01-8556. 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 March 31, 2000, an arbitration panel rendered a decision in the matter of Ken Haney v. New Mexico Commission for the Blind (Docket No. R-S/99-3). This panel was convened by the U.S. Department of Education pursuant to 20 U.S.C. 107d-1(b) upon receipt of a complaint filed by petitioner, Ken Haney.

FOR FURTHER INFORMATION:

A copy of the full text of the arbitration panel decision may be obtained from George F. Arsnow, U.S. Department of Education, 400 Maryland Avenue, SW., room 3230, 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.

To use PDF you must have Adobe Acrobat Reader, which is available free at the previous 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.access.gpo.gov/​nara/​index.html.

SUPPLEMENTARY INFORMATION:

Pursuant to the Randolph-Sheppard Act (20 U.S.C. 107d-2(c)) (the Act), 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 improper termination of Mr. Ken Haney, a licensed blind vendor, from the Business Enterprise Program of the New Mexico Commission for the Blind, the State licensing agency (SLA).

A summary of the facts is as follows: Until November 1995, the complainant managed and operated a cafeteria at the Levi-Strauss Plant in Roswell, New Mexico, under the SLA's Randolph-Sheppard Vending Facility Program. On November 1, 1995, a representative of the SLA met with the complainant to discuss with him the lack of profitability of the cafeteria and other issues regarding performance. Shortly thereafter, Mr. Haney requested and was granted by the SLA a 6-month leave of absence due to stress and health issues. During this time, complainant's vending license was terminated on November 7, 1995.

On August 16, 1996, complainant requested a full evidentiary hearing on his license termination. Mr. Haney alleges that his delay in requesting a hearing was due to his continuing health problems.

Complainant's request for a hearing concerning his termination from management at the Levi-Strauss cafeteria was denied on September 17, 1996. A request for reconsideration was also denied on November 14, 1996. The SLA alleges that there were no mental or physical circumstances that prohibited Mr. Haney from requesting a hearing within the 15-day time period pursuant to the SLA's rules and regulations for filing grievances. It is this decision that complainant sought to have reviewed by a Federal arbitration panel. An arbitration hearing on this matter was held on February 2 and 3, 2000.

Arbitration Panel Decision

The central issue before the arbitration panel was whether the actions taken by the New Mexico Commission for the Blind in denying Mr. Haney a full evidentiary hearing were in violation of the due process requirements under the Act (20 U.S.C. 107d-1(a)), the implementing regulations (34 CFR part 395), and applicable State rules and regulations. The panel ruled that complainant was essentially terminated for poor performance in the operation of the cafeteria, but waited for over 8 months before requesting an administrative review or a full evidentiary hearing to contest the termination before the New Mexico Commission for the Blind.

The SLA denied complainant's request for hearing because he failed to ask for a hearing within the 15-day time limit provided under the SLA's rules and regulations.

Based upon the evidence presented, the panel determined that, at all times, the complainant was knowledgeable about the time limits. Further, according to the panel, while he experienced some medical problems after his termination, there was no evidence that he was incapable of understanding or complying with the time limits. Therefore, the panel affirmed the New Mexico Commission for the Blind's denial of the complainant's request for hearing.

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

Dated: April 3, 2001.

Andrew J. Pepin,

Executive Administrator for Special Education and Rehabilitative Services.