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Division of Occupational Safety and Health of Industrial Commission of v. Chuck Westenburg Concrete Contractors Inc.12/24/1998
it due process of law. The basis for this argument is dis- paraging remarks made by several members of the review board during its consideration of this case. Westenburg Contractors responds that these members were not biased; they merely came to the process with their own perspectives.
The review board consists of five members appointed by the governor and must include one representative of management, one representative of labor, and three members of the general public. See A.R.S. § 23-422(A). The review board is charged with con- ducting a de novo review of the record received from the administrative law Judge. See A.R.S. § 23-423(F). The board may affirm, reverse, modify, or supplement the administrative law Judge's decision. See A.R.S. § 23-423(G). All decisions of the review board must be by majority vote and be in writing. See A.R.S. § 23-423(H).
This court has recognized that due process of law contemplates a "fair trial in a fair tribunal." United States v. Superior Court, 144 Ariz. 265, 280, 697 P.2d 658, 673 (1985) (quoting In re Murchison, 349 U.S. 133, 136 (1955)). Although there is a presumption of honesty and integrity among those serving as adjudicators, a showing that the mind of a decision maker is "irrevocably closed" on a particular issue being decided will constitute disqualifying prejudgment. Havasu Heights v. Desert Valley Wood, 167 Ariz. 383, 387, 807 P.2d 1119, 1123 (App. 1990).
In this case, ADOSH objects to statements on the record by two members of the review board. We agree that some unfortunate remarks were made on the record:
"MR. VOYLES: . . . I don't understand why OSHA cites some of these people."
"MS. SKALSKY: Because they have some folks out there that don't know what they're doing."
"MR. VOYLES: Jack [Dupont][a boardmember] told me just yesterday they have to make a job for themselves."
"MS. SKALSKY: There's a lot of stuff going on that needs to be looked at."
"MS. SKALSKY: Sometimes you have folks that you hire that have a concept of what they are supposed to do different from what the intent of OSHA is. That is our job, to make sure these personalities are not dominant." . . . . "MS. SKALSKY: You know, when you're starting to cite them you should be just as responsible as we're asking other people to be and be darn sure when you do it that you have a case."
"If OSHA has to fork up some of the attorney's fees then those guys may get some direction from their higher ups to make sure what they're doing."
"MS. SKALSKY: It's time to get tough."
"MR. VOYLES: I think we should do that."
Although some of these comments were ill-advised, and injudicious, especially in light of the fatality, our Disposition on other grounds makes it unnecessary for us to determine whether they display an irrevocably closed mind.
ADOSH next argues that the review board's written decision is legally inadequate for this court to review and should be reversed. Westenburg Contractors responds that A.R.S. § 23-423(H) requires only that the review board's decision be in writing and by a majority, and therefore, it is sufficient.
The review board's findings and order consist of three pages, one of which is an introductory paragraph and one of which is a signature page. Only one paragraph on page two discusses the facts and merits of this case:
The Board's reason for the reversal of the Decision of the ALJ was that there was a failure in the retaining fence anchor system that was designed and installed by parties other than the appellant. The Board noted that the appellant had initially discove
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