concluding that nachas says industry adjudicators were impartial decision makers because their decision making process was free from actual conflicts of interest and the appearance of conflicts of interest and today i will advocate that this is decision making process was not free of conflicts of interest for at least four reasons and one focus on prejudgment bias being one relating to the adjudication of a case by investigators and prosecutors second is whether or not this failed to play straight in withdrawing the accreditation light of the undisputed or and you decatur in the case and the facts show that's what occurred here the madness commissioners there were thirteen of them gathered together in groups this is a file review team the facts demonstrated that one of the commissioners was not present so the fire review team was comprised of commissioner strawn mr smith and then commissioner bowman who was the chairman of the commission added joined into that fall review team and he was employed by the who is a party that had eighty eight and ninety some schools and one of them was within some the possibility of some conflict when even if it's just by virtue of reducing the existence of competition by having potential competitors involved in the licensing process broader than these facts not yes your honor and their piece itself and in many industries not just this industry however i don't think the answer is to have a partially impartial commissioner shout abuse his or her position to gain for himself or herself for others improper personal material or peculiar benefits and here he even had the duty as chairman to enforce the refusal policy and he admitted that had he known his company was within twelve miles of in a competitor of work corner he would have recused himself he also testified that had he known that he owned stock in the igi he would have recused himself and so i believe that battle specific action form clearly indicates that they reviewed the facts and made a recommendation so it is and then we went into the full commission he presented the  well i think his admission that had had he known these facts which the standard is applied in that object  admitted that everyone has agreed that it's an object of standard based on the case an objective standard only and your argument you subjectively that these internal rules required oh man two  prejudgment bias argument goes of course not only to him he didn't vote but he over saw that process but it also goes to commissioner straw and commissioner schmidt there was factual test of the evidence that all of the other commissioners knew that that chairman bowman and that the others had made that recommendation and so they have their hats on as investigators and prosecutors and they make the recommendation but they have to know that the recommendation is made that's what they act on that there's nothing particularly suspicious about that that's how it's presented committee one of the arguments that was made by an actress is that well this really is just the first step of the adjudication process it's not investigative is not prosecutorial it's a part of the huge occasion process well if you look at the action form that's not true they went through the facts the facts are presented to them by the staff that's what the record in the head and so if they want to avoid this structural conflict that they have by having people where the investigator hat and then take it off and put on there to cater hat they easily could have the staff simply present but they get that you realize first of all i'm not sure ok let me let me back up even if we just agree with you our characterization of the facts that bowman was aware that there was a conflict i think that i don't know that there are any factual findings that are irania so there but i believe that the conclusion that constitutes a conflict of interest which violates the common law due process rights is where the court got it wrong b the it seems to me he didn't rule that they were not prosecute or war they  were investigators he actually said that it was not a trial issue because it wasn't included in the pretty trial and to address that point  it was a very i think it was a very general statement of the trial issues and that is was one of the adjudicators subject to a conflict of interest and prejudgment bias is just a form of a conflict of interest and so we believe that it certainly was a trial issue thank you just one more question quickly does it matter for purposes of you problem with the configuration then you have to throw out the ruling and here we think there is not only for the prejudgment bias but because of the undisputed area interest of chairman bowman and i think the facts are clear  that he owns stock although he claimed he didn't really understand that he owns stock he didn't own stock and he signed a note and while his stock interest is only point six seven percent certainly when you sign a note for possibly three hundred thousand dollars and you have interest accruing and you have to repay three hundred twenty two thousand dollars you're going to remember that and so i think it's a significant amount of money involved even though it's a very small percentage of the ownership interest there but he also admitted along with his principal and c e o that e g was a competitor of war torn a beauty academy so the  fact that mr sherman refused to turn over documents because i don't he said he's not been turned over to a competitor in this in this litigation process demonstrates that there was a high level of competition it wasn't a high the district court judge made by innings that suggested given the demographic attributes of students in this case a as a practical matter of competition and it wasn't really all that significant or not reasons i mean well and he made a factual fin perspective that was what was clearly erroneous well the the amount of money associated with even three students is significant it's approximately sixteen eighteen thousand dollars  tuition and if you he acknowledged that there were at least three stew and that came over after work corner went out of business and those three students themselves would be fifty four thousand dollars in tuition the amount of profit for that i'm not sure but with a ninety school empire you put more students and more revenue into one of your site it pulls i'm sorry i did a request for documents in other words the students made a request to have their records transferred was there proof that they actually did transfer yes i believe three years is the record i believe see i'm running short on time and so when you get to the third issue  to gain for himself improper person who material or huge benefit yes himself or others is how it rules and his if they got rid of a competitor and there was evidence that not only did he sit with ward corner but there were at least two others that lost their accreditation as he oversaw that  proceeding that day so you're you were asking us really to say that any financial involvement whatsoever is per clue so if you were talking about a structural effect and structural suggest to me room probably had some vested interest in getting rid of a competitor just that's the nature of the pool one fewer compares means more money that inures to the benefit of those that remain so there's some it so what the question is is where do you how do you draw a line  be it was only by any anybody in that room own a business and they all apparently they were all in this would probably be disqualified i don't think that all of them were competitors of and would stand to benefit from the loss of accreditation board corner i do think that that everyone who is is required to recuse themselves and it should be erring on the side of caution and so when you're within twelve miles and you admit that you are a competitor under those facts if you have even a dollar's worth of cine or interest i think there should be under the common law a duty to accuse yourself and it is not going to bring down the entire due process of self government governance process of industry decision makers and if you have a strong nature of accreditation and before i get to the standard i want to talk to the court about peer review the peer review process and the accrediting agencies and licensing boards that will be impacted by this court's decision two point three and the g o p has recognized accrediting agencies as reliable authorities as to the quality of education this court recognized that in professional massage ther that accreditation is necessary for a control over the quality of education and assurances of that quality to the public given what what we see in the facts in this for that of the accreditation did you understand my question i'm asking if you think this was handled as well as it could have been handled i think that credit agencies are hired to continuously improve so in that regard yes thank you but the standard one the one thing that concerns me about the analysis is here talking about only three students requesting their problem and the fact that they were so close geographically is a structural problem as mr sarah says doesn't really matter whether anybody requests it does it or are you saying it goes to the data to support the factual finding of the trial court that norfolk in virginia beach draw from different pools well because of the factual findings of the court but it also is an issue with the standard and the standard is and should be a case by case analysis of what is that substantial the key area interests that isn't all right good does it really matter whether anybody actually transfer or not is what i'm asking that is he has it that the board member has the interest that could be disqualifying irrespective of whether anybody trying to transfer isn't it that seems to be one of the factors that various courts have looked at is what is the pa competitive interest what is the possibility of competition looking at the market looking at the distance as one factor of many and the point that i was going to make is that w thought he might have based on this lawsuit does not it's not dispositive that he actually should have disqualified himself is that at all relevant it could be but looking at the facts of his complete testimony mr told of it on had issue and he was asked by both parties counsel as well as the court went back and forth and ultimately explained that in cases since this lawsuit has been brought  would sit a committee or as the chair where there are situations where the school would not be what will be a positive outcome because he believes that his participation in prop a benefit to process if you thought that there was a negative outcome that was possible he would leave so he did not actually think he had a conflict and also not even decent or like ok sion is an objective standard that is correct so why does that help advance the cause talk about what he would think his admission alone does not create an objective disqualify became area interest and what this court is likely of the fourth circuit has stated what is a direct and personal versus removed and contingent interest in rights africa where there is presently an interest that exists or will be created by a judgment of the decision maker but follow or but mr bowman failed to follow it's own conflict of interest rules so what the rule is even in the cases you're firm to how how is that a paragraphs to which talks about improper bikini personal material or peculiar benefit and your question is why is that not merely the language of the supreme court decision why why does the language w due process claim brought in a lawsuit the conflict language that appears in america says conflict of interest rules is something that the commission created then why is it the  so let me address some of my colleague's arguments about judgment interests first of all this is not an argument that was preserved for this court it was not a tribal issue which is made clear in the court's motion for summary judgment order and the final order the only issue that the plaintiff asserted to the questions that the court had during trial counsel believed that maybe the court had a question about how information got to the commissioners so now it is presented the deposition formal or decision and this is similar to a lot of other crediting agencies for example a c c s c which of course are professional massage as well as probably countless others and not to mention corporate boards what objective for example geographical limitations there would be to create a conflict of interests the state that your company is in the state that you reside in nobody talks about the  right and this goes to the peer review sure you function of accreditation the smallest amount of picking your interest cannot be a disqualif disqualify basis are you saying are you saying perhaps that for purposes of legal action the supreme court's still be a legal cause of action for a commissioner not following backus is rules that would be due process violation but in this case the fact that the rule states of shared interest doesn't mean anything here interest or the slightest amount of picking your interest because that would disqualify every single commissioner as the court has pointed out i was the ninth circuit pointed out and stars for spears everybody these are all industry institutions or programs or state licensing board that's looking at a smaller number all of those participants would have maybe a more significant interest and i want to look i want to point back court to discussed what is a contingent and remote interest and i think that's important here because yes mr bowman was an executive he had a stock interest in either small put another way is there an intervening or independent decision that would kind of sort of cut off the decision making process to receive money and that's how they're going after two three sixty six so in this case the district court found the facts to be that there are students who have to decide based are transportation based on whether they want their loans forgiven because when a school loses its accreditation they are allowed to ask the department of education for a loan forgiveness there are licensing and regulatory issues there is education tools there's a question of whether a student wants to transfer and maybe lose credits which means that they will have to pay more for their education there's a lot of factors involved and all of those factors point to this is not mr billings decision as part of the commission to recommend the withdrawal of courts corners credit ation is not a direct and personal banking or interest in the outcome there are independent intervening decisions along the process as to whether somebody will actually go to school and with regard to the three students who transferred there is information in the record that shows federal funding to have those three students transferred before  courts corners accreditations even withdrawn so the decision to withdraw we're talking about the three that we were discussing earlier who were requesting documentation that's correct you're saying when but was it not when they transferred that warrant corner would lose that question should net the final decision did not come out and talked over thirteenth two thousand and seventeen two of those students one of the students transferred before that point the second student there's nothing in the record that indicates that they ever went to work as coroner and then the third student did transfer after after the decision was made public there is nothing in the record that indicates how much of a benefit that was there is evidence that there are regulatory requirements about for me benefit to who benefit to either e g or down the road mr bo ratio which could impact whether an additional student actually is that if it more would require more  judge duncan has made a very good point and judge he has followed up with very good questions because their own policy doesn't provide a sliding scale as to year interest and the professional massage case talks about from this four circuit talks about the due process rights and one of those elements of due process is that they must follow their own rules and i do believe that as we have argued and as this panel has identified interest is even though the common law due process outside of that rule may require one according to the judge's opinion i think it's a very slippery slope of a sliding scale to analyze it that way and that the recusal policy is the way you resolve it but but going back to whether there is a common law due process violation for not enforcing your own rules or breaking your own rules yes and that's already been decided by the circuit in professional massage and so i think on that prong alone  well if there are i believe if there is a finding of this core that there is a violation of their due process rights no never mind where i'm not the dictionary and your i'm talking about improper it doesn't more than what it says a abuse his or her position to gain for himself or herself or destructive yes i believe that is the proper term protection of the rule and i don't believe that it was followed the second point i wanted to follow up on is this the sky is falling did one of the commissioners violate the conflict of interest rules and it is a form of conflict of interest and so i think we did it in a file it as a pretrial issue it was also included in our findings of fact and conclusions of law in lieu of some variation we were required to file and we did that and that issue was addressed there i see my time is