Dissenting:
I respectfully dissent from the Court’s opinion upon the ground that it creates not only an unnecessary but a fundamentally unsound burden on public school administration in West Virginia. While the majority concludes correctly that Mr. Trimboli was an untenured administrator, they err in holding that West Virginia Board of Education Policy No. 5300(6)(a) requires formal evaluation and improvement periods before a policy making employee may be terminated or transferred. Even if Pol*15icy No. 5300(6)(a) imposes a condition precedent to the discharge or transfer of employees who do not make policy, it clearly cannot do so with regard to board of education administrative personnel.1 Mr. Trimboli’s employment as Director of Federal Programs for the Wayne County Board of Education was clearly pursuant to W. Va. Code, 18-5-32 [1949] which provides in pertinent part:
The [county] board [of education], ... shall have authority to employ such general and special supervisors or directors of instruction and of such other educational activities as may be deemed necessary. ... [Their] period of employment ... shall be at the discretion of the board. [Emphasis supplied]
This provision alone precludes the majority’s interpretation of Policy No. 5300(6)(a). While an administrative agency must be held to the standards which it establish*16es for itself, Vitarelli v. Seaton, 359 U.S. 535 (1959); Powell v. Brown, _W. Va._, 238 S.E.2d 220 (1977), it can legally adopt only those rules and regulations which are not in conflict with the laws enacted by the Legislature. Anderson & Anderson Contractors, Inc. v. Latimer, _W. Va._,_S.E.2d_(1979); Walls v. Miller, _W. Va.-, 251 S.E.2d 491 (1978). In both Anderson and Walls, this Court, after examining the governing statutes and the underlying legislative policy, found certain regulations promulgated by the West Virginia Department of Natural Resources and the West Virginia Department of Mines respectively to be void because they conflicted with statutory law. While a uniform set of rules does not apply both to the mining of coal and the running of schools the principle that rules and regulations cannot contravene statutes applies to both. Policy No. 5300(6)(a) as interpreted by the majority is in direct conflict with W. Va. Code, 18-5-32 [1949]. The Legislature, in the proper exercise of its lawful powers, provided that policy making, administrative personnel would serve at the discretion of the local board. The Legislature recognized that superintendents must have loyal, enthusiastic officers to carry out their policy by making these officers serve at the will and pleasure of the board in W. Va. Code, 18-5-32 [1949]; the majority ignores the clear statute in reaching their decision. Administrators have a clear legal right to enthusiastic as well as competent personnel.
The stated purpose of a Policy No. 5300(6)(a) performance evaluation is to allow “[e]very employee ... the opportunity of improving his job performance, ...”; however, in the vast majority of cases, the differences which lead to transfer or termination of administrative personnel, i.e. lack of trust, ideological variances, or personality conflicts, are not susceptible to improvement through evaluation.2 As is often the case with this Court as cur*17rently constituted, I detect an attempt to temper the wind for the shorn lamb — under proper circumstances a laudable and legitimate judicial function. The facts here, however, do not justify creative expansion of Policy No. 5300 in the face of W. Va. Code, 18-5-32 [1949] because the petitioner behaved in such a way as to make his demotion a reasonable and foreseeable consequence of his own actions. Mr. Trimboli, in active opposition to a board sponsored bond issue, vocally denounced the bond issue at two public meetings after his fellow administrators specifically requested his cooperation. Boards of education are legitimately constituted, institutional lobbyists for better schools; better schools inevitably require money. It is obvious that W. Va. Code, 18-5-32 [1949] does not countenance a board of education’s being required to feed, clothe, and comfort a fifth columnist in *18its own ranks. If a superintendent cannot be assured that his closest deputies will help him carry out the policy as made by the board, a legitimately constituted political body charged with making such policy, then how is there ever to be a concerted effort to improve the schools in West Virginia?
Not all politics is dirty, filthy, and utterly meretricious; politics is government and there are duly constituted political authorities elected to carry out certain policies dictated by voters. Does it not seem ludicrous that the voters should be able to elect a board of education to carry out a program, such as improvement of the school system, have the power to deny that board reélection for failure to accomplish what the voters wish, and yet, at the same time provide a scheme where the very instruments which the board has been given to carry out voter initiated programs be permitted to oppose those programs at every turn with no fear of retribution? Unreasonable job tenure among the highest bureaucracy makes a farce of the democratic process. Had the petitioner been fired or demoted for failure to make a campaign contribution, for failure to hire someone’s niece, for failure to work the polls for a particular board candidate, or for belonging to the wrong political “faction,” my sympathies might be with the majority’s result, although on the face of W. Va. Code, 18-5-32 [1949] I would be put to the task of constructing a more rational theory than the one based on Policy No. 5300. Perhaps, in the above hypothetical examples, the case would be within the penumbra of Elrod v. Burns, 427 U.S. 347 (1976), where the United States Supreme Court held that the patronage practice by which the Sheriff of Cook County, Illinois, on assuming office from a Sheriff of a different political party, would automatically replace non-civil service employees with members of his own party was violative of the first amendment. Even that holding, however, was limited to non-policy making and non-confidential employees. See also Harless v. First National Bank in Fairmont,_W. Va._, 246 S.E.2d 270 (1978). Slowly the good government lobby, the . newspa*19pers, the bureaucracy, and the courts are convincing us that because of some abuse in the political process, all political decision making is evil. Consequently the modern trend is to have all elected officials and all will and pleasure appointees replaced by life tenured, colorless, odorless, tasteless bureaucrats who in their “professional judgment” know (by drawing upon the vast resources of their extensive educations) what is best for us. I am not ready to sell my birthright in return for arguable expertise; I want my elected officials to have the power to implement my policy as a voter because I still believe that the vote means something.
In my estimation, Policy No. 5300(6)(a) does not create a duty to provide any employee an evaluation and opportunity to improve work performance but is rather a policy statement by the West Virginia Board of Education that employees “should be offered ... [an] evaluation” and “[are] entitled to the opportunity of improving job performance.” Noting the lack of any mandatory language might seem an exercise in result-oriented schematics; however, such is not the case when Policy No. 5300 is considered in its entirety. Its only mandatory language is found in sections seven and eight which provide respectively that “[a]ll official and enforceable personnel policies must be written and made available” and “[e]ach board of education must adopt a written grievance procedure” to resolve employer/employee differences.” There is absolutely no provision mandating adoption of an evaluation procedure. Apart from sections seven and eight, Policy No. 5300 does not create substantive rights in an employee the deprivation of which can bar the employee’s discharge or transfer. For example, Policy No. 5300(4) provides that employees “should be encouraged to make suggestions.” It would be ridiculous to infer that a local board has a duty to solicit suggestions before it can discharge or transfer an employee. I reassert my dissent in Powell v. Brown, _W. Va., _238 S.E.2d 220 (1977) where this court held that a nontenured probationary employee was entitled to “due process” by virtue of Policy No. 5300(6)(b).
The majority cites numerous cases from sister jurisdictions, but an examination of those cases reveal that they do not support an *17evaluation/opportunity to improve procedure as a condition precedent to the discharge or transfer of administrative personnel. In Miller v. Chico Unified School District,_Cal. App. 3d_,, 148 Cal. Rptr. 270 (1978), the court specifically held that the statutorily mandated evaluation procedure applicable to all certified personnel, Cal. Educ. Code, § 44660 [1977], did not act as a condition precedent to the reassignment of an administrator. See also Grant v. Adams, 69 Cal. App. 3d 127, 137 Cal. Rptr. 834 (1977). The case of Tarquin v. Commission on Professional Competence, 84 Cal. App. 3d 251, 148 Cal. Rptr. 522 (1978) so highly touted by the majority merely held that an evaluation and opportunity to improve had to be afforded a teacher being dismissed for poor performance. A holding similar to that of Miller, supra, can be found in Verret v. Calcasieu Parish School Board, 201 So.2d 385 (La. App. 1967) where that court said:
We cannot agree with [the] contention that before the School Board could lawfully remove him ... as principal they must afford him an opportunity to rectify the conditions on which removal was founded. 201 So.2d at 387.
The other cited cases do not directly involve discharge or transfer of administrative personnel; however, they do make a distinction even on the classroom teacher level between correctable and uncorrectable situations. See Glover v. Board of Education of Macon Community, 21 Ill. App. 3d 1053, 316 N.E.2d 534 (1974); Morgan v. New Mexico State Board of Education, 83 N.M. 106, 488 P.2d 1210 (1971); Blue Springs Reorganized School District IV v. Landuyt, 499 S.W.2d 33 (Mo. App. 1933).