adjudication which generally permits combining in one agency or even one individual both investigative and adjudicative responsibilities; see Withrow v. Larkin, supra; assume that the adjudicators will, when faced with the specific and weighty task of adjudicating a particular claim of teacher misconduct, put aside their general loyalty to the academy and act conscientiously. The trial court found in effect that these two challenged adjudicators could and did so conduct themselves. I cannot believe, therefore, that, simply because these two of the eight trustees who heard the case are also members of a law firm which represents the academy on other, unrelated matters, there was added a constitutionally impermissible degree of error, or that the value of the additional safeguard of disqualification was constitutionally required.
Finally, the state has a strong interest in the control of its public educational system; Goss v. Lopez,419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975); see Campbell v. Board of Education, 193 Conn. 93,475 A.2d 289 (1984); and thus in ensuring that young men and women be taught by teachers whom they can respect and who can serve as proper role models. When a teacher's conduct is called into serious question, as it was here, the function of deciding whether that teacher should remain in her role is as important to the state as it is to her. The "fiscal and administrative burdens that [disqualification of Tillinghast and Dutton] would entail"; Schweiker v. McClure, supra, 194; are that this important decision would have had to be made by less than a full complement of the board, an option that should be reserved for cases involving a showing of actual bias on the part of a member of the board.2 *Page 571
The result I reach is consistent with the distinct thrust of the authoritative federal cases applying the three-part due process test to analogous claims. In Schweiker v. McClure, supra, the Supreme Court found no due process violation where Medicare claims were adjudicated, even without a right of appeal, by hearing officers employed by the private insurance carriers which administered the claims. In Withrow v. Larkin, supra, the Court found no due process violation where a physician's right to practice medicine was both investigated and adjudicated by the very same administrative licensing board. In Lopez v. Henry Phipps Plaza South, Inc., supra, the court found no due process violation where an eviction case was heard by a hearing officer who was also the manager of another housing project, which was also owned by the corporate parent of the landlord in the case which he was adjudicating. In Wolkenstein v. Reville, 694 F.2d 35 (2d Cir. 1982), the court found no due process violation where the superintendent of schools, of a school district in which the teachers went on an illegal strike, both dismissed teachers for striking illegally and adjudicated their subsequent objections to those dismissals. And in Simard v. Board of Education, 473 F.2d 988 (2d Cir. 1973), which the majority in this case attempts to distinguish, the court found no due process violation where the local board of education denied the plaintiff tenure after the board had recently bargained with the plaintiff who was chief negotiator for the teachers in contract negotiations "characterized by particular bitterness and recrimination." Id., 990. Contrary to the majority's limited reading of the case, it has been cited by Professor Davis as resting on the "absence of *Page 572 actual, rather than potential, bias.'" 3 Davis, Administrative Law Treatise (2d Ed. 1980) 19.4, pp. 388-89.3
It is clear to me that in most or all of these cases a judge would have been properly disqualified from hearing the matter because of the appearance, rather than the actuality, of partiality. Papa v. New Haven Federation of Teachers, supra. This properly broad standard, deemed essential to public confidence in the integrity of the judiciary, does not apply to the administrative realm as a matter of due process of law. The majority opinion's equation, for disqualification purposes, between administrative adjudicators and judges ignores the factual findings of the trial court; ignores the applicable precedents; ignores a long history of administrative law; ignores a long-standing presumption that administrative hearing officers, even those who may appear partial, are unbiased unless shown to the contrary; and, in my view, imperils other administrative adjudicative proceedings which, for example, combine in one agency or administrator both investigative and adjudicative responsibility. See, e.g., General Statutes 19a-494 and 19a-498 (inspection of health facilities and adjudication of license revocations); cf. Withrow v. Larkin, supra.
My final disagreement with the majority lies in the rescript to the opinion, which orders that the case be remanded with direction to reverse the decision of the board. It does not address the question of whether either the board, shorn of Tillinghast and Dutton, or a statutory impartial hearing panel selected under General Statutes (Rev. to 1983) 10-151 (b)can properly *Page 573 rehear the case. Although I would find no error in the decision of the trial court, if error is found, certainly the academy should be entitled to a rehearing of its charges before a tribunal which does not contain what the majority deems to be a constitutional taint. When such strongly competing interests are at stake, the ultimate outcome should not hinge on a procedural defect which is readily curable.