4 Mass. App. Ct. 715 | Mass. App. Ct. | 1976
The plaintiff attempts by this bill in equity for declaratory relief to be restored to the position of building inspector in Tewksbury. He appeals from a judgment dismissing the bill.
The plaintiff has confined his argument to the merits of the case, concerning which the facts are undisputed. On May 18, 1971, the selectmen appointed the defendant Granfield to the position of building inspector. On June 29, 1971, the selectmen met “officially” with Granfield to discuss various complaints made against him. The next day they sent him a letter discharging him and stating reasons therefor, and on August 9, 1971, they appointed the plaintiff Nawn to the position. Granfield, however, contested his discharge by filing a petition for a writ of mandamus under G. L. c. 31, § 46A. The action was referred to an auditor who found for Granfield. On April 17, 1973, the selectmen entered into a stipulation by which they consented to the entry of judgment for Granfield, and accordingly a peremptory writ of mandamus issued ordering his reinstatement. On April 27, 1973, the selectmen notified Nawn by letter that his services in the position of building inspector were terminated. It is conceded that the procedures for discharge specified in G. L. c. 31, § 43 (a), were not followed.
On April 30,1973, Nawn filed what appears to have been a petition to intervene in Granfield’s mandamus action and to vacate the judgment therein. The petition was docketed as a “petition for writ of mandamus.” On May 8, 1973, Nawn filed an appeal with the Civil Service Com
The plaintiff’s contention is that the judgment entered in the Superior Court in the present proceeding was erroneous because it violated a basic limitation on the doctrine of res judicata, that ordinarily one not a party to an action cannot be bound by determinations of fact or law made therein. The plaintiff was not a party to Granfield’s mandamus action (although he was obviously aware of the action because he was a witness therein), and he concludes from that that he is not bound by the determination that Granfield was unlawfully discharged and that he is entitled to litigate that issue anew. We do not agree. In our view, the fact that the mandamus action ended in a court order that Granfield be reinstated, whether rightly or wrongly, was conclusive against the plaintiff, because whatever status the civil service law gave the plaintiff as a result of his employment as building inspector was contingent on the outcome of Granfield’s timely filed challenge to his discharge.
We know of no authority for the plaintiff’s assumption that he was (and still is) entitled to be heard on the question of Granfield’s reinstatement. We think that the contrary is commonly understood to be the case. Clearly, the plaintiff had no rights against Granfield at the time that Granfield was discharged or when Granfield filed his petition for a writ of mandamus. It seems equally clear that the
One who takes a civil service job knows (or should know) that, if his predecessor was discharged and has appealed his discharge in one of the ways provided in the civil service law, he takes the job subject to an infirmity or contingency; and that if his predecessor’s discharge is finally determined to be invalid, he will be unable to continue in the job. He has, in a sense, implicitly consented to this arrangement. Compare Branche v. Fitchburg, 306 Mass. 613, 614-615 (1940). Although his continuation in the job depends on a contingency, he has no legal rights with respect to the occurrence or non-occurrence of the contingency.
Thus, when a discharged employee is ordered reinstated by court order, no hearing under § 43 (a) need be accorded one who has served in the position in the interim. An opposite result would make no sense, for the appointing authority in such a case has no discretion; it acts as ordered by the court. No purpose could be served by according the interim employee a hearing at which the appointing authority would only be asked to reconsider the correctness of the court’s decision ordering it to reinstate the discharged employee. Neither § 43 (a) nor the Constitution requires a hearing when there is nothing to be decided. “A governmental employee does not have an absolute constitutional right to notice and a hearing before his discharge.” Stetson v. Selectmen of Carlisle, 369 Mass. 755, 760, fn. 3 (1976), and cases cited.
This was a proceeding for declaratory relief. Such a pro
Judgment affirmed.
Without implying that counsel who lose their way in the labyrinth of civil service remedies are necessarily to be faulted, we point out that the plaintiff was not represented by his present counsel until a much later stage in the litigation.