E8-27745. Arbitration Panel Decision Under the Randolph-Sheppard Act

AGENCY:

Department of Education.

ACTION:

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

SUMMARY:

The Department of Education (Department) gives notice that, on August 28, 2008, an arbitration panel rendered a decision in the matter of Teresa Alcorn v. Kentucky Office for the Blind, Case no. R-S/07-3. This panel was convened by the Department under 20 U.S.C. 107d-1(a), after the Department received a complaint filed by the petitioner, Teresa Alcorn.

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: [phone]. 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 administration of vending facilities on Federal and other property.

Background

Ms. Teresa Alcorn (Complainant) alleged violations by the Kentucky Office for the Blind (formerly, Department for the Blind), the state licensing agency (SLA), of the Act and the implementing regulations in 34 CFR part 395. Specifically, Complainant alleged that the SLA improperly administered the Randolph-Sheppard Vending Facility Program as provided by the Act and implementing regulations concerning her license termination as a vending facility manager of a vending machine route in Bowling Green, Kentucky.

Since May 1997, Complainant was a licensed vendor in the Kentucky Randolph-Sheppard Vending Facility Program managing a vending facility at the Bowling Green Technical College (Technical College). In November 2001, in addition to the Technical College facility, Complainant began managing a vending route consisting of five locations. They included: Kentucky Advanced Technology Institute, Warren County Justice Center, Warren County Courthouse, Department of Human Resources in the Sears Building, and the Federal Courthouse.

From 2002 until 2005, the SLA alleged it had received numerous complaints from building employees and management regarding Complainant's failure to satisfactorily stock the vending machines on her vending machine route resulting in molded and out-dated products being sold in the vending machines and causing customers to purchase spoiled and inedible products. Also, the SLA alleged that Complainant failed to stock some vending machines. Subsequently, on June 15, 2005, the SLA terminated Complainant's vending operator's license.

Thereafter, Complainant requested a state fair hearing. The administrative hearing was scheduled for October 24-27, 2005. However, the hearing was postponed twice in order for Complainant to retain new counsel. A state fair hearing on this matter was held on March 27, 2006. On June 28, 2006, the Hearing Office affirmed the SLA's decision to terminate Complainant's vending operator's license. On July 31, 2006, the SLA adopted the Hearing Officer's decision as final agency action.

It was this decision Complainant sought review of by a federal arbitration panel. According to the arbitration panel, the issue to be resolved was: Whether the actions taken by the Kentucky Office for the Blind concerning Complainant's license termination were in accord with the Act, implementing regulations, and state rules and regulations.

Arbitration Panel Decision

After reviewing all of the records and hearing testimony of witnesses, the panel majority affirmed Complainant's license termination and ruled that the SLA had established that Complainant violated the Act by not operating her vending machine route in accordance with the rules and regulations as prescribed by the SLA.

Further, the panel majority found that the Complainant was not provided a written notice by Certified Mail regarding the complaints against her, nor did Complainant have an opportunity to respond to the allegations. While holding that both of these due process errors were in violation of the SLA's own rules and regulations, the panel majority ruled that, under the facts of the case, no additional damages would be awarded to Complainant for those procedural due process errors.

Two panel members concurred with the panel majority, but dissented from the majority regarding the due process issues of notification and lack of opportunity for Complainant to respond.

The views and opinions expressed by the panel do not necessarily represent the views and opinions of the Department.

Electronic Access to This Document

You may view this document, as well as all other Department of Education documents published in the Federal Register, in text or Adobe Portable Document Format (PDF) on the Internet at the following site: http://www.ed.gov/​news/​fedregister.

To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at [phone].

Note:

The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available on GPO Access at: http://www.gpoaccess.gov/​nara/​index.html.

Dated: November 18, 2008.

Tracy R. Justesen,

Assistant Secretary for Special Education and Rehabilitative Services.