DURKIN COMPANY INC v. CITY OF LEOMINSTER (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, The Durkin Company, Inc., appeals from a summary judgment dismissing the plaintiff's complaint. We affirm.

“It is a well-established principle that a party ‘dealing with a city or town cannot recover if statutory requirements [such as those contained in G. L. c. 43, § 29,] have not been observed.’ ”² Park Drive Towing, Inc. v. Revere, 442 Mass. 80, 83 (2004), quoting Richard D. Kimball Co. v. Medford, 340 Mass. 727, 729 (1960). General Laws c. 43, § 29, provides, in pertinent part: “All contracts made by any department, board or commission where the amount involved is five thousand dollars or more shall be in writing, and no such contract shall be deemed to have been made or executed until the approval of the mayor ․ is affixed thereto ․” The specific statutory requirements are not “mere ministerial” formalities, but serve important public purposes such as “limit[ing] the power of public officials in making contracts ․ so as to unify the control of the city's commercial transactions thus placing cities and towns on a sound financial basis and preventing waste, fraud, and abuse” (quotations and citations omitted). Park Drive Towing, Inc., supra at 84. Therefore, the statutory requirements must be “satisfied precisely” to create a valid and enforceable contract. United States Leasing Corp. v. Chicopee, 402 Mass. 228, 232 (1988).

In the present case, it is evident that the contract does not satisfy the requirements of G. L. c. 43, § 29, as there is nothing in the record to suggest that the mayor approved the contract and, even if the mayor had approved the contract, his “direct affirmative sanction” was not affixed to it.³ Goodyear Park Co. v. Holyoke, 291 Mass. 11, 15 (1935). The contract was executed by Daniel T. Durkin, as CEO and president of The Durkin Company, and James Jolicoeur, as superintendent of schools of Leominster public schools, and did not contain any indication of mayoral approval.⁴

The plaintiff's argument that the contract is not subject to the requirements of G. L. c. 43, § 29, because it is of a nature traditionally under the exclusive control of the school committee is unavailing. While certain powers, such as the ability to enter into employment contracts with certain employees, may historically be afforded to a school committee, such powers have never included the ability to enter into commercial contracts. See United States Leasing Corp., 402 Mass. at 231 (“Ordinary commercial contracts have never hitherto been held to belong in the field in which by long established policy and tradition school committees have exercised exclusive and untrammeled control” [citation omitted]). Compare School Comm. of Salem v. Gavin, 333 Mass. 632, 634-635 (1956) (school committee's employment contract with football coach valid despite lack of mayoral approval), with United States Leasing Corp., supra (mayoral approval of lease agreement required), School Comm. of Gloucester v. Gloucester, 324 Mass. 209, 218 (1949) (school committee must follow statutorily prescribed purchasing procedures), Eastern Massachusetts St. Ry. Co. v. Mayor of Fall River, 308 Mass. 232, 238 (1941) (mayoral approval required for school transportation contract), and Parkhurst v. Revere, 263 Mass. 364, 371 (1928) (mayoral approval of contracts to purchase textbooks required). A contract with a third-party servicer to provide cleaning services for payment of just under $1 million is clearly “one of a commercial nature” and therefore must comply strictly with the statutory requirements of G. L. c. 43, § 29. School Comm. of Salem, supra at 634. Because the contract does not satisfy those requirements, it is invalid and unenforceable. The motion judge correctly allowed the defendant's motion for summary judgment.

Judgment affirmed.

FOOTNOTES

2.   Furthermore, “those who contract with the officers or agents of a governmental agency must, at their peril, ‘see to it that those officers or agents are acting within the scope of their authority.’ ” Bowers v. Board of Appeals of Marshfield, 16 Mass. App. Ct. 29, 34 (1983), quoting Sancta Maria Hosp. v. Cambridge, 369 Mass. 586, 595 (1976).

3.   Despite the explicit statutory requirement, the plaintiff contends that mayoral approval was implicit, and sufficient, because the mayor is the chairman of the school committee. We note that the school committee is not a party to the contract, and that, in any event, implicit approval would not satisfy the statutory requirement. See United States Leasing Corp., 402 Mass. at 231-232.

4.   The parties executed an addendum to the contract in August 2017. The addendum was also executed by Daniel T. Durkin and James Jolicoeur.