FR Doc E8-12262[Federal Register: June 2, 2008 (Volume 73, Number 106)]
[Notices]
[Page 31440-31442]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02jn08-48]
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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 of Education (Department) gives notice that on
December 5, 2007, an arbitration panel rendered a decision in the
matter of Calvin Scott v. Alabama Department of Rehabilitation Services
(Case No. R-S/06-8). This panel was convened by the Department under
the Randolph-Sheppard Act, 20 U.S.C. 107d-1(a), after the Department
received a complaint filed by the petitioner, Calvin Scott.
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 under FOR FURTHER
INFORMATION CONTACT.
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
[[Page 31441]]
administration of vending facilities on Federal and other property.
Background
Calvin Scott (Complainant) alleged violations by the Alabama
Department of Rehabilitation Services, the State Licensing Agency
(SLA), of the Act, the implementing regulations in 34 CFR part 395, and
State rules and regulations concerning his management of Facility
562 in the Gordon Persons State Office Building (GPSO
Building) in Montgomery, Alabama.
Facility 562 is comprised of vending machines located
throughout the GPSO Building. The GPSO Building also houses the Alabama
Department of Finance, where confidential tax records are maintained.
In 2004, in order to service his snack machines, Complainant requested
from building management a ``swipe key'' to enable him to easily access
his vending machines and a designated parking space in the loading
dock.
Shortly after Complainant made his request to building management,
there was a disagreement between the son of the building manager and
Complainant's assistant, who is his wife. Subsequently, on February 7,
2005, the SLA received a letter from the building manager requesting
immediate removal of Complainant from the GPSO Building because of
Complainant's alleged threatening behavior and lack of responsiveness
to refunding money from the vending machines.
Following the February 7 letter, SLA personnel met with the
building manager. At the meeting, building management rescinded the
request that Complainant be immediately removed and agreed to his
conditional return to Facility 562 with several stipulations.
The conditions were: (a) Complainant's wife was barred from the
facility as the result of an unrelated personal dispute; (b)
Complainant was instructed to obtain a different assistant approved by
the SLA; (c) Complainant would agree to cooperate with building
officials regarding secured areas, and (d) Complainant would establish
a more streamlined method to respond to customer complaints and
requests for refunds.
By letter dated February 9, 2005, the SLA informed the Complainant
of the building manager's terms for his return to Facility
562. Upon receipt of the February 9 letter, Complainant ceased
going to Facility 562 and servicing the vending machines.
On February 22, 2005, after an exchange of letters between the
Complainant and the SLA, the SLA informed Complainant that due to his
abandonment of Facility 562, the SLA would remove him from the
facility and conduct an exit inventory on February 24, 2005. However,
on February 25, 2005, the Department of Finance granted the
Complainant's requests to: (a) Allow his wife to serve as his
assistant; (b) provide Complainant with a designated parking space in
the loading dock; (c) relocate a snack machine as previously requested
by Complainant; (d) and provide Complainant a swipe key to access
secured areas. Subsequently, Complainant returned to Facility
562.
On February 14, 2005, the Complainant requested that the SLA
conduct an administrative review pursuant to the Act. Shortly
thereafter, the Complainant indicated that he would not participate and
the hearing was cancelled. He subsequently filed two lawsuits against
the SLA in Federal court requesting relief that included monetary
damages and incarceration of SLA employees. In the two cases, which
were jointly administered, the court ordered the parties to reinstitute
the administrative process. The SLA held a full evidentiary hearing on
this matter on October 6, 2005. On October 13, 2005, the hearing
officer concluded that the Complainant had failed to preserve any issue
upon which relief could be granted and ruled in the SLA's favor. The
SLA adopted the hearing officer's order as final agency action. On
October 23, 2005, Complainant sought review by a Federal arbitration
panel of that decision. A hearing on this matter was held on May 23,
2007.
Arbitration Panel Decision
The arbitration panel began by discussing the issues that the panel
would not decide. First, the panel raised the issue whether it had
statutory authority to hear the merits of the case, since Complainant
did not participate in an administrative review or a State evidentiary
hearing that addressed the merits of the case, but rather filed an
appeal in Federal district court, which directed the SLA to hold a
hearing. The panel concluded that this issue did not have to be
addressed because the panel found that the Complainant was not entitled
to the relief requested.
Secondly, the panel ruled that Complainant's request to seek
monetary relief from and incarceration of some SLA employees was
improper because the Alabama Department of Rehabilitation Services is
the official agency responsible for the Act and implementing
regulations and not the individual State employees.
Lastly, the panel ruled that, under the Act and regulations, the
panel could only hear complaints regarding actions arising from
dissatisfaction with the operation or administration of the Randolph-
Sheppard vending facility program. Thus, Complainant's allegations of
slander, defamation, and violations of his civil rights based on race
or disability, and his seeking to impose criminal liability were
outside the proper jurisdiction of the arbitration panel.
After reviewing all the records and hearing testimony of witnesses,
the panel majority ruled on the merits of the case. The first issue
raised by the Complainant is that he was terminated from the Randolph-
Sheppard vending facility program without receiving a full evidentiary
hearing as required by State law. However, the panel determined that
the SLA made a decision to remove him from the facility and never took
any steps to suspend or terminate his license and remove him from the
program. In fact, the SLA's decision to remove him from the facility
was never implemented and the Complainant was allowed to return to the
facility. Thus, even if he had been removed from the facility, the SLA
had no obligation under State law to provide him a hearing because he
was not terminated from the program. Furthermore, notwithstanding the
panel's decision on State law requirements, the panel found that, even
if the SLA had removed him from the facility, the Act does not require
a fair hearing prior to the action. The Act only requires that an SLA
grant a hearing when a blind licensee is dissatisfied with any action
already taken.
The second issue addressed by the panel was whether the SLA, as the
designated state licensing agency, breached its responsibility under
the Act and implementing regulations to serve as the Complainant's
advocate. The panel concluded that the SLA's successful advocacy on
behalf of Complainant helped to retain his position at Facility
562. Although the Complainant's own advocacy was successful in
reinstating his wife/assistant, in obtaining a swipe key, and in the
relocation of a snack machine, the actions of the SLA were sufficient
to comply with the statutory requirements of the Act. The arbitration
panel denied Complainant's claim for relief.
One panel member concurred in part and dissented in part from the
majority's opinion. The panel member concurred with the majority
opinion that many of the allegations of the Complainant were
unsubstantiated. However, the panel member dissented from the majority
opinion in the belief that the SLA failed to forcefully advocate and
protect the Complainant
[[Page 31442]]
regarding the initial request to remove him and to impose the
restrictive terms for Complainant to remain at Facility 562.
The views and opinions expressed by the panel do not necessarily
represent the views and opinions of the Department.
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:
http://www.ed.gov/news/fedregister.
To use PDF you must have Adobe Acrobat Reader, which is available
free at this site. If you have questions about using PDF, call the U.S.
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in
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.gpoaccess.gov/nara/index.html.
Dated: May 28, 2008.
Tracy R. Justesen,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. E8-12262 Filed 5-30-08; 8:45 am]
BILLING CODE 4000-01-P