[Federal Register Volume 60, Number 23 (Friday, February 3, 1995)]
[Notices]
[Pages 6706-6707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2683]



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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.
SUMMARY: Notice is hereby given that on February 3, 1992, an 
arbitration panel rendered a decision in the matter of Karla Todd v. 
Alabama Division of Rehabilitative Services, (Docket No. R-S/90-4). 
This panel was convened by the U.S. Department of Education pursuant to 
20 U.S.C. 107d-1(a) upon receipt of a complaint filed by Karla Todd on 
June 13, 1990. The Randolph-Sheppard Act creates a priority for blind 
individuals to operate vending facilities on Federal property. Under 
this section of the Randolph-Sheppard Act (the Act), a blind licensee 
dissatisfied with the State's operation or administration of the 
vending facility program authorized under the Act may request a full 
evidentiary hearing from the State licensing agency (SLA). If the 
licensee is dissatisfied with the State agency's decision, the licensee 
may complain to the Secretary, who is then required to convene an 
arbitration panel to resolve the dispute.

FOR FURTHER INFORMATION CONTACT: A copy of the full text of the 
arbitration panel decision may be obtained from George F. Arsnow, U. S. 
Department of Education, 600 Independence Avenue, S.W., Room 3230 
Switzer Building, Washington, D.C. 20202-2738. Telephone: (202) 205-
9317. Individuals who use a telecommunications devise for the deaf 
(TDD) may call the TDD number at (202) 205-8298.

SUPPLEMENTARY INFORMATION: Pursuant to section 107d-2(c) of the 
Randolph-Sheppard Act, the Secretary is required to publish a synopsis 
of each arbitration panel decision affecting the administration of 
vending facilities on Federal property.

Background

    Karla Todd is a blind vendor licensed by the Alabama Division of 
Rehabilitative Services, the SLA under the provisions of the Act. On 
September 20, 1989, Ms. Todd attended a meeting of blind vendors from 
the Mobile area. At this meeting, the agenda provided for the election 
of a committee representative for the Committee of Blind Vendors, 
pursuant to 34 CFR 395.14, which states that the SLA shall provide for 
the biennial election of a State Committee of Blind Vendors.
    At the September meeting, complainant was one of the two candidates 
nominated for committee representative. A vote was held that resulted 
in a three to three tie. A second run-off election was held with the 
same result. A special meeting of blind vendors to resolve the matter 
was called for October 4, 1989. Prior to the meeting the candidate 
opposing complainant withdrew.
    The SLA sent a letter to the vendors announcing the October 4 
meeting, explaining the problem regarding the election on September 20, 
and stating that the only purpose of the meeting would be to elect a 
member of the State Committee of Blind Vendors.
    Ten vendors attended the October 4, 1989 meeting, including the 
complainant. Ms. Todd was again nominated along with another vendor. 
The other vendor received the majority of the votes and was elected to 
the committee.
    Ms. Todd subsequently challenged the candidacy of the vendor 
elected at the October 4, 1989 meeting, stating that she should have 
won the election by default when the previous vendor who had received a 
tie vote with complainant withdrew her candidacy prior to the October 
4th meeting. She asserted that proper procedures under the rules and 
regulations of the Alabama Randolph-Sheppard vending program had not 
been followed.
    Karla Todd requested and received an administrative review with 
respect to the matter. The SLA upheld the election of the new 
candidate. Subsequently, complainant requested a full evidentiary 
hearing.
    On March 19, 1990, an evidentiary hearing was held in Montgomery, 
Alabama. The hearing officer ruled that Ms. Todd's objections were 
without merit. Subsequently, Ms. Todd appealed this ruling to a Federal 
arbitration panel, which held a hearing on September 27, 1991.

Arbitration Panel Decision

    The issue before the panel was whether the process followed by the 
SLA on September 20 and October 4, 1989 was consistent with the State 
rules and regulations governing the day-to-day operations of the 
Business Enterprise Program.
    The SLA argued that the issue before the arbitration panel was not 
arbitrable since the policies and procedures of the Business 
Enterprises Program only allow for review of ``actions arising from the 
operation or administration of a vending facility.'' However, it was 
the opinion of the majority of the panel that the complainant's 
argument was persuasive. The Act, in 20 U.S.C. 107b-1, states that the 
Committee of Blind Vendors shall participate with the Vocational 
Rehabilitation Agency regarding administrative decisions, policies, and 
program development decisions affecting the overall administration of 
the State Vending Facility Program.
    The panel concluded that the actions of the Committee of Blind 
Vendors indeed had an impact on the operation and administration of all 
vending facilities, and, therefore, the issue was reviewable by the 
panel.
    The panel found that the policies and procedures of the Business 
Enterprise Program, specifically the section on elections, covered the 
issue before the panel. The section on elections states, ``[I]f no 
candidate receives a majority of the votes, a run-off between the two 
highest vote getters will be held.'' The SLA interpreted this to mean 
that only one run-off election had to be held, and in the event of a 
tie in the run-off election, an entirely new election was appropriate. 
The panel did not concur with the SLA's interpretation of this 
language. The panel stated that the common sense meaning of the term 
``run-off'' is not necessarily a singular act, but implies the act of 
breaking a tie regardless of the number of times necessary to achieve 
that goal. [[Page 6707]] Additionally, the panel noted that the SLA's 
policies and procedures are silent regarding holding a new election and 
also regarding a tie occurring during a run-off election. Therefore, 
the panel found that the language of the policies and procedures of the 
Business Enterprise Program regarding elections was clear in that once 
the two highest vote getters were determined, those two vote getters 
would continue with a run-off election until one of the vote getters 
ultimately won the election.
    On September 26, 1991, a new election was held. The SLA petitioned 
the panel to declare the issue moot in light of the new election. The 
complainant requested that the panel unseat the person elected on 
October 4, 1989, as well as the person elected on September 26.
    The panel ruled that the election process held by the SLA on 
October 4, 1989 was a violation of the policies and procedures of the 
Business Enterprise Program and, further, that Karla Todd won the run-
off election that began on September 20, 1989. However, since a new and 
undisputed election was held on September 26, 1991, the panel concluded 
it was without authority to upset that election, and, therefore, the 
issue as to the appropriateness of the election held on October 4, 1989 
was moot and no remedy could be fashioned.
    Panel member Harris dissented, indicating that the rules of the 
Business Enterprise Program were silent regarding the situation of a 
run-off election, and, therefore, the SLA did not violate its own 
policy.
    The views and opinions expressed by the panel do not necessarily 
represent the views and opinions of the U.S. Department of Education.

    Dated: January 30, 1995.
Judith E. Heumann,
Assistant Secretary, Office of Special Education and Rehabilitative 
Services.
[FR Doc. 95-2683 Filed 2-2-95; 8:45 am]
BILLING CODE 4000-01-P