Police fitness tests tossed 

Posted On: Thursday, Feb. 11 2010 05:05 AM  

By Victor O'Brien
Killeen Daily Herald

The Killeen Police Department's physical fitness policy violated Texas law, a Bell County judge ruled Wednesday.

In a one-paragraph ruling, District Judge Gordon Adams said the city did not follow Chapter 143 of the Texas Local Government Code, which outlines policies for civil service employment.

The ruling vindicated the six officers who sued KPD. They said the fitness program violated their employment rights.

The department retains the option to appeal, but more time will be needed before that decision is made, said Stuart Smith, an attorney representing KPD and the city of Killeen.

"At this stage, we hope the court (Adams) will clarify why he ruled that way, so we can consider whether to further amend the general orders, the fitness policy or appeal," Smith said Wednesday.

Adams' ruling came almost one month after both sides presented their cases at a summary judgment hearing. During the Jan. 15 hearing, Adams acknowledged the likelihood of an appeal from whichever side lost.

Adams' ruling offered no insight on how the policy violated the law other than to say he granted a summary judgment request filed by the officers' attorneys.

In that request, attorneys argued that civil service laws block fitness policies that punish or fire officers.

"We were never trying to say the department couldn't do a physical fitness readiness test. You can't use it to punish an officer and use it to determine 'fit for duty'," Jason Nassour, the officers' attorney, said Wednesday.

Smith said he was uncertain whether all the policy's sanctions violated the law. At previous hearings, the debate centered around whether the policy violated the law by forbidding officers from off-duty security jobs some work to supplement their incomes.

The ruling will lift morale for officers department-wide who worried about losing their jobs, Killeen Officer Frank Plowick, a plaintiff, said Wednesday.

The lawsuit drew statewide and national attention from fraternal orders of police seeking guidance battling similar polices. On Wednesday, the national Fraternal Order of Police phoned Plowick, Texas FOP president, to congratulate him.

The ruling concluded the first round of legal sparring that began in the September when six officers – Plowick, Chris Ferman, Karl Ortiz, John Bowman, Sandra Hunt and Robert Rush – sued the department.

Though Smith delayed talk of an appeal Wednesday, Nassour expects an appeal.

"The battle is not over yet, but I think what it's telling the officers is that they can rely on civil service to be there to protect them," Nassour said. "That's their Bible for safekeeping and employment."

The department has exhausted more than $100,000, countless hours of training and more than eight years to implement the program.

Contact Victor O'Brien at vobrien@kdhnews.com or (254) 501-7468. Follow him on Twitter at KDHcrime.