[Federal Register Volume 60, Number 23 (Friday, February 3, 1995)]
[Notices]
[Pages 6706-6707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2683]
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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.
SUMMARY: Notice is hereby given that on February 3, 1992, an
arbitration panel rendered a decision in the matter of Karla Todd v.
Alabama Division of Rehabilitative Services, (Docket No. R-S/90-4).
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 Karla Todd on
June 13, 1990. The Randolph-Sheppard Act creates a priority for blind
individuals to operate vending facilities on Federal property. Under
this section of the Randolph-Sheppard Act (the Act), a blind licensee
dissatisfied with the State's operation or administration of the
vending facility program authorized under the Act may request a full
evidentiary hearing from the State licensing agency (SLA). If the
licensee is dissatisfied with the State agency's decision, the licensee
may complain to the Secretary, who is then required to convene an
arbitration panel to resolve the dispute.
FOR FURTHER INFORMATION CONTACT: A copy of the full text of the
arbitration panel decision may be obtained from George F. Arsnow, U. S.
Department of Education, 600 Independence Avenue, S.W., Room 3230
Switzer Building, Washington, D.C. 20202-2738. Telephone: (202) 205-
9317. Individuals who use a telecommunications devise for the deaf
(TDD) may call the TDD number at (202) 205-8298.
SUPPLEMENTARY INFORMATION: Pursuant to section 107d-2(c) of the
Randolph-Sheppard Act, the Secretary is required to publish a synopsis
of each arbitration panel decision affecting the administration of
vending facilities on Federal property.
Background
Karla Todd is a blind vendor licensed by the Alabama Division of
Rehabilitative Services, the SLA under the provisions of the Act. On
September 20, 1989, Ms. Todd attended a meeting of blind vendors from
the Mobile area. At this meeting, the agenda provided for the election
of a committee representative for the Committee of Blind Vendors,
pursuant to 34 CFR 395.14, which states that the SLA shall provide for
the biennial election of a State Committee of Blind Vendors.
At the September meeting, complainant was one of the two candidates
nominated for committee representative. A vote was held that resulted
in a three to three tie. A second run-off election was held with the
same result. A special meeting of blind vendors to resolve the matter
was called for October 4, 1989. Prior to the meeting the candidate
opposing complainant withdrew.
The SLA sent a letter to the vendors announcing the October 4
meeting, explaining the problem regarding the election on September 20,
and stating that the only purpose of the meeting would be to elect a
member of the State Committee of Blind Vendors.
Ten vendors attended the October 4, 1989 meeting, including the
complainant. Ms. Todd was again nominated along with another vendor.
The other vendor received the majority of the votes and was elected to
the committee.
Ms. Todd subsequently challenged the candidacy of the vendor
elected at the October 4, 1989 meeting, stating that she should have
won the election by default when the previous vendor who had received a
tie vote with complainant withdrew her candidacy prior to the October
4th meeting. She asserted that proper procedures under the rules and
regulations of the Alabama Randolph-Sheppard vending program had not
been followed.
Karla Todd requested and received an administrative review with
respect to the matter. The SLA upheld the election of the new
candidate. Subsequently, complainant requested a full evidentiary
hearing.
On March 19, 1990, an evidentiary hearing was held in Montgomery,
Alabama. The hearing officer ruled that Ms. Todd's objections were
without merit. Subsequently, Ms. Todd appealed this ruling to a Federal
arbitration panel, which held a hearing on September 27, 1991.
Arbitration Panel Decision
The issue before the panel was whether the process followed by the
SLA on September 20 and October 4, 1989 was consistent with the State
rules and regulations governing the day-to-day operations of the
Business Enterprise Program.
The SLA argued that the issue before the arbitration panel was not
arbitrable since the policies and procedures of the Business
Enterprises Program only allow for review of ``actions arising from the
operation or administration of a vending facility.'' However, it was
the opinion of the majority of the panel that the complainant's
argument was persuasive. The Act, in 20 U.S.C. 107b-1, states that the
Committee of Blind Vendors shall participate with the Vocational
Rehabilitation Agency regarding administrative decisions, policies, and
program development decisions affecting the overall administration of
the State Vending Facility Program.
The panel concluded that the actions of the Committee of Blind
Vendors indeed had an impact on the operation and administration of all
vending facilities, and, therefore, the issue was reviewable by the
panel.
The panel found that the policies and procedures of the Business
Enterprise Program, specifically the section on elections, covered the
issue before the panel. The section on elections states, ``[I]f no
candidate receives a majority of the votes, a run-off between the two
highest vote getters will be held.'' The SLA interpreted this to mean
that only one run-off election had to be held, and in the event of a
tie in the run-off election, an entirely new election was appropriate.
The panel did not concur with the SLA's interpretation of this
language. The panel stated that the common sense meaning of the term
``run-off'' is not necessarily a singular act, but implies the act of
breaking a tie regardless of the number of times necessary to achieve
that goal. [[Page 6707]] Additionally, the panel noted that the SLA's
policies and procedures are silent regarding holding a new election and
also regarding a tie occurring during a run-off election. Therefore,
the panel found that the language of the policies and procedures of the
Business Enterprise Program regarding elections was clear in that once
the two highest vote getters were determined, those two vote getters
would continue with a run-off election until one of the vote getters
ultimately won the election.
On September 26, 1991, a new election was held. The SLA petitioned
the panel to declare the issue moot in light of the new election. The
complainant requested that the panel unseat the person elected on
October 4, 1989, as well as the person elected on September 26.
The panel ruled that the election process held by the SLA on
October 4, 1989 was a violation of the policies and procedures of the
Business Enterprise Program and, further, that Karla Todd won the run-
off election that began on September 20, 1989. However, since a new and
undisputed election was held on September 26, 1991, the panel concluded
it was without authority to upset that election, and, therefore, the
issue as to the appropriateness of the election held on October 4, 1989
was moot and no remedy could be fashioned.
Panel member Harris dissented, indicating that the rules of the
Business Enterprise Program were silent regarding the situation of a
run-off election, and, therefore, the SLA did not violate its own
policy.
The views and opinions expressed by the panel do not necessarily
represent the views and opinions of the U.S. Department of Education.
Dated: January 30, 1995.
Judith E. Heumann,
Assistant Secretary, Office of Special Education and Rehabilitative
Services.
[FR Doc. 95-2683 Filed 2-2-95; 8:45 am]
BILLING CODE 4000-01-P
