The Tribe's second claim was that the grant officer erred when he
determined the Tribe was not significantly superior to the Council. Yet a review of the criteria
by which the two parties were judged shows this is not the case. The first area was operational
capability, and in the panel's decision, was worth a potential forty points: twenty based on the
organization's previous experience in operating employment programs, ten from experience in
operating other human resource development programs, and ten from an ability to maintain
continuity of services already being provided under the JTPA.
The Tribe faired badly in this area, scoring only 20.3 points. Most of the
difference between the Tribe's score and the significantly higher score of the Council came in the
first sub-area, previous experience in employment and training programs. Here, both groups had
experienced personnel, but the key factor was the experience of the organization. (Tr. 44).
While individual experience is valuable, experience as an organization is also key. Many
talented individuals do not always result in a talented organization. Therefore, the grant officer
also looks to the experience of the organization.
I conclude that the grant officer correctly found that the Tribe lacks
organization experience in job training programs. The Tribe's application does not show
experience in employment and training programs. Furthermore, the panel was also correct when
it noted that the Tribe did not have a staff in place that could handle the JTPA program, but
would have to hire several additional employees, while the Council's staffing was already in
place. While the panel did note that the Council lacked an extensive establishment in Georgia,
and had other programs, the grant officer found these offset by the experience of the Council and
[Page 9]
the inexperience of the Tribe. Therefore, I find that he had a rational basis for his decision.
I should also mention regarding the review panel's conclusions on the
experience of the Tribe's staff, that the Tribe's chief testified there "are people that are in
our tribal office on a daily basis that volunteer their time and they are there eight to twelve hours
a day that have administered these types of programs and we have submitted their
resumes." (Tr. 113). Such evidence does not prove the Tribe is operating any sort of
training program, merely that people in the Tribe may have run such programs in the past, and
thus it goes to the experience of the individuals rather than the experience of the organization.
Moreover, this evidence, other than the resumes, was not available to the grant officer at the time
he rendered his decision and thus cannot be relied on by me in rendering mine.
The Tribe did outshine the Council in its experience with other, non-employment human resources programs, thanks to its experience with Health and Human
Services programs. However, this factor was given lesser weight than experience with
employment and training programs, as these programs directly relate to the JTPA funds. I agree
that this is a reasonable distinction.
The panel faulted the Tribe under the third subheading, ability to maintain
continuity of services. Although the Tribe disagreed with this determination, I find the grant
officer had a reasonable basis to accept the panel's determination. It is true that the Tribe did
describe, in general terms, their plans to open three state wide offices. I find it significant,
however, that the Tribe did not provide any discussion regarding the details of how it intended to
maintain services to current enrollees. The Tribe's plans for new offices do not explain how
existing services would continue to be provided to the existing enrollees. Also, the plans for
identifying needs and expanding a statewide delivery system do not specify how the Tribe
intended to maintain the delivery system already in place. The Council clearly had delivery
systems set up for the Georgia enrollees, which it would merely be required to continue. In this
respect, I find that the Council's lack of a physical presence in Georgia does not count against
them, as they were already providing services in that area. In light of all this, I find a reasonable
basis existed for the grant officer to accept the panel's determination.
The second criterion on which the panel evaluated the applicants also came
out in favor of the Council. Regarding the identification of training and employment problems
and the approach to solving them, the panel gave the Tribe a score of 9.7 and the Council a score
of 13 out of a possible 20 points. The panel afforded the Tribe an advantage in its discussion of
need, recognizing that the Tribe had done work to identify employment barriers and had
generalized plans to provide special outreach, recruitment, assessment and evaluation of
participants. However, the panel found the Tribe lacked experience in running employment
programs, that the Tribe's application did not address its plans to serve the urban population, and
that the Tribe intended to refer applicants with special needs to state programs that appeared to
[Page 10]
have a poor track record with training Native Americans. The Council did not fare as well when
it came to addressing problems, but received a higher mark as the result of its on-going review
system, individualized approach to each participant, and its dual methods of operation. The
panel was concerned that the Council did not discuss its results under previous grants and its
one-central-office approach which ran the risk of having participants fall through the cracks.
Although I find the panel's analysis on this point less than ideal the
panel did not address the Council's practice of also referring participants to state agencies nor
that the Council's "project" method of operation had been used only in Florida I
also find it reasonable. The panel was correct that the Council gave more details of how it
intended to deal with the identified problems. While the panel was concerned about the
Council's use of one office, it was also unaware of any specific problems or complaints or of any
individuals who had fallen through the cracks. In contrast, the Tribe certainly identified
problems, but did not give as many details on how it intended to deal with them. The Tribe also
did not specifically address how it intended to serve participants in urban areas. None of the
three offices it intended to set up was to be located in an urban area, although a significant
portion of potential participants live in these areas. (ALJX 10 at E13). Thus, I find the panel's
rating, and the grant officer's adoption of the panel's recommendation, were neither arbitrary nor
unreasonable.
The third area examined by the panel consisted of the planning process of
each applicant. Here, the Tribe received a score of 8.6 out of twenty, while the Council received
a 12. This factor had several subparts, the first of which was private sector involvement for
which the Tribe received only a 3.3 out of a possible ten points. The panel felt in this regard that
although the Tribe had shown some minimal indications of support from letters of support
prepared by two Chambers of Commerce and announced an intent to develop a statewide
advisory council, this was inadequate. The panel noted that there were no private sector links
other than letters of support. It also concluded that the proposed council would be advisory
while actual decisions would be made by the Tribe's board of directors. It further found that
knowledge of the Tribe's existence appeared to be limited, the Tribe did not discuss the eligibility
criteria or decision making process it would use to determine who qualified for JTPA assistance,
and the Tribe did not indicate how other Indian or program support groups would be selected.
I believe the panel was correct in evaluating the Tribe under this factor.
The Tribe did not discuss how it would decide who qualified for services, a point which was
shown through the hearing to be a controversial matter. The Tribe also did not show any
promises of support the chamber of commerce letters were essentially letters wishing the
Tribe well in its application or concrete plans on how it intended to involve the private sector
in the program. The Tribe's experience working with state and local service agencies on other
projects does not demonstrate the involvement of the private sector in job training and
employment programs. As most jobs are with the private sector, not service agencies, the lack of
detail and experience in this area was a reasonable concern. I also find it was reasonable for the
[Page 11]
panel to be concerned that the council would be only an advisory body with all decisions
deferred to the Tribe. The application was unclear whether the advisory council would have any
real oversight powers. (ALJX 10 at E10). Contrary to allegations of the Tribe, the panel did not
perceive the advisory council as unviable, but rather as too limited. While the panel could have
acknowledged that the Tribe had attempted to provide a rough framework of its ideas on how the
program would be structured, its failure to do so was not unreasonable as these ideas were so
lacking in detail as to be more aspiration than plan.
Contrasting the Tribe's application on this factor, the Council broke down
exactly how its planning process works, and included examples. It also showed how it receives
input from state agencies and various tribes, and described the existence of a Native American
Outreach forum. The panel's crediting of these items was reasonable, as was its criticism of the
lack of a showing of private sector support or involvement locally and the Council's apparent
exclusion of program participants from the planning process. The panel correctly found that the
Council did not identify private sector support in Georgia, but felt that the Council's experience
in Georgia and overall planning process was superior to the Tribe's. While the panel went
beyond the listed criteria for this point, considering the question of eligibility criteria and the
planning process itself, it did this for both applications and did so reasonably. Thus, I find the
panel's ratings on this point overall, as well as the grant officer's decision in accepting them, to
be reasonable.
I find the panel did err, and thus the grant officer erred in accepting the
panel's rating, regarding community support. The panel first erred when it credited the letter in
support of the Tribe from a community college, despite the lack of any indication that this is a
Native American-controlled organization, as required by Part VIII(3) of the application
solicitation. 61 Fed. Reg. 48174. (ALJX 10 at E57; ALJX 12 at page 6). However, the panel
was correct in not taking into account the letters of support for the Tribe from Georgia politicians
and state agencies. (ALJX 10 at E50-E53; ALJX 12 at page 6). In addition, the panel was
correct in noting the letter of support from the Eastern Cherokee, which belies the panel's
conclusion that the Tribe's support was confined to only southwest Georgia. (ALJX 10 at E54;
ALJX 12 at page 6). However, the panel's concerns about limited statewide support were
reasonable. (ALJX 12 at page 6). The panel also erred in evaluating the Council's application in
this area. The two letters in support of the Council noted by the panel are from Florida and
Alabama rather than Georgia. (ALJX 10 at E109, E165-E166). However, based on the record
before both the panel and the grant officer, I believe they were correct in crediting the Council's
attempts to develop community support in Georgia. The panel also correctly noted the lack of
expressed support for the Council and the lack of any advisory input from Georgia. (ALJX 11 at
page 6). Thus, I find the panel made two errors in its analysis on this point, but I conclude that if
the panel had not erred, the Tribe would only have scored one point higher, at best. Thus, these
errors did not substantially affect the reasonableness of the panel's overall recommendation or the
grant officer's ultimate decision.
[Page 12]
The final criteria on which the two applicants were evaluated involved
their administrative capability. Again, this criterion was divided into subparts, the first of which
dealt with each applicant's previous experience in administering public funds. Although the
panel acknowledged that both applicants had experience in dealing with public funds, the
Council received higher marks because of its more extensive experience in dealing with these
funds and its excellent audited results. The Tribe's marks were lower because its experience in
administering public money was much more limited and nothing in the record indicated that it
had ever undergone an audit or performance evaluation. The Council's score was lowered
because of the panel's concern about the lack of information explaining how the money spent in
Georgia was meeting Georgia program needs. (ALJX 11 and 12 at pages 7). The grant officer
apparently also lacked this information in making his decision as he testified that he had only
acquired this knowledge in anticipation of the hearing. (Tr. 93). However, the lack of this
information was accounted for in the panel's scores, and thus I find the grant officer's final
decision was reasonable.
The next subpart dealt with the experience of senior management. The
panel ranked the Tribe only slightly lower than the Council because the Council's management
was fixed while the Tribe would need to hire several key staff members. (ALJX 11 and 12 at
pages 8). A review of the record shows that the two staffs were similar in experience, and thus I
believe the panel's ratings were reasonable.
Overall, I find the panel's scores to be reasonable, with the exception noted
above, and even with that exception, I find the panel's recommendations were reasonable. The
Tribe argues that even if the panel's recommendations were reasonable, the grant officer still
erred when he accepted them because the Council's performance had been unsatisfactory and
denied service to Native Americans in Georgia. However, the record before the grant officer did
not reflect this. Even in its brief, the only evidence the Tribe cites to is the testimony of its
Chief, which was not before the grant officer when he made his decision. While the hearing
record shows the Tribe may have legitimate concerns, this proceeding is not the proper forum to
raise them. Rather, the Tribe, or for that matter any group or organization whose members
believe they are being treated unfairly in the application process, should file a complaint with the
Department of Labor as provided in Part 636 of Title 20 of the Code of Federal Regulations. Not
only does that agency have the authority to deal with the type of allegations made by the Tribe,
but an official complaint would serve as a record of potential problems with the Council's
administration of the funds in question when future grants are awarded.
The final argument of the Tribe is that I should find the applicable
provisions of the JTPA unconstitutional. As an administrative law judge I lack the authority to
declare a law unconstitutional. However, as the Tribe makes only a bare allegation of
unconstitutionality, without any supporting argument, even if I had such power I could not and
would not agree.
[Page 13]
In conclusion, the Tribe is the victim of a rational regulatory preference for
incumbents. The criteria that flow from that preference affords higher marks to experienced
participants with an additional burden that the Tribe prove not only that it's better than the
Council, but "significantly superior." Added to this hurdle are the Tribe's admitted
errors in preparing their application, its lack of experience as an organization in job training
programs, and its lack of detail in their submitted application. None of these, nor the points
raised by the Tribe to the grant officer, convinces me that the grant officer's decision was
unreasonable, arbitrary, or an abuse of discretion. That decision is reasonable in view of the
record he had available to him at the time he made his decision. Furthermore, I concur with the
grant officer that the information made available to him does not demonstrate that the Tribe is
significantly superior to the Council. Thus, the grant officer's decision is affirmed.
ORDER
For the above-stated reasons, IT IS HEREBY ORDERED that the request
by the Lower Muskogee Creek Tribe that the March 1, 1997 decision of the grant officer be
reversed is denied.
DONALD W.
MOSSER
Administrative
Law Judge
[ENDNOTES]
1 The Florida Governor's Council on
Indian Affairs chose not to enter an appearance in this matter. (Tr. 6).
2 References to ALJX pertain to exhibits of the
Administrative Law Judge. Citations to the transcript of the hearing are indicated by Tr. followed by a page
number.
3 As correctly noted by respondent's counsel, the
Council's subtotals actually amount to 68.2. However, the .1 error in the total considered by the grant officer did
not affect his ultimate decision. (ALJX 11).
4 The Council did indicate in its application that one
of its part-time Training Coordinators was moving to Atlanta in January of 1997, but no evidence was offered at the
hearing as to whether this took place or whether the move was due to the Council's direction or fortuitous. It also
reported that the staff member would not require an office or support personnel. (ALJX 10 at E107).
5 There is one matter that causes me some concern
although I am precluded from rendering findings of fact or conclusions on it because it was not raised by the Tribe
or addressed by the parties. 20 C.F.R. § 636.10(a)(3). I discovered in reviewing the preferential hierarchy
and the evidence in this record that category 2, where both the Council and the Tribe were placed, is reserved for
"Native American-controlled, community-based organizations . . . with significant support from
other Native American controlled organizations within the service community." 61 Fed. Reg. 48172 at
Part IV(2). (Emphasis added). Furthermore, "The applying organization must supply sufficient
information to permit the determination [regarding hierarchy] to be made. Organizations must indicate the
category which they assume is appropriate and must adequately support that assertion." Id. at 48172-48172 (emphasis in original). As noted above, community support requires "evidence of active participation
and/or endorsement from Indian or Native American-controlled organizations within the geographic service area for
which designation is requested."
The Council addressed the hierarchy preferential question by reporting its
community support "is evidenced by the make-up of the Florida Governor's Council on Indian Affairs, Inc.,
Board of Directors" which requires at least eight Indian members, all of whom must be from the Florida
Seminole and Miccosukee tribes, and seven at large members, all of whom were from Florida at the time of the
application. (ALJX 10 at E100, E111). In addition, it indicated that all of the members are appointed by the
Governor of Florida. (ALJX 10 at E117, E125, E129). The Council also submitted two endorsement letters
purporting to show community support. (ALJX 10 at E109). These letters came from the Seminole Tribe of Florida
and the Poarch Band of Creek Indians, located in Alabama, although the Council's application indicates that a third
of the Poarch live in Florida and "several" live in Georgia. (ALJX 10 at E100, E165, E166). There is
some question in my mind as to whether "several" meets the "significant support"
requirement of the regulation.
The Council's application also contains some information that might be
considered evidence of active participation of other Native American-controlled groups. This consists of a
statement made by the Council in its application mentioning three groups with which it participates: the Native
American Outreach Forum, the Indian Affairs Task Force, and the Native American Youth Program. (ALJX 10 at
E99-100). The Native American Outreach forum is an organization created by the Council whose primary effort
appears to consist of mass mailings and occasional meetings when budgetary constraints permit. (ALJX 10 at E99).
In essence, it appears that the Council is participating with itself rather than with other Native American-controlled
groups. The Council explicitly does not have an endorsement from the Indian Affairs Task Force, so any work with
this group does not evidence community support. (ALJX 10 at E99). Finally, the Native American Youth Program
is actually the Florida Indian Youth Program, which takes place in Florida, although one meeting a year is held in
Georgia. (ALJX 10 at E100). Again, this appears to be a part of the Council rather than participation with other
groups.
I finally note that while the Council's information certainly shows community
support in Florida, it appears to me that the pertinent service area is Georgia. I therefore have some reservation as to
whether the Council provided the grant officer with sufficient information to prove significant community support
in the critical service area. If properly raised, such a deficiency in the application could cause one to question
whether the Council should have been designated as category 2 in hierarchy preference.