WILMINGTON, NC (WWAY) — North Carolina’s Supreme Court has sided with a Wilmington Police officer in his fight against the city over a failed test seven years ago.
Kevin Tully claims he failed a 2011 promotional test because the questions were outdated. The city would not let him challenge the test questions, so he sued the city for failing to follow its own procedures.
In 2015 a judge dismissed the case, but in 2016, a North Carolina Appeals Court panel ruled he can sue. The city appealed that ruling to the NC Supreme Court.
In a ruling filed today, the Supreme Court agreed with the appeals court decision reversing the dismissal of his claim, because, justices ruled, Tully adequately stated a claim that the city violated his rights under the North Carolina Constitution.
Police Benevolent Association attorney J. Michael McGuinness said today’s ruling opens a new constitutional door for police officers.
“Today our Supreme Court gave new hope for our police community and public safety – with a sweeping unanimous decision repudiating the City of Wilmington’s outrageous abuse of its police officers,” McGuinness said in an e-mail to WWAY. “Kevin Tully bravely stood up to Wilmington’s bizarre conduct in refusing to honor its own promotional policy. The Court recognized a new type of constitutional precedent for police officers. The Supreme Court sent Wilmington a powerful message to obey the law and comply with its own policies.”
Neither a city spokeswoman nor a WPD spokeswoman have yet to reply to WWAY’s request for comment on the case.
Tully joined WPD in 2000. The department promoted him to corporal in 2007. He was named Wilmington Police Officer of the Year in 2011. That same year he tried for a promotion to sergeant, but he failed the written exam. Tully said he based his answers on the law at the time. He said when he got a copy of the exam answers, he found they were based on outdated law.
Tully filed a grievance with the city, but in early 2012, City Manager Sterling Cheatham sent Tully a letter that said “the test answers were not a grievable item.” A supervisor told Tully “[e]ven if you are correct, there’s nothing that can be done,” according to court filings.
In his lawsuit Tully argued that the city’s decision violated its own policies, including one that called for WPD 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.” That policy also requires the test criteria be valid and that employees “may appeal any portion of the selection process.”
In December 2014, Tully sued the city in New Hanover County Superior Court claiming he never had a true opportunity to grieve his denial of promotion based on the test answers. His suit claimed the city violated his constitutional property rights, but Judge Gary Trawick granted the city’s motion to dismiss the case based on an argument that Tully did not have a property interest that supported his claims.
Tully appealed to the NC Court of Appeals, which in 2016 issued a divided opinion reversing Trawick’s decision. The Appeals Court panel agreed with Tully’s argument that the city had failed to follow its own policies and procedures and then decided an employee could not challenge that failure. A dissenting opinion argues against Tully’s challenge because the cases he cited are about the government’s power over citizens and not its employees.
In its ruling, the Supreme Court agreed with Tully and the Appeals Court panel that the city’s actions deprived him from enjoying the fruits of his own labor and violated his constitutional right “to pursue his chosen profession free from actions by his governmental employer.” The Supreme Court, though, did not agree with the Appeals Court ruling that Tully had made a valid property claim.