State Transportation Commission v. Ford , 1992 Wyo. LEXIS 208 ( 1992 )

MACY, Chief Justice.

This is an appeal from the district court’s order reversing the actions taken by the State Transportation Commission of Wyoming.

We vacate the district court’s order and remand.

Yince Ford, who conducted his business under the name of Quality Signs, poses this issue:

Absent a showing to the contrary, does use of separate personnel from the office of the Attorney General as prosecutor and hearing officer in administrative contested cases result in a per se biased hearing tribunal?

On June 12 and 13, 1991, the Department of Transportation (formerly the State Highway Department) issued written notices to Mr. Ford, apprising him that he had installed four outdoor advertising signs without obtaining an advertising permit. Wyo.Stat. § 24-10-107 (1977). The notices also informed him that he would have to obtain a permit or the Department would remove the signs. Wyo.Stat. § 24-10-109 (Supp. 1992). They advised him that he could request a hearing before the Commission within fifteen days. Section 24-10-109(b). Mr. Ford requested a hearing, and it was scheduled for three o’clock in the afternoon on August 14, 1991. The hearing notice stated that the hearing would be held before the Commission and that Lawrence A. Bobbitt III, Senior Assistant Attorney General, would act as the hearing officer. It also stated that time constraints required that Mr. Ford’s presentation be succinct and limited to the signs at issue. The notice did not specifically limit the time allowed for presentation of evidence other than indicating the time the hearing would begin. Mr. Ford sent the following correspondence to the Department:

This is to formally enter the following objections to the matters as stated in your letter of July 24, 1991.

1.I object to Larry Bobbitt acting as Hearing Officer when he is also the attorney representing the Highway Commission.

2. I strenuously object to the time of day and the length of time as stated in your letter.

3. I specifically requested that the hearing be held before the full commission itself and I repeat that demand. I want the [cjommission to be informed first hand as to what has transpired on these four signs.

4. I specifically requested that I be given one and one-half (1½) days in order that I may fully and properly outline my case. Any less will not give me due process. I again demand that the matter be heard by the full commission itself.

Let me inform you that, if these conditions are not met, I will proceed on the assumption that the signs are legal, which they certainly are.

By return correspondence, Mr. Ford was informed that Larry Donovan, Senior Assistant Attorney General, would act as the hearing officer instead of Mr. Bobbitt. The hearing was held as scheduled but Mr. Ford did not appear. The hearing was called to order by the Commission’s chairman with five members being present. Mr. Donovan was the hearing officer, and Milo Vukelich, Assistant Attorney General, acted as the prosecutor for the Department. As disclosed by the transcript of the hearing, the Department presented its evidence, and, since Mr. Ford made no appearance, the hearing was closed.

On September 11, 1991, the Commission issued findings of fact and conclusions of law which found that the signs were unlawful and ordered that the signs be removed within thirty days or they would be removed by the Department. On September 25, 1991, Mr. Ford filed a petition for review in the district court. The district court reversed the Commission on the basis that members of the Attorney General’s staff could not serve as both the prosecutor and the “Administrative Hearing Officer.” The Commission contends that the procedures used at its hearing comported with due process and seeks review of the district court’s order.

The district court was correct in its ruling to the extent that it stated that the strictures of due process require a fair hearing before a forum which is free from bias and prejudice. Armed Forces Cooperative Insuring Association v. Department of Insurance, 622 P.2d 1318, 1326-27 (Wyo.1981). In Armed Forces Cooperative Insuring Association, we held that the appellant had the burden to prove impropriety on the part of the hearing body. Id. at 1327. See also Ririe v. Board of Trustees of School District No. One, Crook County, Wyoming, 674 P.2d 214 (Wyo.1983). Since Mr. Ford did not appear at the hearing, he did not make any effort to test the impartiality of the hearing body. Absent anything in the record to the contrary, we can conclude only that the Commission acted impartially.

While we are not troubled with the conclusion that Mr. Ford failed to demonstrate bias or prejudice which required reversal, we do perceive the Attorney General’s multiple roles in this hearing process as being problematic. The Attorney General is obligated to provide agencies with such services “as may be necessary in order for the agency to properly investigate, prepare, present and prosecute the contested case before the agency.” Wyo.Stat. § 16-3-112(c) (1990). Wyo.Stat. § 16-3-112(e) (1990) authorizes an “independent administrative hearing officer” in certain circumstances, but Wyo.Stat. § 16-3-107(k) (1990) contains this prohibition:

Any person representing an agency at a hearing in a contested case in which the agency is a party shall not in the same case serve as presiding officer or provide ex parte advice regarding the case to the presiding officer or to the body or any member of the body comprising the decision makers.

In this case, the Commission chairman was the presiding officer. See Wyo.Stat. § 16-3-112 (1990). The Attorney General did not purport to act as the presiding officer but, rather, acted as a hearing officer or hearing advisor. The record also demonstrates that the Commission reached its decision on the basis of the evidence presented to it. Absent an on-the-record demonstration of prejudice of some sort or that the Attorney General provided ex parte advice to the presiding officer or the Commission, we are compelled to hold that the hearing conducted by the Commission was not fatally flawed, per se, by the use of the Attorney General’s personnel in the capacities of prosecutor and hearing officer under the circumstances of this case.

The appearance of impropriety, or certainly the occasion for concern, exists if the Attorney General prepares the case for an agency and then also has a pipeline to the hearing body by serving as the hearing officer or hearing advisor. See Wyo.Stat. § 16-3-111 (1990). The Legislature recently created the office of administrative hearings, and that should serve to relieve the concerns we have expressed above, as well as the need, or the perceived need, for the Attorney General to perform the functions of the hearing officer or hearing advisor. See Wyo.Stat. §§ 9-2-2201 to -2203 (Supp. 1992).

The district court's order is vacated, and the matter is remanded to the district court with directions that an order be entered affirming the Commission’s decision.