[Federal Register Volume 59, Number 144 (Thursday, July 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-18341]
[Federal Register: July 28, 1994]
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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.
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SUMMARY: Notice is hereby given that on March 22, 1991, an arbitration
panel rendered a decision in the matter of David Everett, Vendor, v.
State of Tennessee, Department of Human Services (Docket No. R-S/89-6).
This panel was convened by the Secretary of the Department of Education
pursuant to 20 U.S.C. 107d-2, upon receipt of a complaint filed by
petitioner David Everett.
FOR FURTHER INFORMATION CONTACT: George F. Arsnow, U.S. Department of
Education, 400 Maryland Avenue, S.W., Room 3230, Switzer Building,
Washington, D.C. 20202-2738. Telephone: (202) 205-9317. Individuals who
use a telecommunications device for the deaf (TDD) may call the TDD
number at 202-205-8298. A copy of the full text of the arbitration
panel decision may be obtained from this contact.
SUPPLEMENTARY INFORMATION: Pursuant to the Randolph-Sheppard Act (20
U.S.C. 107d-2(c)), (the Act), the Secretary publishes a synopsis of
arbitration panel decisions affecting the administration of vending
facilities on Federal property.
Background
David Everett, complainant, is a blind vendor licensed by the
respondent, the Tennessee Department of Human Services (TDHS). Mr.
Everett signed an agreement with TDHS to operate vending machines
located in the County Building in Knoxville, Tennessee, on September
20, 1983.
The State licensing agency (SLA), through its Department of
Rehabilitation, operates the Tennessee Vending Facility Program for
blind vendors. The purpose of the program is to establish and support
blind vendors operating vending facilities on State, local, and Federal
property. As the agency designated in Tennessee to carry out and manage
the vending facility program established by the Act, the SLA duly
promulgated rules and regulations to govern the State vending facility
program. These rules and regulations are comprehensive in scope. Based
on the State's Randolph-Sheppard rules and regulations governing its
program, Mr. Everett was required to make monthly income reports,
paying a set-aside fee based upon those monthly reports.
On January 11, 1988, Mr. Everett's Business Enterprise Program
(BEP) counselor wrote him regarding his report and fees, advising him
that he had not filed reports for July through December, nor had he
paid his fees. Mr. Everett was given until January 25, 1988, to file
the reports or be recommended for probation. Mr. Everett did not
respond and, on February 1, 1988, was placed on probation. Mr. Everett
was given 30 days to comply with the requirements to file the reports
and pay the fees. Failure to do so would result in the termination of
his license. Mr. Everett again failed to respond to the probation
letter.
On March 8, 1988, Mr. Everett received his letter of license
termination. This notification allowed Mr. Everett 30 additional days
to comply with the stated requirements. Mr. Everett attempted to comply
by mailing a certified check in the amount of $1,033 to the SLA and
agreed to mail the reports once corrections were made, even though the
reports would be a day late. After discussion with his BEP counselor,
Mr. Everett assumed this arrangement was satisfactory. However, his BEP
counselor stated that she had not agreed to this arrangement.
On April 13, 1988, Mr. Everett was informed that his license was
terminated and that a final inventory would be made of his vending
machine facility. At this time he was notified that fees were
delinquent in the amount of $1,466.85.
On May 10, 1988, Mr. Everett filed for an administrative review and
an evidentiary fair hearing of his termination. The SLA neither granted
nor denied the request for the administrative hearing but did proceed
with the evidentiary fair hearing.
Mr. Everett sought financial relief for what he would have earned
had he not been terminated, reinstatement into the program, and
attorney's fees. The TDHS Commissioner denied relief on all grounds.
Mr. Everett filed a complaint with the U.S. Department of Education
requesting arbitration regarding his termination. A hearing was
conducted September 21, 1990.
Arbitration Panel Decision
In the substantive issues in this case, the panel found that the
SLA was in error in terminating Mr. Everett's license because he had
made a good faith effort to pay his fees and file the report after
March 8, 1988.
The panel concluded that Mr. Everett should be reinstated with back
pay to the program in a facility reasonably equivalent to the one he
left. Mr. Everett's testimony that he netted $1,500 a month was not
contradicted. However, because of his long-standing delinquency in
failing to file reports and pay his fees and his failure to make a more
timely response to the probation and termination letters, the panel
found that Mr. Everett is due less than a full award. The panel found
Mr. Everett was due back pay in the amount of $27,500, less fees he
owes the SLA in full and less his interim earnings in full. The panel
also concluded that attorney's fees may not be allowed.
The panel member selected by the SLA filed a dissenting opinion in
which he maintained that the State was entitled to the sovereign
immunity embodied in the Eleventh Amendment to the United States
Constitution--an immunity the State did not waive by participating in
the Randolph-Sheppard program. This panelist concluded that the State
was, therefore, not liable for monetary damages.
The views and opinions expressed by the panel do not necessarily
represent the views and opinions of the U.S. Department of Education.
Dated: July 22, 1994.
Howard R. Moses,
Acting Assistant Secretary for the Office of Special Education and
Rehabilitative Services.
[FR Doc. 94-18341 Filed 7-27-94; 8:45 am]
BILLING CODE 4000-01-P
