Fair Education Santa Barbara v. Santa Barbara Unified etc. ( 2021 )

Filed 12/15/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
FAIR EDUCATION SANTA 2d Civ. No. B309248
BARBARA, (Super. Ct. No. 19CV01875)
(Santa Barbara County)
Plaintiff and Appellant,
v.
SANTA BARBARA UNIFIED
SCHOOL DISTRICT et al.,
Defendants and Respondents.
Fair Education Santa Barbara, Inc. (FESB) appeals
from the judgment after the trial court denied its petition for writ
of mandate (Code of Civ. Proc.,1 § 1085), seeking to invalidate two
one-year contracts between respondents Santa Barbara Unified
School District/former-Superintendent Cary Matsuoka
Further unspecified statutory provisions are to the Code
1
of Civil Procedure.
(collectively SBUSD) and Just Communities Central Coast, Inc.
(JCCC). We affirm.2
FACTUAL AND PROCEDURAL HISTORY
FESB is a coalition of residents and taxpayers in
Santa Barbara County. SBUSD is a public school district in
Santa Barbara County. JCCC is an organization that provides
anti-bias training and educational programs to school districts
and other organizations. JCCC has worked with SBUSD on
various training programs since 2005. In 2013, an evaluation of
JCCC’s programs revealed that it made a “measurable
contribution to Latino [s]tudent [a]chievement” within SBUSD.
JCCC provides anti-bias training for educators which
focuses on issues of diversity, equity, and inclusion. The main
purpose of the anti-bias training is to “eradicate the persistent
educational achievement gap among minority students.” JCCC
facilitators have specialized training and knowledge of the local
community and culture. JCCC draws upon research from a
variety of fields and from leading authorities in diversity
education. The facilitators are required to participate in 60 hours
of training (or its equivalent) and participate in an additional
eight to 12 hours of specialized training for the educator program.
Most trainers have a bachelor’s or master’s degree, and some are
former educators. Many trainers live in and/or have worked
locally and have attended SBUSD schools or have worked for
them. JCCC’s program has been used in other local school
districts, governmental entities, and non-profit organizations.
2 SBUSD moved to dismiss this appeal on the ground that
it was moot. We deny the motion and exercise our discretion to
decide this appeal. (Robinson v. U-Haul Co. of California (2016)
4 Cal.App.5th 304, 318.)
2
With a goal to close educational performance gaps
and eliminate institutional biases, SBUSD elected to provide
diversity, equity, and inclusion training to its teachers and staff,
and made such training available to students and parents. JCCC
had a variety of programs. One program was designed to help
SBUSD educators “develop a cultural proficiency and equity lens”
and another program was designed to help educators create a
culturally relevant curriculum. JCCC also had programs to help
SBUSD “develop a larger number of skilled interpreters” and
“ensure key district personnel understand and implement best
practices for working with interpreters.” JCCC also provided
student and parent programs on inclusion and equity training.
In addition, JCCC offered “customized professional development”
services and ongoing coaching to SBUSD staff. According to
former Superintendent Matsuoka and SBUSD’s board of
directors, no SBUSD staff members or other public resources
were available to provide comparable training to its educators,
students, and parents.
In October 2018, SBUSD approved a one-year
contract for the 2018-2019 school year with JCCC for anti-bias
training services. In May 2019, SBUSD approved another
one-year contract for the 2019-2020 school year with JCCC. Both
contracts were approved without public bidding.
FESB petitioned for a writ of mandate against
SBUSD and JCCC, alleging that the contracts were void because
they were not subject to public bidding pursuant to Public
Contract Code section 20111.
The trial court denied the petition. It found that
SBUSD’s decision to contract with JCCC was a “quasi-legislative”
act that was subject to a “deferential standard under which the
3
Court looks only to whether the FESB has met its burden of
establishing that SBUSD’s action was arbitrary, capricious or
entirely lacking in evidentiary support.”
Applying a deferential standard, the court found
there was a “reasonable basis for SBUSD’s actions in concluding
that the services were not subject to the public bidding
requirements . . . because they constitute ‘professional services’
within the meaning of subdivision (d)” of Public Contract Code
section 20111. The court also found that JCCC’s services
constituted “special services” under Government Code section
53060. The court also noted that “it appears likely that JCCC’s
unique understanding of and ability to address the issues of race
and privilege in the local Santa Barbara community, as well as
its customized programming designed to address the
achievement gap experienced by minority students in the area by
providing trainings directed not just to educators, but to students
and parents as well, may well render it the only contractor
capable of providing the services which SBUSD has made a policy
decision to provide.” “Under these circumstances, it may well be
true that ‘the nature of the subject of the contract is such that
competitive proposals would be unavailing or would not produce
an advantage, and the advertisement for competitive bidding
would thus be undesirable, impractical, or impossible.’”
DISCUSSION
FESB contends the trial court erred when it (1)
reviewed SBUSD’s action under a deferential standard, (2) found
that the contract met the exemption3 for “professional services”
3The trial court explained that exemptions occur when
“competitive bidding requirements do not apply in the first
instance” (e.g., the statutory “professional services” exemption).
4
(Pub. Contract Code, § 20111, subd. (d)), (3) found that the
contract met the exemption for “special services” (Gov. Code,
§ 53060), and found that competitive bidding would be
“undesirable, impractical, or impossible.” We conclude otherwise.
Competitive Bidding Requirements
Public Contract Code section 20111 requires that the
“governing board of any school district . . . shall let any contracts
involving an expenditure of more than fifty thousand dollars
($50,000)” for the purchase of equipment, materials, supplies,
certain repairs, or services, “to the lowest responsible bidder . . .
or else reject all bids.” (Pub. Contract Code, § 20111, subd. (a)(1)
and (2), italics added.) These bidding requirements “shall not
apply to professional services or advice.” (Id. at subd. (d), italics
added.) In addition, Government Code section 53060 permits a
legislative body of any public corporation or district to “contract
with and employ any persons for the furnishing [of] . . . 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.” (See also California Sch. Employees
Assn. v. Sunnyvale Elementary School District (1973) 36
Cal.App.3d 46, 60-62 (Sunnyvale Elementary); see also Cobb v.
Pasadena City Board of Education (1955) 134 Cal.App.2d 93, 96
(Cobb) [contract for “special services” is exempt from competitive
bidding requirements].)
An exception is made when the competitive bidding requirements
apply, but certain circumstances exist (e.g., an emergency
exception) that permit an entity to forgo competitive bidding. We
will use the same terminology.
5
The purpose of competitive bidding is “‘to guard
against favoritism, improvidence, extravagance, fraud and
corruption; to prevent the waste of public funds; and to obtain the
best economic result for the public’ [citation], and to stimulate
advantageous market place competition.” (Domar Electric, Inc. v.
City of Los Angeles (1994) 9 Cal.4th 161, 173 (Domar).)
Competitive bidding provisions are strictly construed by the
courts, but will not be construed in a manner that will defeat
their purpose. (Ibid.) Such provisions must be read “‘in the light
of the reason for their enactment, or they will be applied where
they were not intended to operate and thus deny [the public
entity’s] authority to deal with problems in a sensible, practical
way.’ [Citation.]” (Ibid.)
Applicable Standards of Review
FESB argues the trial court erroneously applied a
deferential standard of review to SBUSD’s decision to enter a
no-bid contract with JCCC. It argues that public contracts
subject to competitive bidding receive “‘close judicial scrutiny.’”
We conclude the trial court applied the correct standard.
“A writ of mandate may be issued by any court . . . to
compel the performance of an act which the law specially enjoins,
as a duty resulting from an office, trust, or station.” (§ 1085.)
“The writ must be issued in all cases where there is not a plain,
speedy, and adequate remedy, in the ordinary course of law.”
(§ 1086.)
The trial court’s standard of review in a mandamus
proceeding depends upon the nature of the agency’s action.
Pursuant to section 1085, a court may review both an agency’s
“ministerial duties” and “quasi-legislative” actions. (County of
Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643,
6
653.) The trial court must “determine whether the agency had a
ministerial duty capable of direct enforcement or a
quasi-legislative duty entitled to a considerable degree of
deference.” (Ibid.) A ministerial duty is one “‘that a public officer
is required to perform in a prescribed manner in obedience to the
mandate of legal authority and without regard to his own
judgment or opinion concerning such act’s propriety or
impropriety, when a given state of facts exists. Discretion, on the
other hand, is the power conferred on public functionaries to act
officially according to the dictates of their own judgment.’
[Citations.]” (Id. at pp. 653-654.)
The “‘appropriate level of degree of judicial scrutiny
in any particular case is perhaps not susceptible of precise
formulation, but lies somewhere along a continuum with
nonreviewability at one end and independent judgment at the
other.’ [Citation.] Quasi-legislative administrative decisions are
properly placed at that point of the continuum at which judicial
review is more deferential; ministerial and informal actions do
not merit such deference, and therefore lie toward the opposite
end of the continuum.” (Western States Petroleum Assn. v.
Superior Court (1995) 9 Cal.4th 559, 575-576.)
In reviewing a denial of a writ of mandamus, we
review factual findings for substantial evidence and legal issues
de novo. (Stryker v. Antelope Valley Community College Dist.
(2002) 100 Cal.App.4th 324, 329 (Stryker).)
The question of whether an entity’s action was
ministerial or quasi-legislative is a question of statutory
interpretation, which we review de novo. (County of Los Angeles
v. City of Los Angeles, supra, 214 Cal.App.4th at p. 653.) “‘“We
examine the ‘language, function and apparent purpose’” of the
7
statute. [Citation.] . . . “Even if mandatory language appears in
[a] statute creating a duty, the duty is discretionary if the [public
entity] must exercise significant discretion to perform the duty.”
[Citations.] Thus, in addition to examining the statutory
language, we must examine the entire statutory scheme to
determine whether the [entity] has discretion to perform a
mandatory duty.’ [Citation.]” (Weinstein v. County of Los Angeles
(2015) 237 Cal.App.4th 944, 965 (Weinstein).)
Weinstein, supra, 237 Cal.App.4th 944, decided a
similar issue of whether a trial court applied the proper standard
to review the County’s award of a no-bid contract. There, the
County awarded a pharmacy administrator a contract after
determining it was exempt from competitive bidding because the
services constituted “personal services” of a “temporary” and
“extraordinary professional or technical” nature (L.A. County
Code, § 2.121.250). (Weinstein, at p. 952.) The trial court issued
a writ of mandate, finding that the County had a “ministerial
duty” to submit the contract to competitive bidding. The court
“‘strictly construed’” the exemption and found the exemption for
“temporary” and “professional or technical” services did not
apply. (Id. at p. 961.)
The Court of Appeal reversed, concluding that the
trial court erred in construing the exemption “very narrowly” and
“ignoring the County’s own assessment of the situation which it
faced and the need for the kind of specialized [products] and
services that [the pharmacy administrator] offered.” (Weinstein,
supra, 237 Cal.App.4th at p. 970.) The court explained that a
“‘public entity’s “award of a contract, and all of the acts leading
up to the award, are legislative in character.” [Citation.]’
[Citations.]” (Id. at p. 964.) Such review of a local entity’s
8
legislative determination is “‘“limited to an inquiry into whether
the action was arbitrary, capricious or entirely lacking in
evidentiary support. [Citation.]” [Citation.].”’” (Ibid.)
Ordinarily, “‘mandate will not lie to control a public agency’s
discretion . . . . However, it will lie to correct abuses of discretion.
[Citation.]’” (Id. at p. 965.) Such deferential review of
quasi-legislative activity “‘minimizes judicial interference in the
interests of the separation of powers doctrine. [Citation.]’
[Citation.]” (Ibid.)
Thus, in a challenge to a quasi-legislative decision,
the petitioner has the burden of proving the agency’s decision is
unreasonable or invalid as a matter of law, and there is a
presumption that the agency ascertained sufficient facts to
support its action. (Weinstein, supra, 237 Cal.App.4th at p. 966.)
If the record reflects “‘a reasonable basis for the action of the
legislative body, and if the reasonableness of the decision is fairly
debatable, the legislative determination will not be disturbed.’
[Citation.]” (Id. at p. 965.)
Where there is an issue of statutory interpretation,
courts will review such questions de novo and apply the
“principles of statutory construction.” (Weinstein, supra, 237
Cal.App.4th at p. 966.) Thus, de novo review applies to the
question of what is meant by the statute’s use of the words
“extraordinary” and “professional” or “technical’” services. (Ibid.)
But the “deferential standard” applies to determine whether the
County’s evidence met the statutory definitions and “whether it
abused its discretion in bypassing the competitive bidding
requirements of its own charter.” (Id. at pp. 966-967.)
Here, the trial court applied the same standards of
review used in Weinstein, supra, 237 Cal.App.4th 944. Like
9
Weinstein, SBUSD’s action involved the entry into a no-bid
contract after SBUSD assessed its need for the anti-bias training
services that JCCC provided. The trial court correctly
determined that such an action was quasi-legislative. With
respect to questions of statutory interpretation, such as the
definition of “professional services” and “special services,” the
trial court properly applied de novo review. It examined the
statutory language with “the fundamental task [of] ascertain[ing]
the intent of the lawmakers so as to effectuate the purpose of the
statute.” To decide whether SBUSD appropriately met the
statutory definitions in bypassing the competitive bidding process
and entering into the JCCC contract, the court applied a
“deferential standard under which the Court looks only to
whether the FESB had met its burden of establishing that
SBUSD’s action was arbitrary, capricious or entirely lacking in
evidentiary support, and whether SBUSD failed to conform to
procedures required by law.” (Compare Weinstein, supra, 237
Cal.App.4th at p. 964.)
Relying on Konica Business Machines U.S.A. Inc. v.
Regents of University of California (1988) 206 Cal.App.3d 449 and
Schram Construction Inc. v. Regents of University of California
(2010) 187 Cal.App.4th 1040, FESB argues that contracts subject
to competitive bidding statutes must receive “‘close judicial
scrutiny.’” Those cases are inapposite. They involved instances
where a project was submitted for public bidding but the public
entity failed to comply with bidding procedures and compromised
a fair and impartial bidding process. (Konica, at p. 451 [bid
protest alleging that the winning bid did not conform to
specifications set forth by the University]; Schram, at pp. 1052-
1053 [bid protest of a mechanical and plumbing contract alleging
10
that the University did not comply with bidding requirements].)
Under circumstances where there was a “potential for abuse
arising from deviations” from competitive bidding procedures, the
“letting of public contracts” received “close judicial scrutiny.”
(Konica, at p. 456.)
FESB also cites Marshall v. Pasadena Unified School
District (2004) 119 Cal.App.4th 1241 (Marshall) and Great West
Contractors, Inc. v. Irvine Unified School Dist. (2010) 187
Cal.App.4th 1425, to argue that the trial court’s standard of
review should be less deferential. Those cases are not only
factually distinguishable, they do not articulate a different
standard of review than the one applied here. (Marshall, at p.
1253 [issues of statutory interpretation were reviewed de novo
but review of a legislative determination was limited to an
inquiry of whether the act was arbitrary, capricious, or entirely
lacking in evidentiary support].)
FESB also argues that the letting of a contract for
public bidding is a ministerial duty. This argument lacks merit.
SBUSD exercised its discretion when it selected JCCC to provide
anti-bias training and determined that such a contract need not
be publicly bid. (See Weinstein, supra, 237 Cal.App.4th at pp.
967, 969 [selecting a vendor that the County deemed was the
“only entity properly equipped to provide” certain services for
“pharmacy administration” was a discretionary act]; see also
Mike Moore’s 24-Hour Towing v. City of San Diego (1996) 45
Cal.App.4th 1294, 1303 [the city’s award of a towing contract and
decision to reject protests to the contract were legislative actions];
Marshall, supra, 119 Cal.App.4th at p. 1253 [school board’s
resolution awarding a contract without public bidding was a
legislative decision].)
11
Exemptions from Competitive Bidding
FESB contends the trial court erred in finding that
the JCCC contracts fell within (1) the “professional services”
exemption, (2) the “special services” exemption, and (3) the
common law exemption. We are not persuaded.
At the outset, FESB argues that the trial court erred
in determining that “the competitive bidding requirement itself—
and not the exemption—be strictly construed.” But the
authorities FESB cites do not support its argument.
FESB relies on Domar, supra, 9 Cal.4th 161, in which
our Supreme Court explained that competitive bidding
requirements fulfill the “‘purpose of inviting competition, to
guard against favoritism, improvidence, extravagance, fraud and
corruption, and to secure the best work or supplies at the lowest
price practicable, and they are enacted for the benefit of property
holders and taxpayers, and not for the benefit or enrichment of
bidders, and should be so construed and administered as to
accomplish such purpose fairly and reasonably with sole
reference to the public interest.’” (Id. at p. 173.) To effectuate
their purpose, competitive bidding requirements, which include
specific procedures an entity and prospective bidders must follow,
must be strictly construed. (Ibid.) However, nothing in Domar
states that exemptions to competitive bidding requirements must
also be so construed.
FESB also relies on Marshall, supra, 119 Cal.App.4th
at p. 1256, which involved a construction contract that clearly fell
within the scope of the competitive bidding statute. There, the
contract was awarded to the lowest bidder, but was later
terminated after several change orders. (Id. at p. 1246.) Instead
of submitting the contract for rebid, the school district relied
12
upon a statutory exception for “emergencies” and awarded the
contract to a new contractor without competitive bidding. (Ibid.)
The Court of Appeal held that “given the strong public policy
favoring competitive bidding, the emergency exception thereto
should be strictly construed and restricted to circumstances
which truly satisfy the statutory criteria.” (Id. at p. 1256.)
Under those circumstances, because the “purported emergency
stemmed from the District’s decision to terminate its contract
with [the lowest bidder] for the District’s own ‘convenience[,]’
[t]hat event was not a ‘sudden, unexpected occurrence’” that met
the statutory definition for an emergency. (Id. at p. 1258.)
Marshall, supra, 119 Cal.App.4th 1241 is
distinguishable. Here, the question is whether competitive
bidding requirements apply in the first instance. (See Unite Here
Local 30 v. Department of Parks & Recreation (2011) 194
Cal.App.4th 1200, 1210 [distinguishing Marshall].)
Moreover, as we will explain in our discussion of the
“special services” exemption, several cases illustrate instances
where the courts did not narrowly construe the exemption to
competitive bidding requirements. (See post, at pp. 19-20; see
also Weinstein, supra, 237 Cal.App.4th at p. 970 [concluding that
the trial court erred in construing an exemption “very
narrowly”].)
1. Professional Services Exemption
FESB contends the trial court erred in determining
the “professional services” exemption applied. (Pub. Contract
Code, § 20111, subd. (d).) We disagree.
Subdivision (d) of Public Contract Code section 20111
states that the public bidding requirement of subdivision (a) does
not apply where the contract is for “professional services or
13
advice, insurance services, or any other purchase or service
otherwise exempt from this section.” (Italics added.) The scope
of “professional services” presents a question of statutory
interpretation which we review de novo. When interpreting a
statutory term, our fundamental task is to ascertain the
Legislature’s intent to effectuate the purpose of the statute.
(Weinstein, supra, 237 Cal.App.4th at p. 966.) We begin by
examining the statutory language, giving terms their plain,
ordinary meaning. If the language is ambiguous, we may look to
extrinsic sources, including legislative history. We select the
construction that comports most closely with the intent of the
Legislature, with a view of promoting, rather than defeating, the
general purpose of the statute, and avoiding an interpretation
that would lead to absurd results. (Ibid.)
a. Definition of Professional Services
“Professional services” is not defined in Public
Contract Code section 20111, nor has any court defined the term
in this context. In ascertaining a term’s ordinary meaning,
courts often turn to general and legal dictionaries. (See De Vries
v. Regents of University of California (2016) 6 Cal.App.5th 574,
590-591.) Merriam-Webster Law Dictionary defines “professional
services” as “a service requiring specialized knowledge and skill
usually of a mental or intellectual nature and usually requiring a
license, certification, or registration.” (Merriam-Webster
Law Dict. Online (2021) ˂https://www.merriam-webster.com/
legal/professional%20service˃ [as of Dec. 13, 2021], archived at
˂https://perma.cc/N389-96MP>.) Similarly, the term
“professional” in Black’s Law Dictionary is defined as “someone
who belongs to a learned profession or whose occupation
requires a high level of training and proficiency.” (Black’s Law
14
Dictionary (11th ed. 2019).) The term “professional” in Merriam-
Webster’s Dictionary is defined as “relating to a job that requires
special education, training, or skill.” (Merriam-Webster
Dict. Online (2021) ˂https://www.merriam-
webster.com/dictionary/professional˃ [as of Dec. 13, 2021],
archived at ˂https://perma.cc/6CEB-WT6N>.)
Cases that have defined the term “professional
services” have adopted similar definitions. Here, the trial court
identified two cases, Hollingsworth v. Commercial Union Ins. Co.
(1989) 208 Cal.App.3d 800, 806 and Tradewinds Escrow, Inc. v.
Truck Ins. Exchange (2002) 97 Cal.App.4th 704, 713, which
involved insurance policies that excluded coverage for
“professional services,” which was not defined by the policies.
The courts defined “professional services” as “‘one arising out of a
vocation, calling, occupation, or employment involving specialized
knowledge, labor, or skill, and the labor or skill involved is
predominantly mental or intellectual, rather than physical or
manual.’”
In summary, the definition of “professional services”
is one that requires specialized knowledge, training, or skill,
usually of a mental or intellectual nature. While one dictionary
definition states that such services “usually” require license,
certification, or registration, “usually” denotes something that is
not always required. This definition comports with the general
legislative intent to give school districts deference in governing
(see Ed. Code, § 35160, et. seq.), while not defeating the purpose
of competitive bidding requirements. It is reasonable to assume
that the Legislature intended to give school districts the ability to
enter contracts for services which require a specialized level of
skill, knowledge, and training, especially in instances where
15
awarding such a contract to the lowest bidder could produce
undesirable results. This interpretation is also consistent with
common law exemptions where the nature of a contract is such
that competitive proposals “would not result in any advantage to
the public entity in efforts to contract for the greatest public
benefit.” (Graydon v. Pasadena Redevelopment Agency (1980) 104
Cal.App.3d 631, 636; see also Miller v. Boyle (1919) 43
Cal.App.39, 44 [recognizing that advertising for skilled services
such as an architect may result in the lowest bidder being the
“‘least capable and most inexperienced, and absolutely
unacceptable’”].)
FESB argues that “professional services” providers
most necessarily hold a license, certification, or registration
authorized by statute. In support of its argument, FESB uses the
definition in Corporations Code section 13401, subdivision (a).4
We disagree.
Corporations Code section 13401 specifically limits
its scope to “this part” of the Corporations Code (i.e., the
Moscone-Knox Professional Corporation Act). FESB offers no
authority to support the proposition that this definition applies to
the Public Contract Code. As the trial court observed, the
Corporation Act and its purpose “bears no relationship to the
public bidding requirements.” Moreover, FESB cites no other
authority to support the proposition that the Public Contract
4 Corporations Code section 13401 states that “[a]s used in
this part . . . [¶] . . . ‘Professional services’ means any type of
professional services that may be lawfully rendered only
pursuant to a license, certification, or registration authorized by
the Business and Professions Code, the Chiropractic Act, or the
Osteopathic Act.” (Italics added.)
16
Code exemption requires the existence of a license, certification,
or registration.
b. JCCC’s Services Were Professional Services
The trial court determined that SBUSD’s finding that
JCCC’s services were “professional services,” “was not arbitrary
or capricious, and was not entirely lacking in evidentiary
support.” The record supports this determination.
The evidence showed JCCC facilitators had
specialized training, knowledge, and skills that met SBUSD’s
specific need for providing anti-bias training to its staff, students,
and parents. Many of JCCC’s facilitators were former educators
who held a bachelor’s degree or other advanced degrees. Each
facilitator was required to undergo 60 hours of training or its
equivalent, and even more hours of specialized training for the
educator program. The facilitators lived locally and either
attended or worked in local school systems, which gave them
insight into the local community and its needs. JCCC’s
facilitators had experience training other local school districts,
governmental entities, and organizations. Based on these facts,
SBUSD’s decision that JCCC’s services were “professional
services” was reasonable. (See Weinstein, supra, 237 Cal.App.4th
at p. 965 [legislative decision will not be disturbed if the record
reflects a reasonable basis].)
2. Special Services Exemption
Even if JCCC’s services did not constitute
“professional services,” SBUSD’s action was exempt from
competitive bidding requirements for a second reason: JCCC’s
services were “special services” pursuant to Government Code
section 53060.
17
Government Code section 53060 permits entities such
as SBUSD to contract with persons who furnish “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.” “Special services” are exempt from competitive
bidding requirements pursuant to Public Contract Code section
20111, subdivision (a). (See Cobb, supra, 134 Cal.App.2d at p. 96
[“special services” exemption applied to bidding requirements
under former Ed. Code, §§ 18051 & 18052, repealed and now
incorporated into Pub. Contract Code, § 20111 (Stats. 1943, c. 71,
p. 661, amended by Stats. 1953, c. 340, p. 1607, § 1)].) The
services provided here clearly satisfied these requirements.
a. Definition of Special Services
Whether services are “special services” pursuant to
Government Code section 53060 “depends on the nature of the
services; the necessary qualifications required of a person
furnishing the services; and the availability of the service from
public sources.” (Sunnyvale Elementary, supra, 36 Cal.App.3d at
p. 60.) The temporary nature of services also may be considered
as a factor. (See Jaynes v. Stockton (1961) 193 Cal.App.2d 47,
52.) The question of whether services are “special services” is a
question of fact which we review for substantial evidence.
(Sunnyvale Elementary, at p. 61; Stryker, supra, 100 Cal.App.4th
at p. 329.)
FESB argues that JCCC’s services are not “special
services” because they do not fall into the specifically listed
categories of “financial, economic, accounting, engineering, legal,
or administrative matters.” (Gov. Code, § 53060.) But, as
discussed above, only the competitive bidding requirements, and
18
not the exemptions, are strictly construed. (See ante, at pp. 12-
13.) Several cases have interpreted this exemption broadly.
For example, in Cobb, supra, 134 Cal.App.2d at pp.
95-96, the court upheld a school board’s decision to award a
contract to an architect without competitive bidding. In
interpreting Government Code section 53060, the court explained
that the “statute removes all question of the necessity of
advertising for bids for ‘special services’ by a person specially
trained and experienced and competent to perform the special
services required. Now, a board may pay from any available
funds a fair compensation to capable and worthy persons for
special services.” (Cobb, at p. 96.) Architectural services are not
specifically listed as one of the exempt categories in the statute.
Nevertheless, the court interpreted the exemption to include
services that require special training where competitive bidding
of such services would not produce an advantage, including
architectural services. (Id. at p. 95.)
In Sunnyvale Elementary, supra, 36 Cal.App.3d 46,
the court held that research and development services provided
by a private company constituted “special services.” The research
company provided a collective of school districts the ability to
obtain the “results of massive research and development that are
unavailable from public sources and which research and
development no individual school district could afford to
undertake on its own.” (Id. at p. 54.) Such projects involved
research and development into various areas of school operations,
including custodial operations. (Ibid.) Because the evidence
showed that the company’s personnel were “‘professional, highly
trained and educated, experienced and extremely competent in
the fields in which they render said services’” and there was no
19
evidence that similar services were available form public sources,
the services were properly deemed “special services.” (Id. at p.
61.)
In Service Employees Internat. Union v. Board of
Trustees (1996) 47 Cal.App.4th 1661, 1674, a contract with
Barnes & Noble to operate college campus bookstores was
determined to be a contract for “special services” pursuant to
Government Code section 53060. The facts showed that “Barnes
& Noble provide[d] the District with the services of professional,
experienced and specially trained personnel” which could not
otherwise be provided by other personnel. (Service Employees
Internat., at pp. 1673-1674.) The services included regular visits
from Barnes & Noble regional and senior managers to ensure the
store was operating according to the college district’s standards,
program training for store management, a computerized textbook
management system, a guaranteed supply of used books, access
to the company’s inventory to avoid out-of-stock problems, and a
computerized ordering system. (Id. at p. 1673.)
In sum, these cases illustrate that courts have not
strictly interpreted “special services” or limited the definition to
the specifically listed categories.
b. JCCC Services Were “Special Services”
SBUSD’s determination that the “special services”
exemption applied was not an arbitrary or capricious one, and the
evidence supports this finding. First, the nature of the services
was specialized to SBUSD. Many of the facilitators, who were
former educators and worked in/had attended SBUSD schools,
had a “unique understanding of” the issues in the local Santa
Barbara community and could customize their training programs
to address those issues. Second, JCCC was specially qualified to
20
provide services to SBUSD because of its facilitators’ trainings,
educational and employment backgrounds, connections to the
local community, and experience working with other local school
districts and organizations. Third, SBUSD’s board and
superintendent declared that there were no public resources
available to provide comparable services, and FESB provided no
evidence to the contrary.
3. Common Law Exemption
Finally, FESB argues the trial court erred in finding
the common law exemption to competitive bidding applied.5 We
note that because the trial court found the “professional services”
and “special services” exemptions applied, it found it
“unnecessary” to make an explicit finding on whether the
common law exemption applied. For that reason, we need not
resolve this claim.
DISPOSITION
The judgment is affirmed. Respondents shall recover
costs on appeal.
CERTIFIED FOR PUBLICATION.
TANGEMAN, J.
We concur:
GILBERT, P. J. PERREN, J.
5 A common law exception applies “where the nature of the
subject of the contract is such that competitive proposals would
be unavailing or would not produce an advantage, and the
advertisement for competitive bid would thus be undesirable,
impractical, or impossible.” (See Graydon v. Pasadena
Redevelopment Agency, supra, 104 Cal.App.3d at pp. 635-636.)
21
Thomas P. Anderle, Judge
Superior Court County of Santa Barbara
______________________________
Early Sullivan Wright Gizer & McRae, Eric P. Early
and Peter D. Scott for Plaintiff and Appellant.
Griffith & Thornburgh, Craig Price and Austin S.
Payne for Defendants and Respondents Santa Barbara Unified
School District and Cary Matsuoka.
Kirkland & Ellis, Allison W. Buchner; Perkins Coie,
Sarah E. Piepmeier, Elise Edlin, May Eaton and Andrew Taylor
Ohlert for Defendant and Respondent Just Communities Central
Coast, Inc.