                IN THE SUPREME COURT, STATE OF WYOMING

                                         2014 WY 7

                                                            OCTOBER TERM, A.D. 2013

                                                                   January 16, 2014

DARRYL WADSWORTH,

Appellant
(Petitioner),

v.
                                                     S-13-0029
BOARD OF TRUSTEES OF LINCOLN
COUNTY SCHOOL DISTRICT
NUMBER TWO,

Appellee
(Respondent).

                    Appeal from the District Court of Lincoln County
                      The Honorable Dennis L. Sanderson, Judge

Representing Appellant:
      Erin M. Kendall and Patrick E. Hacker of Hacker, Hacker & Kendall, P.C.,
      Cheyenne, WY. Argument by Mr. Hacker.

Representing Appellee:
      Dennis W. Lancaster of Lancaster Law Offices, P.C., Afton, WY.

Before KITE, C.J., and HILL, VOIGT*, BURKE, and DAVIS, JJ.

*Justice Voigt retired effective January 3, 2014.




NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.

[¶1] Lincoln County School District Number Two (the District) notified Darryl
Wadsworth, a continuing contract teacher in the District, that his contract was to be
terminated on grounds of insubordination, incompetence, and poor work performance.
Wadsworth requested a hearing before an independent hearing officer, and following that
hearing, the Board of Trustees of Lincoln County School District (the Board) issued an
order accepting the hearing officer’s recommendation and conclusion that good cause
existed for the termination of Wadsworth’s teaching contract. On appeal, Wadsworth
contends that the Board’s order was entered in violation of the Wyoming Administrative
Procedure Act (APA) and Wadsworth’s due process rights because some members of the
Board did not attend the entire hearing or otherwise review all of the evidence submitted
to the hearing officer. We affirm.

                                        ISSUES

[¶2]   Wadsworth presents the following issues for our review:

                    1.     Does it violate the Wyoming Administrative
             Procedure Act (APA) for the Lincoln County School District
             Number 2 Board of Trustees to fail to review all the evidence
             before making its decision in the termination hearing of
             Darryl Wadsworth?
                    2.     Does it violate due process for the Lincoln
             County School District Number 2 Board of Trustees to fail to
             review all the evidence before making its decision in the
             termination hearing of Darryl Wadsworth?
                    3.     Is the decision of the Board invalid because
             members of the board failed to review the complete record of
             the hearing, as required by Wyo. Stat. § 16-3-107(k)?
                    4.     Did the district court err in concluding that
             violations of due process and the APA were not prejudicial to
             [Wadsworth]?

                                        FACTS

[¶3] The 2010-2011 school year was Wadsworth’s tenth year working as a teacher at
Star Valley High School in Afton, Wyoming. Wadsworth was a teacher in the Industrial
Arts program and taught building construction, applied construction, woods, and
cabinetry. In Wadsworth’s applied construction class, Wadsworth would pick a
construction project in the community, based on a bidding process, and under
Wadsworth’s supervision, the students would complete the project. On these projects, a
contract would be entered into and the owner of the project would be responsible for the


                                            1
cost of materials plus an agreed upon percentage of the costs, which would be paid to the
District to support the program.

[¶4] On September 13, 2010, Wadsworth was called to a meeting with the Star Valley
High School principal, Shannon Harris, and the District superintendant, Jon Abrams, to
discuss concerns they had with Wadsworth’s work performance. A number of the
concerns discussed during the September meeting related to a concession stand/restroom
project Wadsworth’s applied construction class worked on during the 2009-2010 school
year, which, because of deficiencies in work and a failure to timely complete the project,
resulted in nearly $100,000.00 of unanticipated costs to the District.1 Other concerns
discussed during the meeting included unsafe practices at applied construction worksites,
low student enrollment in Wadsworth’s classes, and Wadsworth’s public airing of
complaints regarding the District’s administration while visiting a local barber shop.

[¶5] Following the meeting on September 13, 2010, the District superintendent issued a
memorandum summarizing the meeting, which memorandum is referred to throughout
the record as the “FICA memo.”2 The FICA memo directed Wadsworth to: 1) adhere to
an earlier Board directive requiring students to wear hard hats and steel-toed boots, in
addition to safety glasses, on construction projects, unless and until Wadsworth received
Board approval of an alternative safety plan; 2) provide to Principal Harris or her
designee a building timeline and schedule for any future applied construction project; 3)
establish better oversight of finances on any future applied construction project to ensure
an understanding of the money that will be made by the project and that the budget makes
allowances for student safety equipment; 4) follow his chain of command to address
concerns with District administration rather than publicly discussing such complaints;
and 5) market his industrial arts classes to increase student enrollment.

[¶6] On April 14, 2011, Wadsworth was called to a meeting with Principal Harris and
her assistant principal, Homer Bennett, to discuss the FICA memo. Principal Harris
summarized the discussion during the meeting as follows:

                 Homer Bennett and I met with Darryl Wadsworth on April
                 14, 2011 to follow-up on the FICA memo written by Supt.
                 Abrams on September 13, 2010. In that meeting I asked
                 Darryl about his follow through on the things he had been
                 asked to complete as outlined in the FICA memo.


1
  The 2009-2010 project was a concession stand/restroom facility built on the Star Valley High School
grounds. The project differed from most previous projects of the applied construction class because it
was not a residential project for a community member, but was instead a commercial project for the
District itself.
2
    The witnesses were unclear as to the words that make up the FICA acronym.


                                                    2
I asked if he had provided a building schedule to myself, or
any of the principals regarding his current project? He said,
“no”. I asked if he had a contract for the current project? He
said, “no”. I asked if he had a set amount that they would
earn on the current project? He said, “I don't know.” I asked
if there was a contract or any kind of agreement in place? He
said that he had given a contract to Mr. Hansen but it was
never filled out or signed by anyone. I then asked if he had
provided a completion timeline and progress reports for the
current project to myself or any other administrator? He said,
“No, I did not.” I then asked if the students had been wearing
the required steel-toed boots and hard hats on the applied
project this year. He said, “No, but they have worn safety
glasses.” I then asked him if he had a project lined up for the
coming school year. He said, “No, but I am currently
working on that.” He went on to say that he was waiting to
see how many sections of the applied class he would have for
the coming year before deciding on how big of a project to
take on and once those numbers were set he would get to
work on pinning down a project. I then asked him what he
had done to market his class? He indicated that he had talked
to business owners, contractors, and kids in his classes to
encourage them to take other classes he offered. When I
asked if he had done anything to market his classes to the
incoming ninth grade students he said that the counselors had
invited him to prepare something or present but that he had
not done anything because the counselors met with those
students every hour or so over a couple of days and he
couldn’t be at the middle school that much.

When I asked what he expected when he had failed to do
every single thing the memo outlined he said, “I don’t know, I
guess I expected that you as the building principal should
have followed up on those things and reminded me.” When I
asked why he didn’t comply with or respond to my e-mail,
dated 9-10-10, which clearly stated that if he wanted the
Board to re-consider the requirement for requiring hard hats
and steel-toed boots in the applied class that he needed to give
me a proposal and rationale. He indicated once again that I
should have sent more than one e-mail and followed up with
him.




                                3
               When I asked why after having a conversation with the Supt.
               and myself in September, and receiving a FICA memo from
               the Supt. which he signed and returned, he didn’t do any of
               the things that he had been asked to do or that were clearly
               spelled out in the memo. He indicated that the memo
               “flusterated him and he just put it out of his mind.”

[¶7] On April 14, 2011, during a regularly scheduled Board meeting, Superintendant
Abrams met with the Board in executive session and presented his recommendation to
terminate Wadsworth’s teaching contract. The Board thereafter returned to its public
meeting, and during the public portion of its meeting, the Board voted to accept the
recommendation of Superintendant Abrams “to give termination notice pursuant to
section 21-7-110 and 21-7-106 of Wyoming Statutes and to terminate the contract of
Darryl Wadsworth.”

[¶8] On April 15, 2011, the District issued Wadsworth written notice of its intent to
terminate his teaching contract, effective May 27, 2011. The District cited incompetence,
unsatisfactory work performance, and insubordination as grounds for the termination of
Wadsworth’s teaching contract. More specifically, the District cited to Wadsworth’s
failure to comply with the requirements of the FICA memo, including: a failure to require
his students to wear hard hats and steel-toed boots; a failure to market his classes to
increase student enrollment; a failure to secure a construction project for his applied
construction class for the 2011-2012 school year; a failure to provide a building timeline
and schedule for his applied construction 2010-2011 project; and a failure to follow his
chain of command to address concerns with the school administration rather than voicing
those concerns publicly.

[¶9] On April 22, 2011, Wadsworth timely requested a hearing before an independent
hearing officer pursuant to Wyo. Stat. Ann. § 21-7-110. In keeping with the statute then
in effect, the District and Wadsworth jointly selected a hearing officer, and an evidentiary
hearing was scheduled for August 2-3, 2011.3

[¶10] On July 28, 2011, Wadsworth filed a motion to void the termination proceedings
or to continue the proceedings to allow for discovery related to Board bias and to voir
dire the Board. Through this motion, Wadsworth asserted that the Board’s consideration
of Superintendant Abrams’ recommendation to terminate Wadsworth’s teaching contract
before the notice was issued to Wadsworth tainted the Board and made it impossible for
Wadsworth to have a fair hearing before an impartial decision maker. The hearing
officer denied Wadsworth’s motion to void or continue the proceedings, denied the

3
  Wyo. Stat. Ann. § 21-7-110(c) was amended, effective July 1, 2012, to provide that the independent
hearing officer would be a hearing officer provided through the Office of Administrative Hearings. See
Wyo. Stat. Ann. § 21-7-110 (LexisNexis 2013).


                                                   4
motion to conduct discovery, and ruled that the request to voir dire the Board was
premature and could be raised when the hearing officer forwarded his recommended
decision to the Board.

[¶11] An evidentiary hearing was held before the hearing officer on August 2-3, 2011.
On August 18, 2011, Wadsworth renewed his motion to void the termination proceedings
and to voir dire the Board. On August 19, 2011, the hearing officer denied the motion to
terminate proceedings but granted the motion to voir dire the Board prior to its
deliberations on any recommended decision by the hearing officer.

[¶12] On August 19, 2011, the hearing officer issued a recommended decision through a
twenty-two page document entitled Findings and Recommendation of the Hearing
Officer. The hearing officer recommended that Wadsworth’s teaching contract be
terminated for insubordination. In so recommending, the hearing officer found that the
evidence supported some of the District’s alleged grounds of insubordination, but not all
of them. The hearing officer further found that the evidence did not support the District’s
allegations of incompetence and poor work performance. The hearing officer explained
his conclusions, in part:

                    7.      Incompetence is ordinarily based upon
             deficiencies in a teacher’s classroom teaching performance.
             Actions demonstrating incompetence may include a lack of
             knowledge of the applicable subject matter a teacher is
             required to teach, an inability of the teacher to impart
             knowledge effectively to the students, and an incapacity to
             perform the duties of a teacher. See, generally, 68 Am.Jur.
             2d, Schools, § 211.
                    8.      Mr. Wadsworth taught students effectively at
             Star Valley High School for 10 years. There is no evidence in
             this case that he was an incompetent teacher at any time, and,
             accordingly, the superintendant has failed to prove by a
             preponderance of the evidence that Mr. Wadsworth should be
             terminated for incompetence or unsatisfactory performance as
             a teacher.
                    9.      The Wyoming Supreme Court has defined
             insubordination as “a constant or continuing intentional
             refusal to obey a direct or implied order, reasonable in nature,
             and given by and with proper authority.” Board of Trustees v.
             Colwell, 611 P.2d 427, 434 (Wyo. 1980). The elements of
             insubordination are:
                            a.     Persistent course of
                            b.     willful defiance in
                            c.     refusing to obey


                                             5
             d.     a reasonable
             e.     direct or implied order or rules and
                    regulations
              f.    given by or with proper authority.
       ....
       10. Based upon the elements of insubordination, the
hearing officer finds that the superintendant has failed to
prove by a preponderance of the evidence that the following
matters constituted insubordination:
              a.     The       so-called     “barber     shop”
       conversation, in which Mr. Wadsworth complained
       publicly about the school administration, may have
       been unwise or unprofessional, but, as a citizen, Mr.
       Wadsworth had a right to say the things he said, and
       they did not constitute insubordination.
              b.     Mr. Wadsworth’s marketing of his
       classes to potential students may not have been
       everything that Ms. Harris or Mr. Abrams desired, but
       the evidence is that he made some reasonable efforts to
       recruit students and did not persistently and willfully
       refuse to market his classes. Mr. Wadsworth’s
       conduct in this regard did not constitute
       insubordination.
       11. Based upon the elements of insubordination, the
hearing officer finds that the superintendant has proven by a
preponderance of the evidence that the following matters
constituted insubordination:
              a.     Mr. Wadsworth’s persistent and willful
       pattern of disregarding the Board’s directive that his
       applied construction students wear hard hats and steel-
       toed boots while working on construction projects.
       The Board had authority to give this directive, and Mr.
       Wadsworth did not have the discretion to substitute his
       judgment for the Board’s in that regard. The directive
       was a reasonable attempt by the Board to safeguard the
       lives and health of students, and the Board provided
       funding for the safety equipment. The directive was
       clearly communicated to Mr. Wadsworth on multiple
       occasions. Mr. Wadsworth was given a reasonable
       opportunity to present information to the Board in
       order to obtain changes in the directive, but he did not
       do so, and therefore it was unreasonable for him to
       persistently disregard the directive. Mr. Wadsworth’s


                               6
        disregard of the Board’s directive in this regard
        constituted insubordination.
                b.     Mr. Wadsworth’s failure to provided
        (sic) a building schedule for the 2010-11 Jerry Hansen
        construction project to Principal Harris or to any other
        school administrator. The problems that occurred on
        the 2009-10 concession/restroom project were not
        grounds for termination of Mr. Wadsworth’s contract
        after the 2010-11 school year, but they provided a
        context within which specific directives were given to
        Mr. Wadsworth so that the 2009-10 problems would
        not be repeated. The September 13, 2010 letter
        provided Mr. Wadsworth with a reasonable
        opportunity to improve his performance with regard to
        the management of construction projects for the school
        district, but he failed to take advantage of that
        opportunity. The directive to provide a construction
        schedule for future projects was reasonable and was
        clearly communicated to Mr. Wadsworth.               He
        persisted in persistently and willfully refusing to
        provide administrators with a construction schedule.
        He had no reasonable excuse for not doing so.
                c.     Likewise, Mr. Wadsworth’s failure to
        exercise better oversight over construction project
        finances by establishing a project budget in the context
        of a project contract constituted insubordination. The
        directive and its purpose were clearly communicated to
        Mr. Wadsworth, and he persistently and willfully
        failed to comply with the directive during the 2010-11
        school year. The consequences of his failure to
        comply mirrored, to some extent, the financial
        consequences of the concession/restroom project of
        2009-10, in that the school district realized no monies
        from the Jerry Hansen project and in fact incurred
        expenditures and lost money on the project.
        12. Mr. Wadsworth’s insubordination in the above
regard is corroborated by his testimony that he really did not
view the directives as more than suggestions, and that he was
“flustrated” by the September 13, 2010 letter and simply put
it out of his mind. This demonstrated a willful disregard for
reasonable directives given to him by those who had lawful
authority over his conduct and job performance.



                                7
                     13. The three circumstances of insubordination
              outlined above constitute good cause for termination of the
              teaching contract of Darryl Wadsworth, and the
              superintendant has met his burden of proving by a
              preponderance of the evidence that his recommendation for
              termination is proper under W.S. § 21-7-110(a).

[¶13] On August 26, 2011, Wadsworth filed his objections to the hearing officer’s
recommended decision, contending that the findings of insubordination were unsupported
by the evidence. On August 30, 2011, the Board met in executive session to allow
Wadsworth to voir dire the Board, to hear argument from Wadsworth and the District on
the hearing officer’s recommended decision, and to deliberate on the recommended
decision. During the voir dire, it was revealed that not all Board members had reviewed
the entire evidentiary record. Two Board members had listened to all of the testimony
given at the hearing, either in person or on tape, while the other Board members
participating in the deliberations and decision had listened to only parts of the testimony.
Counsel for Wadsworth objected to the Board voting on the hearing officer’s
recommended decision before having reviewed the entire evidentiary record:

                      And I would indicate for purposes of the record, that,
              Mr. Copenhaver [Board Counsel], that one of our primary
              arguments is that the hearing officer made findings that are
              not supported by the evidence, and, therefore, it's necessary, if
              you're going to evaluate that decision, to look at the evidence.
              And if you don’t do so, that, in my view, would be arbitrary
              and capricious. And they can take whatever advice they want
              to, but I want to be very clear what our position is.

[¶14] At the conclusion of the hearing, the Board voted to accept the recommendation of
the hearing officer and to authorize the Board chairman to sign a written decision
consistent with the Board’s determination. Thereafter, on September 6, 2011, the Board
issued its written decision and order. The Board’s decision memorialized its acceptance
of the hearing officer’s recommendation, but it also further concluded that the hearing
officer’s findings of fact supported termination of Wadsworth’s teaching contract on the
ground of poor work performance. The Board’s decision provided:

                    The Board accepts the Conclusions of Law as
              recommended by the independent hearing officer except as
              otherwise set forth below.
                    The Board specifically accepts the conclusion and
              recommendation of the independent hearing officer that there
              was established satisfactory evidence of insubordination by
              Wadsworth to support a recommendation for the termination


                                              8
              of his contract as noted in the Conclusions of Law
              recommended by the independent hearing officer.
                     The Board accepts the conclusion of the independent
              hearing officer that there was not sufficient evidence of
              incompetence to support a recommendation for the
              termination of Wadsworth’s contract.
                     The hearing officer seems to have combined the
              separate legal bases for termination of unsatisfactory
              performance with incompetence. Unsatisfactory performance
              is a distinct, independent and separate legal basis for a
              recommendation of termination for incompetence. The
              Legislature added unsatisfactory performance as a reason for
              termination subsequent to having set forth incompetence as a
              statutory basis for termination and clearly intended for it to be
              a separate and distinct basis [from] incompetence. The
              Findings of Fact as made by the independent hearing officer
              which have been accepted by the Board of Trustees support a
              conclusion that Wadsworth’s performance was unsatisfactory
              and constitutes a legal basis for the termination of his
              contract.

[¶15] Wadsworth filed a petition for review in district court, asserting as error the
Board’s consideration of the termination recommendation before the termination notice
was issued to Wadsworth, the Board’s meeting in executive session with counsel for the
District before the termination notice was issued to Wadsworth, and the Board’s failure to
review the entire evidentiary record before making a decision to accept the hearing
officer’s recommended decision. The district court affirmed the Board’s decision.

[¶16] Wadsworth timely filed his notice of appeal. On appeal to this Court, Wadsworth
has limited his allegations of error to the Board’s failure to review the entire evidentiary
record before making its decision to accept the hearing officer’s recommended decision.

                               STANDARD OF REVIEW

[¶17] In an appeal from a district court’s appellate review of an administrative decision,
we review the case as if it came directly from the administrative body, affording no
special deference to the district court’s decision. Stallman v. State ex rel. Wyo. Workers’
Safety & Comp. Div., 2013 WY 28, ¶ 27, 297 P.3d 82, 89 (Wyo. 2013); DeLoge v. State
ex rel. Wyo. Workers’ Safety & Comp. Div., 2011 WY 154, ¶ 5, 264 P.3d 28, 30 (Wyo.
2011). Our review of administrative decisions is in accordance with the Wyoming
Administrative Procedure Act, which provides:

               (c) To the extent necessary to make a decision and when


                                              9
              presented, the reviewing court shall decide all relevant
              questions of law, interpret constitutional and statutory
              provisions, and determine the meaning or applicability of the
              terms of an agency action. In making the following
              determinations, the court shall review the whole record or
              those parts of it cited by a party and due account shall be
              taken of the rule of prejudicial error. The reviewing court
              shall:
                      (i) Compel agency action unlawfully withheld or
                    unreasonably delayed; and
                      (ii) Hold unlawful and set aside agency action,
                    findings and conclusions found to be:
                          (A) Arbitrary, capricious, an abuse of discretion or
                        otherwise not in accordance with law;
                          (B) Contrary to constitutional right, power,
                        privilege or immunity;
                          (C) In excess of statutory jurisdiction, authority or
                        limitations or lacking statutory right;
                          (D) Without observance of procedure required by
                        law; or
                          (E) Unsupported by substantial evidence in a case
                        reviewed on the record of an agency hearing
                        provided by statute.

Wyo. Stat. Ann. § 16-3-114(c)(ii) (LexisNexis 2013).

[¶18] Under this statute, we review an agency’s findings of fact by applying the
substantial evidence standard. Jacobs v. State ex rel. Wyo. Workers’ Safety & Comp.
Div., 2013 WY 62, ¶ 8, 301 P.3d 137, 141 (Wyo. 2013); Dale v. S & S Builders, LLC,
2008 WY 84, ¶ 22, 188 P.3d 554, 561 (Wyo. 2008). Substantial evidence means relevant
evidence that a reasonable mind might accept as adequate to support a conclusion.
Jacobs, ¶ 8, 301 P.3d at 141; Bush v. State ex rel. Workers’ Comp. Div., 2005 WY 120,
¶ 5, 120 P.3d 176, 179 (Wyo. 2005). “‘Findings of fact are supported by substantial
evidence if, from the evidence preserved in the record, we can discern a rational premise
for those findings.’” Kenyon v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2011
WY 14, ¶ 11, 247 P.3d 845, 849 (Wyo. 2011) (quoting Bush, ¶ 5, 120 P.3d at 179).

[¶19] The arbitrary and capricious standard of review is used as a “safety net” to catch
agency action that prejudices a party’s substantial rights or is contrary to the other review
standards, but is not easily categorized to a particular standard. Jacobs, ¶ 9, 301 P.3d at
141. “The arbitrary and capricious standard applies if the agency failed to admit
testimony or other evidence that was clearly admissible, or failed to provide appropriate
findings of fact or conclusions of law.” Id. “‘We review an agency’s conclusions of law


                                              10
de novo, and will affirm only if the agency’s conclusions are in accordance with the
law.’” Kenyon, ¶ 13, 247 P.3d at 849 (quoting Moss v. State ex rel. Wyo. Workers’ Safety
& Comp. Div., 2010 WY 66, ¶ 11, 232 P.3d 1, 4 (Wyo. 2010)).

                                     DISCUSSION

[¶20] Wadsworth contends that the Board’s failure to independently review the entire
evidentiary record before entering its decision terminating his teaching contract violated
the Wyoming APA and violated his due process rights. We address each argument in
turn.

A.    Wyoming APA

[¶21] In dismissing Wadsworth, the Board exercised its statutory authority pursuant to
Wyo. Stat. Ann. § 21-7-110, which, when Wadsworth received his April 2011
termination notice, provided in relevant part:

                     (a) The board may suspend or dismiss any teacher or
             terminate any continuing contract teacher for incompetency,
             neglect of duty, immorality, insubordination, unsatisfactory
             performance or any other good or just cause.
                     ....
                     (c) Any continuing contract teacher receiving notice
             of a recommendation of termination under W.S. 21-7-106(a)
             or against whom dismissal or suspension proceedings are
             instituted is entitled to a hearing before an independent
             hearing officer on the recommendation or the reasons for
             dismissal or suspension, upon submission of a written
             request to the superintendent. …
                     (d) … The hearing shall be conducted in accordance
             with the Wyoming Administrative Procedure Act and the
             hearing officer may accordingly receive or reject evidence
             and testimony, administer oaths and if necessary, subpoena
             witnesses. All school district records pertaining to the teacher
             shall be made available to the hearing officer.
                     ....
                     (g) The board shall review the findings of fact and
             recommendation submitted by the hearing officer and
             within twenty (20) days after receipt, issue a written order to
             either terminate, suspend or dismiss the teacher, or to retain
             the teacher. If the board terminates, suspends or dismisses
             the teacher’s employment over a recommendation by the
             hearing officer for retention, the written order of the board


                                             11
                shall include a conclusion together with reasons supported
                by the record.

Wyo. Stat. Ann. § 21-7-110 (LexisNexis 2011) (emphasis added).4

[¶22] Wadsworth acknowledges the statutory role of a hearing examiner in teacher
contract termination proceedings, but he contends that the Wyoming APA imposes a
separate duty on the Board to itself independently review the entire evidentiary record
before acting on a hearing examiner’s recommended decision. Specifically, Wadsworth
cites to the following language in the Wyoming APA:

                       The agency shall consider the whole record or any
                portion stipulated by the parties. In the event a recommended
                decision is rendered all parties shall be afforded a reasonable
                opportunity to file exceptions thereto which shall be deemed a
                part of the record. All parties as a matter of right shall be
                permitted to file a brief with the agency and oral argument
                shall be allowed in the discretion of the agency.

Wyo. Stat. Ann. § 16-3-109 (LexisNexis 2013) (emphasis added).

[¶23] Wadsworth’s argument requires that we determine the meaning of sections 21-7-
110 and 16-3-109 and how the two statutes operate together. In accordance with our
rules of statutory interpretation, our primary goal must be to determine the legislature’s
intent. Rock v. Lankford, 2013 WY 61, ¶ 19, 301 P.3d 1075, 1080 (Wyo. 2013); Redco
Constr. v. Profile Props., LLC, 2012 WY 24, ¶ 26, 271 P.3d 408, 415 (Wyo. 2012).
When reviewing statutes relating to the same subject or having the same general purpose,
we must consider the statutes together and strive to construe them in harmony, Rock,
¶ 19, 301 P.3d at 1080, and we recognize that specific statutes control over general
statutes dealing with the same subject. Rock, ¶ 37, 301 P.3d at 1085; Gronberg v. Teton
County Hous. Auth., 2011 WY 13, ¶ 45, 247 P.3d 35, 45 (Wyo. 2011); Qwest Corp. v.
PSC of Wyo., 2007 WY 97, ¶ 32, 161 P.3d 495, 503 (Wyo. 2007).

[¶24] Applying these rules of interpretation, we are unable to accept Wadsworth’s
argument that a school board is statutorily required to independently review the entire
evidentiary record received by the hearing officer. Instead, we conclude that sections 21-
7-110 and 16-3-109 read together require only that a school board review a hearing
officer’s findings of fact and conclusions of law, and any objections or exceptions
thereto, before accepting a recommended decision.

4
  As noted earlier in this opinion, Wyo. Stat. Ann. § 21-7-110 was amended, effective July 1, 2012, with
changes that included who would serve as the independent hearing officer and who would be responsible
for the hearing officer’s compensation. See Wyo. Stat. Ann. § 21-7-110 (LexisNexis 2013).


                                                    12
[¶25] We begin by considering the language of section 21-7-110, the provision that
applies specifically to contested cases before a school board. By its plain terms, section
21-7-110 requires a school board to “review the findings of fact and recommendation
submitted by the hearing officer and within twenty (20) days after receipt, issue a written
order.” Wyo. Stat. Ann. § 21-7-110(g) (LexisNexis 2013). It is only “if the board
terminates, suspends or dismisses the teacher’s employment over a recommendation by
the hearing officer for retention,” that a school board is required to go beyond the hearing
officer’s findings and recommendation and articulate its decision “with reasons supported
by the record.” Id. There is otherwise no language in the statute requiring a board to
independently review the entire evidentiary record received by the hearing officer.

[¶26] We next consider then whether the Wyoming APA’s more general requirement
that an agency consider the whole record in deciding a contested case mandates the
separate and independent evidentiary review urged by Wadsworth. We find that it does
not. Although section 16-3-109 does require that an agency consider the whole record, it
does not require by its plain terms that the record review be performed by the ultimate
decision maker. Moreover, the APA’s mandated consideration of the whole record is not
inconsistent with the Board’s specific statutory authorization to rule based on a hearing
officer’s findings of fact and recommendation. Section 21-7-110 specifies that a hearing
officer presiding over a contested case in a teaching contract dispute will conduct the
hearing in accordance with the Wyoming APA and will receive evidence from both the
teacher and the superintendant. See Wyo. Stat. Ann. § 21-7-110(d)-(f). In other words,
the hearing officer’s recommended decision is statutorily required to be based on the
whole record. Thus, when a school board adopts a hearing officer’s recommended
decision, it is in fact issuing an order based on consideration of the whole record.

[¶27] This reading of the Wyoming APA is consistent with the Act’s purpose. We have
observed:

              A basic purpose of the [Wyoming Administrative Procedure
              Act] is to assure that the controverted issues underlying such
              a proceeding ... will be fully developed and supported on the
              record by material and substantial evidence and upon which
              the agency, as the finder of fact, must adjudicate the matter.
              The objective, of course, is to avoid agency action upon an
              assumption of facts undisclosed by such evidence. Without
              reasonable adherence to that objective the contemplated
              safeguards of a direct and convenient court review, even
              though somewhat limited, would be frustrated.




                                              13
State ex rel. Wyo. Workers’ Safety & Comp. Div. v. Carson, 2011 WY 61, ¶ 14, 252 P.3d
929, 933 (Wyo. 2011) (quoting Board of County Comm’rs v. Teton County Youth Servs.,
652 P.2d 400, 413-14 (Wyo. 1982)).

[¶28] When a school board enters a decision on a teacher contract dispute based on a
hearing officer’s consideration of the whole record, the above-identified objectives are
met. The findings and conclusions adopted by the board can be reviewed against the
record to ensure they are supported by substantial evidence and to ensure that all material
evidence was addressed by the decision. See Jacobs, ¶ 8, 301 P.3d at 141 (substantial
evidence standard applies to agency findings of fact); Decker v. State ex rel. Wyo. Med.
Comm’n, 2005 WY 160, ¶ 27, 124 P.3d 686, 695 (Wyo. 2005) (agency decision must
include findings showing agency carefully weighed all material evidence offered by
parties). Judicial review thus provides a safeguard to ensure that a school board’s
decision is based on consideration of the whole record, whether consideration of the
record is completed by the school board itself or by a hearing officer appointed to
perform the task.

[¶29] Notably, Wadsworth does not challenge the Board’s decision on the ground that it
is unsupported by substantial evidence. Nor does Wadsworth identify evidence that the
Board’s decision failed to address. Instead, Wadsworth argues for different inferences
and conclusions to be drawn from the evidence. For example, Wadsworth argues that he
“testified at the hearing that he did not view the items in the memo as a ‘directive,’ but
rather as suggestions,” and if he “did not view the items in the memo as directives, he
obviously did not have the requisite state of mind to willfully defy or refuse to obey
them.” With respect to this particular testimony, the findings and conclusions accepted
by the Board included the following:

                    [Finding of Fact No. 25] The parties take differing
             views of the significance of the September 13, 2010 letter.
             Superintendant Abrams testified that the letter provided Mr.
             Wadsworth with “a clear direction,” that Mr. Wadsworth was
             expected to do the things outlined in the letter, and that Mr.
             Wadsworth’s failure to comply with the letter’s directives is
             the basis for the superintendant’s recommendation that Mr.
             Wadsworth’s teaching contract be terminated. On the other
             hand, Mr. Wadsworth testified that he thought the letter was
             “a suggestion of things that had to be worked on. These were
             things that were recommended.” He did not see the
             September 13, 2010 letter as a “pressing issue,” or “as a
             contract or directive on things that had to happen this school
             year.” “It was never clear to me that these things had to
             happen,” Mr. Wadsworth testified.
                                           ....


                                             14
                    [Conclusion of Law No. 12]       Mr.     Wadsworth’s
             insubordination in the above regard is corroborated by his
             testimony that he really did not view the directives as more
             than suggestions, and that he was “flustrated” by the
             September 13, 2010 letter and simply put it out of his mind.
             This demonstrated a willful disregard for reasonable
             directives given to him by those who had lawful authority
             over his conduct and job performance.

[¶30] The hearing officer, and the Board, through its adoption of the hearing officer’s
findings and conclusions, did consider Wadsworth’s testimony, and, both the hearing
officer and the Board rejected the inference Wadsworth argued should be drawn from his
testimony. Wadsworth’s argument on appeal thus does not identify a failure of the Board
to consider the whole record. The argument is instead an invitation to this Court to
substitute its judgment for that of the Board, something we have consistently declined to
do. See Workers’ Comp. Claim v. State ex rel. Wyo. Med. Comm’n & Wyo. Workers’
Safety & Comp. Div., 2011 WY 49, ¶ 16, 250 P.3d 1082, 1086 (Wyo. 2011) (quoting
Newman v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2002 WY 91, ¶ 12, 49 P.3d
163, 168 (Wyo. 2002)) (“If the agency’s decision is supported by substantial evidence,
we cannot properly substitute our judgment for that of the agency and must uphold the
findings on appeal.”).

[¶31] Any decision entered by a school board in a contested case must, as required by
section 109 of the Wyoming APA, reflect that it is based on consideration of the entire
record. Section 109 does not, however, impose a requirement that a school board
personally and independently review the evidentiary record received by a hearing officer.
We thus find no violation of the Wyoming APA in the Board’s acceptance of the hearing
officer’s recommended decision without first independently reviewing the entire
evidentiary record.

B.    Due Process

[¶32] Wadsworth next contends that the Board violated his due process rights when it
accepted the hearing officer’s recommended decision without independently and
personally reviewing the evidentiary record received by the hearing officer. We find no
due process violation in the Board’s action.

[¶33] This Court has observed the following with respect to due process protections:

                   Due process is a flexible concept which calls for such
             procedural protections as the time, place, and circumstances
             demand. Cleveland Bd. of Education v. Loudermill, 470 U.S.
             532, 542–43, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985); Wilson


                                            15
             v. Board of Indiana Employment Sec. Div., 270 Ind. 302, 309,
             385 N.E.2d 438, 444 (1979), cert. denied, 444 U.S. 874, 100
             S.Ct. 155, 62 L.Ed.2d 101 (1979). In order to determine the
             specific dictates of due process in a given situation, it is
             necessary to balance three distinct factors: (1) the private
             interest that will be affected by the official action; (2) the risk
             of an erroneous deprivation of such interest through the
             procedures used, along with the probable value, if any, of
             additional or substitute procedural safeguards; and (3) the
             government’s interest, including the function involved and
             the fiscal and administrative burdens that the additional or
             substitute procedural requirements would entail. Mathews v.
             Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d
             18 (1976).

State v. Robbins, 2011 WY 23, ¶ 13, 246 P.3d 864, 866 (Wyo. 2011).

[¶34] Wadsworth argues that in the context of a contested case hearing on his contract
termination, due process demands that the school board either read or listen to the entire
evidentiary record received by the hearing officer. In support of this argument,
Wadsworth cites the United States Supreme Court decision in Morgan v. United States,
298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288 (1936) and this Court’s decision in Wyoming
State Dep’t of Educ. v. Barber, 649 P.2d 681 (Wyo. 1982). Neither decision mandates
the independent record review urged by Wadsworth.

[¶35] In Morgan, the Supreme Court announced the following due process requirements
for administrative decision making:

             For the weight ascribed by the law to the findings—their
             conclusiveness when made within the sphere of the authority
             conferred—rests upon the assumption that the officer who
             makes the findings has addressed himself to the evidence, and
             upon that evidence has conscientiously reached the
             conclusions which he deems it to justify. That duty cannot be
             performed by one who has not considered evidence or
             argument. It is not an impersonal obligation. It is a duty akin
             to that of a judge. The one who decides must hear.

                    This necessary rule does not preclude practicable
             administrative procedure in obtaining the aid of assistants in
             the department. Assistants may prosecute inquiries. Evidence
             may be taken by an examiner. Evidence thus taken may be
             sifted and analyzed by competent subordinates. Argument


                                              16
             may be oral or written. The requirements are not technical.
             But there must be a hearing in a substantial sense And to give
             the substance of a hearing, which is for the purpose of making
             determinations upon evidence, the officer who makes the
             determinations must consider and appraise the evidence
             which justifies them. That duty undoubtedly may be an
             onerous one, but the performance of it in a substantial manner
             is inseparable from the exercise of the important authority
             conferred.

Morgan, 298 U.S. at 481-82, 56 S.Ct. at 912.

[¶36] Courts and other authorities have widely rejected the interpretation of Morgan
asserted by Wadsworth. For example, the Second Circuit Court of Appeals has held that
due process does not require an “administrative decision-maker in an appeal from a
hearing officer recommendation to read (or listen to) the entire transcript (or tape
recording) of the hearing before issuing an administratively final decision.” Yaretsky v.
Blum, 629 F.2d 817, 822 (2d Cir. 1980), reversed on other grounds 457 U.S. 991, 102
S.Ct. 2777, 73 L.Ed.2d 534 (1982). In so ruling, the Second Circuit stated:

                    Even the Morgan I case cannot be said to go as far as
             appellees would argue. As Professor Kenneth Culp Davis has
             written:

                  Since the only purpose of sifting and analyzing of
                  evidence by subordinates is to save the time of the
                  deciding officers, this necessarily means that deciding
                  officers may “consider and appraise” the evidence by
                  reading a summary or analysis prepared by subordinates.
                  The Supreme Court thus did not require in the First
                  Morgan case that deciding officers must read all the
                  evidence or even that they must directly read any of it.
                  The requirement has to do with personal understanding
                  of the evidence, not with the mechanics by which the
                  understanding is developed. In common practice,
                  deciding officers develop their understanding of
                  evidence not only through reports of subordinates but
                  especially through summaries and explanations in
                  briefs. . . .

             2 Davis, Administrative Law s 11.03 at 44-45 (1958)
             (footnotes omitted).



                                            17
Yaretsky, 629 F.2d at 823.

[¶37] Another court cited a similar scholarly treatise in rejecting an argument that all
members of an administrative board must be present at the entire hearing during a
contested case:

             There is no requirement that all members of the board be
             present at the entire hearing. As stated in Koch:

             Chief Justice Hughes in a classic case, Morgan v. United
             States, (Morgan I) [298 U.S. 468, 56 S.Ct. 906, 80 L.Ed.
             1288 (1936)] pronounced that “the one who decides must
             hear.” The statement pervades administrative law but it does
             not actually reflect the rule of Morgan I : “Instead, he used
             ‘hear’ in a nonaural sense, as meaning that the one who
             decides must give heed to the case and, directing his mind to
             it, must be the one who actually exercises the deciding
             function. The one who decides in form must be the one who
             decides in fact.” According to the Attorney General’s
             Manual, this interpretation was incorporated in the APA and
             hence the Manual said: “Nothing in the Act is intended to
             preclude agency heads from utilizing the services of agency
             employees as assistants for analysis and drafting [citing
             Morgan I].” Under this doctrine the agency head or appellate
             body need not even read the entire record.

             1 C. Koch, supra, at § 6.78 (footnotes omitted).

In re San Nicolas, 1990 WL 291963, 1 N.M.I. 105, 111 (N.M.I. 1990).

[¶38] In addressing whether a foreign service officer had been discharged from his
position in compliance with applicable regulations, the U.S. Supreme Court itself
observed:

             We do not, of course, imply that the Regulations precluded
             the Secretary from discharging any individual without
             personally reading the ‘complete file’ and considering ‘all the
             evidence.’ No doubt the Secretary could delegate that duty.
             But nothing of the kind appears to have been done here.

Service v. Dulles, 354 U.S. 363, 387 n.40, 77 S.Ct. 1152, 1165, 1 L.Ed. 2d 1403 (1957);
see also Guerrero v. New Jersey, 643 F.2d 148, 150 (3d Cir. 1981) (no due process
violation where Board of Medical examiners revoked physician’s license on basis of an


                                            18
ALJ’s report containing findings of fact and conclusions of law, written exceptions to
report, and oral argument); Megill v. Board of Regents, 541 F.2d 1073, 1080 (5th Cir.
1976) (no due process requirement that each administrative board member “individually
inspect every line of the record as compiled by the Board and the hearing examiner”);
Bates v. Sponberg, 547 F.2d 325, 332 (6th Cir. 1976) (no violation of due process when
decision-making body voted on appeal from an administrative adjudication without
reading the transcript, relying on summary report); Estate of Varian v. Commissioner,
396 F.2d 753, 755 (9th Cir. 1968) (requirement that “the one who decides must hear …
means simply that the officer who makes the findings must have considered the evidence
or argument”); Sheikh v. Med. Bd. of California, 2010 WL 2793551, * 4 (E.D. Cal. 2010)
(no due process requirement that deciding body personally read record before accepting
ALJ’s recommended decision to revoke physician’s license); Hawkins v. Board of
Education, 468 F.Supp. 201, 210 (D. Del. 1979) (“An administrator or Board may retain
the decision-making authority and validly delegate to subordinates the responsibility of
holding a hearing, analyzing the evidence, and making recommendations.”); City of
Cedar Rapids v. Municipal Fire & Police Retirement Sys., 526 N.W.2d 284, 293 (Iowa
1995) (findings of fact and conclusions of law provided sufficient basis for full board to
acquire “personal understanding” of evidence); Crow v. Industrial Comm’n, 140 P.2d
321, 322 (Utah 1943) (due process requirements met if decision maker has access to
findings, conclusions, and oral or written report thereof).

[¶39] This Court has itself not interpreted Morgan as imposing a mandate as onerous as
the evidentiary record review that Wadsworth advocates. In Barber, we rejected an
argument that the ultimate administrative decision maker must be present during the
evidentiary hearing, observing:

                    It seems to be the appellee’s position that adjudicatory
             action by an agency is, for some unexplained reason, violative
             of due process if the agency officials whose responsibility it
             is to make the ultimate decision are not present when the
             evidence is received. This contention was rejected long ago
             by the United States Supreme Court in Morgan v. United
             States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288 (1936)
             (Morgan I). In that case, it was established that deciding
             officers need not take evidence and all that is required is
             that they understand the evidence before rendering a
             decision. See: 3 Davis, Administrative Law Treatise, § 17:2,
             p. 280-281, (2nd Ed. 1980). The general rule is that due
             process is satisfied as long as the deciding officials
             understand and consider the evidence before rendering a
             decision. White v. Board of Education, 54 Haw. 10, 501 P.2d
             358 (1972); Matter of University of Kansas Faculty, 2
             Kan.App.2d 416, 581 P.2d 817 (1978); Application of Puget


                                             19
              Sound Pilots Association, 63 Wash.2d 142, 385 P.2d 711
              (1963); Pettiford v. South Carolina State Board of Education,
              218 S.C. 322, 62 S.E.2d 780 (1950).

Barber, 649 P.2d at 688 (emphasis added).

[¶40] In Barber, the record reflected that the state board had in fact reviewed the entire
evidentiary record before making its decision. Barber, 649 P.2d at 687. We can discern
no reason, however, to deviate from the widespread authority holding that a decision
maker’s understanding of the evidence can, consistent with due process requirements, be
gleaned from a hearing officer’s findings of fact, conclusions of law, recommended
decision, and any written or oral argument related thereto. Indeed, at least three of the
decisions this Court relied on in its Barber holding expressly recognized that the ultimate
decision maker was not required to personally listen to or read all of the evidence before
accepting a recommended decision. See In re University of Kansas Faculty, 581 P.2d
817, 823 (Kan. Ct. App. 1978) (“In apprising itself of the evidence, the deciding authority
is not precluded from obtaining the aid of competent assistants who may sift and analyze
the evidence.”); White v. Bd. of Education, 501 P.2d 358, 361-62 (Haw. 1972)
(requirement that decision maker consider evidence satisfied by consideration of
exceptions to proposed decision and oral argument thereon); Pettiford v. South Carolina
State Bd. of Educ., 62 S.E.2d 780, 789 (S. Carolina 1950) (evidence taken may be sifted
and analyzed by competent subordinates).

[¶41] We conclude our due process analysis by returning to our required balancing of
Wadsworth’s private interest at issue, the risk of an erroneous deprivation of that interest
through the procedures used, and the Board’s need to rely on the procedure used. See
Robbins, ¶ 13, 246 P.3d at 866. In conducting this balancing, we are aided by this
Court’s decision in Barber.

[¶42] In Barber, the Department of Education denied Barber’s request for a school
superintendent’s certificate, which certificate was a prerequisite to Barber accepting a
superintendent position in Fremont County. Barber, 649 P.2d at 683. Barber requested a
hearing, and the board appointed a hearing officer to conduct a contested case hearing on
Barber’s request for a superintendant’s certificate. Id. Following the hearing, the hearing
officer submitted proposed findings and conclusions and recommended that Barber be
denied the superintendant’s certificate. Id. at 683-84. The board accepted the hearing
officer’s recommended decision. Id. at 684.

[¶43] On appeal, Barber argued that the board had denied him due process because the
individual members of the board were not present at the hearing and because the board
had appointed an independent hearing officer to conduct the hearing. Barber, 649 P.2d at
687. This Court rejected Barber’s due process challenge, explaining:



                                              20
              The reason behind the rule is that in many circumstances,
              particularly with a body like Wyoming’s State Board of
              Education, it is not possible for all members to be present at
              all proceedings at all times. Section 9-4-112(a) recognizes
              this fact and provides for procedures to insure only that the
              most important of all of the aspects of agency adjudication is
              met–that being the requirement that the hearing be conducted
              in a fair, open, and impartial manner by unbiased officials.
              See: Board of Trustees, Laramie County School District No. 1
              v. Spiegel, Wyo., 549 P.2d 1161 (1976); Fallon v. Wyoming
              State Board of Medical Examiners, Wyo., 441 P.2d 322
              (1968); Lake De Smet Reservoir Company v. Kaufmann, 75
              Wyo. 87, 292 P.2d 482 (1956).

Barber, 649 P.2d at 688.

[¶44] In balancing the due process factors in this case, we adhere to our reasoning in
Barber. Wadsworth’s private interest is similar to the private employment-related
interest at issue in Barber. While we recognize that such a private interest is substantial,
we conclude that the procedure used by the Board in this case adequately safeguarded
Wadsworth’s interest and did not violate his due process rights. The voting Board
members indicated that they had reviewed the hearing officer’s findings, conclusions and
recommended decision, as well as Wadsworth’s objections thereto. They also heard oral
argument by Wadsworth. Wadsworth received notice of the basis for his contract
termination, an opportunity to be heard before a neutral hearing officer, including the
right to present evidence and cross-examine evidence against him, and ultimately an
opportunity to be heard by the Board. We thus find no due process violation.

                                     CONCLUSION

[¶45] The Board did not violate the Wyoming APA or Wadsworth’s due process rights
by accepting the hearing officer’s recommended decision without independently
reviewing the entire evidentiary record received by the hearing officer. Affirmed.




                                              21
