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Fitness policy has legal concerns

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Posted: Monday, August 10, 2009 12:00 pm | Updated: 8:06 am, Thu Aug 16, 2012.

By Victor O'Brien

Killeen Daily Herald

The Killeen police's fitness standard could put the department on the wrong side of the law. The legal ramification, among other issues, will be reviewed by the Killeen City Council Tuesday.

Two of Bell County's largest law enforcement groups oppose the policy. The groups represent the majority of Killeen police and insist Killeen needs to change the policy.

A legal hurdle

The policy is not only unfair but most likely illegal, said Lou Griffin, Killeen Municipal Police Association secretary,

In 1991, the Texas Supreme Court ruled the Houston Fire Department broke the law when it instituted a job-contingent fitness test.

The ruling stated HFD illegally usurped the Civil Service Act's fitness standard. The ruling decided firefighters could be required to participate in the program, but could not lose their jobs if they failed.

The legality of the policy hinges on requirements for civil service workers, said Randy Doubrava, general counsel with the Texas Municipal Police Association.

Civil service employees can be fired only if a doctor finds them unfit for duty or they violate multiple department standards, he said.

An 'adverse impact'

The policy opens the door for discrimination lawsuits, Doubrava said. The October 2008 results, obtained by the West Bell County Fraternal Order of Police, indicate women and older officers struggled more than younger males, though failures occurred at every age and gender group from 21 to 59.

The plan aims to make officers healthier, not eliminate aging officers, Larry Longwell, assistant police chief, said during the May 2008 test. Doubrava believes the test creates – whether intentional or not – an "adverse impact." Discrimination laws forbid "adverse impact" policies that appear fair on the surface but become unfair when applied.

Discrimination laws also prevent the Killeen Police Department from adjusting the policy for gender or age.

KPD's Physical Readiness/Fitness Manual states that the law requires all officers adhere to the same standard regardless of age or gender because the job requires the same demands for all officers.

An unfit fear

The Addison Police Department near Dallas instituted a fitness test 10 years ago. Addison required officers to pass the test to keep their jobs, receive raises or earn promotions. Soon after, Addison removed job contingency and the Illinois agility run because of injuries, and then required a person only to pass five of six tests.

The agility run injured several Killeen officers, said Chris Ferman, West Bell County Fraternal Order of Police president.

Addison lost one officer who failed after training and before the changes. Now most of APD's 60 officers pass the test on the first try. The test contains six standards almost equal to or more challenging than KPD's five standards.

"It was the underlying fear, 'I've got to pass the test' and we wanted to change the direction," said Greg Layman, assistant police chief.

A bonus for being fit

Almost a decade ago, Plano police made a last-minute decision against a job-contingent policy. Research changed the city's mind, said Rick McDonald, police spokesman.

Plano instead adopted a mandatory policy only for recruits to obtain employment. Officers receive up to two days of award time for excelling.

"With age, you have a decline in physical abilities. It's not just how you can do your job. You have to look at the whole picture," McDonald said. "How do you handle someone that's been injured on duty? Do you terminate them?"

McDonald gave the example of an officer at a nearby department who suffered a job-related injury, causing the loss of his leg. He still performs his job, but he will never be able to run 1.5 miles, McDonald said.

The reward-based policy improved morale and overall fitness, McDonald said.

A fit solution

Ferman favors a test, but not if the test threatens jobs.

The policy also changes the rules for existing officers hired under a previous standard. Instead, the program should be required for new hires and optional for incumbents, Griffin said. Incumbents who excel should be rewarded with a stipend, Ferman said.

"Jobs should not depend on how high a vertical jump you can do or if you can run a mile. I've never run a mile after someone," Ferman said.

KPD declined comment for this article, citing a policy against commenting on issues prior to a review by the City Council.

Contact Victor O'Brien at vobrien@kdhnews.com or (254) 501-7468.

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