A Warning to Public Agencies: Follow Your Rules!
An October 5, 2021 decision from the North Carolina Court of Appeals in Mole v. City of Durham serves as a warning to all public agencies: follow your own rules, or risk being sued for violation of the North Carolina Constitution. Now, more than ever, it is critical for public agencies to be aware of a unique provision of the North Carolina Constitution which allows state employees to sue their employers for violations of their right to enjoy the “fruits of their labor.”
On June 28, 2016, Sergeant Michael Mole was dispatched to negotiate the surrender of Julius Smoot after he had barricaded himself in an upstairs bedroom while avoiding arrest. This was Sergeant Mole’s first attempt at negotiating the surrender of an armed suspect without another negotiator backing him up. It was Sergeant Mole’s goal to keep Mr. Smoot alive for as long as possible. During the tense negotiations, Mr. Smoot accidently discharged his firearm. Despite these gunshots, Sergeant Mole continued negotiating with Mr. Smoot for approximately two hours.
At one point during negotiations, Mr. Smoot stated that he planned to smoke a blunt — a marijuana cigarette. Sergeant Mole was reluctant to allow an armed suspect to impair his mental state, and instead promised Mr. Smoot that if he disarmed and peacefully surrendered, he would be allowed to smoke the blunt. Mr. Smoot agreed, dropped his gun, handcuffed himself, and surrendered to Sergeant Mole. Sergeant Mole held up his end of the bargain and allowed Mr. Smoot to smoke a blunt.
The Durham Police Department launched an internal investigation of Sergeant Mole’s actions following Smoot’s peaceful surrender. Approximately four months after the incident, Sergeant Mole was informed that a pre-disciplinary hearing would take place the next day, despite Durham’s written policy requiring advance notice of at least three days. Following the hearing, Sergeant Mole’s immediate supervisors recommended that he be reprimanded. But Durham terminated him.
North Carolina’s constitution contains a provision that is unique amongst state constitutions, and which has no counterpart in the Constitution of the United States. Pursuant to Article I, Section I of the North Carolina Constitution, all North Carolina citizens have the right to the “enjoyment of the fruits of their own labor.” This provision was added in 1868, the same year that North Carolina ratified the Fourteenth Amendment, at a time when formerly enslaved persons were newly able to work for their own benefit. North Carolina Courts have been largely silent on the “fruits of labor” clause until recently.
In 2018, in Tully v. City of Wilmington, the Supreme Court of North Carolina recognized a “fruits of labor” claim in the public employment context for the first time. There, the Supreme Court held that a municipal police department violated a public employee’s constitutional right to enjoy the fruits of his own labor when it failed to follow its own promotion procedures. In that case, the Supreme Court set forth the following elements of a “fruits of labor” claim:
[T]o 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 … that furthered a legitimate governmental interest; (2) the employer violated that policy; and (3) the plaintiff was injured as a result of that violation.
When a public agency publishes rules and regulations governing its employees, it must follow them. In Tully, the North Carolina Supreme Court, borrowing from its federal counterpart, explained that the failure of a public agency to follow its own rules, regulations, and procedures is inherently arbitrary and capricious. A state actor cannot pick and choose which of its own rules it will follow.
The Court of Appeals applied the reasoning found in Tully to Sergeant Mole’s termination. Sergeant Mole alleged that the City of Durham had a clear procedure that required a minimum of 72 hours’ notice before a pre-disciplinary hearing. This policy advanced a legitimate government interest in treating employees fairly. In providing Sergeant Mole less than 24 hours’ notice, the City of Durham violated that policy. As a result of that policy violation, Sergeant Mole was deprived of more than 48 hours to prepare a more comprehensive response to the City of Durham’s allegations of misconduct. This violation, the Court of Appeals determined, was sufficient for Sergeant Mole to state a claim under North Carolina’s “fruits of labor” clause.
Critically, the Court of Appeals found that the protections of the “fruits of labor” clause extends even to state employees with an at-will employment relationship, such as Sergeant Mole. The Court of Appeals did not hold that the City of Durham could not have terminated Sergeant Mole for his conduct, or that Durham could not have terminated Sergeant Mole without cause. Instead, the Court reaffirmed the simple notion that a public agency must follow its own rules.
But do not be fooled: the “fruits of labor” clause will not only apply in law enforcement contexts. To the contrary, the Mole and Tully decisions indicate that North Carolina courts will likely interpret the “fruits of labor clause” to apply in any situation where a public agency violates its own policies and procedures. North Carolina courts appear keen on expanding the state’s unique “fruits of labor” protections to new areas.
To all public agencies, especially those agencies which have pre-disciplinary or promotional procedures: be warned. While the remedy for a violation of the “fruits of labor” clause is not clear, employees filing these lawsuits often seek backpay, reinstatement, promotion, and occasionally punitive damages. Refresh your employees on the requirements of internal policies and procedures, and ensure that all rules are being followed.