[Federal Register Volume 76, Number 75 (Tuesday, April 19, 2011)]
[Notices]
[Pages 21872-21873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9477]
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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
October 1, 2010, an arbitration panel rendered a decision in the matter
of James Swartz v. Alaska Department of Labor and Workforce
Development, Division of Vocational Rehabilitation, Case no. R-S/08-11.
This panel was convened by the Department under 20 U.S.C. 107d-1(a),
after the Department received a complaint filed by the petitioner,
James Swartz.
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), call the
Federal Relay Service (FRS), toll-free, at 1-800-877-8339.
Individuals with disabilities can obtain this document in an
accessible 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 (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
James Swartz (Complainant) alleged that the Alaska Department of
Labor and Workforce Development, Division of Vocational Rehabilitation,
the State licensing agency (SLA), violated the Act and its implementing
regulations in 34 CFR part 395. The Complainant alleged that the SLA
improperly administered the transfer and promotion policies and
procedures of the Alaska Randolph-Sheppard Vending Facility Program in
violation of the Act, the implementing regulations under the Act, and
State rules and regulations in considering Complainant's bid to manage
a snack bar vending facility at the Nesbett Courthouse (Nesbett), a
State court building, located in Anchorage, Alaska.
[[Page 21873]]
Specifically, the Complainant, a blind vendor, challenged the SLA's
selection of a nonblind severely disabled vendor to operate the snack
bar vending facility at Nesbett. In March 2006, the SLA issued a
vacancy announcement for Nesbett. Both vendors applied for the Nesbett
snack bar vending facility. At that time, the nonblind vendor had been
operating the snack bar vending facility at Nesbett as a secondary
vending site on a temporary basis, in addition to his primary vending
site. Meanwhile, Complainant was operating a vending facility on
Federal property as his primary location.
During the selection interview process, the nonblind vendor
indicated that he was willing to give up his current primary location
and he intended, if selected, to operate the Nesbett snack bar vending
facility as his primary site. At the same time, the Complainant
indicated that he did not intend to relinquish his primary site, but
would manage the Nesbett snack bar vending facility as a secondary
vending facility site. After the interview and evaluation of the two
vendors according to the SLA's transfer and promotion policies and
procedure, the selection committee chose the nonblind vendor for the
Nesbett snack bar vending facility.
Complainant then requested a full evidentiary hearing from the SLA
on this matter, which was held. On May 29, 2008, the Administrative Law
Judge (ALJ) issued a decision ruling that (1) The Nesbett snack bar
vending facility is not ``other'' property as defined by the Federal
Randolph-Sheppard Act; (2) The Alaska Chance Act granted blind persons
and persons with severe disabilities a priority when seeking a license
to operate vending facilities on certain properties, but the Chance Act
gave blind persons a first priority or prior right over a nonblind
disabled person to operate a vending facility on public property; (3)
The SLA's interpretation of its regulations that a vending license is
site specific and a qualified vendor may only have one license to
operate a facility is reasonable; and (4) The SLA was correct when it
granted the nonblind vendor a license to operate the Nesbett snack bar
vending facility as his primary site, when there was no blind vendor
seeking to operate the Nesbett snack bar vending facility as a primary
site.
On July 7, 2008, the SLA issued a decision as final agency action
adopting the ALJ's decision. Subsequently, Complainant filed with the
Department a request for Federal arbitration seeking an appeal of the
State fair hearing decision. On July 31, 2009, the SLA sent a letter to
the Department stating that Complainant's request was a ``State-only
matter'' and it did not involve the Federal Randolph-Sheppard Program
as the ALJ had ruled that the Nesbett snack bar vending facility was
not ``other property,'' as defined under the Act and its implementing
regulations.
On August 24, 2009, the Department responded to the SLA's letter
stating that this is a Randolph-Sheppard matter under the Act and its
implementing regulations and it is up to a Federal arbitration panel to
decide on the issue of whether the Nesbett snack bar vending facility
is or is not ``other property.''
A Federal arbitration panel was convened. Prior to the arbitration
hearing, the SLA filed with the arbitration panel a Motion for Summary
Disposition, arguing that the Nesbett snack bar vending facility was
State property not subject to the Act and its implementing regulation.
Therefore, the arbitration panel lacked jurisdiction to hear the
complaint.
By order dated April 9, 2010, the arbitration panel concluded that
there was insufficient evidence before the panel to determine whether
the Nesbett snack bar vending facility was ``other property'' under the
Act, but that there were issues of material fact requiring a hearing
and, therefore, the panel denied the SLA's motion. The central issue
before the arbitration panel was whether the Nesbett State courthouse
snack bar vending facility qualified as ``other property'' within the
meaning of the Act and its implementing regulations.
Arbitration Panel Decision
The panel heard testimony and concluded that Federal regulations
implementing the Act defined ``other property'' as ``property which is
not Federal property and on which vending facilities are established or
operated by the use of any funds derived in whole or in part, directly
or indirectly, from the operation of vending facilities on any Federal
property.'' See 34 CFR 395.1(n).
Then, the panel determined that in order for Complainant's claim to
prevail, he must prove that the Nesbett snack bar vending facility was
established or operated with funds derived directly or indirectly from
the operation of vending facilities on Federal property. If Complainant
was able to meet that burden, the SLA would concede that the Act
applied to the Nesbett snack bar vending facility and the Complainant
would be entitled to the priority in operating the Nesbett snack bar
vending facility over the claim of the nonblind severely disabled
vendor.
After reviewing the entire record, the panel found that the
evidence presented at the arbitration hearing demonstrated that the
Nesbett State courthouse snack bar vending facility was not established
or operated with any funds derived directly or indirectly from the
operation of vending facilities on Federal property. Thus, the
arbitration panel ruled that the Nesbett State courthouse was not
``other property'' subject to the Randolph-Sheppard Act and its
implementing regulations and, therefore, the SLA's decision did not
violate the Act. Accordingly, the arbitration panel denied
Complainant's Federal arbitration appeal.
The views and opinions expressed by the panel do not necessarily
represent the views and opinions of the Department.
Electronic Access to This Document: The official version of this 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 via the Federal Digital System at: http://www.gpo.gov/fdsys. At this site you can view this document, as well as
all other documents of this Department published in the Federal
Register, in text or Adobe Portable Document Format (PDF). To use PDF
you must have Adobe Acrobat Reader, which is available free at this
site.
Dated: April 14, 2011.
Alexa Posny,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 2011-9477 Filed 4-18-11; 8:45 am]
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