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slash, alternative that doesn't seem to be the scorched earth that we're presented with." <br />AR:01041:16-23. <br />After this and other deliberation, the Board's Chairperson asked the Division: "got any <br />thoughts?" AR:01043:11-12. David Berry, a director in the Division, then advocated for the <br />Division's positions, stating "we've gone to great lengths to make our case today," <br />AR:01043:16-17, "there is great likelihood that damage will occur if left unattended," <br />AR:01044:11-12, and "I'm scared to death of the circumstances that may exist if we - if we take <br />or recommend a solution other than what we've brought you today." AR:01045:9-12. These <br />statements, among others, "crystallize [d] things" in the mind of at least one Board member, Mr. <br />King, who then moved the Board to accept the Division's recommendations, in their entirety, <br />including Mine Dewatering and Treatment. AR:01045:16-17; 01048:4-9. Shortly thereafter, the <br />Board ruled in the Division's favor. AR:01049:16-19. <br />Mr. Berry's participation in the Board's deliberations violated Cotter's rights to due <br />process. A Division director, such as Mr. Berry, who participates in an initial decision, in this <br />case the RTB notice from the Division, may not participate in Board deliberations finding a <br />violation and ordering corrective action. See Tepley v. Public Employment Retirement Ass'n., <br />955 P.2d 573, 577-578 (Colo. Ct. App. 1998) (procedures violated due process when board <br />members who were part of panel recommending an initial decision also attended and participated <br />in proceeding resulting in final decision). Indeed, no employee of the Division, the prosecuting <br />agency, may participate in such deliberations. The Board also improperly prejudged matters of <br />evidentiary fact by allowing Mr. Berry to participate in its deliberations. Id. <br />37