concurring specially.
I am specially concurring for the purpose of making appropriate additional comments.
The rationale expressed in Aasmundstad v. Dickinson State College, 337 N.W.2d 792 (N.D.1983), to a degree applies here particularly on the basis that Conway was substantially denied the opportunity to use compensatory time which was allowed and provided for by the policy adopted by the County Commissioners.
If Conway had not been denied the taking of compensatory leave when he requested it, I would agree with the dissent of Justice VandeWalle.
I also share some of the concern expressed in Justice Pederson’s concurring opinion regarding the statutory provisions pertaining to “appeals.” The statutory provision probably was well intended but it is not accomplishing its purpose. An appeal de novo, without a record, is virtually an impossibility. Conceivably, the Legislature had in mind “anew” (trial anew) when it used the expression “shall be heard and determined de novo.” North Dakota Century Code § 11-11-43 has its roots in Ch. 21, 1877 Session Laws. The situation as it exists is that the County Commissioners do not and did not make a record of the proceedings before it. The appeal de novo to the district court without a record puts the district court in a difficult position. The district court is to admit evidence and consider the evidence which is comparable to the material presented to the County Commissioners. See Shaw v. Burleigh County, 286 N.W.2d 792 (N.D.1979). To a degree this develops a certain amount of speculation. What is the trial court to do if one of the parties objects to the admission of certain evidence as not having been evidence submitted to the County Commissioners? Should the trial court put a hold on the trial and remand it to the County Commissioners to consider the evidence and then wait for the County Commissioners to make their decision? This can create quite a problem and I would, for this rea*402son, recommend to the Legislature that this be changed.
In my opinion, Conway could have easily proceeded against the County Commissioners by an action on contract and it would have eliminated some of the problems with reference to the record made, or not made, or should have been made, etc.