In re Stuart , 59 N.C. App. 715 ( 1982 )

HEDRICK, Judge.

After giving petitioner adequate legal notice, the North Carolina Hearing Aid Dealers and Fitters Board conducted a hearing on 23 April 1981 to determine if petitioner Stuart had violated G.S. § 93D-13(a)(6) which reads in pertinent part:

(a) The Board may in its discretion administer the punishment of private reprimand, suspension of license for a fixed period or revocation of license as the case may warrant in their judgment for any violation of the rules and regulations of the Board or for any of the following causes:

(6) Conduct involving willful deceit

The board heard testimony from a representative of Audiovox, Inc. that no one at Audiovox had calibrated Stuart’s audiometer during 1978. A documents expert from the State Bureau of Investigation testified that the calibration charts, dated “3-18-77” and “3-18-78”, were identical documents except for the date, and the “3-18-78” document was a photocopy of the “3-18-77” document. Mr. Ray Bedsaul, secretary to the board, testified that both documents were part of Stuart’s master file with the board. Petitioner Stuart testified that he had not sent the altered calibration chart to the board, but his secretary had.

In his Assignment of Error Nos. 1-3 based on Exception Nos. 2-10, petitioner argues that the evidence presented was not sufficient to support the board’s finding of “conduct involving willful deceit,” G.S. § 93D-13(a)(6), because there is no showing that Stuart acted purposely, deliberately or intentionally or even that he himself sent the altered chart to the board. We do not agree and hold that evidence showing the pertinent document in Stuart’s file, along with evidence that it had been altered was sufficient to raise the inference that Stuart had acted with “willful deceit.”

In his Assignment of Error No. 4, based on Exception Nos. 1, 6 and 10, petitioner contends that the court erred in failing to strike the testimony of Ray Bedsaul because he was a member of the fact finding board when he testified, which petitioner argues denied him a fair and impartial hearing. Bedsaul only testified that the two documents in evidence came from Blair Stuart’s master file and that it is a requirement of the board that audiometers be calibrated on an annual basis. In his brief, petitioner fails to specify which clause of the Constitution of North Carolina, Article I, § 19 has been violated nor does he cite any directly applicable case law. As a general rule, an administrative officer may be disqualified from a proceeding

... in which he has prejudged the case, or in which he has a personal or pecuniary interest, where he is related to an interested person within the degree prohibited by statute, or where he is biased, prejudiced, or labors under a personal ill-will toward a party. An interest to disqualify an administrative officer acting in a judicial capacity may be small, but it must be an interest direct, definite, capable of demonstration, not remote, uncertain, contingent, unsubstantial, or merely speculative or theoretical.

1 Am. Jur. 2d Administrative Law § 64 (1962). As stated in Withrow v. Larkin, 421 U.S. 35 (1975), there is a presumption of honesty and integrity in those serving as adjudicators and the petitioner must demonstrate a risk of bias or prejudgment. This, in our opinion, petitioner has failed to do. Mr. Bedsaul testified only as to what he found in the files and there is no evidence presented by the defendant that Mr. Bedsaul was prejudiced against the petitioner or had any other predisposition which should have disqualified him from sitting as a member of the adjudicating board. Therefore, the decision of the board appealed from should be affirmed.

Affirmed.

Judges Webb and BECTON concur.