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Tully v. City of Wilmington: NC Supreme Court rules that police officers enjoy new constitutional protections from employers' non-compliance with personnel policies

By J. Michael McGuinness
The McGuinness Law Firm
Elizabethtown, North Carolina
jmichael@mcguinesslaw.com 

 

Attorney J. Michael McGuiness
 
In Tully v. City of Wilmington, N.C., 790 S.E.2d 854 (N.C. App. 2016), aff’d in part, rev’d in part, 2018 WL 1124796 (No. 348A16), the North Carolina Supreme Court issued themost powerful and sweepingpolice employment decision of the new millennium. 
 
In a unanimous decision, our Supreme Court breathed substantial new life into the North Carolina Constitution and ruled that Article 1, Section 1 of the North Carolina Constitution provides a claim for then Corporal Kevin Tully when he was denied his right to grieve and therefore unconstitutionally denied a promotional opportunity.  This new “Tully” constitutional theory is predicated upon a rarely used clause in Article 1, Section 1 that affords protection for “the enjoyment of the fruits of their own labor.”  
 
There has long been uncertainty about whether and to what extent this “fruits of labor” clause afforded enforceable employment rights. Most of the previous cases arose in the context of occupational licensing. This important principle of constitutional law has now been clarified by our Supreme Court. This clause can now be judicially enforced, potentially in a wide variety of contexts. Kevin Tully and our Supreme Court has brought the police community a long overdue common sense ruling that requires that employers play by the rules. 
 
Our Supreme Court drilled down on the egregious abuses by the City of Wilmington that gave rise to the case. The position advanced by Wilmington both in its brief and in oral argument before the Court maintained that it was entitled to lie to Tully and other employees by ignoring personnel policies affording Tully the right to grieve and equal promotional opportunity. Police management lies have no legitimate place in law enforcement personnel systems. Agency lies to officers through the failure to honor personnel policies is now constitutionally actionable in civil litigation against police employers.    
 
The Supreme Court did not recognize the Due Process Clause as an additional basis of relief for Tully. The Court reasoned that it was not clear that Tully enjoyed a property interest necessary for due process protection. A claim under Article 1, Section 1, however, does not require any property interest.       
This article reviews Tully,its foundational underpinnings, and the broad implications for officers and police employers across North Carolina. Police employers may now be held constitutionally accountable for not honoring its personnel policies. Many of us have awaited decades for this new Tully principle. A new day and new era has arisen.   
Background
Tully arose from the denial of a promotion that was predicated upon a flawed promotional test and then a denial of Tully’s right to grieve the denial of promotion. The Superior Court had granted judgment on the pleadings to the employer, the City of Wilmington. The Court of Appeals reversed and found that Tully had stated valid constitutional claims for relief. Based on a dissent, the Supreme Court accepted the case for review. Thus, the case was positioned for the potential recognition of new constitutional protections for police officers and other public employees.  
 
The case was recognized both by the Court of Appeals and the Supreme Court as a case of “first impression,” meaning that the particular issues before the Courts had not been previously decided. While there were several previous cases that provided bits and pieces of support for recognizing a direct constitutional claim in situations where employees were deprived of the fruits of their labor, no prior case had squarely ruled that Article 1, Section 1 could serve as a direct constitutional claim for relief in the employment context.     
 
Tully’s asserted state constitutional claims involving due process, equal protection and a violation of Article 1, Section 1 of the North Carolina Constitution based upon interference with Tully’s fundamental right to the fruits of his labor. The Court of Appeals observed that “irrational and arbitrary government actions violate the ‘fruits of their own labor’ clause.” 790 S.E.2d at 858. Tully asserted multiple theories of constitutional protection including an arbitrary denial of promotion and the resulting grievance, and the employer’s refusal to comply with its own grievance policy.
Facts
Corporal Kevin Tully is a highly-decorated veteran law enforcement officer who has served the City of Wilmington since 2000. As Tully’s public employer, the City of Wilmington published personnel policies that were admittedly used to “govern” the relationship between the employer and employees. Tully sought a promotion and participated in the City’s promotional process. Tully complied with his departmental policies and procedures as he sought the promotion.  
       
The promotional process involves several phases and includes a written test. Tully was notified that he failed the test and thus was barred from continuing in the promotional process. When Tully received a copy of the purportedly “correct” answers to the test, he realized that several of the “correct” answers were based on outdated law, particularly the section regarding searches and seizures.  Wilmington’s promotional policy provide that” [c]andidates [for promotion] may appeal any portion of the selection process.” Tully grieved but was informed that examination answers were not grieveable, thus his grievance was denied.   
 
Through clear and specific policies, the City of Wilmington holds itself out as a “fair” public employer with a merit based promotional policy and a broad grievance policy applicable to any part of the selection process. The policies that appear fair on the surface were not applied to Tully therefore depriving him of the promised job benefits in the promotional and grievance policies.    
 
Tully can perhaps be distilled down to whether North Carolina public employers must comply with their own promulgated personnel policies which promise specific benefits to employees, or whether a public employer may arbitrarily refuse to comply with their own policies and selectively enforce its personnel policies.  
 
This case was poised to determine the use and enforceability of grievances and grievance policies, which are considered essential tools to enable police officers and other public employees to protect themselves by trying to resolve workplace related problems. Wilmington’s position and the reasoning of the dissent would essentially destroy entire police personnel systems statewide as grievance and other policies would be effectively rendered null and void if they are not enforceable.  
 
Corporal Tully sought a promotion and discovered that an invalid test was used in the promotional process governed by City policy. Wilmington refused to permit Tully to grieve, in direct defiance of its own policy. Despite unambiguous language in the pertinent personnel policies created by Wilmington, the City of Wilmington refused to allow Corporal Tully to use his own grievance policy.    
    
As provided in Wilmington’s policies, employees know that policies “govern” as in Wilmington’s promotional and grievance policies. Employees know that they can be punished for willful non-compliance with their employer’s policies. Employees reasonably expect that their employers will play by the rules. Tullypresented a simple issue: whether North Carolina governmental employers must comply with their own personnel policies.   
Virtually all public employers establish personnel policies to recruit and maintain a qualified workforce to serve the public. In short, the government writes the rules, and employees are required to obey or else be disciplined. Wilmington imposes discipline on officers who violate personnel policies. E.g. Lightner v. City of Wilmington, N.C., 498 F. Supp. 2d 802 (E.D.N.C 2007), aff’d 545 F.3d 260 (4thCir. 2008). where Lieutenant Lightner was disciplined for alleged non-compliance with Wilmington personnel policies. There, Wilmington enforced its personnel policies on Lieutenant Lightner when it charged him with alleged policy violations.  
Wilmington willfully reneged on its direct representations to Corporal Tully to provide him “equal promotional opportunities to all members of the Police Department based on a candidate’s merit, skills, knowledge and abilities…” Wilmington Police Department Policy Manual, Directive 4.11, cited and explained by the Court of Appeals at 790 S.E.2d 854, 857 (N.C. App. 2016). During oral argument, Chief Justice Martin commented indicating that Wilmington had not been truthful to its employees by promising certain benefits in policies and then reneging on those policies. Wilmington’s course of conduct in fact was based on pure outright willful lies.
 
Wilmington’s personnel policy also represented to Corporal Tully that “[c]andidates [for promotion] “may appeal any portion of the selection process….” Policy F.1, cited in 790 S.E.2d at 858. Wilmington’s Policy is clear:
“This policy establishes guidelines that governpromotional procedures within the Wilmington Police Department and ensure procedures used are job related and non-discriminatory…. The procedures below will befollowed… It is the objective of the city of Wilmington to provide equal promotional opportunities to all members of the Police Department…”  (Emphasis added) 
 
Wilmington’s testing scheme afforded preferential treatment to less qualified applicants who purportedly passed the invalid test. Wilmington represented that employees could appeal from anyportion of the selection process but then denied Corporal Tully’s grievance by claiming that Atest answers are not a grieveable item. 
Wilmington’s policy also directly represented equal opportunity to police officers. This policy also affirmatively represents that Wilmington will provide fair and professional standards in its promotional process. The policy represents that Wilmington provides equal promotional opportunities to all members of the Police Department based on a candidate’s merit, skills, knowledge and abilities.  
 
The City of Wilmington made all of these important representations and then willfully broke them. 
What did the Tully principle derive from?  In State v. Ballance, 229 N.C. 764, 769, 51 S.E.2d 731, 734 (1949), the Court explained:  
These fundamental [state constitutional] guarantees are very broad in scope and are intended to secure to each person subject to the jurisdiction of the state extensive individual rights, including that of personal liberty. 
 
The North Carolina Constitution is a beacon of civil rights. . . Martin, The State Constitution As a Font of Individual Liberties: North Carolina Accepts the Challenge, 70 N.C.L. Rev. 1749, 1753 (1992). Many have observed the revitalization of state constitutional law since the 1970s.[1]There has been much discussion in recent years of how most state constitutions, including that of North Carolina, provide relief in areas where the Federal Constitution does not reach.  Several leading cases in the 1940s and 1950s better explained the reach of the North Carolina Constitution.  
 
In 1992, Corum built upon that solid foundation. This case represents a logical application of those constitutional values. North Carolina has a rich constitutional history through enforcement of North Carolina’s Constitution and its values, especially in the context of public employment where public servants are at such risk of retaliation and discrimination.[2]
In Whaley v. Lenoir County, 5 N.C. App. 319, 327, 168 S.E.2d 411, 416 (1969), the Court concluded that the personal and property rights guaranteed by Article I, Section 1 of the State Constitution were violated. SeeState v. Warren, 252 N.C. 690, 694, 114 S.E.2d 660 (1960); (Section 1, Article I of the Constitution of North Carolina guarantees to the citizens of the State the enjoyment of the fruits of their own labor and declares this an inalienable right.); Roller v. Allen, 245 N.C. 516, 518-522, 96 S.E. 851, 854-857 (1957). These and other cases provided Corporal Tully with foundational authority under Article 1, Section 1 of the North Carolina Constitution.
 
In King v. Town of Chapel Hill, 367 N.C. 400, 758 S.E.2d 364 (2014), the Court held that citizens enjoy an inalienable right to earn a living and that our Courts protect Afundamental rights which includes preventing arbitrary government actions that interfere with the right to the fruits of one’s own labor. The Court explained:
“This Court's duty to protect fundamental rights includes preventing arbitrary government actions that interfere with the right to the fruits of one's own labor.”  367 N.C. at 408, 758 S.E.2d at 371.
The Court has held that Article I, Section 1 of our Constitution protecting the fruits of our labor created a fundamental state constitutional right. Treants v. Onslow County, 83 N.C. App. 345, 354, 380 S.E.2d 365, 371 (1986), aff=d 320 N.C. 776, 360 S.E.2d 783 (1987). The Court in Treantsrelied upon Roller v. Allen, 245 N.C. 516, 518-519, 96 S.E.2d 857, 854 (1957) (right to earned livelihood is a fundamental constitutional right) and McCormick v. Proctor, 217 N.C. 23, 6 S.E.2d 870 (1940) (Stacy, J., concurring) (fundamental right to earn a livelihood). As King explained: 
A[T] fee schedule provision implicates the right to earn a livelihood . .  State v. Harris, 216 N.C. 746, 759, 6 S.E.2d 854, 863 (1940)(While many of the rights of man, as declared in the Constitution, contemplate adjustment to social necessities, some of them are not so yielding. Among them the right to earn a living must be regarded as inalienable.). This Court's duty to protect fundamental rights includes preventing arbitrary government actions that interfere with the right to the fruits of one's own labor.  N.C. Const. Art 1; Roller, 245 N.C. at 525, 96 S.E. 2d at 859.@  King, 367 N.C. at 408; 758 S.E.2d at 371. 
 
In 1986, Former Chief Justice Exum authored Dusting Off Our State Constitution, N.C. ST. BAR Q., (Spring 1986) at 6, where he explained that there is a growing national trend in which state courts look more to their own state constitutions and less to the federal constitution to resolve legal disputes. Justice Exum observed how our Constitution contains language [that] is richer, more detailed, and more specific. He observed how our Constitution contained broad grants of power to the people.  He explained that the ground in these richly detailed grants of individual liberties is much more fertile than in the mere prohibitions against abridgement of them found in the federal document. 
 
North Carolina courts have interpreted the State Constitution to grant rights broader than the Federal Constitution.[3]Federal decisions do not bind North Carolina courts on issues of North Carolina constitutional law.[4]  
 
In a variety of cases, the North Carolina Constitution has been used to restrain North Carolina governments from retaliatory, arbitrary and discriminatory actions.[5]

Recent state constitutional cases derive substance from historic precedent.[6]   

The Supreme Court has held that [a]ny exercise by the State of its police power is, of course, a deprivation of liberty. In Re Ashton Park Hospital, 282 N.C. 542, 550, 193 S.E.2d 729, 735 (1973). Accord State v. Harris, 216 N.C. 746, 758, 6 S.E.2d 854 (1940) (explaining the right to pursue a means of livelihood is both a properly right and personal liberty).  
 
Scores of cases have found violations of employee rights in employee testing which is a crucial component of the selection process. See Isodore Silver, Public Employee Discharge and Discipline, Chapter 13 (3rded. Vol. I). Public employee testing has long been subject to constitutional limitations.[7]In May v. Gray, 708 F. Supp. 716 (E.D.N.C. 1988), Judge Britt granted summary judgment to the employee on substantive due process grounds in a case involving a testing dispute. The employee was discharged after a urine test suggested a positive test result for marijuana. Like Tully, he was afforded no opportunity to challenge the test result.  The Court granted summary judgment to the Plaintiff employee on substantive due process grounds and reasoned that the employee was entitled to substantively challenge the test results.  
 
Section 19, generally known as the Law of the Land Clause, enumerates multiple protections including procedural and substantive due process, and equal protection. It provides that no person shall be deprived oflibertiesor privilegesor otherwise deprived of life, liberty or property except by the law of the land. This guarantee both procedural and substantive due process rights. In Re Moore, 289 N.C. 95, 97-98, 221 S.E. 2d 307, 309 (1976). State v. Ballance, 229 N.C. 764, 51 S.E.2d 731, 734 (1949) broadly defines constitutional liberty:
These fundamental [state constitutional] guarantees are very broad in scope, and are intended to secure to each person subject to the jurisdiction of the state extensive individual rights, including that of personal liberty.  The term liberty, as used in these constitutional provisions does not consist simply of the right to be free from arbitrary physical restraint or servitude, but is deemed to embrace the right of man to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for common welfare . . . it includes the right of the citizen to be free to use his faculties in all lawful ways; to pursue any livelihood or vocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out these purposes to a successful conclusion.
 
In Dombrowlski v. Wall, 138 N.C. App. 1, 13, 530 S.E.2d 590, 599 (2000), a near treatise on disparate treatment and North Carolina constitutional law, the Court recognized state constitutional protections and reaffirmed numerous fundamental principles. These are in fact North Carolina constitutional maxims:
The Due Process Clause was intended to prevent government officials from abusing [their] power, or employing it as an instrument of oppression. . . . Since the time of our early explanations of due process, we have understood the core of the concept to be protection against arbitrary action. Hurtado v. California, 110 U.S. 516, 527 (1884).
 
We have emphasized time and again that the touchstone of due process is protection of the individual against arbitrary action of government, Wolfe v. McDonnell, 418 U.S. 539, 558 (1974), whether the fault lies in a denial of fundamental procedural fairness, see, e.g., Fuentes v. Shevin, 407 U.S. 67, 82 (1972) . . ., or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective,see, e.g., Daniels v. Williams, 474 U.S. 327, 331. . . .
 
Arbitrary and capricious acts by government are also prohibited under the Equal Protection Clauses of the United States and the North Carolina Constitutions. . . .The purpose of the Equal Protection Clause . . .is to secure every person within the state’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.  Edward Valves, Inc. v. Wake County, 343 N.C. 426, 433, 471 S.E.2d 342, 346 (1996).
The Accardi Doctrine
Tullyinvokes application of a settled body of law known as the Accardidoctrine. 790 S.E.2d at 859. In United States v. Heffner, 420 F.2d 809, 811-12 (4thCir. 1969) the Court explained: 
“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. This doctrine was announced in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954).
 
There, the Supreme Court vacated a deportation order of the Board of Immigration because the procedure leading to the order did not conform to the relevant regulations. The failure of the Board and of the Department of Justice to follow their own established procedures was held a violation of due process.420 F.2d 809, 811–12 (4th Cir. 1969)see also Poarch v. N.C. Dep't of Crime Control & Pub. Safety, 223 N.C.App. 125, 133, 741 S.E.2d 315, 320 (2012)(citing Heffnerwith approval), disc. review denied366 N.C. 378, 735 S.E.2d 174 (2012).”
 
This Accardi principle began to emerge in the 1940s but was substantially solidified in the 1950s in a handful of cases that arose during the McCarthy era when public employees began to suffer the wrath of the anti-communist movement. From that line of cases, a principle of monumental importance to public employees emerged:  Public employers must scrupulously comply with their own personnel policies. 
 
The principle that agencies are bound by their own policies is generally attributed to a trilogy of cases decided by the Supreme Court, the most well-known of which is United States ex rel. Accardi v. Shaughnessy. 347 U.S. 260 (1954). The Accardi trilogy of cases all involved agency adjudicatory proceedings relating to either deportation by the INS or employment discharges. The other cases in the trilogy include Service v. Dulles, 354 U.S. 363 (1957) and Vitarelli v. Seaton, 359 U.S. 535 (1959). In each case, the Court found that the Government was obligated to follow its own policies.         
In more recent years and in high profile cases, the Accardidoctrine has been reaffirmed and applied. In United States v. Richard Nixon, 418 U.S. 683 (1974), President Nixon maintained that special Prosecutor Leon Jaworski could not seek judicial enforcement of a subpoena deuces tecum for the Watergate tapes. The Supreme Court rejected President Nixon’s argument by expressly relying on Accardi, Seaton and Servicefor the principle that the administrative regulations in issue were in effect and enforceable under the Accardi doctrine. 418 U.S. at 696.  Cf.Montilla v. U.S., 926 F.2d 162, 167 (2nd Cir. 1991) (“The Accardi doctrine is premised on fundamental notions of fair play underlying the concept of due process”). 
 
Government is obliged to follow its own policies, even if those policies are gratuitous, self-imposed procedural rules that limit otherwise discretionary decisions. See, e.g., United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266-67 (1954); Service v. Dulles, 354 U.S. 363, 388 (1957); Vitarelli v. Seaton, 359 U.S. 535, 539-40 (1959); American Farm Lines v. Black Ball Freight Service, Inc., 397 U.S. 532, 538-39 (1970).Police employers have dodged the principles for decades.  The Tully decision brings the principle home to North Carolina and requires management to play by the rules. 
 
In addition to the Accardi cases addressed by the Court of Appeals, 790 S.E.2d at 859, other North Carolina cases address Accardi, especially in personnel cases. In Dietrich v. N.C. Department of Crime Control,2001 WL 34055881 (N.C.O.A.H.), Administrative Law Judge Beecher Gray explained the Accardiprinciple as follows:  
Governmental employers must comply with their own regulations. See, e.g., Vitarelli v. Seaton, 359 U.S. 535, 546 (1959)(Frankfurther, J. concurring, joined by Clarke, Whittaker & Stewart); Securities & Exchange Comm. v. Cherery, 318 U.S. 80, 87 - 88 (1942); Service v. Dulles, 354 U.S. 363 (1957); Beacom v. EEOC, 500 F. Supp. 428 (D. Ariz. 1980)(public employee must be accorded benefit of agency's regulations). See United States v. Heffner, 420 F.2d 809, 811 (4th Cir. 1970), where the Fourth Circuit included a thoughtful discussion of Shaughnessy and other United States Supreme Court cases which stand for this central proposition. The Court observed that in Shaughnessy that the Supreme Court vacated a governmental decision because “the procedure leading to the order did not conform to the relevant regulations. The failure of the board and of the Department of Justice to follow their own established procedures was held a violation of due process.” 420 F.2d at 812. “The AccardiDoctrine was subsequently applied by the Supreme Court in Service v. Dulles, 354 U.S. 363 (1959), and Vitarrelli v. Seaton, 359 U.S. 535 (1959), to vacate the discharges of government employees.” 420 U.S. at 812. These principles have been cited as applicable in contemporary public employee constitutional litigation in North Carolina. See Sumler v. City of Winston-Salem,448 F. Supp. 519, 529 (M.D.N.C. 1978)."
 
In Renfrow v. N.C. Department of Revenue, 2015 WL 731505 (N.C.O.A.H.), Administrative Law Judge Fred Morrison explained the Accardiprinciple as follows:
 
“When a Government agency does not follow its rules, regulations, or procedures, due process is violated, and its action cannot stand.” Ameira Corp. v. Veneman, 347 F. Supp. 2d 225, 226 (M.D.N.C. 2004). If dismissal from employment is based on a defined procedure, that procedure must be scrupulously observed. Service v. Dulles, 354 U.S. 363, 388-89 (1957) (reversing dismissal of petitioner for failure to comply with regulation)…The purpose behind the Accardiprinciple is “to prevent the arbitrariness which is inherently characteristic of any agency's violation of its own procedures.” United States v. Hefner, 420 F. 2d 809, 812 (4th Cir. 1969)."
 
Renfrow was affirmed on appeal. 782 S.E.2d 379.
Implications of Tully
Tully will promote a broad range of benefits for officers and agencies. Tully will promote more effective agency decision making and police operations  Consistency in the enforcement of policies will promote more consistent and fair administration of day to day policing. A proper and effective personnel system is predicated upon a system of rules or policies which set out the governing principles of the working relationship. These rules or policies are vitally important as they guide the operation of the agency and set out the expectations of all parties. Following Tully, officers now know that everyone mustabide by policy – officers and management. This will promote reliance and more trust. Most agencies have extensive manuals of policies. Thus, the Tullyprinciple has the potential to be frequently enforced.     
 
The Court’s ruling and reasoning in Tullycertainly suggests a broad potential application of the new Tullyconstitutional claim. First, this newly recognized North Carolina constitutional claim applies to all governmental employers, municipal, county and state employers.  
 
Because North Carolina Sheriffs are governmental employers, the Tully principle clearly applies to our Sheriffs and their agencies. This is one area where Tullymay promote near revolutionary change. Counties and Sheriffs often promulgate various types of personnel rules for the administration of personnel relations. Tullymakes those policies enforceable rather than subject to denial at someone’s whim.  
 
Rule or policy violations by employees may give rise to discipline. Rule or policy violations by the employer may now give rise to a Tullyclaim in Superior Court for the enforcement of the rule or policy and resulting damages to the officer. This new Tullyprinciple will likely play out in the lower courts for a while.            
Conclusion
Our Supreme Court in Tullyhas brought us a new principle of constitutional common sense. For generations, some police management officials have boasted of their supposed rights to “do whatever we damn well please” in connection with personnel disputes. In response to requests for benefits and privileges afforded by agency policies, many police supervisors have scoffed that “they are our rules, and we decide what they mean and when we will use them.” Those discriminatory views likely drove the Supreme Court in Tullyto rebuke them and clarify the law. Wilmington’s position in Tullywas the extreme of the extreme by claiming that their own policies were meaningless. They are now enforceable. 
 
Our Supreme Court has acted in the highest honorable tradition of the judiciary by interpreting old constitutional text in light of the current circumstances confronting the police community. The Court has breathed new life in the North Carolina Constitution affording constitutional remedies for police officers when agencies violate their own policies. So be it.             
DECISION
.
Supreme Court of North Carolina.
Kevin J. TULLY
v.
CITY OF WILMINGTON
No. 348A16
|
Filed March 2, 2018
Appeal pursuant to N.C.G.S. § 7A-30(2)from the decision of a divided panel of the Court of Appeals, ––– N.C. App. ––––, 790 S.E.2d 854 (2016), reversing a judgment entered on 1 May 2015 by Judge Gary E. Trawickin Superior Court, New Hanover County. Heard in the Supreme Court on 10 October 2017.
Attorneys and Law Firms
Tin Fulton Walker & Owen PLLC, Charlotte, by S. Luke Largessand Cheyenne N. Chambers, for plaintiff-appellee.
Cranfill Sumner & Hartzog LLP, Raleigh, by Katie Weaver Hartzog, for defendant-appellant.
Elliot Morgan Parsonage, PLLC, Winston-Salem, by Robert M. Elliotand R. Michael Elliot, for North Carolina Advocates for Justice, amicus curiae.
Law Offices of Michael C. Byrne, Raleigh, by Michael C. Byrne, for North Carolina Fraternal Order of Police, amicus curiae.
Edelstein and Payne, Raleigh, by M. Travis Payne, for Professional Fire Fighters and Paramedics of North Carolina, amicus curiae.
McGuinness Law Firm, Elizabethtown, by J. Michael McGuinness; and Milliken Law, by Megan Milliken, for Southern States Police Benevolent Association and North Carolina Police Benevolent Association, amici curiae.
 
Opinion
HUDSON, Justice.
*1Here we address whether a police officer states a claim under the Constitution of North Carolina against his employer when that employer violates its own policy by refusing to consider his appeal regarding the validity of an examination required for a promotion. Because we conclude that Plaintiff Kevin J. Tullyhas adequately stated a claim that his rights under Article I, Section 1 of the North Carolina Constitutionwere violated by the City of Wilmington (the City), we affirm in part the decision of the Court of Appeals reversing the dismissal of his claims.
I. Factual and Procedural History
The following facts from Tully’scomplaint are taken as true for the purpose of analyzing the City’s motion for judgment on the pleadings. The Wilmington Police Department (the Police Department) hired Tullyin 2000 and promoted him to corporal in 2007. At the time this complaint was filed, Tullywas a member of the violent crimes section and had investigated more than fifty homicides and served as lead investigator in at least 12 of those cases, which had a 100% clearance rate. Tullyholds an associate’s degree in Applied Science in Criminal Justice and Protective Services Technology and a bachelor’s degree in Criminal Justice and has received his Advanced Police Certification from the North Carolina Criminal Justice Education and Training Standards Commission. He was named “Wilmington Police Officer of the Year” in 2011.
In October 2011, Tullysought a promotion to the rank of sergeant in the Police Department. He took a written examination, a required step in a multi-phase promotional process then in effect as set forth in the Police Department Policy Manual (the Policy Manual), but he did not receive a passing score.1Tullyhad based his answers on the prevailing law at the time, and, after receiving a copy of the official examination answers, he discovered that the official answers were based on outdated law. Tullyfiled a grievance regarding this discrepancy through the City’s internal grievance process but was informed in a 3 January 2012 letter from City Manager Sterling Cheatham that “the test answers were not a grievable item.” A supervisor also told Tullythat “[e]ven if you are correct, there is nothing that can be done.”
*2Directive 4.11 of the Policy Manual states that “[t]his policy establishes uniform guidelines that govern promotional procedures within the Wilmington Police Department and ensures procedures used are job-related and non-discriminatory.” Police Department, City of Wilmington, Policy Manual, Directive 4.11, ¶ I, at 1 (rev. July 25, 2011). Directive 4.11 also states that the Police Department is to work with the City’s Human Resources Department to
ensure that fair and professional standards are utilized for the purpose of promoting sworn police employees.... It is the objective of the City of Wilmington to provide equal promotional opportunities to all members of the Police Department based on a candidate’s merit, skills, knowledge, and abilities without regard to age, race, color, sex, religion, creed, national origin, or disability.
Id.¶ II, at 2.

 

Directive 4.11 explains that all examination “instruments used shall have demonstrated content and criterion validity, which is accomplished by contracting with qualified outside entities to develop the written testing instruments. Instruments will assess a candidate’s knowledge, skills, and abilities as related to the promotional position.” Id.¶ III(B)(1)(c), at 3. The “Grievance and Appeals” section of Directive 4.11 provides the following:
1. Candidates may appeal any portion of the selection process. The appeal must be made consistent with the City of Wilmington Personnel Policy on Employee Grievances.
2. If practical, re-application, re-testing, re-scoring and/or re-evaluation of candidates may be required if an error in the process is substantiated.
Id.¶ III(F), at 6.
 
On 30 December 2014, Tullyfiled a complaint in the Superior Court in New Hanover County, asserting two claims under the North Carolina Constitution2on the ground that he “never had a true opportunity to grieve his denial of promotion based on his answers to the Sergeant’s test.” In his first claim, Tullyasserted that the City violated Article I, Section 19 of the Constitution, which states in pertinent part that “[n]o person shall be ... deprived of his life, liberty, or property, but by the law of the land.” N.C. Const. art. I, § 19. Specifically, Tully’scomplaint asserted that he
has a property interest in his employment with the City of Wilmington and that property interest cannot be denied or impeded without due process of law.... By denying [his] promotion due to his answers on the Sergeant’s test and then determining that such a reason was not grievable, the City arbitrarily and irrationally deprived [him] of property in violation of the law of the land, in violation of the North Carolina Constitution.
In his second claim, Tullyasserted that the City violated his rights under Article I, Section 1 of the Constitution, which states that “[w]e hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.” Id.art. I, § 1. Specifically, Tullyclaimed that “[b]y denying [his] promotion due to his answers on the Sergeant’s test and then determining that such a reason was not grievable, the City arbitrarily and irrationally deprived [him] of enjoyment of the fruits of his own labor, in violation of the North Carolina Constitution.”
*3As a remedy for these alleged violations,Tullysought a judgment declaring that the City’s decision to deny him a promotion based on the October 2011 Sergeant’s examination was an unconstitutional “deprivation of [his] property interest in his employment” and of the “enjoyment of the fruits of his own labor.” He also requested damages resulting from the City’s allegedly unconstitutional actions.
After filing its answer, the City moved for judgment on the pleadings under Rule 12(c) of the North Carolina Rules of Civil Procedure. The City argued that the parties’ pleadings established that Tullydid not have a property interest that could support his claims for a violation of either Section 1or Section 19of Article I.3Following a hearing on 6 April 2015 before the Honorable Gary E. Trawick, the trial court granted the City’s motion and dismissed all of Tully’sclaims with prejudice.
Tully appealed to the North Carolina Court of Appeals, which issued a divided opinion on 16 August 2016 reversing the trial court. Tullyv. City of Wilmington, ––– N.C. App. ––––, 790 S.E.2d 854 (2016). The majority first clarified that Tully’sclaims were “notbased upon an assertion that he was entitled to receive a promotionto the rank of Sergeant, but simply that he was entitled to a non-arbitrary and non-capricious promotional process” in accordance with the rules set forth in the Policy Manual, including its appeals provision. Id.at ––––, 790 S.E.2d at 858.
After acknowledging that this case presented an issue of first impression under North Carolina law and analyzing various federal and state cases relevant to the discussion, the Court of Appeals majority concluded 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.” Id.at ––––, 790 S.E.2d at 860(emphasis omitted). The majority also stated that “ ‘irrational and arbitrary’ government actions violate the ‘fruits of their own labor’ clause.” Id.at ––––, 790 S.E.2d at 858(citing Treants Enters. v. Onslow County, 83 N.C. App. 345, 354, 350 S.E.2d 365, 371 (1986)aff’d,320 N.C. 776, 360 S.E.2d 783 (1987)).
In a dissenting opinion, the Honorable Wanda G. Bryant relied principally upon the distinction between the government acting in its capacity as regulator and its capacity as employer, explaining that “[b]ecause 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’spleadings—although asserting what appears to be an unfair result in a standard process—do not state a viable constitutional claim.” Id.at ––––, 790 S.E.2d at 861(Bryant, J., dissenting). Judge Bryant noted, however, that “because our state Supreme Court has mandated that the N.C. Constitution be liberally construed, particularly those provisions which safeguard individual liberties, I would strongly urge the 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.”4Id.at ––––, 790 S.E.2d at 863(citation omitted). Tullyfiled a timely notice of appeal to this Court.
II. Standard of Review
*4We review de novo a trial court’s order granting a motion for judgment on the pleadings under Rule of Civil Procedure 12(c).CommScope Credit Union v. Butler & Burke, LLP, 369 N.C. 48, 51, 790 S.E.2d 657, 659 (2016)(citation omitted). “The party moving for judgment on the pleadings must show that no material issue of fact exists and that he is entitled to judgment as a matter of law.” Daniels v. Montgomery Mut. Ins. Co., 320 N.C. 669, 682, 360 S.E.2d 772, 780 (1987)(citation omitted). In considering a motion for judgment on the pleadings,
“[a]ll well pleaded factual allegations in the nonmoving party’s pleadings are taken as true and all contravening assertions in the movant’s pleadings are taken as false.” As with a motion to dismiss, “[t]he trial court is required to view the facts and permissible inferences in the light most favorable to the nonmoving party.” A Rule 12(c)movant must show that “the complaint ... fails to allege facts sufficient to state a cause of action or admits facts which constitute a complete legal bar” to a cause of action.
III. Analysis
The City contends that Tully’scomplaint failed to plead a viable cause of action under Article I, Section 1of our Constitution, which states in pertinent part that “all persons are ... endowed by their Creator with certain inalienable rights,” including “the enjoyment of the fruits of their own labor.” N.C. Const. art. I, § 1. We acknowledge that application of this constitutional provision in the present context is an issue of first impression. After careful consideration, we conclude that Tullyhas successfully stated a claim under Section 1 of Article Iand affirm the Court of Appeals on that ground.
[t]he civil rights guaranteed by the Declaration of Rights in Article I of our Constitution are individual and personal rights entitled to protection against state action.... The Declaration of Rights was passed by the Constitutional Convention on 17 December 1776, the day before the Constitution itself was adopted, manifesting the primacy of the Declaration in the minds of the framers. The fundamental purpose for its adoption was to provide citizens with protection from the State’s encroachment upon these rights.... The very purpose of the Declaration of Rights is to ensure that the violation of these rights is never permitted by anyone who might be invested under the Constitution with the powers of the State.
330 N.C. 761, 782-83, 413 S.E.2d 276, 289-90(citing State v. Manuel, 20 N.C. 3 & 4 Dev. & Bat. 144 (1838)), cert. denied506 U.S. 985, 113 S.Ct. 493, 121 L.Ed.2d 431 (1992). We also noted in Corumthat “[o]ur Constitution is more detailed and specific than the federal Constitution in the protection of the rights of its citizens” and that “[w]e give our Constitution a liberal interpretation in favor of its citizens with respect to those provisions which were designed to safeguard the liberty and security of the citizens in regard to both person and property.” Id.at 783, 413 S.E.2d at 290(citations omitted). We also explained that this Court “has recognized a direct action under the State Constitution against state officials for violation of rights guaranteed by the Declaration of Rights” when no other state law remedy is available. Id.at 783, 413 S.E.2d at 290(citing Sale v. State Highway & Pub. Works Comm’n, 242 N.C. 612, 89 S.E.2d 290 (1955)); see id.at 783, 413 S.E.2d at 290(“Having no other remedy, our common law guarantees plaintiff a direct action under the State Constitution for alleged violations of his constitutional freedom of speech rights.” (citing Sale, 242 N.C. 612, 89 S.E.2d 290) ); see also Craig v. New Hanover Cty. Bd. of Educ., 363 N.C. 334, 342, 678 S.E.2d 351, 356 (2009)(“[W]hen faced with a plaintiff who had suffered a colorable constitutional injury that could not be redressed through other means, this Court [has] allowed the plaintiff to proceed with his direct constitutional claim because the state law remedy did not apply to the facts alleged by the plaintiff.”); id.at 342, 678 S.E.2d at 357(recognizing “our long-standing emphasis on ensuring redress for every constitutional injury”).
*5This Court has previously recognized claims against government defendants rooted in the right to enjoy the fruits of one’s labor. In State v. Ballance, in which we held that a statute regulating photographers violated Sections 1and 19of Article I, we explained that the “fundamental guaranties” set forth in Sections 1and 19“are very broad in scope, and are intended to secure to each person subject to the jurisdiction of the State extensive individual rights.” 229 N.C. 764, 769, 51 S.E.2d 731, 734 (1949). In State v. Warrenwe observed that
Section 1, Article I, of the Constitution of North Carolinaguarantees to the citizens of the State “the enjoyment of the fruits of their own labor” and declares this an inalienable right.
The basic constitutional principle of personal liberty and freedom embraces the right of the individual to be free to enjoy the faculties with which he has been endowed by his Creator, to live and work where he will, to earn his livelihood by any lawful calling, and to pursue any legitimate business, trade or vocation. This precept emphasizes the dignity, integrity and liberty of the individual, the primary concern of our democracy.
We have also addressed a public employee’s liberty interest in pursuing her chosen profession free from unreasonable actions of her employer. In Presnell v. Pella school employee sued her employer school district and certain administrators for defamation and wrongful termination after, as her complaint alleged, the school’s principal caused her to be fired based upon his false allegation that she had distributed liquor to maintenance contractors on school premises. 298 N.C. 715, 717-18, 260 S.E.2d 611, 613 (1979). Although we held that the plaintiff’s at-will employment status meant that she had no cognizable propertyinterest in continued employment, we explained that her
complaint does however sketch a colorable claim that a constitutionally protected “liberty” interest may be at stake. One of the liberty interests encompassed in the Due Process Clause of the Fourteenth Amendment is the right “to engage in any of the common occupations of life,” unfettered by unreasonable restrictions imposed by actions of the state or its agencies. Meyer v. Nebraska, 262 U.S. 390, 399 [43 S.Ct. 625, 67 L.Ed. 1042] (1923)Truax v. Raich, 239 U.S. 33 [36 S.Ct. 7, 60 L.Ed. 131] (1915). The right of a citizen to live and work where he will is offended when a state agency unfairly imposes some stigma or disability that will itself foreclose the freedom to take advantage of employment opportunities. Board of Regents v. Roth, [ 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)]....
... The liberty interest here implicated—the freedom to seek further employment—was offended not by her dismissal alone, but rather by her dismissal based upon alleged unsupported charges which, left unrefuted, might wrongfully injure her future placement possibilities.
Id. at 724, 260 S.E.2d at 617. We then concluded that the plaintiff’s opportunity to avail herself of a post-termination administrative hearing that could be appealed to Superior Court provided her with sufficient procedural due process to safeguard her liberty interest. Id.at 725, 260 S.E.2d at 617.5
 
More recently, in King v. Town of Chapel Hill, which concerned a tow truck company’s challenge to a local towing ordinance, we explained that “[t]his Court’s duty to protect fundamental rights includes preventing arbitrary government actions that interfere with the right to the fruits of one’s own labor.” 367 N.C. 400, 408-09, 758 S.E.2d 364, 371 (2014)(first citing N.C. Const. art. I, § 1; then citing Roller v. Allen, 245 N.C. 516, 525, 96 S.E.2d 851, 859 (1957)).
*6The City here correctly notes that cases involving the right to pursue one’s profession free from unreasonable governmental action generally involve the government acting as regulator or sovereign rather than as an employer (with the exception of Presnell). Nevertheless, we are persuaded that Article I, Section 1also 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. We note that other courts have recognized the impropriety of government agencies ignoring their own regulations, albeit in other contexts. See, e.g.United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268, 74 S.Ct. 499, 98 L.Ed. 681, 687 (1954)(concluding that that Board of Immigration Appeals violated petitioner’s due process rights by acting “contrary to existing valid regulations”); United States v. Heffner, 420 F.2d 809, 811-12 (4th Cir. 1969)(“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. This doctrine was announced in [Accardi].... [T]he doctrine’s purpose [is] to prevent the arbitrariness which is inherently characteristic of an agency’s violation of its own procedures.”); see also Farlow v. N.C. State Bd. of Chiropractic Exam’rs, 76 N.C. App. 202, 208, 332 S.E.2d 696, 700(observing that Accardi’ s“rationale is sound”), appeal dismissed and disc. rev. denied314 N.C. 664, 336 S.E.2d 621 (1985).
Here Tullyhas adequately stated a claim under the portion of Article I, Section 1safeguarding the fruits of his labor because, taking all the facts in his complaint as true, he alleges that the City arbitrarily and capriciously denied him the ability to appeal an aspect of the promotional process despite the Policy Manual’s plain statement that “[c]andidates may appeal any portion of the selection process.” Tully’sallegations state that by summarily denying his grievance petition without any reason or rationale other than that the examination answers “were not a grievable item” despite their being a “portion of the selection process,” the City ignored its own established rule.6Tullythen alleges that in so doing, “the City arbitrarily and irrationally deprived [him] of enjoyment of the fruits of his own labor.” Accordingly, we conclude that the City’s actions here implicate Tully’sright under Article I, Section 1to pursue his chosen profession free from actions by his governmental employer that, by their very nature, are unreasonable because they contravene policies specifically promulgated by that employer for the purpose of having a fair promotional process.
This right is not without limitation, however. Based upon our distillation of the admittedly sparse authority in this area of the law, we hold that to state a direct constitutional claim grounded in this unique right under the North Carolina Constitution, a public employee must show that no other state law remedy is available and plead facts establishing three elements: (1) a clear, established rule or policy existed regarding the employment promotional process that furthered a legitimate governmental interest; (2) the employer violated that policy; and (3) the plaintiff was injured as a result of that violation. If a public employee alleges these elements, he has adequately stated a claim that his employer unconstitutionally burdened his right to the enjoyment of the fruits of his labor.
Here the Policy Manual set forth clear rules specifying that “[c]andidates may appeal any portion of the selection process” and examination “instruments used shall have demonstrated content and criterion validity.”7These rules serve the legitimate governmental interest of providing a fair procedure that ensures qualified candidates move to the next stage of the promotional process. The Policy Manual itself explains that “[i]t is the objective of the City of Wilmington to provide equal promotional opportunities to all members of the Police Department based on a candidate’s merit, skills, knowledge, and abilities.” Second, in his complaint Tullyalleges facts showing that the City violated the above rules by arbitrarily denying his appeal challenging inaccurate official examination answers. Third, Tullyhas sufficiently alleged an injury in that the City’s arbitrary denial of his appeal meant that, if proven, the examination defects—and his flawed test score resulting from those defects—were never addressed. Tully’sallegations show that the City’s actions injured him by denying him a fair opportunity to proceed to the next stage of the competitive promotional process, thereby “unfairly impos[ing] [a] stigma or disability that will itself foreclose the freedom to take advantage of employment opportunities.” Presnell, 298 N.C. at 724, 260 S.E.2d at 617(citation omitted).
*7At this stage we express no opinion on the ultimate viability of Tully’sclaim. Accordingly, we need not speculate regarding whether Tullywould likely have received the promotion had the Police Department followed its own policy. Similarly, we need not address the remedy to which Tullywould be entitled if he ultimately succeeds in proving his claim. As we explained in Corum,
[w]hat that remedy will require, if plaintiff is successful at trial, will depend upon the facts of the case developed at trial. It will be a matter for the trial judge to craft the necessary relief. As the evidence in this case is not fully developed at this stage of the proceedings, it would be inappropriate for this Court to attempt to establish the redress recoverable in the event plaintiff is successful....
The City also contends that the Court of Appeals majority erred in allowing Tully’sclaim under Article I, Section 19to proceed. The law of the land clause of that provision states that “[n]o person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land.” N.C. Const. art. I, § 19. As we explained in Ballance, “ ‘law of the land’ is synonymous with ‘due process of law,’ a phrase appearing in the Federal Constitution and the organic law of many states.” 229 N.C. at 769, 51 S.E.2d at 734(citing, inter aliaYancey v. N.C. State Highway & Pub. Works Comm’n, 222 N.C. 106, 22 S.E.2d 256 (1942)). “In analyzing a due process claim, we first need to determine whether a constitutionally protected property interest exists. To demonstrate a property interest under the [Constitution], a party must show more than a mere expectation; he must have a legitimate claim of entitlement.” McDonald’s Corp. v. Dwyer, 338 N.C. 445, 447, 450 S.E.2d 888, 890 (1994)(citation omitted).
Tully’scomplaint specifically asserted that his Article I, Section 19claim was based upon a “property interest in his employment with the City of Wilmington” and that “[b]y denying [his] promotion due to his answers on the Sergeant’s test and then determining that such a reason was not grievable, the City arbitrarily and irrationally deprived [him] of property in violation of the law of the land.”
We have previously explained that a property interest in employment “can arise from or be created by statute, ordinance, or express or implied contract, the scope of which must be determined with reference to state law,” Presnell, 298 N.C. at 723, 260 S.E.2d at 616(citations omitted), and that “[n]othing else appearing, an employment contract in North Carolina is terminable at the will of either party,” id. at 723-24, 260 S.E.2d at 616(citation omitted). Moreover, “[t]he fact that plaintiff was employed by a political subdivision of the state does not itself entitle her to tenure, nor does the mere longevity of her prior service.” Id. at 724, 260 S.E.2d at 616.
We are aware of no authority recognizing a property interest in a promotion, and Tullyconcedes in his brief to this Court that no such property interest exists here. Accordingly, we conclude that the trial court correctly granted the City’s motion to dismiss Tully’sArticle I, Section 19claim because no property interest is implicated here. On this issue we reverse the Court of Appeals.
IV. Conclusion
*8Taking all of Tully’sallegations in the light most favorable to him, as we must at the pleading stage, we hold that Tullyhas alleged a claim for the deprivation of his right to the enjoyment of the fruits of his labor under Article I, Section 1 of the North Carolina Constitution. “As this case moves forward to summary judgment or trial, plaintiff will have to prove that his allegations are true” and that his constitutional rights were indeed violated. Turner v. Thomas, 369 N.C. 419, 429, 794 S.E.2d 439, 447 (2016)see also Harwood v. Johnson, 326 N.C. 231, 241, 388 S.E.2d 439, 445 (1990)(concluding that although “the complaint is sufficient to withstand a motion to dismiss[,] [i]t remains to be determined, upon summary judgment, or at trial, whether plaintiff can forecast or prove” that the defendants violated his constitutional rights).
Accordingly, we affirm the Court of Appeals’ holding that the trial court erred in dismissing Tully’sclaim arising under Article I, Section 1. We reverse the portion of the Court of Appeals decision concluding that Tullystated a valid claim under Article I, Section 19. This case is remanded to the Court of Appeals for further remand to the trial court for additional proceedings not inconsistent with this opinion.

 

AFFIRMED IN PART; REVERSED IN PART; REMANDED.
 
All Citations
--- S.E.2d ----, 2018 WL 1124796

 

Footnotes
 
1
 
Pursuant to the Policy Manual, “[t]hose candidates competing for the position of Sergeant must score in the top 50 percentile of those taking the written examination in order to advance to the next phase of the promotional process.” Police Department, City of Wilmington, Policy Manual, Directive 4.11, ¶ III(B)(1)(d)(2), at 3 (rev. July 25, 2011). The Policy Manual also specifies that “[t]he top 1/3 of candidates whom complete all specified phases [of the promotional process] will be placed on the eligibility lists for promotions.” Id. ¶ III(A)(2)(e), at 2. After conducting interviews, the Chief of Police may then pick a candidate from the top third list or may, after notifying all of those candidates that they will not be promoted, select a candidate in the second third. Id.Because Tully relied upon the Policy Manual in his complaint and the City attached it to its answer, the document may be considered at the motion for judgment on the pleadings stage. See Bigelow v. Town of Chapel Hill, 227 N.C. App. 1, 4, 745 S.E.2d 316, 319-20(“[A] document attached to the moving party’s pleading may ... be considered in connection with a Rule 12(c) motion [if] the non-moving party has made admissions regarding the document.” (first alteration in original) (quoting Weaver v. Saint Joseph of the Pines, Inc., 187 N.C. App. 198, 205, 652 S.E.2d 701, 708 (2007) ) ), disc. rev. denied367 N.C. 223, 747 S.E.2d 543 (2013).
 
2
 
References to the “Constitution” in this opinion are to North Carolina’s Constitution unless otherwise specified.
 
3
 
The City’s motion did not reference Tully’sspecific claim that the City’s actions deprived him of enjoyment of the fruits of his labor in violation of Article I, Section 1.

 

4
 
We do not base our decision today upon substantive due process or equal protection, which are referenced in the Court of Appeals discussion, but rather squarely base our decision upon the constitutional provision guaranteeing the right to enjoy the fruits of one’s labor. Accordingly, the dissent’s and the City’s reliance upon the United States Supreme Court’s equal protection analysis in Engquist v. Oregon Department of Agriculture, 553 U.S. 591, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008), is inapplicable.
 
5
 
Here, Tullydid not plead a due process claim based on a liberty interest, but only on a property interest. For that reason, we do not express any opinion as to the possible viability of such a claim in this context.
 
6
 
Moreover, the alleged reason for Tully’sgrievance—that the sergeant’s examination contained outdated law—went to the very heart of the Policy Manual’s directive that “[a]ll” examination “instruments used shall have demonstrated content and criterion validity.”
 
7
 

The parties dispute whether these rules are incorporated by reference into the City’s Charter. Tullypoints to language in the “Personnel Policies” portion of the City’s Charter stating that “[u]nless specifically excepted by this act, all other ordinances and policies affecting the employees of the City of Wilmington shall apply to employees under the Civil Service Act.” Wilmington, N.C., Code of Ordinances art. XI, § 11.8. The City observes, however, that the City’s Civil Service Act does not cover promotions within the Police Department and thus cannot incorporate by reference Directive 4.11 as that provision of the Policy Manual concerns promotions. We express no opinion on whether Directive 4.11 stands on the same footing as a duly enacted city ordinance given that the above-described rules are clear and established for purposes of this claim.

 

 


[1]See Judge Robert N. Hunter, The Past as Prologue: Albion Tourgee And The North Carolina Constitution, 5 Elon L. Rev. 89 (2013); Grant Buckner, North Carolina=s Declaration of Rights: Fertile Ground In A Federal Climate, 36 N.C. Cent L. Rev. 145 (2014); McAffee & Quinlar, Bringing Forward the Right to Bear Arms, 75 N.C.L. Rev. 781, 888-889 (1997); Bilionis, On The Significance of Constitutional Spirit, 70 N.C.L. Rev. 1803, 1804 (1992). 

[2]E.g., King v. Town of Chapel Hill, 367 N.C. 400, 758 S.E.2d 364 (2014); Corum v. University of North Carolina, 330 N.C. 761, 783, 413 S.E.2d 276, 290 (1992); Treants v. Onslow County, 83 N.C. App. 345, 354, 380 S.E.2d 365, 371 (1986), aff=d 320 N.C. 776, 360 S.E.2d 783 (1987); State v. Ballance, 229 N.C. 764, 769, 51 S.E.2d 731, 734 (1949); State v. Warren, 252 N.C. 690, 694, 114 S.E.2d 660 (1960); Cody v. Barrett, 200 N.C. 43. 156 S.E. 2d (1930); Jones v. Graham Board of Education, 197 N.C. App. 279, 677 S.E.2d 171 (2009); Dombrowlski v. Wall, 138 N.C. App. 1, 13, 530 S.E.2d 590, 599 (2000); Toomerv. Garrett, 155 N.C. App. 462, 574 S.E.2d 76 (2002);Lewis v. City of Kinston, 127 N.C. App. 150, 488 S.E.2d 274 (1997); Lenzer v. Flaherty, 106 N.C. App. 496, 418 S.E.2d 276 (1992); Whaley v. Lenoir County, 5 N.C. App. 319, 168 S.E.2d 411 (1969).  

 

[3]E.g. Corum v. UNC, 330 N.C. 761, 413 S.E.2d 276 (1992);Treants, supra., State v. Cunningham, 108 N.C. App. 1485, 195-196, 423 S.E.2d 802, 808-809 (1992); State v. Fennell, 95 N.C. App. 140, 143, 382 S.E.2d 231, 232-233 (1989); Lowe v. Tarable, 313 N.C. 460, 461, 462, 329 S.E.2d 649-651 (1985); Martin, supra note 4, at 1750, and other authorities.  

 

[4]See McNeil v. Harnett County, 327 N.C. 552, 563, 398 S.E.2d 475, 481 (1990); Evans v. Cowan, 132 N.C. App., 1, 5-6, 510 S.E.2d 170, 174 (1996), 122 N.C. App. 181, 183, 468 S.E. 2d 575, 577 (1996) aff=345 N.C. 177, 477 S.E.2d 926 (1996) (noting that the North Carolina Constitution may provide greater protections). “Constitutional rights are not lightly cast aside.”Jones v. Graham Board of Education, 197 N.C. App. 279, 295, 677 S.E.2d 171, 182 (2009).  

 

[5]E.g. Toomer v. Garrett, 155 N.C. App. 462, 574 S.E.2d 76 (2002) (recognizing constitutional claims of police officer grounded in equal protection and substantive due process to challenge the arbitrary action of releasing personnel file to media); Treants, 83 N.C. App. 345, 350 S.E.2d 365 (1986), aff=320 N.C. 776, 360 S.E.2d 783 (1987) (Treants I)(finding fundamental right to occupational liberty); Treants, 94 N.C. App. 453, 380 S.E. 2d 602(1989) (Treants II)Howell v. Town of Carolina Beach, 106 N.C. App. 410, 417 S.E. 2d 277 (recognizing constitutional claims grounded in liberty, expression and due process arising from termination of police officer employee for having reported malfunctioning firearms); Lenzer v. Flaherty, 106 N.C. App. 496, 418 S.E.2d 276 (1992)(recognizing constitutional claims to challenge retaliation from whistleblowing regarding governmental malfeasance); Lewis v. City of Kinston, 127 N.C. App. 150, 488 S.E.2d 274 (1997) (residency policy declared unconstitutional; equal protection violation)and other cases cited herein. 

 

[6]E.g.Gunter v. Town of Sanford, 186 N.C. 452, 120 S.E. 41 (1923) (explaining how North Carolina Constitution prohibits the arbitrary exercise of the powers of government);State v. Godwin, 216 N.C. 49, 3 S.E.2d 347 (1939) (declaring Open Courts Clause in North Carolina Constitution a fundamental right); In reMartin, 295 N.C. 291, 245 S.E.2d 766 (1978); Henry v. Edmisten, 315 N.C. 474, 340 S.E.2d 720 (1986) (construing Article I, Section 19); Lowe v. Tarble, 313 N.C. 460, 329 S.E.2d 648 (1985) (explaining substantive due process as a guarantee against arbitrary government action),State v. Jones, 53 N.C. App. 466, 281 S.E.2d 91 (1981) aff=d, 305 N.C. 520, 290 S.E2d 675 (1982) (substantive due process requires that police power may be exercised only as it promotes legitimate public health, safety or general welfare).   

 

[7]E.g. NTEU v. Von Raab, 489 U.S. 656 (1989); Chaney v. South, 847 F.2d 718 (11thCir. 1988); Banks v. FAA, 687 F.2d 92, 95 (5thCir. 1982)(testing procedure held to violate due process); Burka v. New York, 739 F. Supp. 814 (S.D.N.Y. 1990)(employee due process interest affected by accuracy of testing); Davitson v. Louisiana, 992 F. Supp. 852 (W.D. La. 1998) (due process violation where test may have been unreliable). Public employee testing cases have presented some of the highest profile constitutional disputes in America. E.g. Regents of the University of California v. Bakke, 438 U.S. 265 (1978); Grotter v. Bollinger, 539 U.S. 306 (2003). 

 

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NCPBA Legislative Chairperson Eva Howard Receives her Advanced Law Enforcement Certificate

April 23, 2018

On February 16th, Eva Howard received her Advanced Law Enforcement Certificate from the NC Criminal Justice Education and Training Standards Commission. The presentation was part of the Commission's regular meeting that was held at the Wake Tech Law Enforcement Training Center in Raleigh. The Advanced Law Enforcement Certificate is awarded to officers for achieving the highest level of excellence through education, professional training, and on-the-job experience.

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