[Federal Register Volume 68, Number 23 (Tuesday, February 4, 2003)]
[Notices]
[Page 5627]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-2477]


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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 gives notice that on January 23, 2002, an 
arbitration panel rendered a decision in the matter of J. Allen Tharp 
v. Texas Commission for the Blind Docket No. R-S/99-9). 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 petitioner, J. 
Allen Tharp.

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 concerns the alleged failure of the Texas Commission 
for the Blind, the State licensing agency (SLA), to properly administer 
the Randolph-Sheppard vending facility program in violation of the Act 
(20 U.S.C. 107 et seq.) and the implementing regulations in 34 CFR part 
395.
    A summary of the facts is as follows: Complainant, J. Allen Tharp, 
is a contract manager for a large cafeteria food service operated by 
the SLA and Food Service, Inc., under a teaming agreement at Lackland 
Air Force Base in San Antonio, Texas.
    On October 13, 1998, complainant filed a complaint with the SLA 
asserting his dissatisfaction with actions taken by the SLA in the 
operation of the cafeteria. Complainant requested a State fair hearing, 
which was denied by the SLA. In denying complainant's request for a 
hearing, the SLA determined that the complainant did not identify the 
actions taken by the SLA to which he objected, nor had the complainant 
indicated the timeframe in which they occurred. Therefore, in finding 
that the complaint did not comply with State regulations, the SLA 
refused to refer the complaint to the Texas State Office of 
Administrative Hearings (SOAH).
    On November 4, 1998, the complainant filed a second demand for a 
hearing. Again, the SLA determined that the complaint did not comply 
with State regulations. On November 10, 1998, the SLA requested that 
SOAH rule on whether it could request complainant to identify the facts 
of his complaint and the timeframe in which they occurred before the 
SLA referred the complaint to SOAH.
    On February 10, 1999, the Administrative Law Judge (ALJ) affirmed 
the SLA's decision. The SLA dismissed the case without prejudice and 
adopted the hearing officer's decision as final agency action. On March 
2, 1999, the complainant filed a request for arbitration with the 
Secretary of Education. Following the previous events, telephone 
conference calls occurred among attorneys for the complainant, the SLA, 
and representatives and counsel for the U.S. Department of Education 
(ED). The complainant and the SLA agreed that the complainant would 
submit a detailed grievance to SOAH, which the complainant filed on 
January 28, 2000. In a ruling dated August 16, 2000, the ALJ held that 
the statute of limitations required that a blind vendor file a 
grievance within 15 days following the occurrence of the action that is 
being grieved.
    Subsequently, complainant filed an amended complaint for Federal 
arbitration, which was received by ED on November 16, 2000. The amended 
complaint incorporated by reference the issues stated in the original 
complaint filed on March 2, 1999, and also included an appeal of the 
ALJ's August 16, 2000, ruling on his grievance.
    A hearing on this matter was held on November 29, 2001, and was 
limited to the only issue that was decided at the State fair hearing 
level.

Arbitration Panel Decision

    The issue heard by the panel was whether the 15-working-day 
limitation period established by the Texas Commission for the Blind for 
blind vendors to file a grievance when they are dissatisfied with an 
action arising from the operation or administration of the Randolph-
Sheppard vending facility program as provided by the Act and 
implementing regulations constituted a denial of due process to 
complainant, J. Allen Tharp.
    After reviewing all of the record, the arbitration panel concluded 
that--(1) the 15-working-day limitation period is part of an 
administrative process, not part of a judicial process; (2) it is 
important that grievances be processed and resolved in a timely manner; 
and (3) the submission of a request for a State fair hearing is a 
simple and straightforward action. The hearing itself is held at a 
later time, giving ample time to prepare witnesses and to sort out 
legal issues. Finally, the panel ruled that the 15-working-day 
limitation period was mandatory.
    The views and opinions expressed by the panel do not necessarily 
represent the views and opinions of the U.S. Department of Education.

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 3232, Mary E. 
Switzer Building, Washington, DC 20202-2738. Telephone: (202) 205-8536. 
If you use a telecommunications device for the deaf (TDD), you may call 
the TDD number at (202) 205-8298.
    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.

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/legislation/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.access.gpo.gov/nara/index.html.


    Dated: January 29, 2003.
Loretta Petty Chittum,
Acting Assistant Secretary for Special Education and Rehabilitative 
Services.
[FR Doc. 03-2477 Filed 2-3-03; 8:45 am]
BILLING CODE 4000-01-P