FROM: Barbara Hannah, Chief Counsel
SUBJECT: Disability Retirement Application of Kenneth Marshall
RECOMMENDATION:
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Review a transcript, plus other evidence received by the referee and take such action as in its opinion is indicated by such evidence in the Service-Connected Disability Retirement Application of Ken Marshall - San Bernardino County - Sheriff.
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BACKGROUND:
This matter is in closed session for the Board to take such action as in its opinion based upon the evidence presented in the record. The issue before the Board is whether the Applicant was permanently incapacitated from the substantial performance of his usual job duties as of the date of retirement and not from any post-retirement condition or status. Under SBCERA’s Procedures for Disability Retirement and Formal Hearings, counsel for Applicant and SBCERA will each be given four (4) minutes for oral argument to address the Board in closed session.
Procedural History:
At the May 2, 2024, meeting of the Board of Retirement, the Board found that Applicant is not permanently incapacitated for the performance of duties and denied Applicant’s request for a service-connected disability retirement.
On May 4, 2024, Applicant requested to proceed to a Formal Hearing. The Formal Hearing was completed on July 29, 2025.
On December 26, 2025, SBCERA received the Hearing Officer’s Proposed Summary of Evidence, Proposed Findings of Fact and Recommended Decision, dated December 9, 2025. On January 27, 2026, the Hearing Officer’s Proposed Findings and Recommendations were served on the parties, giving them ten (10) days within which to file objections. On February 6, 2026, Respondent SBCERA filed its Objections to the Summary of Evidence, Proposed Findings of Fact and Recommended Decision. On February 17, 2026, Applicant filed his Response to Respondent’s Objections to the Hearing Officer’s findings.
On March 4, 2026, SBCERA received the Hearing Officer’s Response to Objections wherein he adopted his initial proposed recommended decision.
On May 1, 2026, Applicant’s counsel was served with the Notice of Board Agenda Item, and Agenda Packet No. 24-129.1, giving notice this matter would be presented to the Board at its May 7, 2026, meeting.
On May 4, 2026, SBCERA received from Applicant’s counsel a letter requesting, among other things, a continuance of the agenda item to provide Applicant with ample time to prepare for the item; as well as provide a copy of a written explanation and/or information regarding Mr. Terzian in regard to the Hearing Officer panel.
On May 5, 2026, a letter was sent to Mr. Treger to inform him that the matter would be continued until June 4, 2026, Board meeting, as well as providing Mr. Treger with a copy of the Board Agenda Item in regard to the Hearing Officer Panel for 2026.
On May 7, 2026, the Board approved the continuance of this agenda item and rescheduled it to June 4, 2026, Board meeting for review and consideration.
On June 3, 2026, notice was served on the parties to advise that the matter has been rescheduled to July 2, 2026, Board meeting and to request that the following be provided to SBCERA no later than June 15, 2026, addressing the following (Administrative Record, Volume 7 - AR-1871):
(1) Applicant’s Counsel Brief to identify the portions of the Hearing Officer’s proposed decision, findings of fact, conclusions of law, and evidentiary record that, in counsel’s view, support adoption of the referee’s proposed decision by the Board.
(2) Respondent’s Counsel Brief and Alternative Proposed Decision addressing the referee’s proposed decision and, if SBCERA’s counsel believes the record supports a different outcome, to provide proposed alternative Findings of Fact, Conclusions of Law and Decision.
On June 8, 2026, SBCERA received Applicant’s objections in regard to instructions received to submit an additional brief and stated that it is Applicant’s position that no further briefing is indicated or appropriate unless the Board requires it. (Administrative Record, Volume 7 - AR-1874).
On June 9, 2026, SBCERA responded to Applicant’s objections providing further information as to the reasoning in regard to the request for submission of additional briefs by the parties to avoid further delay, ensure procedural fairness to all parties, and facilitate an efficient resolution of the matter by the Board. Additionally, with submission of the briefs, this would allow the Board to adequately review the complete evidentiary record before taking any action. (Administrative Record, Volume 7 - AR-1877).
On June 11, 2026, Applicant reiterated his objections in regard to submission of further materials in this proceeding. (AR-1879). On June 12, 2026, SBCERA responded standing by its request for the parties to submit additional briefing for the Board to consider. (AR-1882). Applicant’s counsel again on June 12, 2026, requested an understanding in regard to submission of additional evidence or briefing. (Administrative Record, Volume 7 - AR-1887).
For the Board’s consideration, the Administrative Record of the proceedings has been provided with this item, covering the period of the tentative assignment of a hearing officer up to and including an email received from Michael Treger dated June 12, 2026. (AR-0001 through AR-1891).
References to “AR” refers to the Administrative Record provided with this agenda item; page numbers are provided for specific documents as listed above.
Other Options Available if Staff’s Recommendation is Not Adopted:
Pursuant to Government Code section 31534, upon receiving the final proposed findings and recommended decision of the referee, the board shall:
(a) Approve and adopt the Proposed Findings of Fact and Recommended Decision of the Hearing Officer, or
(b) Require a transcript or summary of all the testimony, plus all other evidence received by the referee. Upon the receipt thereof, the Board shall take such action as in its opinion is indicated by such evidence, or
(c) Refer the matter back with or without instructions to the referee for further proceedings, or
(d) Set the matter for hearing before itself. At such a hearing, the Board shall hear and decide the matter as if it had not been referred to the referee.
Attorney for Applicant - Michael Treger, Esq. (Straussner / Sherman Lawyers)
Attorney for Respondent - Allison C. Callaghan (Nossaman LLP)
STAFF CONTACT:
Barbara Hannah
ATTACHMENTS:
Exhibit A: Demographics
Exhibit A1: Privileged and Confidential Chief Counsel Memorandum
Exhibit B: Hearing Officer’s Proposed Summary of Evidence, Findings of Fact and Recommended Decision
Exhibit C: Respondent SBCERA Objections to the Summary of Evidence Proposed Findings of Fact and Recommended Decision
Exhibit D: Applicant’s Response to Respondent’s Objections to the Summary of Evidence, Proposed Findings of Fact and Recommended Decision
Exhibit E: Hearing Officer’s Response to Objections to Proposed Recommended Decision
Exhibit E1: Respondent SBCERA Brief Addressing the Summary of Evidence, Proposed Findings of Fact and Recommended Decision
Exhibit E2: [Proposed] Findings of Fact and Decision
Exhibit F: Volume 1 - Administrative Record (AR-001 to AR-0261)
Exhibit G: Volume 2 - Administrative Record (AR-0262 to AR-0504)
Exhibit H: Volume 3 - Administrative Record (AR-0505 to AR-0779)
Exhibit I: Volume 4 - Administrative Record (AR-0780 to AR-1054)
Exhibit J: Volume 5 - Administrative Record (AR-1055 to AR-1352)
Exhibit K: Volume 6 - Administrative Record (AR-1353 to AR-1575)
Exhibit L: Volume 7 - Administrative Record (AR-1576 to AR-1891)