Nawn v. Board of Selectmen of Tewksbury
| Decision Date | 24 December 1976 |
| Citation | 4 Mass.App.Ct. 715,358 N.E.2d 454 |
| Parties | George NAWN v. BOARD OF SELECTMEN OF TEWKSBURY et al. |
| Court | Appeals Court of Massachusetts |
Walter H. McLaughlin, Jr., Boston, for George Nawn.
Lewis M. Engleman, Boston, for William Granfield.
Aaron K. Bikofsky, Framingham, for Bd. of Selectmen of Tewksbury.
Before KEVILLE, GOODMAN and ARMSTRONG, JJ. ARMSTRONG, Justice.
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 Commission. On May 11, 1973, he moved to amend his petition into a bill for declaratory relief and to transfer the case to the equity side of the court; the motion was allowed. On June 1, 1973, the defendants filed various pleadings seeking dismissal of the bill as a procedurally improper remedy. On October 2, 1973, before the court had ruled on those pleadings, the Civil Service Commission notified Nawn that his appeal would not be considered because he had 'elected' to pursue his judicial remedy. The court reserved decision on the procedural question as the case went to trial and on March 4, 1975, denied dismissal on the procedural ground, ruled on the merits that Nawn was not entitled to the procedural protections of G.L. c. 31, § 43(a), and dismissed the bill.
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 plaintiff's subsequent appointment as building inspector and his occupancy of that position could not impair Granfield's position in any way or affect the outcome of Granfield's mandamus action. Granfield's entitlement to reinstatement, both at the time he filed his petition for a writ of mandamus and thereafter, was a matter solely between him and the selectmen as his appointing authority. We need not consider whether the outcome might be different if there had been evidence that the judgment in the mandamus action resulted from improper collusion between Granfield and the selectmen.
One who takes a civil service job knows (or should know) that, if his...
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...562 F.Supp. 467, 470 (N.D.Miss.1983), modified in part, 736 F.2d 283 (5th Cir.1984). Compare Nawn v. Board of Selectmen of Tewksbury, 4 Mass.App.Ct. 715, 718, 358 N.E.2d 454 (1976). It may be that the public agency, having extended to the employee some expectation of continued employment an......
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