FROM: Barbara Hannah, Chief Counsel
SUBJECT: Disability Retirement Application of Kenneth Marshall
RECOMMENDATION:
title
Review the transcript or summary of all testimony, all other evidence received by the referee, together with the supplemental briefs submitted by the parties, and, pursuant to Rule 31 of SBCERA’s Procedures for Disability Retirement Applications and Formal Hearings, render a decision and take such action as, in the Board’s opinion, is indicated by the evidence in the Service-Connected Disability Retirement Application of Ken Marshall - San Bernardino County - Sheriff.
body
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 (SBCERA Procedures), 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).
The Administrative Record of the proceedings was provided to the Board members at the July 2, 2026, Board Meeting, 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. (Administrative Record Volumes 1 through 7 labeled as AR-0001 through AR-1891).
On July 2, 2026, the Board considered the Hearing Officer’s recommended decision. A motion was made to approve and adopt the hearing officer’s recommendation pursuant to Government Code section 31534. That motion failed by a vote of three ayes and five noes.
A second motion was made to reject the hearing officer’s recommendation. That motion passed by a vote of five ayes and three noes.
A third motion was made to require the preparation of a transcript and summary of the evidence, permit the parties to submit simultaneous written briefs by July 24, 2026, and provide the transcript, summary of evidence, written briefs, and related materials to the Board in advance of the September 3, 2026, Board meeting. That motion passed unanimously.
On July 24, 2026, the parties submitted written briefs addressing the administrative record, the applicable legal standard, and the action each party contended was warranted based on the evidence.
Based on its prior action and review of the Administrative Record and supplemental briefing, the Board shall, pursuant to Rule 31 of SBCERA’s Procedures for Disability Retirement Applications and Formal Hearings, render a decision and take such action as, in its opinion, is indicated by the evidence by either of the following actions:
(a) Approve and adopt the Proposed Findings of Fact and Recommended Decision of the Hearing Officer, or
(b) Direct the prevailing party to prepare Proposed Findings of Fact and Conclusions of Law consistent with the Board’s tentative decision.
The proposed findings of fact and conclusions of law shall be served on the unsuccessful party who shall have ten (10) calendar days from the date of mailing of the proposed findings to serve and file written objections thereto. Thereafter, the Board shall consider such written objections, if any, and shall adopt such findings of fact and conclusions of law as it deems appropriate.
Additionally, at the direction of the Chair of the Board, a reorganized set of materials were prepared solely for the convenience of the Board Members to facilitate easier reference and review during their deliberations. The reorganized records are labeled as Board Reference Volumes 1 through 10. The Board Reference Volumes are attached hereto as Exhibits B through K. The Board Reference Volumes are solely provided to the Board as a reference aid and do not modify or supersede the original AR page numbers assigned to the Official Administrative Record.
Upon completion of the proceedings and the Board’s issuance of its final decision, the documents contained in Board Reference Volume 1, together with all additional pleadings, supplemental briefing, proposed findings, including any alternative proposed findings, if applicable, objections thereto, Board Decisions, agendas, minutes and any other documents filed, submitted, or considered in connection with this proceeding, shall be incorporated into and constitute part of the Official Administrative Record.
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 B: Board Reference Volume 1 - Supplemental Briefs
Exhibit C: Board Reference Volume 2 - Prehearing Statements
Exhibit D: Board Reference Volume 3 - Reporter’s Transcript of Formal Hearing
Exhibit E: Board Reference Volume 4 - Closing Briefs
Exhibit F: Board Reference Volume 5 - Hearing Officer’s Findings, Objections, and Response Thereto
Exhibit G: Board Reference Volume 6 - Applicant’s Exhibits to Prehearing Statement, Exhibits A through CC
Exhibit H: Board Reference Volume 7 - Respondent’s Exhibits to Prehearing Statement, Exhibits 1.001 to 8.025
Exhibit I: Board Reference Volume 8 - Respondent’s Exhibits to Prehearing Statement, Exhibits 9.001 to 20.003
Exhibit J: Board Reference Volume 9 - Respondent’s Exhibits to Prehearing Statement, Exhibits 16.001 to 16.272
Exhibit K: Board Reference Volume 10 - Respondent’s Exhibits to Prehearing Statement, Exhibits 16.273 to 16.544