THOMAS F. MCANDREW vs. SCHOOL COMMITTEE OF CAMBRIDGE & another. [Note 1]

DREBEN, J. This action was brought for breach of an alleged contract employing the plaintiff as band leader and teacher in the Cambridge public school system. The school committee and the superintendent of schools, defendants, claiming they were entitled to directed verdicts by reason of G. L. c. 71, Section 38, appeal from judgment against them entered on jury verdicts for the plaintiff.

We relate the facts as they could have been found by the jury. In late August, 1980, the school committee advertised for a permanent band leader and orchestra teacher for Cambridge High and Latin School for the 1980-1981 school year. [Note 2] The position had to be filled quickly, as the former band leader had resigned suddenly, the beginning of the school year was at hand, and the band was committed to a number of musical events in the early fall, including a parade in celebration of Cambridge's 350th anniversary.

While in Boston visiting relatives, the plaintiff, a resident of Georgia and a high school teacher, saw and responded to a newspaper advertisement for the position. After several interviews with the director and assistant director of music of the

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Cambridge public schools (the directors), and after all his references had been checked, the plaintiff was offered a one-year "permanent" position by the directors.

Although he was told that his appointment had to be approved by the Cambridge school committee, he was assured that approval would be no more than a "rubber stamp" which would be granted upon the recommendation of the directors and that "this is common procedure in education." The directors read the list of school committee members to the plaintiff and mentioned those who were "on their side." The plaintiff was also given the name of one member of the committee (whom he called) who had a real estate business, as the directors wanted to ensure that the plaintiff would live in Cambridge.

After urging by the directors, the plaintiff accepted the position. He gave up his teaching post in Georgia, moved to Cambridge (at a cost of approximately $3,000), and began teaching on September 15, 1980. Three and one-half weeks later, after the 350th anniversary parade, the directors fired him. They never submitted his name to the superintendent of schools or to the school committee. [Note 3]

The jury were instructed that they could find a breach of an employment contract and were also instructed on the principles of estoppel, in each instance over the defendants' objection. They returned verdicts for the plaintiff and assessed damages in the sum of $23,000.

1. No recovery for year's employment. (a) Statutory bar. The defendants claim they were entitled to directed verdicts by reason of G. L. c. 71, Section 38, set forth in the margin, [Note 4] which

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provides the exclusive method of contracting with teachers, namely, that they be nominated by the superintendent and voted by the school committee.

The plaintiff did not secure an employment contract as a teacher with the city. "Authority to employ him was vested solely in the school committee." Demers v. School Comm. of Worcester, 329 Mass. 370, 373 (1952). See Pulvino v. Yarmouth, 286 Mass. 21, 24 (1934); Bonar v. Boston, 369 Mass. 579, 581-582 (1976). The statutory requirements were concededly not met, and the jury were incorrectly charged that they could find a breach of an employment contract on common law principles.

The plaintiff argues that, at the very least, he was an "extended term substitute" and urges that his hiring as such a substitute did not require compliance with Section 38. He cites no authority for this claim, and we do not see how he can escape the statutory requisites of the hiring process on this basis. [Note 5] See Brophy v. School Comm. of Worcester, 6 Mass. App. Ct. 731, 737 (1978), where we held that service as a long term substitute teacher counted toward the establishment of tenure, noting that such a teacher "performs the same functions . . . , is evaluated and hired in the same manner as a regular teacher, and serves for a predetermined period of time. . . ."

(b) Estoppel inapplicable. The jury were also instructed on principles of estoppel as follows: In order to find estoppel, "you must find that the defendant made a representation to the plaintiff that he had a permanent teaching position, that the plaintiff actually relied on that representation by the defendant and did something as a result of that representation, and the conduct or the action taken resulted in him being harmed."

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Traditionally, courts have not permitted estoppel of the government. A starting point, suggested by Professor Davis, is that "the King cannot be estopped, for it cannot be presumed the King would do wrong to any person." 4 Davis, Administrative Law Section 20.2 (2d ed. 1983), citing Bacon's Abridgments, quoted in 15 Halsbury's Laws of England 248. [Note 6] For a comprehensive discussion of Federal cases, a criticism of the doctrine, [Note 7] and the discerning of "a mainstream of case law estopping the government," see 4 Davis, supra Sections 20.1-20.6 and Section 20.12, at 43. See also Note, Equitable Estoppel of the Government, 79 Colum.L.Rev. 551 (1979). Justifications of the tradition, other than that of sovereign immunity, are the need for protecting the public against improper collusions," Lee v. Munroe, 11 U.S. (7 Cranch) 366, 370 (1813), deference to legislative policy, concern about the public treasury, and administrative efficiency.

Although the withering of the doctrine of sovereign immunity has had some effect on the law of estoppel in Massachusetts, [Note 8] the courts are "reluctant to apply principles of estoppel to

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public entities where to do so would negate requirements of law intended to protect the public interest." Phipps Prod. Corp. v. Massachusetts Bay Transp. Authy., 387 Mass. 687, 693 (1982). Thus, the rule against applying estoppel to the sovereign continues almost intact where a government official acts, or makes representations, contrary to a statute or regulation designed to prevent favoritism, secure honest bidding, or ensure some other legislative purpose. Preservation of "the processes ordered by the Legislature," id. at 694, "overrides the equities that would appropriately be considered in a purely private transaction," id. at 693.

Application of estoppel principles to bind the defendants to a contract of employment with the plaintiff would, in this case, run counter to express judicial as well as legislative policy. Authority for the management of the public schools is vested in the school committee of a city or town. See G. L. c. 71, Sections 37 & 38; Sheldon v. School Comm. of Hopedale, 276 Mass. 230, 235-236 (1931). As was stated in Davis v. School Comm. of Somerville, 307 Mass. 354, 362 (1940), "By long established legislative policy school committees are given general management of the public schools including the election and the dismissal of teachers. . . . The success of a school system depends largely on the character and ability of the teachers. Unless a school committee has authority to employ and discharge teachers it would be difficult to perform properly its duty of managing a school system." A school committee may not delegate this authority, and the concept of nondelegability of the authority of "an incumbent school committee in the appointment . . . of academic personnel [also] has a long tradition." School Comm. of Danvers v. Tyman, 372 Mass. 106, 111 (1977), and cases cited.

These judicial and legislative statements, designed to establish and maintain public schools of high quality, lead us to conclude that the public interest in complying with the statutory requirements of Section 38 precludes the award of damages for a breach of an employment contract on estoppel principles. It was error to instruct the jury that they might make such an award.

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2. Recovery on a narrow basis. Although the plaintiff is not entitled to damages for a breach of contract of employment, it does not follow that he is without any remedy. While G. L. c. 71, Section 38, denies the directors ultimate hiring authority, the statute does not preclude the interviewing and negotiating with prospective applicants by subordinates of the school committee. Implicit in the jury verdict is a finding that, at the very least, the directors gave the plaintiff a subsidiary promise that, barring some valid reason, they would submit his name to the superintendent and the school committee. The record does not suggest that this subsidiary promise to recommend the plaintiff was beyond their authority or that it offends any statute or legislative policy. Cf. School Comm. of Salem v. Gavin, 333 Mass. 632, 634-635 (1956). To the contrary, in the pressing circumstances of the last days of August, 1980, the directors as agents of the defendants were well within their duties in doing what they could to obtain, subject to the necessary approvals, the most qualified candidate.

The promise, however, is a very limited one and the meaning to be given to "some valid reason" must be broad. Thus, the directors may not, consistently with the policies of G. L. c. 71, Sections 37 & 38, bind themselves to submit the plaintiff's name to the school superintendent if they in good faith have a valid reason for refraining from doing so. The school committee in "choosing and keeping . . . proper and competent teachers," Davis v. School Comm. of Somerville, 307 Mass. at 362, must have the best advice of its subordinates, even if the latter may have previously given rash assurances.

The broad and oft-cited meaning of "good cause" set forth in Rinaldo v. School Comm. of Revere, 294 Mass. 167, 169 (1936) is, we think, an appropriate standard for defining "valid reason" in this context. "Good cause includes any ground which is put forward . . . in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the . . . task of building up and maintaining an efficient school system."

That the present plaintiff was treated shabbily (so far as appears on this record) cannot be gainsaid. No rule requires that agents of the defendants, acting within the scope of their

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authority, be totally exempt from the principles of fair dealing or be permitted to act arbitrarily. On the record before us, the promise does not require any relaxation of the requirements of law intended to protect the public interest [Note 9] and appears authorized. Indeed, the promise may be viewed as vital and proper to obtain needed services for the defendants. We see no reason not to enforce it.

Liability has been imposed in similar circumstances. In Kaye v. United States, 467 F.2d 416-419 (D.C. Cir. 1972), a Yale law student who had moved to Washington in June for a summer job with a government agency which required security clearance did not obtain such clearance until August. He had been told that the usual starting date for summer students was June, and he had turned down other jobs. The court reversed an order allowing summary judgment for the government and held that the plaintiff would be entitled to recover if he could prove the existence of a subsidiary promise by the government to exercise its best efforts in good faith to complete the security clearance as promptly as reasonably possible. Id. at 418-419.

An additional ground [Note 10] for enforcing the subsidiary promise is set forth in Section 90(1) Restatement (Second) of Contracts (1981). That section provides: "(1) A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires." There is no question that the directors' subsidiary promise falls within the section and that reliance can form the basis of an enforceable promise in Massachusetts. Loranger Constr. Corp v. E. F. Hauserman Co., 376 Mass. 757, 760-761 (1978).

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A number of courts have enforced promises against the government on the Section 90 principle. [Note 11] Thus, in Kaye v. United States, 467 F.2d at 419, discussed earlier, the court also proceeded on the Section 90 principle, stating: "Additionally, Kaye was entitled to the opportunity to establish that the Government induced Kaye's reliance by its implied promise . . . ." A case strikingly similar to the one at bar, Minor v. Sully Buttes Sch. Dist. #58-2, 345 N.W.2d 48 (S.D. 1984), allowed, on the Section 90 principle, recovery of moving expenses to a band leader who had been induced to leave a job in Minnesota to come to South Dakota, although recovery was denied for breach of a contract

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of employment because statutory requisites had not been met. See also Warner v. North Orange County Community College Dist., 99 Cal. App. 3d 617, 627 (1979). Compare Ogbunugafor v. St. Christopher's Union Free Sch. Dist., 100 A.D.2d 580, 580-581 (N.Y. 1984).

While the plaintiff may be able to establish on retrial that he is entitled to some damages, we think the measure of damages for the breach should be limited to the damages the plaintiff incurred before and during the three and a half weeks prior to his discharge. Damages for the loss of the entire year, whether measured by his Georgia salary or his expected Cambridge compensation, may not be recovered, as it would be improper to accomplish, in the guise of compensation for breach of the subsidiary promise, what could not be done directly because of the policy reasons expressed in part 1 of this opinion. Cf. School Comm. of New Bedford v. New Bedford Educators Assn., 9 Mass. App. Ct. 793, 802 (1980). Damages measured by his Cambridge salary would also be too speculative. See note 9, supra.

The judgment is reversed and the matter is remanded for further proceedings limited to the issue whether the directors had "good cause" to refrain from submitting the plaintiff's name; if the answer be no, there will be the further issue of damages. [Note 12]

So ordered.