Lead Opinion
OPINIÓN
1. Plaintiff Peter Chavez appeals the grant of summary judgment to the City of Albuquerque (the City) based on claim preclusion, commonly known as res judicata. We must determine the preclusive effect of Plaintiffs administrative grievance proceeding on his subsequent district court action. In so doing, we also consider whether the City’s personnel board (personnel board) would have had authority to consider the district court claims had Plaintiff raised those claims during the administrative proceeding. We affirm in part and reverse in part.
Facts and Prior Proceedings
2. The City terminated Plaintiff from his full-time position in the City’s Solid Waste Management Department after he submitted to mandatory drug testing and tested posifive for drugs. Plaintiff filed a grievance to appeal Ms termination to the personnel board, which upheld the hearing officer’s recommended termmation. Plaintiff did not pursue an appeal from the grievance proceedmg to district court. See Merit System Ordinance (MSO), Albuquerque, N .M., Rev. Ordmances, ch. 3, art. 1, §§ 3-1-1 to -25 (1978 & Supp.1995); id. § 3-1-23(E)(5) (providing for judicial review). Instead, Plaintiff filed a separate district court action for damages and declaratory relief based on breach of contract, denial of Plaintiffs state and federal constitutional rights (to privacy, freedom from unreasonable governmental search and seizure, and procedural and substantive due process of law), and violations of the Open Meetings Act (OMA), NMSA 1978, §§ 10-15-1 to -4 (1974) in the promulgation of the City’s drug testing policy, the selection of the personnel hearing officer and members of the personnel board, and the adoption of the decision in this grievance proceedmg.
3. The district court granted summary judgment to the City based on the law of claim preclusion. See Roth v. Thompson,
4. We review the court’s application of the law to the facts to ascertain whether the district court correctly concluded that the court claims were barred. See Anaya v. City of Albuquerque,
Jurisdiction of Personnel Board to Consider Claims
5. We need not reach the issue of claim preclusion if the personnel board did not have jurisdiction over the district court claims. See Ford v. New Mexico Dep’t of Pub. Safety,
A. Authority of the Personnel Board
6. The essential functions of a municipal personnel board are to establish rules and regulations governing the terms and conditions of municipal employment and to administer the merit system ordinance. See NMSA 1978, § 3-13-4(A)(1), (2) (1965). Cf. Howell v. Heim,
7. Among its duties, the personnel board renders a decision “upon the appeal of classified employees of the city concerning certain grievances as provided in § 3-1-23.” MSO, § 3-1-5(B). Plaintiffs grievance was a disciplinary action which the MSO characterizes as a Class I grievance. See MSO, § 3-1-23(D). Class I grievances are governed by procedures adopted by the personnel board, and are conducted by the personnel hearing officer who makes a recommendation to the personnel board. See MSO, § 3-1-23(E)(3). The personnel board renders the final decision in the process, see MSO, § 3-1-23(E)(4)(b), by exercising a limited number of options all directly related to the disciplinary action which is the subject of the grievance: accept or reverse the disciplinary action; modify the disciplinary action; or, remand the matter to the hearing officer for further hearing or for a more detailed report. MSO, § 3-1-23(E)(4)(a).
8. Class I grievance rights accord due process to those discharged public employees who have a constitutionally protected property interest in public employment. See Zamora,
9. These MSO contingencies are irrelevant to the OMA and the constitutional claims because other law specifies that the district courts have jurisdiction over these claims. The OMA vests exclusive jurisdiction in the district court over OMA enforcement actions. See § 10-15-3(B). Here, Plaintiff alleged that the City violated the OMA when the City debated and promulgated the policy at issue and selected its personnel hearing officer. See § 10-15-1(A) to (J) (policy of OMA and procedures to be followed).
10. The district courts and federal courts share jurisdiction over claims brought under 42 U.S.C. § 1983 (1988) (§ 1983 claims). See Carter v. City of Las Cruces,
11. Additionally, Plaintiff seeks damages for violation of rights under the New Mexico Constitution. Plaintiff may not seek damages from the City for violation of state constitutional rights unless immunity is waived under the Tort Claims Act, NMSA 1978, §§ 41-4-3 to -27 (1995). See Ford,
12. Because of the personnel board’s limited statutory authority to adopt regulations and to administer the merit system ordinance and because of the broader explicit state and federal authority of district courts to entertain the OMA and constitutional claims, we conclude that the personnel board does not have jurisdiction to grant affirmative relief over the OMA and constitutional claims. See Lasley v. Baca,
13. Thus, Plaintiff must be permitted to split his claims between the grievance proceeding and the district court action even if the claims arose from the same disciplinary action. See Ford,
B. Exclusivity of the Grievance Procedure
14. The City argues that Plaintiff waived his right to his day in court when he failed to appeal from the grievance. The City maintains that the Class I grievance provides the exclusive remedy for Plaintiffs causes of action. An exclusive remedy is one which provides for a plain, adequate, and complete means of resolution through the administrative appeals process to the courts. See Neff v. State ex rel. Taxation & Revenue Dep’t,
15. If the remedy were exclusive, then all claims arising from the termination would be subject to MSO procedures. See State ex rel. Norvell v. Arizona Pub. Serv. Co.,
16. The City has enacted a comprehensive MSO, which provides for judicial review. See MSO, § 3-1-23(E)(5). However, the City’s intent as expressed in the MSO is not the critical question. The issue turns on legislative intent as expressed in the enabling legislation. See Grand Lodge v. Taxation & Revenue Dep’t,
17. The Code provides that “[a]ny municipality may establish by ordinance a merit system for the hiring, promotion, discharge and general regulation of municipal employees.” See § 3-13-4(A). The Code on its face is permissive, not mandatory. See Gandy v. WalMart Stores, Inc.,
18.Notably missing from the Municipal Code is any provision for judicial review of personnel board decisions. Cf. Neff,
Claim Preclusion
19. We proceed to determine whether the district court properly barred the only claims within the scope of the personnel board’s authority: the contract claims. The grievance decision was a final judgment for purposes of claim preclusion. See MSO, § 3-1-23(5); Shovelin v. Central N.M. Elec. Coop., Inc.,
20. Four elements are required for the application of claim preclusion:
(1) the same parties or parties in privity;
(2) the identity of capacity or character of persons for or against whom the claim is made;
(3) the same subject matter; and
(4) the same cause of action in both suits.
Anaya, 1996 NMCA, 092, ¶ 6,
21. We can summarily dispose of the first three elements. The subject matter was the same because both actions sought to redress an allegedly illegal termination. See Ford,
22. To determine whether the cause of action was the same, we apply the transactional test from the Restatement (Second) of Judgments § 24(2) (1982). See Anaya,
23. “Transaction” denotes a common nucleus of operative facts. See Restatement, supra, § 24 cmt. b. We compare the essential operative facts of the grievance action and the contract claims and consider (1) how the facts relate in time, space, origin, or motivation; (2) whether, taken together, the facts form a convenient trial unit; and (3) whether treatment of the facts as a single unit conforms to the parties’ expectations, or business understanding or usage. See Anaya,
24. We note that the operative facts of both actions overlap in their focus on the terms and conditions of city employment. Plaintiff based his district court contract claims on (1) his termination for a first violation of the drug policy as opposed to graduated discipline; and (2) the City’s many-month delay in concluding the administrative grievance hearing. Plaintiff maintained that the City failed to act fairly and in good faith. These claims fall within the scope of grievance proceedings because their disposition requires an examination of the City’s personnel rules and regulations. See MSO, § 3-1-23(A)(1) (“grievances” include matters concerning the implementation of personnel rules and regulations).
25. The contract claims and the grievance both challenged the justification for termination. See MSO, § 3-1-22(A)(1) (providing notice that an employee may be terminated for justifiable cause). Plaintiff acknowledges that both the union contract and the MSO provided the basis for the grievance hearing. The MSO constitutes a contract of employment. See § 3-13-4(C). Although the record on appeal does not contain a record of the grievance hearing, the recommendation of the hearing officer is of record. The recommendation indicates that the hearing officer considered but rejected one of Plaintiffs contract claims — the alleged contractual right to graduated disciplinary action based on past job performance. The hearing officer specifically found that past job performance could not be considered in mitigation of termination under the policy.
26. We are not persuaded that the contract claims would have depended on different evidence with regard to different witnesses with different authority. See Anaya,
27. Finally, treatment of the facts as a single unit conforms to the parties’ expectations, or we have not been presented with a persuasive position to the contrary. See Restatement, supra, § 24(2). Grievance proceedings enable prompt resolution of employment problems. See MSO, § 3-1-23(A)(2). When the contract claims draw upon related facts, the expedited procedures present no substantive obstacle. Both parties could have reasonably expected that Plaintiffs contract claims would be raised during the grievance, and not at some future date after the personnel board’s decision had become .final. See MSO, § 3-1-23(E)(4)(b).
28. We conclude that the grievance and the contract claims arose from the same transaction. Plaintiff was able to raise his contract claims during the administrative proceeding and in the interest of judicial economy should have done so. See Zamora,
Conclusion
29. The City was entitled to summary judgment as a matter of law only on the contract claims. The district court erred in applying claim preclusion to bar Plaintiffs OMA and constitutional claims when the personnel board had no jurisdiction over them. Therefore, we affirm in part and reverse in part, and remand to the district court for reinstatement of the OMA and constitutional claims.
30. IT IS SO ORDERED.
Concurrence Opinion
specially concurring in part and dissenting in part.
31. I concur in the result except that I would bar Plaintiffs claim that the hearing officer’s appointment violated the Open Meetings Act.
32. I agree with the majority that Plaintiffs breach-of-contraet claim is barred by the proceeding before the City’s personnel board. The legislature has authorized municipalities to enact merit system ordinances establishing grievance proceedings as the exclusive means for a municipal employee to claim that a job termination violated the employee’s contractual rights under the ordinance. See Zamora v. Village of Ruidoso Downs,
33. I also agree that the personnel board does not have jurisdiction to decide the validity of city ordinances. In particular, the board does not have jurisdiction to decide whether the ordinance establishing the City’s drug testing program is invalid on the ground that (1) the ordinance was enacted in violation of the Open Meetings Act or (2) the ordinance violates constitutional restrictions on search and seizure. Our Supreme Court stated in Sandia Savings & Loan Ass’n v. Kleinheim,
A fundamental distinction, must be recognized between constitutional applicability of legislation to particular facts and constitutionality of the legislation. When a tribunal passes upon constitutional applicability, it is carrying out the legislative intent, either express or implied or presumed. When a tribunal passes upon constitutionality of the legislation, the question is whether it shall take action which runs counter to the legislative intent. We commit to administrative agencies the power to determine constitutional applicability, but we do not commit to administrative agencies the power to determine constitutionality of legislation. Only the courts have authority to take action which runs counter to the expressed will of the legislative body.
(quoting 3 Kenneth C. Davis, Administrative Law Treatise, § 20 .04 at 74 (1958)). Although Sandia Savings addresses a state agency’s review of the “constitutionality of legislation,” the same considerations apply to a municipal agency’s review of the validity of a municipal ordinance under state statutes. Accordingly, a municipal agency cannot review whether the municipality’s enactments are valid under the law of a higher authority.
34. To be sure, the employee could raise challenges to the validity of an ordinance through appellate review in district court of the personnel board’s action. Indeed, the legislature could mandate that the exclusive avenue for an employee to challenge termination by the City—regardless of the grounds for the challenge — would be by first going through the grievance procedure and then appealing to the district court. See Neff v. State ex rel. Taxation & Revenue Dep’t,
35. In short, (1) the personnel board does not have jurisdiction to decide the validity of the challenged ordinance and (2) the legislature has not enacted a statute requiring that an employee’s challenge to the validity of the ordinance be raised through an appeal from the board to district court. I therefore agree with the majority that Plaintiff can bring an independent action in district court seeking relief on the ground that the drug-testing ordinance was invalid.
36. On the other hand, I disagree with the majority’s conclusion that Plaintiff can bring an independent district court action claiming that the hearing officer who reviewed his grievance was not appointed in compliance with the Open Meetings Act.
37. The second ground for my dissent is that Plaintiffs challenge to the hearing officer’s appointment is an improper collateral attack on the personnel board’s decision that his dismissal was in accordance with his contractual rights under the Merit System Ordinance. The sole purpose of the challenge to the hearing officer’s appointment is to set aside the decision of the personnel board. But the exclusive means for reviewing the personnel board’s action is through petition to the district court for a writ of certiorari (assuming that there is no statutory right of appeal to the district court). See Roberson v. Board of Educ.,
Notes
. I believe that this is my sole disagreement with the result reached by the majority. I confess, however, that I am uncertain regarding precisely what claims Plaintiff is pursuing on appeal. The appellate briefs focus on general legal principles rather than discussing the details of the specific claims.