Ruling favors public suit

In a first-of-its-kind ruling, the state’s second highest court has held that public employees can sue if the state or local government units they work for don’t follow their own procedures in an employment case. The Court of Appeals decision is likely not to be the final word in the matter, as the state Supreme Court is likely to weigh in.

Kevin Tully is a Wilmington Police Department officer. In June 2007, he achieved the rank of corporal, and soon was assigned to the WPD’s Violent Crimes Section. Through 2014, Tully worked on more than 50 homicide cases, clearing all of them for which he served as lead investigator. In 2011, he was named the department’s officer of the year.

That same year, Tully also applied for promotion to sergeant. The WPD’s promotion process has several steps, beginning with a written test. To reach the latter steps in the process, a promotion candidate must score in the top half of those taking the exam. Tully didn’t do so, seemingly ending his chances of making sergeant. But Tully said that when he reviewed the exam sometime later, he said several of the answers considered “correct” were based on outdated law, and that the responses he gave that were marked incorrect were in fact consistent with current law. Meanwhile, he said, several officers who advanced in the promotion process should not have because they received credit for answers that were in fact incorrect.

The WPD’s promotion policy states that “candidates [for promotion] may appeal any portion of the selection process.” Tully did that, but his grievance was rejected by the Wilmington’s city manager, who explained that exam answers were not covered by the process.

Tully sued, contending that the police department’s failure to follow its own promotion process violated the Equal Protection and “fruits of their own labor” clauses of the North Carolina Constitution. Superior Court Judge Gary Trawick dismissed Tully’s complaint; the officer then sought review before the Court of Appeals.

North Carolina appellate courts never had considered a claim like the one Tully advanced. Two members of the three-judge panel of the Court of Appeals who heard the case were persuaded by the reasoning in of a number of similar federal cases. For example, the in a 1969 case called United States v. Heffner, the 4th U.S. Circuit Court of Appeals ruled that: “An agency of the government must scrupulously observe rules, regulations, or procedures which it has established. When it fails to do so, its action cannot stand and courts will strike it down.”

The 4th Circuit’s decision in Heffner was based on the U.S. Supreme Court’s holding in United States ex rel. Accardi v. Shaughnessy, in which the high court overturned as a violation of due process a deportation order after the Board of Immigration and Department of Justice failed to follow their own procedures.

“In line with the reasoning discussed in Accardi, Heffner, and Farlow, we now hold that it is inherently arbitrary for a government entity to establish and promulgate policies and procedures and then not only utterly fail to follow them, but further to claim that an employee subject to those policies and procedures is not entitled to challenge that failure,” wrote Judge Linda Stephens for the N.C. Appeals Court.

“To paraphrase Tully, if a government entity can freely disregard its policies at its discretion, why have a test or a grievance process or any promotional policies at all?”

Accordingly, the Appeals Court overturned the lower court’s ruling and ordered the case to proceed towards trial.

Judge Wanda Bryant dissented.

“Because 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,” she wrote.

‘Therefore, I respectfully dissent.”

That said, Bryant did urge the N.C. Supreme Court to look closely to see whether the state Constitution’s protections extend to such cases.

N.C. Court of Appeals decisions are binding interpretations of the N.C. Constitution unless overruled by the state Supreme Court. Because of Bryant’s dissent, the high court is required to hear the case if Wilmington wishes to challenge the majority’s holding.

Michael Lowrey is a contributor to Carolina Journal and a policy analyst for the John Locke Foundation.

Michael Lowrey is a contributor to Carolina Journal and a policy analyst for the John Locke Foundation.


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