Respondent explained his conclusion by noting that either he or petitioner had lied about certain points, and he found that his own testimony on those points was credible. I conclude that the answer must be no. Paraphrasing the Court's words in Crump , I recognize that due process is a somewhat fluid concept, and determining what process is due when the head of an agency is making a final agency decision is different from evaluating the procedural protections required in a court of law. From the beginning, this case has hinged on a factual dispute about the details surrounding petitioner's alleged resignation. Petitioner has lost his job and may lose his case, but he should not do so without having the crucial question decided by an unbiased, impartial decision-maker.
Due process requires no less.
Justice Parker joins in this dissenting opinion. The record shows respondent rendered a final agency decision in a case in which he adjudicated contested issues of fact regarding his own testimony and credibility. The perception of partiality created by this procedure, as recognized by Judge Wynn in his dissenting opinion at the Court of Appeals, departs from constitutional principles of fairness and due process. In refusing to adopt the findings of the two earlier tribunals, respondent relied upon his own personal knowledge and bias as a party to the action and in his capacity as Health Director. The Health Director finds Mr. Sherman's testimony on these points to be credible.