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New cause of action for government employees


A Wilmington police officer fought the law — and he won.

The North Carolina Supreme Court has ruled that lawman Kevin Tully can move forward with a claim alleging that the Wilmington Police Department violated his state constitutional right to enjoy the fruits of his labor.

The March 2 decision creates a new cause of action that could be expanded to allow local government employees across the state to sue their employers for perceived policy violations.

“We are encouraging governmental employers to carefully review their written policies and procedures and consider revisions to ensure compliance with the court’s order,” Wilmington’s attorney, Katie Hartzog of Cranfill Sumner & Hartzog of Raleigh, said in the wake of the high court’s ruling in Tully’s case.

Tully, who has solved dozens of homicides and was once honored as the city’s police officer of the year, sued the department in 2011, after he failed an exam that he needed to pass to be eligible for a promotion.

He discovered later that some of the answers on the test were based on outdated law regarding search and seizure, but the department refused to let him appeal the validity of the exam — despite the fact that the department’s promotional policy states that “any portion of the selection process” is appealable.

Tully’s suit was initially dismissed at the trial level, where New Hanover County Superior Court Judge Gary Trawick determined that the claims were rooted in his “property and liberty interest” in getting a promotion. Trawick dismissed the complaint after concluding that such claims are not recognized in North Carolina.

A divided state Court of Appeals panel reversed Trawick’s ruling in 2016. 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.

Now, the Supreme Court has determined in a unanimous decision that while there’s no such thing as a property interest in a promotion, Tully has a claim under Article I, Section 1 of the state constitution, which states, in pertinent part, that residents have the right to “the enjoyment of the fruits of their own labor.”

Justice Robin Hudson, who wrote the decision, noted that most Article I, Section 1 claims involve a government “acting as regulator or sovereign rather than as an employer.”

“Nevertheless, we are persuaded that Article I, Section 1 also applies when a governmental entity acts in an arbitrary and capricious manner toward one of its employees by failing to abide by promotional procedures that the employer itself put in place,” Hudson added.

She cautioned that the right to bring such a claim is “not without limitation,” explaining that the public employee must show that there is no other remedy available under state law and also establish that he was harmed by the employer’s violation of a clear and established policy regarding the promotional process.

Hartzog, Wilmington’s attorney, asserted that the “language in the opinion potentially limits the new cause of action to failure to promote claims.”

But she anticipated that “there will be an effort to expand the right to other claims in which an employee claims that a governmental employer failed to follow its own internal policy.”

Tully’s attorney, Cheyenne Chambers of Tin Fulton Walker & Owen in Charlotte, confirmed Hartzog’s hunch.

While Tully’s case centers on a government employer’s alleged failure to follow its promotions policy, Chambers said she was “optimistic” that that the Supreme Court’s decision “will also be applied to other clear, established government policies outside of the promotions context.”  

“The court’s underlying rationale is pretty clear — Article I, Section 1 prevents the government from acting in an arbitrary and capricious manner,” she added.  “Therefore, we think the court’s message to government employers is applicable across the board — if you create a rule, you must follow that rule.”

Tully’s suit is headed back to the trial court, where he’ll have to prove his case against the Wilmington Police Department, where he still works. He ended up taking the promotion exam two years after he failed the first test. He passed and was promoted to sergeant.

But Chambers said Tully could have been a lieutenant by now if not for the temporary freeze that the first exam snafu put on his career.

“Because the city didn’t want to follow its own rule, our client was delayed in receiving the promotion that he so deserved,” she added.

The 19-page decision is Tully v. City of Wilmington (Lawyers Weekly No. 010-009-18).

Follow Phillip Bantz on Twitter @NCLWBantz


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