The opinion
HOLMES, Judge
(concurring specially).
I concur with the conclusion of the majority that the trial court did not err in finding that the Commission’s order was unjust because it was against the preponderance and overwhelming weight of the evidence.
I disagree, however, with the majority’s emphasis that the Commission was also due to be reversed by the trial court because the Commission relied upon evidence outside the record made before the Board relating to King’s retirement. While the record may not contain evidence that King’s employment was terminated two months before he would have become eligible for retirement, it does contain the testimony of the Board’s superintendent that he understood that King was near retirement.
Moreover, I fail to see the significance of the Board’s considering evidence of King’s nearness to retirement. Such evidence has no bearing on whether King was correctly terminated by the Board.
I would affirm the trial court, but only on the basis that the Commission’s order is against the preponderance and overwhelming weight of the evidence.