2011-2638. 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 September 28, 2010, an arbitration panel rendered a decision in the matter of Ron Armstrong v. Ohio Rehabilitation Commission, Bureau of Services for the Blind and Visually Impaired, Case no. R-S/08-4. 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, Ron Armstrong.

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), call the Federal Relay Service (FRS), toll-free, at 1-800-877-8339.

Individuals with disabilities may obtain this document in an accessible 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 (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

Ron Armstrong (Complainant) alleged violations by the Ohio Rehabilitation Services Commission, Bureau of Services for the Blind and Visually Impaired, the State licensing agency (SLA), under the Act and implementing regulations in 34 CFR part 395. Specifically, Complainant alleged that the SLA improperly administered the Ohio Randolph-Sheppard Vending Facility Program in violation of the Act, implementing regulations under the Act, and State rules and regulations. Complainant further alleged that the SLA's selection committee denied him an opportunity to manage Vending Facility 495 by inappropriately applying selection criteria that led to another candidate being selected to manage Vending Facility 495.

Prior to Complainant applying for Vending Facility 495 in 2006, he had managed the facility part-time for four years. Complainant requested a State fair hearing on the SLA's decision to award Vending Facility 495 to another candidate. A State fair hearing on this matter was held. On December 8, 2008, the hearing officer issued a decision denying Complainant's grievance. On January 6, 2009, the SLA adopted the hearing officer's decision as final agency action. Complainant sought review of the SLA's final agency by a Federal arbitration panel.

According to the arbitration panel, the issues to be resolved were: (1) Whether the selection committee violated the Ohio Administrative Code (OAC) when it applied the 2006 labor goal to determine a labor percentage for 2005 for both Complainant and the other candidate when there did not exist a labor goal in 2005 and the 2006 rule required application of labor percentages for two years; (2) Whether the selection committee considered all of the documents in both the Complainant's and the other candidate's vending operator files as required by the OAC; (3) Whether the selection committee invited the grantor (building representative) to participate on the selection committee as required by the OAC; and (4) What the remedy should be if the provisions of the Act or any of the implementing regulations and state rules and regulations were violated.

Arbitration Panel Decision

After hearing testimony and reviewing all of the evidence, the panel issued its ruling. On issue number one, the panel found that the selection committee convened in 2006 to select a manager for Vending Facility 495 was required to determine each candidate's labor percentage for the previous two years.

However, the panel concluded that the problem with implementation of the 2006 rule was that neither the Complainant nor the other candidate had a labor percentage goal for 2005. In order to remedy the two year requirement, the selection committee decided to apply the Complainant's and the other candidate's labor goals in 2006 to their vending facilities in 2005, thus providing a labor percentage for the two-year period.

The arbitration panel found that this action of the selection committee was not patently unfair or an abuse of discretion and thus was not in violation of state rules and regulations or the Act and implementing regulations.

Regarding issue number two, the panel determined that the record reflected complaints about the successful candidate's performance at prior facilities. However, the evidence heard by the panel did not indicate that the SLA or any of its staff arbitrarily removed documentation from the successful candidate's file or failed to submit records in his vending operator file to the selection committee. Thus, based upon testimony of the selection committee members that they were aware of the successful candidate's problems at prior facilities, the arbitration panel ruled that the successful candidate's problems occurred several years earlier and his lack of problems and his improvement over recent years merited the level of scoring that he received from the selection committee.

Concerning issue number three, the panel found that there was no dispute that the grantor of Vending Facility 495 did not serve on the selection committee. Based on the evidence heard by the panel, the grantor was contacted via e-mail by the SLA and indicated that he believed he was invited to serve on the selection committee, but the grantor did not recall why he did not attend. The Complainant interpreted the grantor's lack of attendance to mean that the grantor was not invited by the SLA to participate on the selection committee in violation of the OAC.

However, the panel in considering the hearing record as a whole determined that the Complainant did not meet his minimum burden of proof on this issue.

Finally, regarding issue number four, the panel found no violations of the Act, implementing regulations under the Act, or the state rules and regulations. Thus, the panel denied Complainant's grievance.

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 can 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.

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: February 2, 2011.

Alexa Posny,

Assistant Secretary for Special Education and Rehabilitative Services.