01-29200. Arbitration Panel Decision Under the Randolph-Sheppard Act

AGENCY:

Department of Education.

ACTION:

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

SUMMARY:

Notice is hereby given that on May 19, 2001, an arbitration panel rendered a decision in the matter of Donna Evans, et al v. Maryland Division of Rehabilitation Services (Docket No. R-S/99-5). This panel was convened by the U.S. Department of Education pursuant to 20 U.S.C. 107d-1(a) upon receipt of a complaint filed by petitioner, Donna Evans, et al.

FOR FURTHER INFORMATION:

A copy of the full text of the arbitration panel decision may be obtained from Suzette E. Haynes, U.S. Department of Education, 400 Maryland Avenue, SW., room 3232, Mary E. Switzer Building, Washington, DC 20202-2738. Telephone: [phone]. If you use a telecommunications device for the deaf (TDD), you may call the TDD number at [phone].

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 in the preceding paragraph.

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: www.ed.gov/​legislation/​FedRegister

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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.access.gpo.gov/​nara/​index.html

SUPPLEMENTARY INFORMATION:

Pursuant to 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

This dispute concerns the alleged failure by the Maryland Division of Rehabilitation Services, the State licensing agency (SLA), to properly administer the Randolph-Sheppard Vending Facility Program by prohibiting the State Committee of Blind Vendors (Committee), who are the complainants in this case, from using allocated funds to pay legal expenses. As a result, the Committee maintained that it had been restricted in participating in the administration of the SLA's Randolph-Sheppard Vending Facility Program pursuant to the provisions of the Act (20 U.S.C. 107 et seq.) and the implementing regulations in 34 CFR part 395.

A summary of the facts is as follows: In August 1997 the Committee voted to ask for an increase in its budget, which included funds for legal counsel. In a letter dated September 18, 1997, to the Committee, the SLA denied the increase stating three reasons, which were—(1) no significant revenue enhancements had been demonstrated for the FY 1998 and FY 1999 budget year; (2) many of the major budget items were driven by the settlement agreements; and (3) the SLA's Randolph-Sheppard Vending Facility Program had significantly reduced program costs by eliminating two positions. The SLA further stated that, based on a review of the Randolph-Sheppard Vending Facility Program, the SLA would initiate a modest increase in the Committee's budget that was previously approved for FY 1998 and FY 1999.

The issue of the use of funds for legal expenses budgeted for the Committee was addressed in a letter dated October 1, 1997, from the Chairman of the Committee to the SLA. The Chairman indicated that it was the Committee's understanding that both parties had a consensus concerning the use of funds for legal counsel. The Committee alleged that the SLA never submitted to the Committee in writing any formal objection to the use of the Committee's funds for legal fees. The Committee also alleged that there is no prohibition in the Act and implementing regulations concerning the use of legal counsel by the Committee; therefore, the Committee was entitled to use its funds for legal representation.

The Committee further alleged that a request for a full evidentiary hearing on their complaint concerning the SLA's refusal of payment of legal fees was filed on July 12, 1998, with the SLA. On August 3, 1998, the SLA informed the Committee through the Office of Administrative Hearings that a pre-hearing conference date had been set for October 1, 1998. However, the Committee maintained that the delay in providing a full evidentiary hearing violated the Act, implementing regulations, Maryland State regulations, and the Committee's due process rights to a speedy resolution of its complaint.

The Committee also challenged the selection of the individual to chair the administrative review conference required by State regulations with respect to vendor complaints and challenged the attendance at those informal conferences of the SLA's attorney.

Arbitration Panel Decision

A majority of the arbitration panel concluded that, while the Committee had raised a number of interesting policy issues in support of their claims, there was no requirement in the Act or the implementing Federal or State regulations to fund the activities of the Committee, to grant the Committee plenary control over the expenditures of any monies budgeted to it by the SLA, or to require that the SLA pay for the attorney fees of the Committee, even if those fees were incurred in furtherance of Committee activities mandated by the Act.

The panel further found that the 1974 Amendments to the Act imposed certain responsibilities upon the Committee and increased the participation of licensed blind vendors in the conduct of the Randolph-Sheppard Vending Facility Program. However, the panel ruled that the Act did not grant the Committee any control over the expenditure of program funds (including those program funds that have their source in vendor activities or activities engaged in for the benefit of vendors) and thus did not mandate that the SLA fund any Committee activities in particular.

Concerning the dissatisfaction of the Committee regarding the Administrative Review Conference, the majority of the panel concluded that the selection of the chair and the manner in which the conference was held was consistent with the applicable State regulations.

One panel member dissented.

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

Dated: November 16, 2001.

Robert H. Pasternack,

Assistant Secretary, Office Special of Education and Rehabilitative Services.