FR Doc 05-20930
[Federal Register: October 19, 2005 (Volume 70, Number 201)]
[Notices]
[Page 60804-60805]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19oc05-45]
Download: 
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
SUMMARY: The Department gives notice that on October 18, 2004, an
arbitration panel rendered a decision in the matter of Bert Hansen, et
al. v. Nevada Department of Rehabilitation, Bureau of Services to the
Blind (Docket No. R-S/03-05 and 03-07 consolidated). 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
petitioners, Bert Hansen, et al.
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 concerned two separate complaints that were
consolidated into one case in the interest of judicial economy. The
complainants alleged violations of the Act (20 U.S.C. 107 et seq.), the
implementing regulations in 34 CFR part 395, and State rules and
regulations by the Nevada Department of Employment, Training and
Rehabilitation, Bureau of Services to the Blind and Visually Impaired,
the State licensing agency (SLA).
A summary of the facts in the first part of the complaint is as
follows: On January 11, 2002, Mr. Bert Hansen, Chairman of the Nevada
Committee of Blind Vendors, wishing to ensure that the 2002 election of
Elected Committee of Blind Vendors (Committee) would be carried out in
accordance with State rules and policy, wrote to the SLA on behalf of
the Committee.
In his letter, Mr. Hansen noted that the 1999 bylaws of the
Committee were not certified as required by the Nevada Administrative
Code, section 426.080.2. Mr. Hansen suggested that, since clarification
of the 1999 bylaws was needed, the 1983 certified bylaws be used for
the 2002 election process. However, by memorandum dated January 30,
2002, the SLA rejected the Committee's proposal and indicated that the
SLA would conduct its own Committee election. On February 24, 2002,
under the leadership of Mr. Hansen, the Committee held the 2002
election.
Subsequently, the SLA informed the Committee it was holding a new
election that took place on April 7, 2002. The complainants alleged
that the SLA election was held without the participation of the
Committee and that the individuals elected on April 7 were different
from those elected on February 24. The complainants further alleged
that the April 7 election was improperly
[[Page 60805]]
constituted under the bylaws being used by the SLA.
Following the April 7 election, the complainants petitioned the SLA
to conduct another election. On March 21, 2002, the SLA denied the
complainants' petition. Subsequently, complainants filed for a State
evidentiary hearing on the matter that was held on May 30, 2002.
Regarding the second part of the complaint, complainants alleged
problems with the SLA's administration of the Nevada vending facility
program following an audit at the Hoover Dam by the State Legislative
Counsel Bureau (LCB) on April 12, 2001. In particular, the complainants
were upset with the audit report that indicated that high levels of
set-aside payments were being assessed against the blind vendors. On
July 28, 2001, the Committee comprised of the complainants voted to
suspend set-aside payments to the SLA for July and August 2001.
On October 4, 2001, the SLA, following State rules and regulations,
issued to the complainants notices of noncompliance in making timely
set-aside payments. Dissatisfied with the noncompliance notices, the
complainants requested a State evidentiary hearing that was held on
March 29 and 30, 2002.
On February 28, 2003, a hearing officer affirmed the SLA's decision
to deny complainants' request for a new election. In that same
decision, the hearing officer affirmed the SLA's issuance of the
noncompliance notices regarding complainants' nonpayment of set-aside
payments, but reversed the late payment penalties assessed by the SLA.
Additionally, the hearing officer ruled that the Committee had
actively participated in setting the set-aside payment schedule, but
required the SLA to maintain adequate records to support the set-aside
payments charged. The SLA adopted the hearing officer's February 28
decision as final agency action, and complainants sought review of that
decision by a Federal arbitration panel.
Arbitration Panel Decision
The issues heard by the panel were: (1) Whether the SLA abused its
authority, violated the Act, implementing regulations, and the Nevada
Administrative Code and the functions of the Committee in conducting a
Committee election; (2) whether the complainants' unilateral decision
to withhold payment of set-aside fees for the months of July and August
2001 violated the Act and/or applicable Nevada statutory law; (3)
whether the SLA had the authority to compel the complainants to repay
the set-aside payments and/or to impose penalties on the complainants;
and (4) whether the SLA was properly administering the vending facility
program in accordance with the Act, implementing regulations, and State
rules and regulations.
After reviewing all of the records and hearing testimony of
witnesses, the panel majority ruled concerning the election issue that
the SLA acted in substantial compliance with the Act and regulations
when it conducted the Committee election in April 2002.
Concerning the withholding of set-aside payments, the majority of
the panel ruled that the complainants' withholding of set-aside
payments in July and August of 2001 was not in compliance with the Act
or applicable provisions of the Nevada Administrative Code.
Accordingly, the panel directed the complainants to repay the set-aside
payments to the SLA but without penalty. Regarding the question of the
SLA's administration of the vending facility program, the majority of
the panel ruled that the SLA's actions were consistent with the Act.
One panel member dissented.
One panel member concurred with the majority opinion concerning the
election of the Committee and complainants' noncompliance with the Act
and regulations in withholding set-aside payments from the SLA, but
dissented in part regarding the appropriate remedy, believing that the
complaints should repay the set-aside fees with penalty.
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
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: October 14, 2005.
John H. Hager,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 05-20930 Filed 10-18-05; 8:45 am]
BILLING CODE 4000-01-P