Kristal Ross, CSC Docket No. 2024-2660

BackgroundKristal Ross (PC4278E), Essex County; Terrence Howard (PC4281E), Monmouth County; and Daniel Donovan (PC4282E), Ocean County; appeal the promotional examination for Sheriff’s Officer Sergeant (various jurisdictions). These appeals have been consolidated due to common issues presented by the appellants.

The subject exam was administered on May 23, 2024 via a computer-based testing system and consisted of 80 multiple choice questions.

AnalysisAn independent review of the issues presented under appeal has resulted in the following findings:

Question 22 refers to Gerald W. Garner, Supervising Police Employees in the Twenty-First Century (2019) and asks, based on the information provided by Garner regarding working with a difficult boss, for the statement that is most helpful to remember when dealing with a supervisor you may not like. The keyed response is option c, “You and your supervisor share similarities: you both are working in a challenging law enforcement career and you both have your own worries and problems you’re dealing with.” Ross asserts that option b, “Difficult supervisors have the tendency to get angry with their subordinates over small issues and you shouldn’t take your supervisors outbursts personally,” is the best response. Ross refers to the subject text which “mention[s] multiple times to not take the actions of a difficult boss personally.” Specifically, she presents that Garner states in Chapter 3, “Your Relationship with Your Boss,” under the section, “All Kinds of Bosses,” with respect to “the hot reactor” boss, “try your best to maintain your composure even in the presence of repeated provocations”; “remain courteous and professional, even if his diatribe appears directed at you personally”; “don’t allow your supervisor’s bad behavior to affect your own boss behavior.” Under the section, “Working for a Difficult Boss,” Ross emphasizes that Garner states, “talk it out. Believe it or not, some bad bosses don’t even realize that they are bad bosses”; “choose a time to meet privately with your boss in a quiet moment when he or she is not unusually stressed or pressured for time”; “offer to help”; “you might just earn some gratitude and better boss behavior because of your generosity”; “don’t allow your supervisor’s bad behavior to affect your own boss behavior”; and “by learning more about your boss, his strengths as well as shortcomings, and what you can do to work around his less- desirable characteristics you may be able to improve your current situation to the point of making it acceptable.” In her appeal, Ross narrowly focuses on the portion of option b which provides, “you shouldn’t take your supervisors outbursts personally,” while ignoring the preceding phrase, “Difficult supervisors have the tendency to get angry with their subordinates over small issues . . .” Ross has not provided any information from Garner that supports this phrase. In this regard, it is noted that Garner indicates that “bad boss behavior can show up in almost endless varieties” and is not limited to anger. As such, option b is not the best response. It is noted that Garner provides, in the section, “Working for a Difficult Boss”:

Unusual is individual who honestly can state that he or she has never worked for a difficult boss. Unfortunately, there are more than a few of them out there. Their ‘difficulties’ run the scale, ranging from the simply irritating to the truly vile. And, as already noted, most are not difficult all of the time. Your challenge is to work with all of them acceptably and productively well without diluting your effectiveness and your ethics as a leader. All the same, it is important to remember that the vast majority of leaders you will encounter in policing are not greatly unlike you. They are trying to do a difficult job to the best of their ability. Like you, they have worries, fears, egos, and internal conflicts. But they are laboring, like you, to be good leaders and important, people-helping cause.

Thus, the question is correct as keyed.

Question 25 refers to Garner, supra, and asks, based on the information provided by Garner regarding your role as a member of the leadership team, for who bests exemplifies a team player. The keyed response is option b, “Lieutenant Tonks is quick to acknowledge the contributions of her fellow supervisors.” Ross maintains that option d, “Sergeant Brink holds her fellow supervisors to a high standard and will pull others aside if she notices their performance slipping,” is the best response. Ross refers Chapter 1, “The Toolbox of a Great Leader,” of the subject text which provides, “don’t lower your expectations of your subordinates if they do not adhere to the same high standards that you do”; “you want to bring your team members up to your standards if theirs happens to be lower than your own”; “do not disrespect them by expecting less than their best.” Ross also refers to Chapter 2, “Your Relationship With Your Crew,” including: “. . . You strive to become a better person and a better leader every day, every shift you work . . . You should require the same devotion to personal improvement from each of your team members. Let them know it”; “An exceptional team knows the mission and shares the drive to accomplish it”; and “praising in public and correcting in private.” Ross contends that “these statements gave me the understanding that the correct answer should be ‘D’ – Be a team player and a good leader by pulling others to the side if their performance is slipping below expectations, essentially correcting them in private. By making team members aware of expectations and personal improvement, this will essentially benefit the entire team and by helping a fellow team member who may not have noticed he/she ‘fell below the line,’ which is an example of an exceptional team player.” The material cited by Ross refers to the relationship between a supervisor and a subordinate rather than the relationship between supervisors. As indicated above, the question focuses on your role as a member of the leadership team, i.e., your relationship with other supervisors. As such, it may not be your role to pull a fellow supervisor aside because they are not meeting your high standards. In Chapter 17, under the section, “Your Role as a Member of the Leadership Team,” Garner provides, “remain humble concerning your role in the group’s work and ultimate work product. Be quick to give credit to your team members. It is alright to play down your own role. Your colleagues know of your contributions. It’s important that others hear from you that it was the team that deserves the credit. That’s being a team player of the first magnitude.” Thus, the question is correct as keyed.

Question 29 Garner, supra, and indicates that Officer Jensen works in the same unit with Officer Lincoln, who constantly complains about everything regarding the department, the staff, duties, and the administration. His constant complaining is beginning to affect Officer Jensen negatively. The next time Officer Lincoln begins complaining, Officer Jensen brings this negativity to his attention. The question asks, based on the information provided by Garner, for the best action for Officer Jensen to take next in this situation. The keyed response is option b, Officer Jensen should “ask Officer Lincoln what he believes may be the source of the problems.” Garner provides:

You as a leader [i.e., as a Sergeant,] will be called upon to stop or otherwise ‘fix’ the unacceptable behavior of the troubling employee . . .

One of your early goals will be to find out, if possible, the cause for the disruptive behavior by one of your organization’s employees . . . The employee himself may be your best source for identifying the root cause of the ‘difficult’ behavior . . . When in conversation you bring the unacceptable behavior to his attention, ask him what he believes is the source of the problem.

Thus, the text indicates that the Sergeant (leader) is responsible for bringing the unacceptable behavior to the difficult employee’s attention and asking about the source of the problem. Although this item specifically refers to and is sourced from Garner, supra, it does not present the question in the same context as provided in the subject text, i.e., from the perspective of a supervisor. In other words, this item does not ask candidates to determine what action they should take as a first level supervisor. As such, the Division of Test Development, Analytics and Administration (TDAA) determined to omit this item from scoring.

Question 52 indicates that an officer in your agency comes to you and states, “Two detectives just record-checked a guy at a location where they are executing a search warrant. I have a National Crime Information Center (NCIC) hit on one subject. The check hit on name only and the date of birth is ten years off. There is no address on the warrant and the physical description is off by four inches and 50 pounds.” The question asks for the best course of action for you to relay to the detectives in the field. The keyed response is option c, “Release the individual but tell him that a person with the same name has an open warrant.” Donovan asserts that option a, “Have the detectives place the individual in temporary custody until further investigation can be conducted to confirm if he is indeed the person wanted in the NCIC response,” is the best response. In this regard, Donovan argues that “the question states that the date of birth is off by ten years, but not that the month or [day] are incorrect.” He maintains that “an exact difference of ten years could reasonably be the result of typographical error being that it can be due to one wrong key stroke, for example if someone entered a subject’s birth year in the system as 1987 instead of 1997 . . . The height and weight provided on the NCIC return being wrong could be due to a number of factors. The four-inch height difference could be due to a mistake made by a victim or witness when reporting the height of the accused. It is possible that the subject may have lost or gained a significant amount of weight since the issuing of the warrant.” He notes that the question does not indicate whether the NCIC return included “other information such as social security number, driver’s license number, FBI number or SBI number. Such information would be tremendously helpful in determining whether the subject on the scene is the wanted individual from the NCIC return. Further information about the warrant could be obtained fairly quickly by directly contacting the originating agency. This could be accomplished by getting more officers to the scene to allow the detectives on scene to make the necessary inquiries or by the watch commander him or herself doing so. The male on scene should be detained for only as long as is reasonably necessary to determine whether additional information can be obtained to indicate that he is or is not the wanted person from the NCIC return.” It is noted that TDAA contacted Subject Matter Experts (SMEs) regarding this matter who indicated that the differences in the birth dates as well as the height and weight are sufficient to conclude that this is not the correct individual. They added that it would be highly unlikely that there would be three errors, such as indicated in the stem, in the same record. With respect to option a, the SMEs indicated that probable cause does not exist to place the individual in custody. As such, option c is the best response.

Question 55 indicates that Lieutenant Daniels has issued a new directive to change the way overtime is distributed. You are a sergeant, who generally is the person scheduling overtime, and officers have been complaining to you about the new directive and are no longer volunteering for overtime because of it. The question asks what you should do first. The keyed response is option d, “Meet with Lieutenant Daniels to advise her of the issues and see if she would be amenable to modifying the directive she issued.” Howard and Ross argue that option a, “Brainstorm a plan to fix the directive and present it to Lieutenant Daniels,” is the best response. Specifically, Howard presents that “brainstorming a plan and presenting it is more effective because it is a proactive approach to problem solving. Brainstorming a plan not only identif[ies] problems but create[s] potential solutions which demonstrates initiative and resourcefulness . . . I feel as though the keyed response only echoes the complaints of the officers.” Ross refers to the text, under the section, “What Your Boss Expects,” which states, “You should be prepared to back up your requests with solid evidence of why you need whatever it is you are requesting . . . but they must be backed up with something tangible whenever possible” and “your boss has neither the time nor the desire to do your job in addition to their own; assist with tough tasks; volunteer to handle some of that work for your boss will boost your stock with him or her . . .” It is noted that TDAA contacted SMEs regarding this matter who indicated that either of these options would be appropriate as the first action in this situation. Accordingly, TDAA determined to double key this item to both option a and option d prior to the lists being issued.

Question 60 indicates that Officer Young and Officer Perez had a falling out. Officer Young has come to you to advise you that he does not want to be assigned with Officer Perez. Candidates are presented with three statements and asks, “as a sergeant, what is the BEST response?” The keyed response is option d, I, “Advise the officers that personality differences should not affect your work and they will have to work together”; II, “Take time to speak to Officers Young and Perez to find out what the problem is”; and III, “If need be, sit with both officers to come up with a solution to allow them to work together.” It is noted that the question stem does not indicate the reason for the falling out, e.g., whether it was due to personal or professional differences, or that these two officers are required to work together. Under these circumstances, statement I is not clearly correct. Given this, TDAA determined to rekey this item to option c, II and III, only, prior to the lists being issued.

Question 63 indicates that Officer Peters is confused over the new changes in Title 2C with regard to a law enforcement officer’s ability to carry a firearm with a large capacity ammunition magazine. The new law provides that it is a crime of the fourth degree for any person to knowingly possess a large capacity ammunition magazine, which one is capable of holding more than 10 rounds of ammunition.

Candidates are presented with four statements and the question asks, according to N.J.S.A. 2C:39-3, for the true statement(s).1 The keyed response, option d, includes statement III, Law enforcement officers “while off duty may possess and carry a magazine capable of holding more than 17 rounds, provided it is used with the officer’s service firearm issued by the officer’s department.” Ross indicates that N.J.S.A. 2C:39-3g(1)(c) provides, in part, that “a law enforcement officer who possesses and carries while off duty, a large capacity ammunition magazine capable of holding more than 17 rounds of ammunition that can be fed continuously and directly into a semi-automatic firearm issued to the officer by the officers employer for use in the officer’s official duties” (emphasis added). She argues that since statement III does not indicate “for use in the officer’s official duties,” it is incorrect. It is noted that TDAA contacted SMEs regarding this matter who indicated that statement III clearly indicates that it involves “the officer’s service firearm issued by the officer’s department” which means that the firearm is for use in the officer’s official duties. In this regard, Ross has not provided any information that would indicate circumstances under which a department would issue a service firearm to an officer not for use in the officer’s official duties. As such, the question is correct as keyed.

Rule1 N.J.S.A. 2C:39-3 provides, in pertinent part:

g. Exceptions.

(1)

Analysis(a) Nothing in subsection a., b., c., d., e., f., j. or k. of this section shall apply to any member of the Armed Forces of the United States or the National Guard, or except as otherwise provided, to any law enforcement officer while actually on duty or traveling to or from an authorized place of duty, provided that his possession of the prohibited weapon or device has been duly authorized under the applicable laws, regulations or military or law enforcement orders.

(b) Nothing in subsection j. of this section shall apply to a law enforcement officer who possesses and carries while off-duty a large capacity ammunition magazine capable of holding not more than 17 rounds of ammunition that can be fed continuously and directly into a semi-automatic firearm.

(c) Notwithstanding subparagraph (b) of this paragraph, subsection j. of this section shall not apply to a law enforcement officer who possesses and carries while off-duty a large capacity ammunition magazine capable of holding more than 17 rounds of ammunition that can be fed continuously and directly into a semi-automatic firearm provided the large capacity ammunition magazine is used with a service firearm issued to the officer by the officer’s employer for use in the officer’s official duties.

(d) Nothing in subsection h. of this section shall apply to any law enforcement officer who is exempted from the provisions of that subsection by the Attorney General. Nothing in this section shall apply to the possession of any weapon or device by a law enforcement officer who has confiscated, seized or otherwise taken possession of said weapon or device as evidence of the commission of a crime or because he believed it to be possessed illegally by the person from whom it was taken, provided that said law enforcement officer promptly notifies his superiors of his possession of such prohibited weapon or device.

Question 79 asks, according to the New Jersey Attorney General Guidelines on Protocols for Pregnant Officers (August 25, 2022), for the incorrect statement. The keyed response is option a, “Approved lactation breaks should not be interrupted under any circumstances.”2 Ross argues that option b, “A pregnant officer may choose to not participate in a firearms qualification program until the officer is cleared for full-duty status post-pregnancy,” is equally incorrect.3 In this regard, Ross notes that the “the most integral aspect of this guideline is what is described as an ‘Interactive Process,’ which is a dialogue between the agency and the pregnant officer. The guideline states multiple times throughout this directive that the officer has the option to REQUEST reasonable accommodation.” She further notes that the guidelines provide that “a pregnant officer may choose to request an accommodation regarding firearms qualification, including to not participate in a firearms qualification program until the officer is cleared for full-duty status post-pregnancy.” She maintains that “by excluding the component of this guideline to request [an] accommodation, leads [to] the assumption that a pregnant officer may simply just ‘choose’ to not participate in firearms qualifications, without any form of dialogue with the agency, which is incorrect. The pregnant officer has to request accommodation, and go through the interactive process prior to any approved accommodation.” The Attorney General Guidelines on Protocols Regarding Pregnant Officers provide, in pertinent part, under the section “General principles,” “Pregnant officers should make accommodation requests through established state [LAD] and federal [ADA] processes with the agency’s human resources unit. Agency and officer should then engage in an interactive process regarding the accommodation request.” As noted previously, the guidelines specifically provide that “a pregnant officer may choose to request an accommodation regarding firearms qualification, including

2 The guidelines provide, under the section, “Return to work,” in pertinent part:

Lactation breaks. Per the LAD (N.J.S.A. 10:5-12(s)), reasonable break times shall be permitted for officers after pregnancy to express milk, unless the agency demonstrates the accommodation would pose an undue hardship.

1. Approved breaks should not be interrupted except in emergent circumstances.

2. Per the LAD, agencies shall make available a suitable private room or other private location for lactation, other than a toilet stall, in close proximity to the work area.

3 The guidelines provide, under the section, “Firearms qualification,” in pertinent part:

Accommodations. A pregnant officer may choose to request an accommodation regarding firearms qualification, including to not participate in a firearms qualification program until the officer is cleared for full-duty status post-pregnancy. Pregnant officers who fail to complete a firearms qualification test during the mandatory firearms qualification period shall be treated the same as any other officer who has not qualified.

If a pregnant officer requests an accommodation regarding wearing their firearm, the agency and officer should engage in an interactive process and communicate to determine whether a reasonable accommodation(s) is available under applicable law.

Agencies may not revoke firearms privileges solely because an officer becomes pregnant.

to not participate in a firearms qualification program until the officer is cleared for full-duty status post-pregnancy” (emphasis added). Absent this qualifying language in option b, i.e., “may choose to request an accommodation,” it appears that a pregnant officer would have the ability to not participate without requesting an accommodation or consulting with the department. Accordingly, TDAA determined to double key this item to option a and option b prior to the lists being issued.

CONCLUSION

A thorough review of appellants’ submissions and the test materials reveals that the appellants’ examination scores are amply supported by the record, and the appellants have failed to meet their 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.