dissenting: Are agencies bound by their own rules? Does the imposition of an open-ended sentence by a prison disciplinary board constitute cruel and unusual punishment? In my view, both questions must be answered affirmatively and therefore I dissent from the majority’s opinion.
*600While the merits of the “fighting” charge against petitioner Griffin are not in issue, the validity of the sanctions imposed for that infraction is. The undisputed facts are that when petitioner was found guilty of major misconduct by the disciplinary board at Kansas State Penitentiary, there were in effect rules and regulations which lawfully established that board’s powers. In ignoring those procedures, the board did not impose the outlined sanctions but chose instead to impose a specially created indefinite sentence. The petitioner served eight months in disciplinary segregation as of the date that his brief was filed in this court, and is apparently still being retained in that status.
For clarity, both sentences are set out below:
Authorized sentence: Seven to 15 days disciplinary segregation and forfeiture of 30 days good time. Review required after the minimum sentence has been served. (Kansas Penal System Policy, Guidelines and Inmate Disciplinary Procedures, p. 21, effective August 1, 1972, since amended.)
Sentence imposed: “Remove from Laundry work detail and pay status for 30 days. Transfer to East Wing (South P.C.) Earn back laundry status at discretion of OIC, A&T.”
The fact that the action taken by the board could have been accomplished administratively had it not been done as a punitive measure has no bearing on this case. The decisions in Foster and Meachum cited by the majority are distinguishable for the reason that the contested decisions did not involve disciplinary actions. Foster v. Maynard, 222 Kan. 506, 509, 565 P.2d 285 (1977); Meachum v. Fano, 427 U.S. 215, 216-17, 49 L.Ed.2d 451, 96 S.Ct. 2532 (1976).
Inmates in “disciplinary segregation” are not there due to administrative reassignments, but are serving a sentence meted out by the institution disciplinary board and approved by the warden or superintendent. (Kansas Penal System Policy, Guidelines and Inmate Disciplinary Procedures, p. 8.) Therefore, I am not persuaded by the majority’s reasoning that what can be done administratively, with no hearing at all, can be done by procedures which afford a hearing. No claim has been advanced here that the petitioner arrived in disciplinary segregation via routine administrative procedure. Once prison officials embark upon the path of disciplinary proceedings, they are then bound by their governing rules and regulations.
*601The rule is that an administrative agency may not violate or ignore its own regulations, and where it fails to follow the rules which it has promulgated, its orders are unlawful. This principle controls as long as the rules made are within the agency’s competence to make, and those rules do not contravene or nullify controlling statutes. Kansas Commission on Civil Rights v. City of Topeka Street Department, 212 Kan. 398, Syl. 1 and 2,511 P.2d 253, cert. denied 414 U.S. 1066, 38 L.Ed.2d 470, 94 S.Ct. 573 (1973); Moore v. OSP, 16 Or. App. 536, 519 P.2d 389 (1974); Vitarelli v. Seaton, 359 U.S. 535, 3 L.Ed.2d 1012, 79 S.Ct. 968 (1959); Clairbome v. Coffeyville Memorial Hospital, 212 Kan. 315, 317, 510 P.2d 1200 (1973) and cases cited therein.
In addressing this subject, the New Jersey legislature and courts have required, as Kansas does, that all inmates be provided a copy of the formally promulgated and published rules and regulations governing the rights, privileges, duties and obligations of the inmate population confined in state penal and correctional institutions. Among other things, such publications are required to set forth authorized sanctions for various classes of violations and to detail the procedures for imposing summary and administrative punishment. New Jersey law specifically prohibits the imposition of unauthorized sanctions by saying, “No punishment may be meted out other than of the type and in the manner prescribed by such rules and regulations.” Avant v. Clifford, 67 N.J. 496, 512-13, 341 A.2d 629 (1975) and authority cited therein.
The parallel Kansas statute is K.S.A. 75-5256 (since amended):
“[A]ll rules or orders for the government of the correctional institution and the enforcement of discipline therein made by the secretary or director shall be published and made available to all inmates. Every such rule or order promulgated by the director shall be effective until rescinded or amended by him or her or until disapproved by the secretary.”
According to the published rules governing the Kansas State Penitentiary, all Class II offenses, such as the one with which the petitioner was charged, are required to be heard and acted upon by the prison disciplinary board. The rules limit the board’s actions to using all or part of the published sentence or to suspending all or part of it. Thus, when the board ignored the prescribed sentence and created instead a special sentence for the *602petitioner — sentencing him to an indefinite period of punitive segregation on the east wing of the A&T building — it exceeded its authority. Moreover, the grievous loss suffered was compounded when the board failed to review petitioner’s sentence, which it was required to do, after he had served the minimum sentence prescribed for the infraction.
I am unable to agree with the majority’s views that the disciplinary board’s decision was a hybrid administrative/disciplinary decision and that the prison authorities merely failed to distinguish which resulting actions taken in regard to appellant were administrative and which were disciplinary. In Foster, 222 Kan. at 508, our Supreme Court expressly stated, “Protective custody inmates are not placed on the east wing for disciplinary reasons.” The action of the disciplinary board in this case violates that premise: petitioner’s assignment to the east wing was indeed a sentence imposed for the violation of institutional rules.
I would reverse the trial court’s decision and remand with directions that the petitioner be reassigned housing on the north wing of the A&T building and that the good time forfeited, if any, be reinstated. Nothing in such decision should be construed as limiting the prison administration’s authority to make future housing assignments when necessary for administrative/logistics purposes. I would hold that in disregarding its own rules, the board acted unlawfully.