[Federal Register: November 5, 1997 (Volume 62, Number 214)]
[Notices]
[Page 59852-59853]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05no97-40]
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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: Notice is hereby given that on June 6, 1997, an arbitration
panel rendered a decision in the matter of Richard Fracasso v. Rhode
Island Department of Human Services, Office of Rehabilitation Services
(Docket No. R-S/94-2). 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 petitioner, Richard Fracasso.
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, Mary
E. Switzer Building, Washington D.C. 20202-2738. Telephone: (202) 205-
9317. Individuals who use a telecommunications device for the deaf
(TDD) may call the TDD number at (202) 205-8298.
Individuals with disabilities may obtain this document in an
alternate 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
Anyone may also view this document, as well as all other Department
of Education documents published in the Federal Register, in text or
portable document format (pdf) on the World Wide Web at either of the
following sites:
http://gcs.ed.gov//fedreg.htm
http://www.ed.gov/news.html
To use the pdf you must have the Adobe Acrobat Reader Program with
Search, which is available free at either of the previous sites. If you
have questions about using the pdf, call the U.S. Government Printing
Office toll free at 1-888-293-6498.
Anyone may also view these documents in text copy only on an
electronic bulletin board of the Department. Telephone: (202) 219-1511
or, toll free, 1-800-222-4922. The documents are located under Option
G--Files/Announcements, Bulletins and Press Releases.
SUPPLEMENTARY INFORMATION: Pursuant to the Randolph-Sheppard 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
Mr. Richard Fracasso, a blind licensee, completed the Randolph-
Sheppard vending facility training program under the auspices of the
Rhode Island Department of Human Services, Office of Rehabilitation
[[Page 59853]]
Services, the State licensing agency (SLA).
Mr. Fracasso was placed on the Graduate Permanent Transfer
Seniority List, effective November 22, 1991. The SLA, according to
section IX of its Rules and Regulations governing the Randolph-Sheppard
vending program in Rhode Island, maintains two lists regarding vendor
transfer and promotions. One list is a Vendor Permanent Transfer
Seniority List, which ranks licensed operators based on the length of
time the licensee actually has operated a vending facility. The other
is a Graduate Permanent Transfer Seniority List, which ranks graduate
licensees awaiting a vending facility location by seniority, based upon
each person's graduation date from the vending facility training
program.
In May 1993, the Woonsocket Post Office vending facility became
open for bid, and complainant decided not to submit a bid for this
location. Also, no other licensed operator or licensee awaiting a
vending assignment submitted a bid at the time of the bid closing.
Subsequently, the SLA assigned another recent licensee to this
location, which placed the new graduate on the Vendor Permanent
Transfer Seniority List.
In July 1993 the Providence Health Lab came up for bid, and Mr.
Fracasso submitted his bid for this location. The official bidding
period closed, and the SLA notified complainant that the Providence
Health Lab had been awarded to the licensee who had been assigned to
operate the Woonsocket Post Office.
Mr. Fracasso requested and received on December 16, 1993, a State
fair hearing regarding the placement of the other new licensee at the
Providence Health Lab. The complainant alleged that the SLA illegally
awarded that location to the other vendor since the other new vendor
never actually operated the Woonsocket Post Office vending facility.
Mr. Fracasso further alleged that the SLA's action in placing the new
graduate on the Vendor Permanent Transfer Seniority List gave that
vendor an unfair advantage over complainant in his bid on the
Providence Health Lab.
On March 4, 1994, the Hearing Officer issued his opinion affirming
the SLA's decision to place the other new graduate at the Woonsocket
Post Office since no one else from either of the two transfer seniority
lists had placed a bid on the facility. The Hearing Officer also
concluded that ``when the health laboratory vending facility became
subject to a bid solicitation, the award was granted to the most senior
vendor who bid. The most senior vendor who bid was the recent graduate
from the training activity who had been awarded the vending facility in
Woonsocket, R.I. on July 12, 1993.''
The SLA adopted the Hearing Officer's decision as final agency
action, and it was this decision that Mr. Fracasso sought to have
reviewed by a Federal arbitration panel. A Federal arbitration hearing
was held on December 4, 1995, concerning this complaint. On December
20, 1996, the panel reconvened, one panel member dissenting, at the
request of the complainant to hear additional evidence.
The issues heard by the arbitration panel were--(1) Whether the SLA
violated its bidding procedures in a manner that adversely affected Mr.
Fracasso; (2) If the SLA were found in violation of its bidding
procedures, whether an arbitration panel convened by an administrative
agency of the Executive branch of government could order a State to pay
money damages to a private individual under the Randolph-Sheppard Act;
and (3) If the SLA were found in violation of its bidding procedures,
what other remedies, if any, would be appropriate to redress the
deprivation caused by the SLA of the complainant's enforceable rights.
Arbitration Panel Decision
Based upon the evidence presented at the hearing on this matter,
the majority of the arbitration panel concurred with the SLA's
acknowledgement that it had violated its own bidding procedures in
awarding the Providence Health Lab vending facility to another vendor.
While admitting the violation, the SLA stated that the violation
was not intentional and was a result of a bureaucratic error. The
complainant, on the other hand, argued that the violation was
intentional and was specifically directed in favor of the other vendor.
On this point, the majority of the panel ruled that there was no
compelling evidence presented to support the complainant's contention
that the SLA intentionally favored the other vendor.
The panel next took up the issue of what remedies, if any, exist
once a finding has been made that the SLA violated its bidding
procedures.
The majority of the panel ruled, after extensive review of case
law, that any award that required the State of Rhode Island to
compensate Mr. Fracasso for misdeeds committed against him is barred by
the sovereign immunity principle contained in the Eleventh Amendment to
the United States Constitution despite the fact that the SLA had
violated its own bidding procedures.
The panel noted further that the United States Court of Appeals for
the Eighth Circuit in McNabb v. U.S. Department of Education, 862 F.2d
681 (8th Cir. 1988), has allowed prospective damages--those that accrue
after initiation of the arbitration--but not retrospective damages.
However, the panel found that the complainant did not continue to incur
damages as a result of the SLA's violation of the Act. In addition, the
panel found that, while the complainant could be awarded costs under
section 107d-2(d) of the Act, these costs did not include attorney's
fees.
Concerning the remedy for the SLA's violation affecting
complainant's seniority rights, the majority of the arbitration panel
ruled that the Eleventh Amendment presented no bar because payment of
money damages was not involved. The majority of the panel found that
complainant was entitled to be reinstated to his appropriate place on
the SLA's seniority list, and the SLA was directed to take any and all
steps necessary to reinstate him.
One panel member dissented from the majority opinion.
The views and opinions expressed by the panel do not necessarily
represent the views and opinions of the U.S. Department of Education.
Dated: October 31, 1997.
Judith E. Heumann,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 97-29270 Filed 11-4-97; 8:45 am]
BILLING CODE 4000-01-P