Troopers have sued the Texas Department of Public Safety over a waist size policy. Commissioners say the policy is needed.

Posted at 7:34 AM, Oct 11, 2019
and last updated 2019-10-11 08:34:54-04

"Troopers have sued the Texas Department of Public Safety over a waist size policy. Commissioners say the policy is needed." was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

The state has put another stamp of approval on the Texas Department of Public Safety’s controversial new policy to measure state troopers’ physical fitness by their waistlines.

After a lengthy Thursday morning meeting with agency officials rattling off studies and standards used to come up with their often-changing physical fitness tests and measurements, the three-member Public Safety Commission unanimously adopted DPS’s fitness program, certifying it is in line with scientific standards and federal law.

“To not have a program is tantamount to looking the other way,” commission chair Steven Mach said Thursday after the agency listed health concerns for obese officers. “It’s our obligation to the people of the department to have such a program and to assist people to live the healthiest life possible.”

The policy, which could ultimately remove from duty officers who have a waist circumference larger than 35 inches for women and 40 inches for men, spurred the DPS officers’ association to file a lawsuit in Travis County last week. The association argued in the filing that the physical fitness tests, not waist size, determine if officers can perform their job. It asked for the judge to rule that the policy violates state law that requires physical standards “must directly relate to the officer’s job duties.”

The waistline policy stems from a “holistic look” at officer health, DPS Deputy Director Skylor Hearn said after the hearing. He and other agency officials have cited high rates of heart attacks and obesity among law enforcement officers in general. A doctor testified Thursday that waist size is a definite indicator for risk of heart disease.

“We’re not saying we shouldn’t take better care of ourselves,” DPSOA President Richard Jankovsky said outside the DPS building Thursday, expressing his support for a heart health program without consequences based on size. “But I don’t think you heard one word in there of a direct correlation of not being able to be a state trooper if you’re over that certain [size].”

Another doctor who testified acknowledged some measures of obesity, like body mass index calculations comparing only weight and height, are faulty for different body types, but said waist measurements are consistent with scientific standards relating to an officer having a commanding presence. DPS calls the waist measurement policy its "command presence" policy, claiming officers are more intimidating to potential criminals when they appear fit. An association has called it a "vanity" policy.

Though the agency is using waistline and body fat standards similarly in place in U.S. military services, Hearn said he was unaware if any other state or local law enforcement agency uses waist measurements as an indicator of job readiness.

According to one association representative, that’s because such a measurement is “idiotic.”

“Waistlines are rarely ever used for any kind of measure for physical fitness because it isn’t the 1950s anymore,” Joe Gamaldi, vice president of the national Fraternal Order of Police, said Wednesday. Gamaldi is also the president of the Houston police association.

DPS has been publicly discussing the policy since last year. In a commission hearing last October, Hearn outlined the proposed plan, which was then adopted by commissioners in February. Thursday, the commissioners again adopted the full fitness program, including the waist measurements, under a new state law to require DPS fitness programs to be scientifically sound and in line with federal employment and labor laws.

State Sen. Juan Hinojosa, D-McAllen, added the language to an agency bill earlier this year after hearing concerns over the policy that was to begin in September, he said Wednesday. He argued the new policy goes against both the intent and plain writing of his statute, arguing waistline size is arbitrary and subjective.

“I totally support DPS for the troopers to be physically fit,” he said. “But the waistline, the size of the waistline really stands out.”

Since 2007, state law has required DPS officers to undergo and pass regular fitness tests to stay in uniformed positions. Officers are tested at least once a year. The agency implemented standards and tests of fitness, like a timed 1.5 mile run, and an alternative test of specific job-related tasks, like jumping fences, with the help of a fitness training consultant group that same year.

But in the years since, DPS has put the tests and the standards through a continuous “evolution,” Hearn said in the hearing last year. At first, the test included various runs, bench presses, push-ups, sit-ups and a vertical jump. By 2017, the original test was cut to just the 1.5 mile run, push-ups and sit-ups. New types of fitness tests, like rowing, were added for officers to choose from and performance standards were raised.

The association said these changes were made without any consultant, as is required by law, and it was unknown how the decisions were made to keep tweaking the way they determine an officer’s physical readiness for the job. Now, the agency has added the waist size policy to its physical readiness measurements as well — again without a consultant, the association claimed in the filing last week.

“I have to be really clear: DPSOA is 100% supportive of a physical fitness program and a physical fitness standard, we’re just asking the agency to follow the statute,” Jankovsky told The Texas Tribune before the hearing Wednesday.

On Thursday, the department laid out its work, presenting sources (doctors’ research and testimony, federal law enforcement training groups) used to come up with both the changes to its physical fitness tests and how it decided to measure waist circumference for physical readiness. Leaders of the agency’s Fitness Wellness Unit presented an exhausting list of facts and reports and had multiple doctors speak in support of the program during the hours-long meeting in front of the commissioners.

When first presenting the controversial policy last year, Hearn mentioned officer health and safety was key. He said law enforcement officers have a much shorter life span than most people and are much more likely to have heart attacks. Protective services, he said, is the third most obese profession behind truck driving and material moving.

“A physical program that is effective is not just an exercise program,” he told commissioners Thursday. “A physical fitness program looks at all the factors that affect job duties, and that’s where the command presence piece comes into this.”

The agency has cited a 2007 FBI study that interviewed inmates who had assaulted officers and said they were more likely to attack an officer if they felt they could overpower them. Hearn said last year that having a "command presence" is the best de-escalation method, because an officer’s fit appearance can prevent escalation in the first place.

The policy also has some fallback measures in place to not unjustly affect some officers based on body type, Hearn said. If an officer’s waist measurement is beyond the 35 or 40 inches, a second test is performed to measure height against weight, using a military chart. If the officer still isn’t in compliance under that test, the agency will measure the officer’s body fat by measuring different parts of the body, again using a military method.

The agency said Thursday noncompliance with all of the new measurements will not lead to any consequences for officers in the first year. The agency’s Fitness and Wellness Unit will come up with personalized wellness plans to help officers get into compliance. Starting late next year, however, those out of compliance may become ineligible for promotions, overtime or off-duty employment. Officers may also be moved to non-uniformed positions until they meet the waistline standard, Hearn said in previous hearings.

“We are always needing help in our driver’s license offices,” Hearn said at the hearing last year.

There will be waivers and exceptions for those with certain medical conditions, like effects of cancer treatment, and officers who are pregnant or new mothers, Hearn said. He said the policy is not to run officers off, but to keep them healthy. Jankovsky said he was encouraged by those additions to the policy, which would exempt women for 12 months after they gave birth.

But overall, the association president still believes the policy goes against state and federal statute, and the association will move forward with the lawsuit.

“When you implement a standard to where it mandates you look a certain way, well then we’ve got some questions,” he said. “Is that compliant with state law, federal law, employment law?... Ultimately a judge is going to be a decider.”

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2019/10/10/texas-department-of-public-safety-waist-policy/.

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