Raleigh police ask state’s top court to review dispute over ‘stand-by pay’

More than three dozen Raleigh police officers are urging the North Carolina Supreme Court to review a legal dispute involving “stand-by pay.” A unanimous state Appeals Court panel ruled against the officers in November.

Officers in the city’s selective enforcement and homicide units claimed that they had been passed over for the extra pay. A trial judge disagreed last year and ruled in favor of the city. The appellate panel upheld the trial court’s decision.

In a petition filed Tuesday, lawyers for the Raleigh police officers ask the state Supreme Court to consider “Whether the City of Raleigh violated the Petitioners’ constitutional rights under the fruits of their own labor clause in Article I, Section 1 of the North Carolina State Constitution when the City failed to follow its own procedures and its own pay classification policy for stand by pay adopted by the Raleigh City Council, by requiring the Petitioners to perform stand by duty without stand by pay in their positions on the SWAT and homicide units in the Raleigh Police Department.”

The document also asks North Carolina’s high court to address “Whether the City of Raleigh violated the Petitioners’ constitutional rights under the Equal Protection Clause of Article I, Section 19 of the North Carolina State Constitution when the City failed to follow its own pay classifications set forth in its stand by pay policy and were treating the same class of city employees who qualified for stand by pay by the plain language of the policy differently, paying some police department employees stand by pay for the performance of stand by duty and not paying the Petitioners.”

A third question posed in Tuesday’s court filing: “When the Court of Appeals deferred to the City of Raleigh’s interpretation of its own regulations after grievances were filed by these employees did it violate the separation of powers clause of Article I, section 6 of the North Carolina Constitution?”

The Appeals Court ruled on Nov. 7 against the 37 plaintiff officers. “Considering the record as a whole, there is more than a scintilla supporting the existence of a designation and approval process to receive paid stand-by duty that petitioners did not go through,” wrote Appeals Court Judge John Arrowood in an unpublished opinion. Unpublished opinions carry little weight as precedents for future cases. “Accordingly, the decision below was supported by substantial evidence, and it was not arbitrary, capricious, or an abuse of discretion to deny stand-by pay to SEU and Homicide.”

Arrowood also rejected the police officers’ claims that the city violated their constitutional rights by awarding stand-by pay to some officers and not others. He backed arguments from the city, which is labeled the “respondent” in the case.

“Here, respondent cites maintaining fiscal responsibility as a basis for distinguishing between paid stand-by and unpaid stand-by duty,” Arrowood wrote. “Respondent is charged with operating all aspects of governance, including paying its employees and keeping a balanced budget. Certainly, specifically designating and approving only certain positions for stand-by pay allows respondent to compensate these positions within the scope of its fiscal responsibilities, and this process is rationally related to their interest in maintaining a balanced budget. Therefore, respondent did not violate petitioners’ equal protection rights in distinguishing between groups of employees that receive stand-by pay.”

Judges Chris Dillon and Michael Stading joined Arrowood’s opinion.

The officers initially filed grievances in the pay dispute in July 2017. They took their case to court in 2021. A trial judge ruled against them in September 2022.

A 2018 change in city policy expanded stand-by pay to additional officers. The ongoing legal action applies only to officers’ service prior to that change.

The dispute involves a city policy titled SOP 300-7, adopted in 1985. Section 4.0 of that policy says Raleigh will pay “designated personnel for being on stand-by duty,” according to a Raleigh brief filed in July. The policy requires a specific procedure involving the department head and the city manager.

“Historically, only a small number of positions have been designated and approved to receive Stand-By Pay: Evidence Specialist, Animal Control Officer, Detective Sergeant, and the on call Internal Affairs Unit Sergeant,” city lawyers wrote. “These positions were designated and approved to receive Stand-By Pay because the Police Chief recognized a need to have an individual responsible for returning to work if a need for their specialized services arose.”

Other police officers face a different set of rules, according to Raleigh’s brief. “Positions that receive Stand-By Pay and those positions that are ‘on-call’ or ‘stand-by’ without receiving the pay are different in a number of respects. Being ‘on-call’ or on unpaid ‘stand-by duty’ is more like being on a ‘first to call’ list.”

“Unlike other positions who were placed on a ‘first to call list,’ individuals in these designated and approved positions were subject to disciplinary action if they did not return to duty when required,” the brief explained. “Individuals who are not receiving Stand-By Pay are free to travel to the beach and mountains and were not subjecting to discipline if they failed to respond to a call.”

The legal action stemmed from a March 2017 incident involving an evidence technician on stand-by duty who failed to respond promptly to calls. A series of follow-up departmental memos raised questions about whether members of the police selective enforcement and homicide units should get stand-by pay. Both units won approval for stand-by pay in 2018.

“Petitioners did not proffer any evidence showing that prior to 1 July 2018, SEU and Homicide had been designated and approved to receive Stand-By Pay pursuant to the procedures mandated by SOP 300-7,” according to the Raleigh brief. “Specifically, Petitioners did not produce any evidence that the Department Head, Chief of Police [Cassandra] Deck-Brown, who had been the Department Head since 2013, or any other police chief prior to her tenure, had ever made a request to the City Manager for approval of Stand-By Pay for SEU or Homicide. Instead, Petitioners continued to argue in a circular fashion that because they were assigned stand-by duty, they were entitled to Stand-By Pay.”

“The fundamental issue in this case is whether performance of stand-by duty entitles Petitioners to Stand-By Pay under SOP 300-7. The answer to this question is no,” city lawyers argued. “Here, the Trial Court correctly determined Petitioners were not entitled to Stand-By Pay simply because they performed stand-by duty.”

In their own brief, filed in May, the officers argued that their roles entitled them to back stand-by pay. “Though assigned to and performing stand-by duty for years as sworn officers in the police department, these Petitioners, as city employees, were never paid the eight hours of stand-by pay for weeks they were on call as provided for in City Policy 300-7 until July 1, 2018, when the city began paying them stand-by pay during the litigation.”

The police plaintiffs argued that Raleigh violated its own policies. “The ruling by the trial court concluding that Petitioners, as city employees, could be required to perform stand-by duties without stand-by pay and allows the City of Raleigh to decline to pay some city employees placed on stand-by duty is erroneous as a matter of law,” police officers’ lawyers’ wrote. “The policy clearly states that employees approved to perform stand-by duty, assigned and performing stand-by duty ‘shall’ be paid the eight hours of pay for each week of such duty.”

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