A lawsuit filed in Travis County seeks to overturn a new Texas Department of Public Safety policy that requires waistlines to be under 40 inches for male officers and under 35 inches for women.
Had the waistline standards been in place during physical fitness testing last year, about 22% of commissioned officers would have failed, said the lawsuit, which argued that the "command presence policy" on waist circumference was arbitrary, misguided and established in violation of state law.
"DPS created the command presence policy from whole cloth, and it has no relation to a commissioned officer’s ability to perform his or her job functions," said the lawsuit, filed Wednesday.
The lawsuit by the Department of Public Safety Officers Association goes further, asking a state judge to overturn fitness standards that have been updated in recent years — such as a timed 1½-mile run and a minimum number of sit-ups and push-ups within two minutes — that the petition argues also were adopted contrary to state law.
"We are 100% supportive of a physical fitness program and a healthy heart program. It is important that we do that," said Richard Jankovsky, president of the officers association. "We're merely asking the agency to do what's spelled out in statute."
State law requires the DPS to create fitness standards coupled with a rewards program, offering such incentives as paid time off, for officers who meet the program's goals.
But, the lawsuit said, state law also requires fitness standards to be developed with the help of a qualified consultant. No consultant helped create the waistline standards, and while the agency's annual fitness test was developed with a consultant in 2006, the DPS has since added new tests, dropped others and "arbitrarily" changed what constitutes a passing grade, the lawsuit said.
For example, the DPS fitness test originally required 35 sit-ups in one minute. It is now a two-minute test requiring between 72 and 50 sit-ups, depending upon age and gender, the lawsuit said.
The waistline requirement — which was adopted by the governor-appointed Public Safety Commission in February and took effect in September — also violates another section of state law that requires fitness tests to be related to the duties performed by DPS officers, the lawsuit said.
"Everyone is built different," Jankovsky told the American-Statesman. "A belly measurement is not indicative of one's health ... or ability to do their job."
Those who fail the waistline measure will get a second test comparing their height and weight to a chart, developed by the U.S. Defense Department, showing acceptable ranges. Officers who fail that test will get a body composition estimate that also will be compared to a chart developed by the military.
Officers must pass both the fitness test and waist measurement.
Failure can bring a range of consequences, including being placed on a fitness improvement plan and being demoted or transferred to a job outside of law enforcement. Overtime, approval for off-duty jobs and promotions can be withheld, and termination is possible, the lawsuit said.
The officer association, which represents 3,453 commissioned officers within the DPS, is asking a judge to:
• Block the DPS from enforcing the waistline limits and fitness tests that were developed without a consultant.
• Prohibit the DPS from "punishing, restricting, or sanctioning" those who fail the fitness test or waistline limits.
• Award monetary damages to officers who lost income, promotions, future benefits and paid leave under the policies.
Annual physical fitness testing is underway, the lawsuit said, adding: "DPS has already begun sanctioning commissioned officers through fitness improvement programs, and DPS has stated its intention to increase sanctions in the near future."
Jankovsky said the labor organization reluctantly sued the DPS and its director, Steve McCraw, "after we had gone through every channel" in an effort to halt or modify the new fitness standards.
"We work very closely with them. I would say we agree 90% of the time on everything," he said. "Unfortunately, this was a step we had to take to advocate on behalf of our members."
The DPS did not respond to a request to comment on the lawsuit or its allegations.