A former California Highway Patrol assistant chief who allegedly helped his son flee to Mexico after being accused of rape is eligible for a tax-free disability pension because the state agreed not to discipline him when it accepted his resignation four years ago.
Kyle Scarber, 53, has been receiving a pension worth about $125,000 a year since 2013, when the CHP accused him of assisting his son’s drive to the Mexican border and misleading Fresno County sheriff’s deputies by falsely reporting that his son had gone missing.
The former CHP officer is facing criminal charges for his alleged role in the getaway in Fresno Superior Court, where he and his wife have pleaded not guilty.
Next week, he’ll ask the California Public Employees’ Retirement System to affirm a decision allowing him to apply for a more lucrative disability pension. If his request is successful, he likely would earn a similar income but he would not have to pay taxes on it.
Scarber told The Sacramento Bee on Thursday that he has felt CalPERS staff did not treat him fairly in considering his disability claim in the four years since a doctor declared him unable to work and detailed a list of ailments attributed to his 24-year career at the CHP.
“This is not about money to me; it’s not,” he told the CalPERS Board of Administration last month. “It’s about principles and doing the right thing. Doing the right thing in spite of adversity.”
The doctor’s visit at the center of his disability claim occurred Dec. 20, 2012 – eight days after Scarber’s son, Spencer, fled the state during his criminal trial.
That was three days after a prosecutor in public accused the former officer of helping in Spencer Scarber’s escape, and a day after Fresno County’s sheriff’s deputies used a warrant to seize the former officer’s laptop, according to documents released by CalPERS.
“The appearance is you got in trouble and you decided to try to retire,” Board of Administration member Theresa Taylor told Scarber last month.
“I disagree,” he replied.
So far, CalPERS board members have sided with Scarber even as they expressed misgivings about his career in public service.
They weighed his request at board meetings in December and in February. Last month, they voted to overturn a decision from CalPERS attorneys that would have denied Scarber a disability pension.
CalPERS attorneys wanted to reject the disability claim because Scarber “was dismissed from the force for misbehavior. His dismissal was not the result of a disabling medical condition.”
But board members’ hands are tied, they say, because the settlement Scarber reached with the CHP allowed him to retire from the agency without discipline. Had he been terminated for cause, the board might have voted differently.
“I have read the underlying issues of your case and I’m very disturbed as to what the allegations were,” CalPERS Board of Administration member Richard Costigan told Scarber last month. “It’s interesting ... but what we actually have in front of us is a voluntary retirement with a settlement agreement with the Highway Patrol.”
If the CalPERS board allows Scarber to proceed with his claim, CalPERS staff would re-evaluate his medical records and consider his application for an industrial disability retirement. State law presumes that some medical conditions, such as cardiovascular ailments, are job-related for police and firefighters.
Scarber’s bid for a full disability pension has led to the unusual public disclosure of some of his personnel records. Such documents normally remain concealed because of privacy protections granted to California public safety employees.
As a result, CalPERS members received copies of a scathing July 2013 report from the CHP that ordered his dismissal. It accused him of storing pornography on his computer, using his rank to seek favors at the Fresno County jail while his son was in custody and ultimately creating a fake crime scene at his house on the night his wife, son and stepdaughter drove to Mexico.
Their flight to Mexico took place in the midst of Spencer Scarber’s trial. A jury convicted him while he was out of the country, and he was sentenced to 35 years in prison after he was apprehended in Acapulco.
“The statements you provided to the (Fresno County Sheriff’s Office) were dishonest and aided in Spencer Scarber fleeing the country,” read the 2013 CHP report, which was called a notice of adverse action.
At the end of 2013, the CHP withdrew Scarber’s dismissal and accepted his voluntary resignation “for personal reasons.”
The settlement, signed by CHP Commissioner Joe Farrow, required Scarber to drop an appeal he filed contesting his dismissal. It also said he could not work for the CHP again.
He first filed a disability claim in February 2013 based on the December 2012 medical appointment that declared him unable to work. Scarber told The Bee it was a coincidence that the medical appointment took place a week after his son fled his trial.
“I can’t make my medical results or (electrocardiogram) or blood pressure results react that way. These things have been harboring, festering for years, these ailments,” he said.
His CalPERS disability claim asserts that “cumulative” events during his career have caused chest pain, fatigue, headaches and panic attacks. At CalPERS, Scarber told board members about two traumatic incidents that have stayed with him. In one, a “gang-banger” struck him on the head with a metal object; in another, he sat with a dead infant at the scene of a car accident while waiting for the coroner to arrive. He also said he was involved in car accidents on duty.
Some of the allegations in the notice of adverse action are similar to the criminal charges that Scarber, his wife and stepdaughter are still facing. He’s due in court next week for a pretrial hearing, where a trial date could be announced.
At past hearings, he has cast his family as the victims of a political conspiracy, charging their son did not receive a fair trial and that authorities have mistreated them. He further said law enforcement officers did not properly investigate threats again him and his family.
The notice of adverse of action “is wrong,” he told The Bee. “The allegations, every one of the allegations could have been acquitted, could have been reduced.”
State employees convicted of felonies can lose portions of their pensions, according to CalPERS. They lose credit for years of service that take place after a felony act.
That means Scarber could lose about one year’s worth of service credit, or about 3 percent of his income. He would retain credit for his previous 23 years.