12-150 C.M.R. ch. 15, § 14 - ADMINISTRATIVE REVIEW, EVIDENTIARY HEARING, ARBITRATION OF MANAGERS' COMPLAINTS

1. Administrative Review. A facility manager or their designee (who may be a member of the State Committee of Blind Managers) may request administrative review of a state agency action arising out of the operation or administration of the vending facility program with which the manager is aggrieved. This request must be made in writing within fifteen (15) days of the occurrence of the SLA action.

A. The administrative review shall be held at a time and place convenient to the manager requesting such review within fifteen (15) days of receipt of the request for review unless the manager requests a postponement. The administrative review shall be conducted by a member or members of the DBVI staff who did not in any way participate in the agency action at issue.

B. If the manager makes a written request reasonably in advance of the review and if the SLA determines it is necessary to ensure full participation by the manager in the review, transportation, reader, or other communication services shall be arranged for the manager by the SLA.

C. The SLA shall include in its administrative record the request for review, any documentation offered by the manager in support of their claims, and its written decision rendered after administrative review.

D. If the manager is dissatisfied with the administrative review decision, they may request a full evidentiary hearing within fifteen (15) days of receipt of the administrative review decision. The request must be made in writing, either hard copy or electronically.

2. Evidentiary Hearing.

A. A manager or their designee may request an evidentiary hearing instead of an administrative review within thirty (30) days of the SLA action complained of or as an appeal from an unfavorable administrative review decision within fifteen (15) days of receipt of such unfavorable review decision.

B. The manager shall have the opportunity:

(1) to examine all documents and records used at the hearing, either at the time of hearing or, if they so desire, 3 days prior to the hearing;

(2) at their option to present their case for themselves or with the aid of others, including legal counsel;

(3) to bring witnesses;

(4) to establish all pertinent facts and circumstances;

(5) to advance any arguments without undue interference; and

(6) to question or refute any testimony or evidence, including an opportunity to confront and cross-examine adverse witnesses.

C. The evidentiary hearing shall be conducted by a board ("Hearing Board"), which shall consist of three persons, one to be appointed by the Division, one to be chosen by the manager who requested the hearing, and the third to be chosen by the other two members. The decision of the Hearing Board shall be final except that the manager may file a complaint with the Secretary of Education as provided in this Chapter.

D. All evidentiary hearings shall

(1) be conducted privately and open only to the manager, friends, witnesses, legal counsel or others whom the manager wishes to be present or to members of the SLA staff or others selected by the Hearing Board for their planned participation in the hearing;

(2) be conducted informally without technical rules of evidence, even though the requirements of due process shall be met in accordance with the Maine Administrative Procedures Act, 5 M.R.S. §9057 and witnesses shall be sworn;

(3) be opened by the Hearing Board's spokesperson who shall make a statement of points at issue, give all participants an opportunity to present oral or written testimony or documentary evidence and to offer rebuttal, question witnesses, examine all evidence presented at the hearing and establish competency of witnesses offering subjective or technical opinions;

(4) be recorded by stenographic or mechanical recording of proceedings which shall be either transcribed for filing or filed by tape or disk in a State office, to be available to members of the Department, to the manager or to their representative, (if authorized by the manager in writing to act for them) together with all documentary evidence submitted as exhibits at the hearing;

(5) be concluded when the Hearing Board, the manager and/or their representative, and the SLA representative are satisfied that all available evidence has been introduced and properly examined; and

(6) result in a decision based exclusively on evidence or testimony presented at the hearing.

E. If the manager makes a written request for a reasonable accommodation in advance of the hearing and if the Hearing Board determines it is necessary to ensure full participation by the manager in the hearing, transportation, reader or other communication services shall be arranged for the manager by the SLA.

3. Arbitration. This applies to Federal property.

A manager or their designee may request arbitration by the U.S. Secretary of Education if they are dissatisfied with any action taken or decision rendered as a result of an evidentiary hearing. The manager's complaint shall be accompanied by all available supporting documents, including a statement of the decision that was rendered and the reasons in support thereof, and must be filed with either the SLA or the Secretary. The arbitration process will be controlled by the provisions of 20 U.S.C. §§ 107d-1, 107d-2 and 34 C.F.R. § 395.13.

Notes

12-150 C.M.R. ch. 15, § 14