249 N.C. App. 204
N.C. Ct. App.2016Background
- Kevin J. Tully, a Wilmington police corporal and Violent Crimes Section investigator, sought promotion to sergeant in 2011 under WPD's published promotion policy.
- The WPD promotion policy required written exams, advancement only for candidates scoring above the 50th percentile, validation of exam content, and allowed candidates to grieve any portion of the selection process.
- Tully failed the written exam but later contended several official answers were based on outdated law; he alleged that accurate answers based on current law were marked wrong and disadvantaged him while inflating others' scores.
- Tully grieved internally; the City Manager denied the grievance, labeling the test answers non-grievable. Tully then sued under Articles I §§1 and 19 of the North Carolina Constitution alleging arbitrary deprivation of property/liberty and of the fruits of his labor because the City failed to follow its own procedures.
- The trial court granted the City's Rule 12(c) motion and dismissed the complaint. On appeal, the Court of Appeals reversed, holding Tully adequately alleged a property/liberty interest in a non-arbitrary promotional process because a government entity may not ignore its own established procedures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a government employer's failure to follow its own promotion procedures can give rise to a state constitutional claim | Tully: a non-arbitrary, non-capricious promotional process is a protected interest; failing to follow published procedures is arbitrary and violates NC Const. arts. I §1 and §19 | City: employees have no constitutional property or liberty interest in receiving a promotion; employer actions as proprietor are not subject to sovereign-style constitutional scrutiny | The court: adopting Accardi/Heffner reasoning, held that failing to follow established procedures can be inherently arbitrary and may state a constitutional claim; reversed dismissal to allow discovery |
| Whether Tully adequately alleged a property or liberty interest in the promotional process (not the promotion itself) | Tully: he does not claim entitlement to promotion, only to an established, non-arbitrary process | City: reframed claim as a mere desire for promotion, which carries no constitutional protection | The court: Tully sufficiently alleged a protected interest in enforcement of the Department's own procedures and policies |
| Whether the trial court properly granted judgment on the pleadings under Rule 12(c) | Tully: pleadings and manual show disputed factual issues about arbitrariness and grievance denial requiring discovery | City: movant argued no material facts and precedent forecloses constitutional claim | The court: review de novo; concluded genuine issues of material fact exist and 12(c) was improper; reversed |
| Whether Tully's internal grievance denial as "non-grievable" precludes constitutional review | Tully: the denial itself exemplifies arbitrary application of the policy and is challengeable | City: procedural exhaustion/internal determination forecloses constitutional claim | The court: found the grievance denial part of the alleged arbitrary conduct and sufficient to plead a constitutional violation; claim may proceed |
Key Cases Cited
- United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) (agency must follow its own procedures; failure can violate due process)
- United States v. Heffner, 420 F.2d 809 (4th Cir. 1969) (applies Accardi: agency violation of its own procedures is inherently arbitrary and warrants reversal)
- Farlow v. N.C. State Bd. of Chiropractic Exam'rs, 76 N.C. App. 202 (1984) (North Carolina appellate dictum approving the rule that an agency should follow its own rules when failure could change the result)
- Poarch v. N.C. Dep't of Crime Control & Pub. Safety, 223 N.C. App. 125 (2012) (citing Heffner with approval in administrative-procedure context)
- Engquist v. Or. Dep't of Agric., 553 U.S. 591 (2008) (distinguishes constitutional review of government acting as sovereign vs. as employer; greater deference when acting as employer)