IN THE SUPREME COURT, STATE OF WYOMING

2014 WY 7

OCTOBER TERM, A.D. 2013

January 16, 2014

DARRYL WADSWORTH,

Appellant

(Petitioner),

v.

BOARD OF TRUSTEES OF LINCOLN 

COUNTY SCHOOL DISTRICT 

NUMBER TWO,

Appellee

(Respondent).

S-13-0029

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.
1

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 
2

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.
3

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.
4

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).
5

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
6

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 steeltoed 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 
7

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. 
8

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 
9

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 
10

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 
11

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 
12

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).
13

[¶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.
14

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.

. . . .
15

[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 
16

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 
17

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).
18

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 
19

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 
20

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:
21

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.