Barendregt v. Walla Walla School Dist. No. 140

• Decision Date: 27 May 1980
• Docket Number: No. 3405-III-4,R,No. 140,140,3405-III-4
• Citation: 26 Wn.App. 246,611 P.2d 1385
• Court: Washington Court of Appeals
• Parties: Robert D. BARENDREGT, Plaintiff, v. WALLA WALLA SCHOOL DISTRICT, NO. 140, Mrs. George Gau, John P. Yenney, Walter C. Coyle, Howard A. Preston, and Mrs. Catherine Rew, Board of Directors of Walla Walla School District, and Franklin B. Hanson, Superintendent of Walla Walla School District, Respondents, v. STATE of Washington, DEPARTMENT OF SOCIAL & HEALTH SERVICES, Appellant.

Page 246

26 Wn.App. 246

611 P.2d 1385

Robert D. BARENDREGT, Plaintiff, v. WALLA WALLA SCHOOL DISTRICT, NO. 140, Mrs. George Gau, John

P. Yenney, Walter C. Coyle, Howard A. Preston, and Mrs.

Catherine Rew, Board of Directors of Walla Walla School

District No. 140, and Franklin B. Hanson, Superintendent of

Walla Walla School District No. 140, Respondents, v. STATE of Washington, DEPARTMENT OF SOCIAL & HEALTH SERVICES,

Appellant.

No. 3405-III-4.

Court of Appeals of Washington, Division 3, Panel Two.

May 27, 1980.

Reconsideration Denied June 17, 1980.

Slade Gorton, Atty. Gen., Brian J. Coyne, Asst. Atty. Gen., Olympia, for appellant.

Herbert Freise, Freise, Lohrmann & Makus, Walla Walla, for respondents.

MUNSON, Judge.

The State of Washington appeals a summary judgment granted in favor of Walla Walla School District No. 140; the judgment was for costs, damages, interest and attorney's fees in both the present and a prior action. The State appeals. We reverse.

In June 1967, Washington State Penitentiary entered into an agreement with the school district to hire three teachers to teach at the penitentiary. According to the terms of the agreement, the penitentiary agreed to reimburse the school district for the teachers' salaries plus a small percentage for administrative costs. The letter, on Washington State Penitentiary stationery, was signed by James E. Codd, "Supervisor of Education" at the penitentiary. In September 1970, the school district hired Robert Barendregt. Barendregt taught at the penitentiary from 1970 to 1973 under the direction of James Codd. In January 1973, the penitentiary notified the school district it was planning to reduce its teaching staff and would not need Barendregt's services for the coming school year. The district notified Barendregt on January 30, 1973, his contract would not be renewed for the following school year. Barendregt challenged this action alleging improprieties in the nonrenewal procedures under RCW 28A.67.070. Barendregt ultimately prevailed in the Washington Supreme Court. Barendregt v. Walla Walla School District 140, 87 Wash.2d 154, 550 P.2d 525 (1976).

At issue are alleged statements made by James Codd which purportedly assured the school district that if the district incurred any expense because of Barendregt's nonrenewal, the State would indemnify the district. On October 6, 1976, the district filed a third-party complaint against the State seeking indemnification for its costs and damages in defending against Barendregt. Hearing upon the third-party complaint was delayed until final determination of Barendregt v. Walla Walla School District 140, supra. Following that decision, the court granted the district's motion for summary judgment and denied the State's motion for summary judgment. The State appeals.

The school district's primary contention is that James Codd made certain statements to the district's superintendent and assistant superintendents assuring them the State would be ultimately responsible for expenses, including attorney's fees, incurred by the district in its defense of Barendregt's suit. Affidavits supporting the district's contention indicate Codd may have made some statements to that effect; however, Codd's affidavits are equivocal and conflicting. He described his duties at the penitentiary as supervising the academic and vocational programs. His immediate superior, Robert Freeman, stated Codd had the informal title of "Director of Education" and had the responsibility for the educational programs as well as being in charge of the money and personnel. Freeman further stated that authorization for the penitentiary to enter into an agreement with the school district had to come from Olympia.

The school district contends Codd's authority to bind the State to indemnify the district for the costs of Barendregt's suit arises from RCW 72.01.450 as then enacted: ¹

The director of institutions of the state of Washington is authorized to enter into agreements with any school district or any institution of higher learning for the use of the facilities, equipment and personnel of any state institution of the department, for the purpose of conducting courses of education, instruction or training in the professions and skills utilized by one or more of the institutions, at such times and under such circumstances and with such terms and conditions as may be deemed appropriate.

The school district's reliance on the above statute is misplaced. An administrative agency created by statute has only those powers expressly granted by the statute or necessarily implied therefrom. Ortblad v. State, 85 Wash.2d 109, 117, 530 P.2d 635 (1975). RCW 72.01.450 contains no grant of indemnification powers, either express or implied.

The power of a political subdivision of the state is limited to that granted by the state legislature. "Especially is this rule to be enforced where the public treasury will be directly affected." State ex rel. Bain v. Clallam County Bd. of County Commr's, 77 Wash.2d 542, 548, 463 P.2d 617 (1970). In Finch v. Matthews, 74 Wash.2d 161, 171, 443 P.2d 833 (1968), quoting from 31 C.J.S. Estoppel § 144 (1964), the court distinguished between a governmental agency's ultra vires act which cannot be estopped and the " 'irregular exercise of a granted power,' " which may be estopped if the contract relied on was within the agency's powers. If there...