Department of Education.
Notice of arbitration panel decision under the Randolph-Sheppard Act.
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.Start Further Info
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.End Further Info End Preamble Start Supplemental 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 Start Printed Page 31441administration of vending facilities on Federal and other property.
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 Start Printed Page 31442regarding 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.
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.Start Signature
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]
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