Jaynes v. Stockton

• Decision Date: 12 June 1961
• Citation: 193 Cal.App.2d 47,14 Cal.Rptr. 49
• Parties: Barbara JAYNES and Elk Hills School District (a corporation), Appellants, v. Jesse D. STOCKTON, individually, and as Kern County Superintendent of Schools, Respondent. Civ. 6547.
• Court: California Court of Appeals Court of Appeals

Page 49

14 Cal.Rptr. 49

193 Cal.App.2d 47

Barbara JAYNES and Elk Hills School District (a corporation), Appellants, v. Jesse D. STOCKTON, individually, and as Kern County Superintendent of Schools, Respondent.

Civ. 6547.

District Court of Appeal, Fourth District, California.

June 12, 1961.

Hearing Denied Aug. 9, 1961.

Hill, Farrer & Burrill, Los Angeles, for appellants.

Roy Gargano, County Counsel, Kern County, and Rex R. Mull, Chief Deputy County Counsel, Kern County, Bankersfield, for respondent.

COUGHLIN, Justice.

The issue on appeal in this case is whether a school district is authorized to employ a private attorney to advise its board of trustees respecting a specific school problem when the services of the county counsel are available to them for this purpose.

Appellant Jaynes is the assignee of a claim for legal services furnished appellant Elk Hills School District by a firm of attorneys, pursuant to a contract between them and the district. In executing this contract the parties relied upon the following provisions of Section 53060 of the Government Code:

'The legislative body of any public or municipal corporation or district may contract with and employ any persons for the furnishing to the corporation or district special services and advice in financial, economic, accounting, engineering, legal, or administrative matters if such persons are specially trained and experienced and competent to perform the special services required.'

Respondent Stockton is the Superintendent of Schools of Kern County. The school district is located in that county and the trustees thereof requested the superintendent to approve their warrant directing the county auditor to pay the claim in question. The superintendent refused, contending that the trustees should have received their legal advice upon the subject in question from the county counsel, and that their employment of special counsel was unlawful. Thereafter appellants brought this proceeding in mandamus to compel approval of the warrant and effect payment of the claim.

Pursuant to stipulation, the court found that the attorneys in question entered into a contract with the trustees to act as counsel to assist them in obtaining, for the school district's employees, Federal Old Age Survivors' Insurance coverage on the basis of full supplementation with the State Employees' Retirement System; that these attorneys were trained, experienced and competent to perform the services requested; that the county counsel of Kern County also was trained, experienced and capable of performing such services; and that he was not disqualified and did not refuse to represent the District. The court also found that the legal services rendered by the firm of attorneys were available to the school district from the county counsel, at no cost or expense to the district; that he was willing to perform them; and that they did not constitute special services and advice.

From the foregoing facts the court drew two conclusions of law, viz., that (1) the services rendered were not 'special services and advice' within the meaning of Section 53060 of the Government Code, and (2) even though they were 'special services and advice', the school district was not authorized to employ the firm of attorneys in question to furnish them, because the county counsel was willing, qualified and competent to perform those services.

Judgment denying the writ of mandate followed, from which this appeal has been taken.

The services in question grew out of a desire by the school district to botain for its employees federal old age benefits on the basis of full supplementation with state benefits under the state plan. An impediment to immediate action lay in a controversy as to whether the district could act as a separate contracting agency with the state system, or whether its employees already were included in a contract made by the superintendent of schools with that system. The law firm in question gave its opinion and recommended a designated plan of action as that most likely to achieve immediate results in accord with the district's desires. This plan required the supermintendent to conduct a division and referendum among the employees covered by his contract. Upon receipt of this information, the superintendent asked for an opinion from the county counsel respecting the matter, and was advised that a division and referendum could be undertaken but that it would be on the basis of 'full offset' rather than 'full supplementation.' Subsequently, the superintendent suggested that the district wait to see if legislation would be passed which would permit it to obtain benefits on the basis of full supplementation. Thereafter legislation permitting a modified form of full supplementation was adopted.

The appellants claim that the term 'special services and advice,' as used in the statute authorizing the employment of special counsel, refers to services 'which are out of the ordinary or unique and unusual.' Although not clearly stated, this contention includes the claim that the services required were out of the ordinary, unique and unusual because of the nature of the subject matter to which they are related. The respondent claims that the term 'special services and advice' refers only to 'those services which are not otherwise available from or required to be rendered by public officers.' This contention, although predicated upon a different premise, coincides with the conclusion of the trial court that the statute in question did not confer upon the school district the authority to employ a private attorney when the services required could be obtained from the county counsel.

The term 'special' has been defined by reference to a great variety of synonyms and synonymous phrases among which are those suggested by appellant, i. e., unique, unusual and out of the ordinary (Steele-Smith Dry Goods Co. v. Birmingham Ry., Light & P. Co., 15 Ala.App. 271, 73 So. 215, 216; National Cash Register Co. v. Wall, 58 Mont. 60, 190 P. 135; Placek v. Edstrom, 151 Neb. 225, 37 N.W.2d 203, 207; State ex rel., Charlton v. French, 44 N.M. 169, 99 P.2d 715, 720); also included are 'extraordinary' (Placek v. Edstrom, supra, 151 Neb. 225, 37 N.W.2d 203, 207; Hardecker v. Board of Education, 180 Misc. 1008, 44 N.Y.S.2d 855, 859), 'extraordinary, not general' (National Cash Register Co. v. Wall, supra, 58 Mont. 60, 190 P. 135); 'noting something more than ordinary' (Prows v. Hawley, 72 Utah 444, 271 P. 31, 35); 'not regular' (Zulich v. Bowman, 42 Pa. 83, 88); 'additional to the regular' (Hardecker v. Board of Education of City of New York, supra, 180 Misc. 1008, 44 N.Y.S.2d 855, 859), as distinguished from ordinary, usual or typical (Placek v. Edstrom, supra, 151 Neb. 225, 37 N.W.2d 203, 207); and in addition is 'frequently used as opposed to 'general', and in legal phrases is most frequently employed as denoting something particular or limited, in contradistinction to general or permanent.' 81 C.J.S., p. 398.

Regardless of which one or more of the foregoing definitions may be accepted, to determine whether services are special requires a common standard with which to make a comparison. As applicable to the statute in question, this standard is the result of a composite consideration of various factors; at once apparent are those which relate the nature of the services required to the subject matter thereof (Cobb v. Pasadena City Bd. of Education, 134 Cal.App.2d 93, 95, 285 P.2d 41), to the qualifications of the person capable of furnishing them (Kennedy v. Ross, 28 Cal.2d 569, 574, 170 P.2d 904), to their availability from public sources, and to the temporary basis of the employment through which they are obtained. Handler v. Board of Supervisors, 39 Cal.2d 282, 286, 246 P.2d 671. The statute provides for the payment of special services in legal matters, and not for the payment of services in special legal matters. The subject of the services, therefore, does not exclusively nor necessarily characterize the type of services for which the school district may contract. The legal problem involved may be unusual and complex but lawyers generally may be qualified to render the services required, and in this event the service would be out of the ordinary only to those who were not lawyers. The latter type of services expressly are excepted from the statutory definition by the provisions which limit employment to those persons who are 'specially trained and experienced and competent to perform the special services required.' On the other hand, the services desired may be special services as far as the school district is concerned because they are in addition to those usually, ordinarily and regularly obtainable through public sources, even though they are the usual, ordinary and regular services rendered by a person in the particular field of endeavor of which the desired services are a part. The architectural services required by a district may be regarded by an architect as ordinary and usual architectural services but, nevertheless, they are the services of a person possessing a particular skill and are unusual and out of the ordinary to the district if not available to it through official channels, In another category, the services of a particular individual may be special in that, because of his outstanding skill, they may not be duplicated. Kennedy v. Ross, supra, 28 Cal.2d 569, 574, 170 P.2d 904.

The district attorney of every county, or the county counsel in those counties having such an officer (Gov.Code, §§ 26529, 27642), providing his office is subject to the general law (Board of Supervisors of Los Angeles County v. Simpson, 36 Cal.2d 671, 673, 227 P.2d 14), is required to give his opinion in writing to school district officers on matters relating to the duties of their offices (Gov.Code, § 26520); to advise them in relation to school bond issues and prepare all legal papers and forms necessary for...