The North Carolina Court of Appeals recently ruled that a police officer has a valid property and liberty interest in requiring his employer, the City of Wilmington, to comply with its own established promotional process.

When Corporal Kevin Tully of the Wilmington Police Department sat for the sergeant’s test in fall of 2011, he felt pretty good about his chances for promotion. Aside from being named “Wilmington Police Officer of the Year” for 2011 and receiving several other commendations and awards, Corporal Tully is also an avid student of police policy and procedure, and the United States Constitution. He is often the guy that other officers go to with questions about the finer points of Fourth Amendment search and seizure law. After taking the test, Corporal Tully felt even better, feeling certain that he had answered most of the questions correctly. And so it was quite a shock when Corporal Tully was informed that he had failed the test. He asked for copies of the answers, as he is entitled to do under WPD policy. Upon receipt of the answer key, Corporal Tully immediately realized that the answer key was wrong – and that the so-called “correct answers” on questions related to Fourth Amendment search and seizure issues were actually based on outdated law.

When Corporal Tully realized that the answer key was wrong, he appealed the denial of his promotion based on “incorrect” test answers. Specifically, Corporal Tully grieved the denial through the City’s internal grievance procedure, relying on WPD Policy Manual Directive 4.11 on Promotions, which provides, that “[i]t is the objective of the City of Wilmington to provide equal promotional opportunities to all members of the Police Department based on a candidate’s merit, skills, knowledge and abilities . . . .” The Directive further provides that “[c]andidates may appeal any portion of the selection process.” But a few months later, Wilmington City Manager Sterling Cheatham told Corporal Tully that his grievance was denied, as the test answers were not a “grievable item.” During the supposed grievance process, a supervisor told Corporal Tully, “Even if you are correct, there is nothing that can be done.”

The City of Wilmington’s Grievance Review Board made a final determination, denying Corporal Tully’s appeal, on Jan. 3, 2012. Nevertheless, Corporal Tully continued to try to resolve the matter informally within the department, for months, and then years. He also continued to receive accolades for his outstanding police work. In 2014, he was awarded WPD’s “Public Safety Officer Medal of Valor.”

Eventually, Corporal Tully determined that the only possibility for seeking redress for the unfair denial of his promotional opportunity was to seek legal counsel. After again seeking informal resolution of the matter (which the city refused to do), we filed a lawsuit on behalf of Corporal Tully against the city on Dec. 30, 2014, arguing that the North Carolina Constitution, as well as the city’s own policy directives, guaranteed Corporal Tully the right to equal employment opportunity. The complaint alleged that the City of Wilmington violated Tully’s due process rights under the state Equal Protection Clause and the “fruits of [his] own labor” clause when it denied Tully’s promotion based on his answers and then determined that such a reason was not grievable.

The city answered the complaint and immediately filed a motion for judgment on the pleadings, arguing that Corporal Tully had no valid state constitutional rights. The city, through legal counsel Katie Weaver Hartzog, of Cranfill, Sumner & Hartzog, argued that Tully had no actionable claim under the state constitution, as he had no property interest in promotion or to a particular job. Importantly, the city also argued that Corporal Tully had no property interest in the promotional process. The trial judge, Judge Gary Trawick, agreed with the city and dismissed the complaint.

On appeal to the North Carolina Court of Appeals, the Southern States Police Benevolent Association and the North Carolina Police Benevolent Association, through counsel J. Michael McGuinness, filed an amici brief supporting Tully’s appeal. The North Carolina Court of Appeals reversed Judge Trawick’s decision and held that Corporal Tully had alleged a valid property and liberty interest in requiring the City to comply with its own established promotional process. Judge Linda Stephens wrote the opinion and Judge Douglas McCollough concurred. Judge Wanda Bryant dissented.

Judge Stephens, writing for the majority, explained that the city erred in attempting to reframe Tully’s claims as assertions of a property and liberty interest in receiving a promotion. Rather, Tully’s actual claim is that the city violated Tully’s constitutional rights by failing to comply with its own policies and procedures regarding the promotional process. The court agreed with Corporal Tully’s argument that if the government has a process for promotion of its employees, particularly law enforcement officers who are sworn to uphold and apply the law to ordinary citizens, that process cannot be completely arbitrary and irrational without running afoul of the North Carolina Constitution.

The court noted that, assuming the allegations in the complaint in the light most favorable to the plaintiff, as the court is compelled to do on a defendant’s motion for judgment on the pleadings, the city violated Tully’s constitutional interests in an equal and non-arbitrary promotional opportunity under Article I, sections 1 and 19 of the North Carolina Constitution by failing to comply with its own promotional policies and procedures in two respects:

The court pointed out that first, Tully alleged that the city administered a written sergeant’s examination that included questions based upon incorrect and outdated law such that, although Tully answered certain questions accurately based on the correct and existing law, those answers were marked wrong, causing Tully to fail the examination and score below the 50th percentile of candidates, thereby barring him from proceeding to the next stage of the promotional process. Second, the city violated Corporal Tully’s rights by failing to follow its own grievance policy in regard to the promotional process. In other words, the Court of Appeals concluded that Corporal Tully’s constitutional claims were not based upon an assertion that he was entitled to receive a promotion to the rank of sergeant, but simply that he was entitled to a non-arbitrary and non-capricious promotional process.

The Court of Appeals acknowledged that Tully’s argument—that a government employer that fails to follow its own established promotional procedures acts arbitrarily, and thus, unconstitutionally—appears to be one of first impression in this state. However, as noted by the court, that conclusion is supported by persuasive federal case law and is in keeping with our state’s constitutional jurisprudence. The Court of Appeals understood the issue perfectly – “if a government entity can freely disregard its policies at its discretion, why have a test or grievance process or any promotional policies at all?”

Judge Bryant filed a dissent, concluding that “[b]ecause the City is acting as an employer rather than as a sovereign, and is vested with the power to manage its own internal operations, Tully’s pleadings—although asserting what appears to be an unfair result in a standard process—do not state a viable constitutional claim.” Judge Bryant concluded that the cases cited by Tully were inapposite to this case, as those cases related to the government acting as a sovereign, rather than as an employer. Noting that the “government has significantly greater leeway in its dealings with citizen employees than it does when it brings its sovereign power to bear on citizens at large[,]” Judge Bryant concluded that the cases cited by Tully related to the government acting in its capacity as a sovereign and were inapplicable here where the government acted as an employer in denying plaintiff a promotion.

It is highly likely that the city will appeal this decision to the North Carolina Supreme Court. The decision is a great win – not only for law enforcement officers, but for all public employees seeking fairness in the promotional process. However, should the North Carolina Supreme Court affirm the opinion of the Court of Appeals, it shouldn’t rock the foundation of public employee law in North Carolina. After all, the decision establishes simply that if a government entity has promotional procedures in place, it cannot wholly disregard those procedures and behave completely arbitrarily. That is what Corporal Tully contends occurred in Wilmington. But surely that is an anomaly. If not, there ought to be protections in place to protest all public employees from such arbitrariness.

September 15, 2016/by NCBARBLOG