2011-18448. 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 March 18, 2011, an arbitration panel rendered a decision in the matter of Sam Tocco v. Michigan Commission for the Blind, Case no. R-S/08-6. 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, Sam Tocco.

FOR FURTHER INFORMATION CONTACT:

You can 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 can 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

Sam Tocco (Complainant) alleged violations by the Michigan Commission for the Blind, the State licensing agency (SLA), under the Act and its implementing regulations in 34 CFR part 395. Complainant alleged that the SLA violated the Act, the implementing regulations, and State rules and regulations by terminating his vending operator's license at the United States Postal Service's Pontiac vending route (Pontiac vending route).

Specifically, Complainant became a Randolph-Sheppard vendor in 2003. Beginning in 2006, he was promoted to the Pontiac vending route. In August and December 2006, the SLA was prepared to revoke Complainant's operating license for a variety of reasons that were not relevant to the subject arbitration. In August 2006, Complainant signed a probationary agreement with the SLA.

However, in the later part of 2007, Complainant again experienced compliance issues and the SLA and Complainant entered into another probationary agreement on September 19, 2007 (2007 probationary agreement), to resolve various outstanding issues. On January 15, 2008, the SLA informed Complainant that he had violated the terms of the 2007 probationary agreement and revoked his operating license, effective January 24, 2008, for failure to pay an annual health license fee.

Complainant then requested a full evidentiary hearing from the SLA on this matter. However, the SLA asserted that Complainant waived his right to an evidentiary hearing and other due process protections by signing the 2007 probationary agreement. Shortly thereafter, Complainant filed another request with the SLA for a full evidentiary hearing. On January 23, 2008, the SLA again denied Complainant's request for an evidentiary hearing.

On March 10, 2008, Complainant's representative filed a request with the Department to convene a Federal arbitration panel. On March 26, 2008, the Department responded to Complainant's request informing Complainant and the SLA that, while Complainant did not qualify for arbitration as he had not been provided a full evidentiary hearing, Complainant had a statutory right to a full evidentiary hearing. The Department directed the SLA to schedule a full evidentiary and informed Complainant's representative if, after the full evidentiary had been conducted Complainant was still dissatisfied with the results, he could resubmit his request for Federal arbitration.

On September 3, 2008, the SLA provided Complainant a full evidentiary hearing conducted before an Administrative Law Judge (ALJ). On October 30, 2008, the ALJ issued her decision finding that Complainant was in compliance with the 2007 probationary agreement and also finding that his failure to pay the health license fee did not constitute a violation. As a remedy, the ALJ recommended that the SLA reinstate Complainant's operating license and that he be assigned a suitable vending location as soon as possible. In noting that Complainant had significant difficulties in the operation of the Pontiac vending route, the ALJ also recommended, without assigning any fault to Complainant or the SLA, that Complainant be assigned a better established and less demanding vending route.

On December 12, 2008, the SLA reviewed the ALJ's decision. The SLA adopted in part and rejected in part the ALJ's recommendations as final agency action. Specifically, the SLA accepted the recommendation to reinstate Complainant's operating license but rejected the ALJ's recommendation to assign Complainant to a suitable site that was a better established or less demanding route. Instead, the SLA required that Complainant bid on a vending location in accordance with existing SLA transfer and promotion rules and regulations.

On February 17, 2009, Complainant's representative again filed a request for Federal arbitration, alleging that the final agency action by the SLA did not provide an adequate remedy for the harm Complainant had incurred from the revocation of his operating license. On April 29, 2010, a Federal arbitration hearing was held.

Arbitration Panel Decision

After reviewing all of the evidence and testimony, the panel unanimously ruled that Complainant was entitled to receive a priority bid. Thus, the panel directed the SLA to waive the existing conditions governing the award of vending facilities and to consider Complainant the successful bidder on any vending facility or vending route for which he would be qualified and certified for a period of 12 months commencing with the date of the panel's decision. This ruling was considered “an extraordinary remedy” by the panel, based upon the specific circumstances of Complainant's case in which he lost his previous vending route as a result of the erroneous license revocation. The panel clearly indicated, however, that this case should not serve as a precedent for future cases because of these unique circumstances. Also, the panel denied the remedies requested by Complainant with respect to compensatory damages, punitive or exemplary damages, and restoration of Complainant's retirement benefits to his program pension plan.

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

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Dated: July 18, 2011.

Alexa Posny,

Assistant Secretary for Special Education and Rehabilitative Services.