concurring specially:
I concur with the result reached by the majority opinion and a substantial part of the analysis. However, I disagree sharply with the majority’s statement, ante at 149, that “an employee’s statutory rights are implicitly included in his or her contract of employment.” Again, on page 151 the majority states, “The failure by the state to comply with the statutory procedure constitutes a breach of the employment contract.” It is significant that the majority has cited no authority for this proposition. In contrast to the majority's assertions, the rights of a public employee are fully dependent upon statutory provisions which can be changed at will, and thus are not dependent upon any “contract of employment.” Miller v. State, 18 Cal.3d 808, 135 Cal.Rptr. 386, 557 P.2d 970 (1977) (“public employment is not held by contract but by statute”); Baker v. Civil Service Comm ’n, 245 S.E.2d 908 (W.Va.App.1978) (“public employment arises not by virtue of contract but by the terms and conditions fixed by statute____”). See Personnel Division of Executive Dept. v. St. Clair, 10 Or.App. 106, 498 P.2d 809 (1972) (“[t]he terms and conditions of civil service employment are fixed by statute and the regulations of the state personnel agency, and not by ‘contract’ between the public employer and the individual employe.”). See also Morris v. Gonzales, 91 N.M. 495, 576 P.2d 755 (1978); In re Thaxton, 78 N.M. 668, 437 P.2d 129 (1968). Even in situations where a state department does enter into a written contract with an employee, the contract cannot be inconsistent with the statutory provisions. Miller v. State, supra; Boren v. State Personnel Board, 37 Cal.2d 634, 234 *352P.2d 981 (1951). The majority’s contract rationale is simply not applicable to state employees. Those rights are determined by statute and rules and regulations of the Idaho Personnel Commission. I believe that the majority errs seriously when it loosely suggests that appellant’s statutory rights became a part of a contract of employment.