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Challenge to outdated promotion exam goes forward

Drophed: Case could impact every municipality in N.C.

Wilmington police corporal Kevin Tully is a top cop on paper. He solved dozens of homicides while working on the violent crimes unit and was honored as the city’s police officer of the year in 2011 – the same year he failed an exam that he needed to pass to be considered for a promotion to sergeant.

But Tully, who in 2014 was given the Public Safety Officer Medal of Valor, the highest award that an officer can receive, discovered that the answers on the test were based on outdated law regarding search and seizure, according to a complaint he later filed against the city of Wilmington.



Tully sued the city after he was told that he could not file a grievance over the test, despite the fact that the Wilmington Police Department’s promotional policy states that “any portion of the selection process” is appealable.

New Hanover County Superior Court Judge Gary Trawick dismissed the complaint, agreeing with the city’s argument that Tully’s due process violation claims were actually based on his “property and liberty interest” in getting a promotion. The state’s appellate courts have not recognized such claims.

But a divided state Court of Appeals panel reversed Trawick’s ruling in an Aug. 16 decision.

The case presents an issue of first impression that could affect every municipality and local government employee in the state.

The majority decided that Tully’s claims centered not on his desire to be promoted but to have “an equal and non-arbitrary promotional opportunity,” which is a right under the state constitution.

Judge Linda Stephens, who wrote the opinion, said 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.” Judge Doug McCullough concurred with Stephens.

In her dissent, Judge Wanda Bryant contended that Tully had failed to connect his claims to the state constitution. She also urged the state Supreme Court to “take a close look at this issue to see whether it is one that, as currently pled, is subject to redress under our N.C. Constitution.”

The city’s attorney, Katie Hartzog of Cranfill, Sumner & Hartzog in Raleigh, wrote in an email that her client was considering all options, including an appeal, but declined to discuss the decision.

Tully’s attorney, Katy Parker of Tin Fulton Walker & Owen in Arlington, Virginia, said the majority understood that Tully was simply seeking “fairness in the process.”

“This is a reminder that if you’ve got a process in place you just have to follow that process,” she added. “Having a bar that says, ‘It can’t be arbitrary’ is not a very high bar.”

Reacting to the dissent, Parker contended that Tully’s complaint established clear ties between his claims and the state constitution.

Michael McGuiness, an Elizabethtown lawyer who filed an amicus brief in Tully’s case on behalf of the Southern States Police Benevolent Association and the North Carolina Police Benevolent Association, called the decision “revolutionary.”

“The underlying problem in this case is a routine problem for police officers in virtually all municipalities across the state,” he said. “Personnel policies are most often blatantly disregarded by the municipalities that promulgate them.”

John Midgette, executive director of the NCPBA, issued a written statement declaring that the “extraordinary decision gives hope to police officers and their families that they will receive fair treatment in the use of their personnel policies.”

The number of officers who were promoted based on the allegedly outdated exam is unknown. But Parker expected to uncover that information, along with other details about the test, including the last time it was updated, during discovery.

McGuinness said the case could result in the “unraveling of a mess.”

“You’ve got promoted officers and it looks like they’ve been promoted based on the wrong answers,” he said. “The ultimate outcome may have to be that someone who has inadvertently or inaccurately been promoted … those stripes might have to come off.”

The 23-page decision is Tully v. City of Wilmington (Lawyers Weekly No. 011-297-16). A digest of the opinion can be found at

Follow Phillip Bantz on Twitter @NCLWBantz


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