[Federal Register: November 23, 2001 (Volume 66, Number 226)]
[Notices]
[Page 58715-58716]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23no01-34]
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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 May 19, 2001, an arbitration
panel rendered a decision in the matter of Donna Evans, et al v.
Maryland Division of Rehabilitation Services (Docket No. R-S/99-5).
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,
Donna Evans, et al.
FOR FURTHER INFORMATION: A copy of the full text of the arbitration
panel decision may be obtained from Suzette E. Haynes, U.S. Department
of Education, 400 Maryland Avenue, SW., room 3232, Mary E. Switzer
Building, Washington, DC 20202-2738. Telephone: (202) 205-8536. If you
use a telecommunications device for the deaf (TDD), you may call the
TDD number at (202) 205-8298.
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:
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To use PDF you must have Adobe Acrobat Reader, which is available
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the Washington, DC, area at (202) 512-1530.
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 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.
[[Page 58716]]
Background
This dispute concerns the alleged failure by the Maryland Division
of Rehabilitation Services, the State licensing agency (SLA), to
properly administer the Randolph-Sheppard Vending Facility Program by
prohibiting the State Committee of Blind Vendors (Committee), who are
the complainants in this case, from using allocated funds to pay legal
expenses. As a result, the Committee maintained that it had been
restricted in participating in the administration of the SLA's
Randolph-Sheppard Vending Facility Program pursuant to the provisions
of the Act (20 U.S.C. 107 et seq.) and the implementing regulations in
34 CFR part 395.
A summary of the facts is as follows: In August 1997 the Committee
voted to ask for an increase in its budget, which included funds for
legal counsel. In a letter dated September 18, 1997, to the Committee,
the SLA denied the increase stating three reasons, which were--(1) no
significant revenue enhancements had been demonstrated for the FY 1998
and FY 1999 budget year; (2) many of the major budget items were driven
by the settlement agreements; and (3) the SLA's Randolph-Sheppard
Vending Facility Program had significantly reduced program costs by
eliminating two positions. The SLA further stated that, based on a
review of the Randolph-Sheppard Vending Facility Program, the SLA would
initiate a modest increase in the Committee's budget that was
previously approved for FY 1998 and FY 1999.
The issue of the use of funds for legal expenses budgeted for the
Committee was addressed in a letter dated October 1, 1997, from the
Chairman of the Committee to the SLA. The Chairman indicated that it
was the Committee's understanding that both parties had a consensus
concerning the use of funds for legal counsel. The Committee alleged
that the SLA never submitted to the Committee in writing any formal
objection to the use of the Committee's funds for legal fees. The
Committee also alleged that there is no prohibition in the Act and
implementing regulations concerning the use of legal counsel by the
Committee; therefore, the Committee was entitled to use its funds for
legal representation.
The Committee further alleged that a request for a full evidentiary
hearing on their complaint concerning the SLA's refusal of payment of
legal fees was filed on July 12, 1998, with the SLA. On August 3, 1998,
the SLA informed the Committee through the Office of Administrative
Hearings that a pre-hearing conference date had been set for October 1,
1998. However, the Committee maintained that the delay in providing a
full evidentiary hearing violated the Act, implementing regulations,
Maryland State regulations, and the Committee's due process rights to a
speedy resolution of its complaint.
The Committee also challenged the selection of the individual to
chair the administrative review conference required by State
regulations with respect to vendor complaints and challenged the
attendance at those informal conferences of the SLA's attorney.
Arbitration Panel Decision
A majority of the arbitration panel concluded that, while the
Committee had raised a number of interesting policy issues in support
of their claims, there was no requirement in the Act or the
implementing Federal or State regulations to fund the activities of the
Committee, to grant the Committee plenary control over the expenditures
of any monies budgeted to it by the SLA, or to require that the SLA pay
for the attorney fees of the Committee, even if those fees were
incurred in furtherance of Committee activities mandated by the Act.
The panel further found that the 1974 Amendments to the Act imposed
certain responsibilities upon the Committee and increased the
participation of licensed blind vendors in the conduct of the Randolph-
Sheppard Vending Facility Program. However, the panel ruled that the
Act did not grant the Committee any control over the expenditure of
program funds (including those program funds that have their source in
vendor activities or activities engaged in for the benefit of vendors)
and thus did not mandate that the SLA fund any Committee activities in
particular.
Concerning the dissatisfaction of the Committee regarding the
Administrative Review Conference, the majority of the panel concluded
that the selection of the chair and the manner in which the conference
was held was consistent with the applicable State regulations.
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: November 16, 2001.
Robert H. Pasternack,
Assistant Secretary, Office Special of Education and Rehabilitative
Services.
[FR Doc. 01-29200 Filed 11-21-01; 8:45 am]
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