FROM: Barbara Hannah, Chief Counsel
SUBJECT: Disability Retirement Application of Kenneth Marshall
RECOMMENDATION:
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Refer the matter back with instructions to the hearing officer for further proceedings regarding the application for a Service-Connected Disability Retirement of Kenneth Marshall - San Bernardino County - Sheriff. Assign a new hearing officer to hear the issues anew as Mr. Terzian no longer serves on the panel.
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BACKGROUND:
This matter is in closed session to consider whether to refer the matter back with instructions on the basis that the hearing officer failed to determine whether the applicant was permanently incapacitated from substantially performing his usual job duties at the time of his retirement date as opposed to his present state. 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.
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: Demographic Information
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 F: Applicant’s Closing Brief
Exhibit G: Respondent’s Closing Brief
Exhibit H: Applicant’s Reply Closing Brief
Exhibit I: Request for Administrative Review of Initial Hearing
Exhibit J: Applicant’s Statement of Facts and Physician’s Report
Exhibit K: Department Statement of Facts
Exhibit L: Job Description, Physical Requirements Questionnaire