FR Doc 05-15284
[Federal Register: August 3, 2005 (Volume 70, Number 148)]
[Notices]
[Page 44592-44593]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03au05-83]
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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: The Department gives notice that on November 9, 2004, an
arbitration panel rendered a decision in the matter of Arland Stratton
v. Illinois Department of Human Services, Office of Rehabilitation
Services (Docket No. R-S/03-1). This panel was convened by the U.S.
Department of Education, under 20 U.S.C. 107d-1(a), after the
Department received a complaint filed by the petitioner, Arland
Stratton.
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: (202) 245-7374. If
you use a telecommunications device for the deaf (TDD), you may call
the Federal Relay Service (FRS) at 1-800-877-8339.
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.
SUPPLEMENTARY INFORMATION: Under section 6(c) of the Randolph-Sheppard
Act (the 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
This dispute concerns the alleged improper termination of Mr.
Arland Stratton's vending license as a blind licensee under the
Randolph-Sheppard vending facility program by the Illinois Department
of Human Services, Office of Rehabilitation Services, the State
licensing agency (SLA), in violation of the Act (20 U.S.C. 107 et
seq.), the implementing regulations in 34 CFR part 395, and State rules
and regulations.
A summary of the facts is as follows: Mr. Arland Stratton
(complainant) operated Vending Facility 451 (Facility
451) at the Illinois Prairie Rest Area, I-57 in Champaign,
Illinois, until April 1, 2002, when his vending license was terminated.
Previously, on March 28, 2002, complainant alleged that he reported
to his business counselor at the SLA during the counselor's onsite
visit to Facility 451 that a possible bookkeeping error may
have resulted in his using program assets for personal use. Upon
complainant's disclosure of the alleged bookkeeping error, the business
counselor informed the SLA's Director of the Business Enterprise
Program (BEP). The Director of the BEP instructed the business
counselor to do a complete inventory of Facility 451 and to
remove the keys from complainant's possession.
Complainant further alleged that the SLA's termination of his
vending operator's license and removal from Facility 451
occurred without first providing him with an opportunity for a full
evidentiary hearing, in violation of the Act and implementing
regulations.
The SLA alleged that complainant, as a blind vendor, had been
licensed, trained, and certified in the operation and management of
vending facilities in the Illinois BEP. The SLA also stated that
complainant was aware of the policies governing vending facilities and,
in particular, the rules concerning use of program funds for personal
use.
The SLA further alleged that in August 2001 the complainant's
business counselor found him to be deficient in financial management
practices and his paperwork to be unorganized. In January 2002,
complainant received a written reprimand for a second violation of a
State rule regarding accounting procedures. On March 19, 2002, the
complainant's business counselor scheduled a financial audit. At the
time of the audit, the business counselor alleged that complainant
provided incomplete and incorrect paperwork, and the vendor was given
one week to provide all of the correct information.
Following termination of his vending license, complainant filed for
an administrative hearing. The hearing was held on June 10, 2002. In a
decision dated July 8, 2002, the hearing officer affirmed the SLA's
decision to terminate complainant's vending license and removal from
Facility 451. The SLA adopted the hearing officer's decision
as final agency action, and complainant sought review of that decision
by a Federal arbitration panel.
Arbitration Panel Decision
The issues heard by the panel were: (1) Did the SLA violate 20
U.S.C. 107 et seq., the implementing regulations in 34 CFR part 395,
and its own regulations in allegedly improperly terminating the
vendor's operating license and removing him from Facility 451,
and (2) Did the SLA violate Federal law by removing the complainant as
the vendor of Facility 451 and terminating his license before
providing him with a full evidentiary hearing in those decisions?
After reviewing all of the records and hearing testimony of
witnesses, the panel ruled as follows: On the first issue, the panel
ruled that the Federal regulations in 34 CFR 395.7(b) provide for the
termination of a vendor's license after an SLA has afforded the vendor
a full evidentiary hearing and must be applied as written. The panel
concluded that a vendor's license could not be terminated before a
State fair hearing was held. However, the panel noted that the SLA's
authority to remove complainant from his facility was not in question
as distinguishable from terminating his vending license.
Concerning the second issue, the panel ruled that the termination
of complainant's vending license was not consistent with the
rehabilitative purposes of the Act to provide training and additional
services to blind licensees.
Finally, the panel was divided on the appropriate remedy. The
majority of the panel ruled that complainant's license must be
restored, and, upon successful completion of a retraining program,
complainant was to be placed in a suitable location with provisions for
follow-up supervision and training by the SLA. The panel further ruled
that, since the SLA had not previously collected the outstanding debt
from complainant, it should be forgiven allowing him to begin anew.
One panel member concurred with the majority decision on the
finding of a violation but dissented in part regarding the appropriate
remedy, believing that complainant was entitled to lost wages,
compensatory relief, and attorney's fees.
[[Page 44593]]
The views and opinions expressed by the panel do not necessarily
represent the views and opinions of the U.S. Department of Education.
Electronic Access to This Document
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Education documents published in the Federal Register, in text or Adobe
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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.gpoaccess.gov/nara/index.html
.
Dated: July 28, 2005.
John H. Hager,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 05-15284 Filed 8-2-05; 8:45 am]
BILLING CODE 4000-01-P