Tully v. City of Wilmington, 370 N.C. 527

Kevin J. Tully, a Wilmington police corporal with long service and strong credentials, failed to pass a written sergeant promotional exam in Oct. 2011.
After receiving official answers, Tully alleged the official answers relied on outdated law and filed a grievance; the City manager replied the test answers were “not a grievable item.”
Police Department Directive 4.11 (Policy Manual) required valid testing instruments, provided that “candidates may appeal any portion of the selection process,” and contemplated re-testing or re-scoring if errors were substantiated.
Tully sued under the North Carolina Constitution asserting (1) deprivation of property without due process (Art. I, § 19) and (2) violation of the right to “enjoyment of the fruits of their own labor” (Art. I, § 1), seeking declaratory relief and damages.
Trial court granted the City’s Rule 12(c) motion and dismissed; Court of Appeals reversed in part; the Supreme Court of North Carolina affirmed that Tully stated a § 1 claim, reversed the § 19 claim, and remanded for further proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Tully stated a claim under Article I, § 1 (enjoyment of the fruits of labor) when the City refused to allow an appeal required by its own promotional policy	Tully: City’s denial to consider his appeal of defective exam answers—contrary to Policy Manual—was arbitrary/capricious and deprived him of the fruits of his labor	City: As employer, its internal personnel decisions do not give rise to a constitutional § 1 claim; internal management prerogatives preclude constitutional relief	Held: Yes. The complaint sufficiently pleads a § 1 claim where (1) a clear policy existed, (2) the employer violated it, and (3) plaintiff was injured; plaintiff must also show no other state-law remedy is available.
Whether Tully stated a claim under Article I, § 19 (law of the land/due process) based on a property interest in promotion	Tully: Denial of promotion and denial of grievance forum deprived him of property without due process	City: No cognizable property interest in promotion; employment/promotion expectations alone do not create property right	Held: No. Court concluded no authority recognizes a property interest in a promotion here; § 19 claim dismissed.

Corum v. Univ. of N.C., 330 N.C. 761, 413 S.E.2d 276 (N.C. 1992) (state constitutional rights provide direct actions against state actors when no other remedy exists)
State v. Ballance, 229 N.C. 764, 51 S.E.2d 731 (N.C. 1949) (Sections 1 and 19 secure broad individual rights including enjoyment of fruits of labor)
Presnell v. Pell, 298 N.C. 715, 260 S.E.2d 611 (N.C. 1979) (public employee liberty and property interests and availability of administrative process for due process)
King v. Town of Chapel Hill, 367 N.C. 400, 758 S.E.2d 364 (N.C. 2014) (courts must prevent arbitrary government actions that interfere with enjoyment of fruits of labor)
United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (U.S. 1954) (administrative agencies must follow their own rules; failure can render action arbitrary)