00-11500. 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 August 29, 1999, an arbitration panel rendered a decision in the matter of Michael L. Adams v. Michigan Commission for the Blind (Docket No. R-S/97-20). 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 petitioner, Michael L. Adams.

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, 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 alternate 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 either of the following sites:

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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 denial by the Michigan Commission for the Blind, the State licensing agency (SLA), of Mr. Michael L. Adams' request to bid on a vending route at the Kalamazoo Psychiatric Facility in Kalamazoo, Michigan. A summary of the facts is as follows: On October 22, 1996, an opportunity to manage a vending route became available and was advertised under the SLA's established procedures. Complainant bid on the vending route. The SLA found that the candidate with the most seniority was not in compliance with its rules and policies. Complainant alleges that, while he was second in line in seniority and was in compliance, he was not selected.

Complainant alleges several irregularities in the SLA's procedures in awarding the vending route. First, complainant alleges that the SLA failed to award the vending route in accordance with its own rules and regulations regarding the timeframe of the award.

Second, complainant alleges that he, as the next qualified bidder, did not receive an offer from the SLA to operate the vending route because of complaints received about him from one of the facilities on the route. Complainant further states that, while the vending route was developed with the full participation of the Elected Committee of Blind Vendors, it was changed after private phone calls to members by the Business Enterprise Program staff and was not presented to an open committee meeting.

Complainant requested an administrative review of this matter, which was held on December 12, 1996. Subsequently, complainant requested that the SLA convene a full evidentiary hearing, which was held on March 26, 1997, and April 22, 1997.

In a decision dated May 30, 1997, the Administrative Law Judge (ALJ) recommended that the SLA evaluate the qualifications of the vendors who responded to the October 22, 1996, bid announcement for the vending route. If the SLA found the complainant to be the successful bidder, the ALJ ruled that the complainant should, with certain stipulations, be awarded the vending route.

In a letter dated June 23, 1997, the SLA transmitted to complainant a copy of its final agency action dated June 16, 1997, which rejected the decision of the ALJ.

On September 15, 1997, complainant was notified that the SLA intended to revoke his vending license at the Kalamazoo Psychiatric Hospital for alleged failure to comply with routine business and food service practices and to sign in and out of the facility. On November 24, 1997, Mr. Adams filed a request for a full evidentiary hearing, which was held on February 10, 1998. In a decision dated April 22, 1998, the ALJ recommended that the SLA not revoke Mr. Adams' vending facility license. In a letter dated June 15, 1998, the SLA transmitted to complainant a copy of its final agency action rejecting the ALJ's decision and revoking Mr. Adams' vending license.

In November, 1998, complainant amended his original complaint to include the issue of license revocation. It is these two decisions that complainant sought to have reviewed by a Federal arbitration panel. An arbitration panel heard these matters on April 27, 1999, and on August 17 and 20, 1999, respectively.

Arbitration Panel Decision

The issues before the arbitration panel were (1) whether the Michigan Commission for the Blind violated the Act (20 U.S.C. 107b-1(3)), the implementing regulations (34 CFR 395.14), and its own rules and regulations in allegedly improperly denying the complainant's bid on a vending route; and (2) whether the Michigan Commission for the Blind violated the Act, implementing regulations, and its own rules and regulations in improperly revoking Mr. Adams' vending license.

In a decision dated August 29, 1999, regarding issue #1, the majority of the panel after deliberation determined to adopt in total the decision and recommendation of the ALJ dated May 30, 1997. The majority ruled that Mr. Adams be compensated as follows: Mr. Adams must, for 12 months from the date of the award, be considered a priority bidder for any location within 50 miles of his home for any location or route for which he is qualified. Additionally, Mr. Adams is to respond to any offer with regard to a route or location within 7 days of that announcement.

Concerning issue #2, the complainant's license revocation, the majority of the panel after reviewing the ALJ's decision on April 22, 1998, determined that it should be adopted in total. The panel further ruled that Mr. Adams' vending license should be reinstated immediately and that Mr. Adams is to receive unbroken seniority from his original date of seniority to the present time.

One panel member dissented.

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

Dated: May 3, 2000.

Judith E. Heumann,

Assistant Secretary for Special Education and Rehabilitative Services.