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"The essence of due process is basic fairness in procedure." deKoevend v. Board of <br />Education, 688 P.2d 219, 227 (Colo. 1984). Administrative agencies, therefore, have the <br />obligation to be "fundamentally fair" in resolving legal disputes involving governmental action <br />that threaten to deprive persons of a significant property interest. Id. Different situations may <br />entail different types of procedures, "but there is always the general requirement that there be <br />some type of neutral and detached decision maker." Id. "Not only is actual fairness mandated, <br />but the integrity of the administrative process also requires that the appearance of fairness be <br />preserved." Id. at 228. Here, the Division's participation in the Board's deliberations made the <br />Board's decision-making process biased and unfair. There cannot be a neutral and detached <br />decision-maker when the decision-maker turns to the prosecutor for advice as to what decision to <br />make. See id. (presence of school officials during board's deliberative process violated accused <br />teacher's right to a fair and impartial determination). <br />The Board's request to David Berry for his "thoughts" towards the end of its <br />deliberations also violated the Colorado APA, Colo. Rev. Stat. § 24-4-105(3), which allows only <br />one of the following to preside at a hearing: an agency, an administrative law judge, or a hearing <br />officer. Here, the Board was the agency presiding, and the Division was the prosecutor. It was <br />therefore unlawful to allow the Division to participate in the Board's decision-making process. <br />VI. The Civil Penalties Ordered by the Board Are in Excess of Statutory Jurisdiction <br />and Authority, and Unsupported by Substantial Evidence. <br />The civil penalties ordered by the Board are in excess of statutory jurisdiction and <br />authority. Civil penalties may be assessed under the Act only where a person "violates any <br />provision of any permit issued under this article ...." Colo. Rev. Stat. § 34-32-124(7). <br />Notwithstanding this express language, no portion of the Order finds that Cotter violated permit <br />38