Matthew Dugan, CSC Docket No. 2022-2491

BackgroundMatthew Dugan appeals his oral score on the promotional examination for Deputy Police Chief (PM4496C), Bayonne. It is noted that the appeallant passed the examination with a final average of 77.940 and ranks fourth on the resultant eligible list.

The subject promotional examination was held on December 15, 2021. It is noted for the record that this was an oral examination consisting of four questions, relating to Police Administration, Police Management, Criminal Law, and Leadership/Supervision. The examination content was based on a comprehensive job analysis. Senior command personnel from police departments, called Subject Matter Experts (SMEs), helped determine acceptable responses based upon the stimulus material presented to the candidates. In each question, candidates were presented questions, or with a scenario and had to respond to a series of questions about the scenario.

Performances were recorded and scored by SMEs. Each question, and overall oral communication, was rated on a five-point scale, with 5 as the optimal response, 4 as a more than acceptable passing response, 3 as a minimally acceptable passing response, 2 as a less than acceptable response, and 1 as a much less than acceptable response. The appellant received a score of 3 for Police Administration, 2 for Police Management, 5 for Criminal Law, 1 for Leadership/Supervision, and a 5 for oral communication. On appeal, the appellant disagrees with his scores for Police Management and for Leadership/Supervision.

CONCLUSION

The Police Management question pertained to a scenario of an officer selling police property. An anonymous letter alerts the candidate to the possibility of the department property officer selling items from the property room on Facebook marketplace from his wife’s account. The County Prosecutor has directed that you have the Internal Affairs (IA) Division investigate. The question asked for actions to take, or ensure that are taken, to the allegations against the property officer. The assessor indicated that the candidate missed opportunities to: review any Early Warning signs/intervention reports involving the officer; remove the officer as department property officer and temporarily reassign him; and to ensure that the officer is ordered to surrender any department equipment (e.g., cell phones, laptops, etc.) so that a forensic audit could be conducted.

On appeal, the appellant states that he reviewed the officer’s IA and personnel file back to the selection and hiring process, looked for signs of negligent hiring, retention, training, or supervisory failures, and safeguarded department equipment during the audit. In reply, the appellant’s actions as given on appeal are not the same as those listed by the assessor, and credit is not given for information that is implied or assumed. The Early Warning system is a data-based police management tool designed to identify officers whose behavior is problematic and provide a form of intervention to correct that performance. In his performance, the appellant stated that he would do a critical analysis to see if there were any negligent hiring practices, see if there were past employment problems, check for negligent training or policies and procedures. Candidates are credited for information in the context in which it is given. In this case, this information was in regard to a critical analysis of the issue, not a review of any Early Warning signs/intervention reports involving the officer. The appellant mentioned supervisory failure when he was discussing the property evidence function, the central filing system, and vault. He was comparing reports of impounded inventory to the central filing system, and looking for disparities when he mentioned that maybe this was a supervisory failure. This is not related to reviewing any Early Warning signs/intervention reports involving the officer, or removing the officer as department property officer and temporarily reassigning him. Safeguarding department equipment during an audit is not the same as ensuring that the officer is ordered to surrender any department equipment. In any event, the appellant did not state he would safeguard department equipment during an audit. Regarding stolen property, he stated that he would check the police media account to see if he could track the items, and to see if the problem is bigger than expected, such as involving a criminal syndicate. The appellant missed the actions noted by the assessors. A review of his response indicates that his score of 2 is correct.

The Leadership/Supervision question concerned a social media post from a retired police captain accusing several police officers of damaging the front door of a rental property that he owns in their attempt to forcibly enter the residence. A video shows a police officer and a police sergeant standing nearby as a third police officer repeatedly kicks the door until it shatters, and a fourth person stands behind the officers. The retired captain demands a response and $5,000 in reparations, and the officer who kicked the door states that he did his job. Other individuals respond angrily, accusing the officer of committing an illegal search and requesting that he and the Police Chief be fired. A search of CAD reveals that the officers were sent to the rental property on a welfare check, but they did not complete any reports, and that several past incidents of welfare checks have resulted in damage. The question asked for actions to take, or ensure are being taken, in response to this social media post and the officers’ actions during welfare checks. The assessor indicated that the candidate missed opportunities to: speak to the police sergeant’s supervisor, a police lieutenant, to request that each officer complete a report; ensure attempts were made to identify the person standing behind the officers in the video; conduct a department-wide training and refresh personal use of social media and agency policy; and request a CAD audit and determine how often officers were responding to calls for service and not completing a follow-up report.

On appeal, the appellant argues that he did not have to request reports from the officers due to the serious nature of the incident, and this action would taint a criminal investigation and make the statement inadmissible. He states that he suggested a bifurcated investigation, administrative and criminal, or an investigation separated by time. He states that he suggested the need for Miranda and Garrity warnings; reviewed bodycam video and other surveillance video; investigated CAD reports, activity reports and supervisory booking sheets; reviewed past incidents involving the officers; uncovered associations between these officers and the officer who kicked the door; garnered all completed CAD reports; and incorporated the contents of The Six Pillars of 21st century policing, specifically, pillar 3 and how social media can have positive effects within the department; and stressed the need for training (pillar 5).

In reply, as noted above, SMEs helped determine acceptable responses based upon the stimulus material presented to the candidates. The appellant disagrees with the SMEs regarding speaking to the police sergeant’s supervisor, a police lieutenant, to request that each officer complete a report. Nonetheless, he did not state this in his presentation, but only on appeal. In his presentation, the appellant acknowledged that the officers did not file reports, but then spoke about watching body worn camera footage to see what occurred prior and after entry. Without the appellant verbalizing this issue, it is unknown if he considered that each officer should complete a report or should not complete a report. As is stands, the appellant’s argument is simply a justification of why he did not mention this action, which is in direct opposition to what the SMEs determined was necessary for proper leadership and supervision. The appellant notified IA and the County Prosecutor, and then, other than reviewing prior reports, failed to take further supervisory steps regarding these officers. Rather, he dealt with the retired police captain and the community. The appellant took investigative steps to find the association between the officers, and between the officers and the retired captain, but he took no further supervisory actions such as those listed by the assessor.

The appellant provided a lengthy description of types of searches, community outreach, and the “six pillars” of policing. This information was not a direct response to the retired captain’s social media post and the officers’ actions during welfare checks. Rather, it contained theoretical material that was not specific to the social media post or the actions of officers during welfare checks. For example, he stated, “We’re looking at our technology and our social media is, in the modern times, that it’s a, used as a means to reach out to the community, and unfortunately, in a situation like this, it’s being used by the community to reach out to us to report a situation that we have in our department, which can also be seen as a positive. In addition, the pillars also deal with community relations and crime prevention. They also deal with training and education, which we very well may have a failure here, and would also have a failure in our community outreach efforts, and it’s not the way we are looking to eradicate crime. And finally, officer wellness and health. And we need to address all these issues with the community and ensure that we don’t ever have an instance like this and it’s fully and completely investigated.” Credit is not given for buzzwords, but only for what is communicated in context. Merely mentioning that there may be a failure in training is not the same as conducting a department-wide training and refreshing personal use of social media and agency policy. The candidate is the supervisor of these officers, and the other officers in the department, and is responsible for taking action to ensure, if proper training is needed, that it is initiated. The appellant missed the actions noted by the assessor. His score of 1 is correct.

A thorough review of appellant’s submissions and the test materials indicates that the appellant’s test score is amply supported by the record, and appellant has failed to meet his burden of proof in this matter.

ORDER

Therefore, it is ordered that this appeal be denied.

ClosingThis is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.