Arbitration Panel Decision Under the Randolph-Sheppard Act, 31440-31442 [E8-12262]

Agencies

• DEPARTMENT OF EDUCATION

[Federal Register Volume 73, Number 106 (Monday, June 2, 2008)]
[Notices]
[Pages 31440-31442]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-12262]


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DEPARTMENT OF EDUCATION


Arbitration Panel Decision Under the Randolph-Sheppard Act

AGENCY: Department of Education.

ACTION: Notice of arbitration panel decision under the Randolph-
Sheppard Act.

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SUMMARY: The Department of Education (Department) gives notice that on 
December 5, 2007, an arbitration panel rendered a decision in the 
matter of Calvin Scott v. Alabama Department of Rehabilitation Services 
(Case No. R-S/06-8). This panel was convened by the Department under 
the Randolph-Sheppard Act, 20 U.S.C. 107d-1(a), after the Department 
received a complaint filed by the petitioner, Calvin Scott.

FOR FURTHER INFORMATION CONTACT: You may obtain a copy of the full text 
of the arbitration panel decision from Suzette E. Haynes, U.S. 
Department of Education, 400 Maryland Avenue, SW., room 5022, Potomac 
Center Plaza, Washington, DC 20202-2800. Telephone: (202) 245-7374. If 
you use a telecommunications device for the deaf (TDD), you may call 
the Federal Relay Service (FRS) at 1-800-877-8339.
    Individuals with disabilities may obtain this document in an 
alternative format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact person listed under FOR FURTHER 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION: Under section 6(c) of the Randolph-Sheppard 
Act (the Act), 20 U.S.C. 107d-2(c), the Secretary publishes in the 
Federal Register a synopsis of each arbitration panel decision 
affecting the

[[Page 31441]]

administration of vending facilities on Federal and other property.

Background

    Calvin Scott (Complainant) alleged violations by the Alabama 
Department of Rehabilitation Services, the State Licensing Agency 
(SLA), of the Act, the implementing regulations in 34 CFR part 395, and 
State rules and regulations concerning his management of Facility 
562 in the Gordon Persons State Office Building (GPSO 
Building) in Montgomery, Alabama.
    Facility 562 is comprised of vending machines located 
throughout the GPSO Building. The GPSO Building also houses the Alabama 
Department of Finance, where confidential tax records are maintained. 
In 2004, in order to service his snack machines, Complainant requested 
from building management a ``swipe key'' to enable him to easily access 
his vending machines and a designated parking space in the loading 
dock.
    Shortly after Complainant made his request to building management, 
there was a disagreement between the son of the building manager and 
Complainant's assistant, who is his wife. Subsequently, on February 7, 
2005, the SLA received a letter from the building manager requesting 
immediate removal of Complainant from the GPSO Building because of 
Complainant's alleged threatening behavior and lack of responsiveness 
to refunding money from the vending machines.
    Following the February 7 letter, SLA personnel met with the 
building manager. At the meeting, building management rescinded the 
request that Complainant be immediately removed and agreed to his 
conditional return to Facility 562 with several stipulations. 
The conditions were: (a) Complainant's wife was barred from the 
facility as the result of an unrelated personal dispute; (b) 
Complainant was instructed to obtain a different assistant approved by 
the SLA; (c) Complainant would agree to cooperate with building 
officials regarding secured areas, and (d) Complainant would establish 
a more streamlined method to respond to customer complaints and 
requests for refunds.
    By letter dated February 9, 2005, the SLA informed the Complainant 
of the building manager's terms for his return to Facility 
562. Upon receipt of the February 9 letter, Complainant ceased 
going to Facility 562 and servicing the vending machines.
    On February 22, 2005, after an exchange of letters between the 
Complainant and the SLA, the SLA informed Complainant that due to his 
abandonment of Facility 562, the SLA would remove him from the 
facility and conduct an exit inventory on February 24, 2005. However, 
on February 25, 2005, the Department of Finance granted the 
Complainant's requests to: (a) Allow his wife to serve as his 
assistant; (b) provide Complainant with a designated parking space in 
the loading dock; (c) relocate a snack machine as previously requested 
by Complainant; (d) and provide Complainant a swipe key to access 
secured areas. Subsequently, Complainant returned to Facility 
562.
    On February 14, 2005, the Complainant requested that the SLA 
conduct an administrative review pursuant to the Act. Shortly 
thereafter, the Complainant indicated that he would not participate and 
the hearing was cancelled. He subsequently filed two lawsuits against 
the SLA in Federal court requesting relief that included monetary 
damages and incarceration of SLA employees. In the two cases, which 
were jointly administered, the court ordered the parties to reinstitute 
the administrative process. The SLA held a full evidentiary hearing on 
this matter on October 6, 2005. On October 13, 2005, the hearing 
officer concluded that the Complainant had failed to preserve any issue 
upon which relief could be granted and ruled in the SLA's favor. The 
SLA adopted the hearing officer's order as final agency action. On 
October 23, 2005, Complainant sought review by a Federal arbitration 
panel of that decision. A hearing on this matter was held on May 23, 
2007.

Arbitration Panel Decision

    The arbitration panel began by discussing the issues that the panel 
would not decide. First, the panel raised the issue whether it had 
statutory authority to hear the merits of the case, since Complainant 
did not participate in an administrative review or a State evidentiary 
hearing that addressed the merits of the case, but rather filed an 
appeal in Federal district court, which directed the SLA to hold a 
hearing. The panel concluded that this issue did not have to be 
addressed because the panel found that the Complainant was not entitled 
to the relief requested.
    Secondly, the panel ruled that Complainant's request to seek 
monetary relief from and incarceration of some SLA employees was 
improper because the Alabama Department of Rehabilitation Services is 
the official agency responsible for the Act and implementing 
regulations and not the individual State employees.
    Lastly, the panel ruled that, under the Act and regulations, the 
panel could only hear complaints regarding actions arising from 
dissatisfaction with the operation or administration of the Randolph-
Sheppard vending facility program. Thus, Complainant's allegations of 
slander, defamation, and violations of his civil rights based on race 
or disability, and his seeking to impose criminal liability were 
outside the proper jurisdiction of the arbitration panel.
    After reviewing all the records and hearing testimony of witnesses, 
the panel majority ruled on the merits of the case. The first issue 
raised by the Complainant is that he was terminated from the Randolph-
Sheppard vending facility program without receiving a full evidentiary 
hearing as required by State law. However, the panel determined that 
the SLA made a decision to remove him from the facility and never took 
any steps to suspend or terminate his license and remove him from the 
program. In fact, the SLA's decision to remove him from the facility 
was never implemented and the Complainant was allowed to return to the 
facility. Thus, even if he had been removed from the facility, the SLA 
had no obligation under State law to provide him a hearing because he 
was not terminated from the program. Furthermore, notwithstanding the 
panel's decision on State law requirements, the panel found that, even 
if the SLA had removed him from the facility, the Act does not require 
a fair hearing prior to the action. The Act only requires that an SLA 
grant a hearing when a blind licensee is dissatisfied with any action 
already taken.
    The second issue addressed by the panel was whether the SLA, as the 
designated state licensing agency, breached its responsibility under 
the Act and implementing regulations to serve as the Complainant's 
advocate. The panel concluded that the SLA's successful advocacy on 
behalf of Complainant helped to retain his position at Facility 
562. Although the Complainant's own advocacy was successful in 
reinstating his wife/assistant, in obtaining a swipe key, and in the 
relocation of a snack machine, the actions of the SLA were sufficient 
to comply with the statutory requirements of the Act. The arbitration 
panel denied Complainant's claim for relief.
    One panel member concurred in part and dissented in part from the 
majority's opinion. The panel member concurred with the majority 
opinion that many of the allegations of the Complainant were 
unsubstantiated. However, the panel member dissented from the majority 
opinion in the belief that the SLA failed to forcefully advocate and 
protect the Complainant

[[Page 31442]]

regarding the initial request to remove him and to impose the 
restrictive terms for Complainant to remain at Facility 562.
    The views and opinions expressed by the panel do not necessarily 
represent the views and opinions of the Department.

Electronic Access to This Document

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    Note: The official version of this document is the document 
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nara/.


    Dated: May 28, 2008.
Tracy R. Justesen,
Assistant Secretary for Special Education and Rehabilitative Services.
 [FR Doc. E8-12262 Filed 5-30-08; 8:45 am]
BILLING CODE 4000-01-P