FROM: Barbara Hannah, Chief Counsel
SUBJECT: Disability Retirement Application of Kevin McCurdy
RECOMMENDATION:
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Approve and adopt the proposed findings and recommendations of the referee regarding the application for Service-Connected Disability Retirement of Kevin McCurdy - San Bernardino County - Sheriff.
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BACKGROUND:
This matter is in closed session because the Applicant failed to meet his burden of proving that there is substantial evidence of a mature claim for a disability retirement prior to his voluntary resignation in lieu of termination, effective May 4, 2023. Therefore, the Hearing Officer is recommending the Applicant’s request for a Service-Connected Disability Retirement be denied, as Applicant is not eligible to apply for a disability retirement.
Procedural History:
On May 31, 2023, Applicant, Kevin McCurdy, applied for a service-connected disability retirement. On September 4, 2024, Applicant’s Disability Retirement Application was rejected on the grounds that he had voluntarily resigned in lieu of termination, effective May 4, 2023, and therefore was ineligible to apply for a disability retirement.
Pursuant to Rule 6 of SBCERA’s Procedures for Disability Retirement Applications and Formal Hearings, when an applicant resigns in lieu of termination, the applicant is not eligible to apply for a disability retirement. Therefore, on September 4, 2024, the matter was referred to an Administrative Review to determine if there is substantial evidence of a mature claim for disability prior to the termination for cause or resignation in lieu of termination; and, if there is substantial evidence that the termination for cause or resignation in lieu of termination was related to any mature claim for disability.
On November 19, 2024, Duane Bennett was assigned as the Hearing Officer, giving him 180 calendar days, up to and including May 19, 2025, to complete the Formal Hearing proceeding and close the record, pursuant to Rule 11 of SBCERA’s Procedures.
The Formal Hearing was scheduled for April 10, 2025. On February 19, 2025, SBCERA received a request from Applicant’s Counsel, Christopher Kucharski requesting a 30-day extension to file Applicant’s Prehearing Statement which was due on February 24, 2025. The Hearing Officer granted the extension to March 26, 2025. Additionally, due to the extension granted, the Hearing Officer vacated the Formal Hearing set for April 10, 2025, and ordered the parties coordinate a new hearing date through SBCERA.
Between February 21, 2025, and March 5, 2025, SBCERA attempted to reschedule the Formal Hearing with the parties, however Applicant’s counsel was unresponsive to all requests for availability. Due to no response from Applicant’s counsel, the Hearing Officer set a Status Conference on March 11, 2025, for the purpose of scheduling the Formal Hearing with the parties.
On March 11, 2025, the Status Conference was held, however Applicant’s counsel did not appear for the hearing. Due to Applicant counsel’s nonappearance, the Hearing Officer scheduled the Formal Hearing for May 6, 2025, and issued a Memorandum of Status Conference and Order that was served on the parties, setting the Formal Hearing date and the due dates for submission of evidence.
On March 11, 2025, SBCERA received from Applicant’s counsel a request for a second extension for a period of two weeks up to and including April 9, 2025, to file Applicant’s Prehearing Statement. Additionally, Mr. Kucharski informed SBCERA that Jacob Kalinski, another partner in the firm, would be the lead attorney on the case to represent Applicant in this proceeding.
On March 18, 2025, a second Status Conference was held. The Hearing Officer continued the Formal Hearing to July 21, 2025, to accommodate the parties availability and provide sufficient time for submission of evidence.
On April 10, 2025, Barbara Hannah, Chief Counsel of SBCERA submitted to Debby Cherney, CEO of SBCERA, a request for Extension of Hearing Officer’s Jurisdiction for a period of 180 days from May 19, 2025 up to and including November 17, 2025, to accommodate the Formal Hearing scheduled for July 21, 2025, pursuant to Rule 11(c) of the Procedures for Disability Retirement Applications and Formal Hearings (Procedures). On April 11, 2025, the CEO granted the request and extended the Hearing Officer’s jurisdiction up to and including November 17, 2025.
On April 30, 2025, Christopher Lockwood requested a continuance of the Formal Hearing scheduled for July 21, 2025, as he recently substituted in as counsel for Respondent and had a calendar conflict on the Formal Hearing date. In addition, a witness for Respondent was not available on the scheduled hearing date.
On May 5, 2025, the Hearing Officer, Duane Bennett issued a ruling vacating the Formal Hearing scheduled for July 21, 2025. The Formal Hearing was rescheduled for a two-day hearing on September 22, 2025 (Day 1) and September 23, 2025 (Day 2). The Formal Hearing was completed on September 22, 2025.
On February 4, 2026, SBCERA received the Hearing Officer’s Proposed Findings of Fact Conclusions and Recommendation. On February 9, 2026, the parties were served with the Hearing Officer’s Proposed Findings of Fact Conclusions and Recommendation. On February 19, 2026, Applicant submitted his written Objections to the Hearing Officer’s proposed findings. On March 2, 2026, Respondent filed its reply to Applicant’s Objections to the Hearing Officer’s Proposed findings.
On March 12, 2026, SBCERA received the Hearing Officer’s Final Proposed Findings of Fact Conclusions and Recommendation and it was served on the parties. On March 17, 2026, the Hearing Officer submitted an Amended Final Proposed Findings of Fact Conclusions and Recommendation to correct grammatical and typographical errors and it was served on the parties. The Amended final proposed findings supersedes and replaces the one previously served on the parties.
Other Options Available if Staff’s Recommendation is Not Adopted:
Although staff recommends approving the hearing officer’s findings, pursuant to Government Code Section 31534, upon receiving the final proposed findings and recommended decision of the referee, the board may, in the alternative:
(a) 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
(b) Refer the matter back with or without instructions to the referee for further proceedings, or
(c) 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.
Again, staff recommends the Board adopt the Hearing Officer’s Amended Final Proposed Findings of Fact Conclusions and Recommendation to deny Applicant’s request for a service-connected disability retirement, based on the fact that there is insufficient evidence of a mature claim for a disability retirement prior to his voluntary resignation, effective May 4, 2023.
Attorney for Applicant - Jacob Kalinski, Esq. (Rains Lucia Stern St. Phalle & Silver, PC)
Attorney for Respondent - Christopher Lockwood, Esq. (Arias & Lockwood)
STAFF CONTACT:
Barbara Hannah
ATTACHMENTS:
Exhibit A: Demographics
Exhibit B: Hearing Officer’s Proposed Findings of Fact Conclusions and Recommendation
Exhibit C: Objections of Applicant Kevin McCurdy to Proposed Findings of Fact Conclusions and Recommendation
Exhibit D: Respondent’s Response to Objections to Hearing Officer’s Proposed Findings of Fact and Conclusions and Recommendation
Exhibit E: Hearing Officer’s Amended Final Proposed Findings of Fact Conclusions and Recommendations
Exhibit F: Applicant’s Closing Brief
Exhibit G: Respondent’s Closing Brief
Exhibit H: Applicant’s Reply Brief
Exhibit I: Notice of Rejection of Disability Retirement Application, dated September 4, 2024
Exhibit J: Applicant’s Disability Retirement Application
Exhibit K: Department Statement of Facts
Exhibit L: Job Description