There are four steps in the appeals process of the Iowa
department for the blind's business enterprises program:
4. Arbitration.
These steps must occur in the order in which they are listed
and are more fully described herein, except that step 2 is optional.
(1)
Step 1: Informal
conciliation. This is the necessary first step in the process to
resolve any grievance. Either the vendor or the staff can commence informal
conciliation. Informal conciliation must occur before any other steps in the
grievance process can be used.
Informal conciliation occurs all the time and is not usually
given a name by the participants, but is sometimes called administrative
review. It can, but does not necessarily, involve a personal meeting between
the vendor and the staff. Informal conciliation occurs when either the vendor
or the staff is dissatisfied with the action of the other and contacts the
other to try to work out the dissatisfaction. This contact can be by phone, by
letter, or in person and usually involves discussion and negotiation of the
point over a period of time. Both vendor and staff have an interest in working
out grievances informally since this is the least costly, least time-consuming,
and least disruptive way of resolving differences. However, both the vendor and
the staff have the right to stick to their opinion and to move to the next step
in the grievance process if informal conciliation does not resolve the
grievance in a manner satisfactory to them. If either the vendor or the staff
remains dissatisfied after a good faith effort by both to resolve the
grievance, then either vendor or staff can move to the next step.
(2)
Step 2: Hearing before
the commission. This step is onlyavailable to the vendor The staff
cannot initiate a hearing before its own policy-making entity. This step is
simply an option for the vendor The vendor may choose to skip this step
completely and move directly from step I to step 3. If the vendor chooses to
skip step 2, the vendor has used all administrative remediesavailable to the
vendor, including the option to skip a remedy.
a. The commission makes its own rules
concerning procedure case-by-case at the hearing itself If either the vendor or
the staff is unsure about the procedure, the commission members should be asked
to explain the procedure before the hearing starts. These hearings are
generally informal, conducted by the commission so that both sides have an
opportunity to present to the commission whatever the commission believes is
relevant to the decision it is being asked to make.
b. It is possible that, under certain
circumstances, a hearing before the commission would be a closed hearing.
Unless all the proper circumstances exist to close the hearing, the hearing
must be held as a part of an open, publicized meeting of the commission and
listed on its agenda. One set of circumstances which could close such a hearing
will arise when the vendor is seeking, as a part of the commission's decision,
that the commission "evaluate the professional competency" of a department
staff member concerning that staff member's "appointment, hiring performance,
or discharge" and when that staff member asks the commission to go into closed
session as provided in the Iowa open meetings law, Iowa Code chapter
21.
c. Another set of circumstances
which could close the commission hearing may arise if the vendor or the staff
wishes to raise during the hearing matters which are considered confidential.
The documents which are confidential are likely to be very limited and the
decision to close the hearing or to leave it open will have to be made on a
case-by-case basis.
d. The Iowa
open meetings law, Iowa Code chapter 21, insists that only those meetings or
parts of meetings specifically exempted by a precise section of the law may be
legally closed; therefore, if an exemption is not specifically met, the meeting
of the commission under this subrule shall be open.
e. A vendor who has used this step in the
appeals process and is dissatisfied with the result then moves to step
3.
(3)
Step 3:
Full evidentiary hearing. Either a vendor or the staff can commence
the full evidentiary hearing process, which is a required step in the appeals
process. A full evidentiary hearing is part of the appeals process guaranteed
to the vendor by the federal Randolph-Sheppard Act.
a. The full evidentiary hearing process is
governed by rule 8.2(216D).
b. If
the vendor is dissatisfied with the decision after a full evidentiary hearing,
then the vendor may move to step 4.
(4)
Step 4: Arbitration. A
vendor can commence arbitration if dissatisfied with the ruling after a full
evidentiary hearing. Arbitration is a required step in the appeals process.
Arbitration is a part of the appeals process guaranteed to the vendor by the
federal Randolph-Sheppard Act. Essentially, arbitration occurs by the vendor's
filing a complaint with the United States Secretary of Education, who then
convenes a three-member arbitration panel. The vendor chooses one member of the
three-member arbitration panel, the department chooses the second member, and
those two persons choose a third person agreeable to both who serves as chair
of the arbitration panel.
At the full evidentiary hearing and the arbitration stages of
the appeals process, proceedings shall be conducted much like proceedings in a
court of law. Both these proceedings are open to the public. The department is
normally represented at both by an assistant attorney general. The vendor may
be represented by an attorney or by a knowledgeable friend at the commission
hearing, the full evidentiary hearing, and the arbitration hearing. The
court-reported record of testimony and the documents admitted into evidence at
the arbitration step shall serve as the complete record of proceedings for any
further appeals. No more evidence can be added if the vendor or the department
appeals the arbitration panel's decision into the federal courts. Appeal from
the arbitration decision goes to the federal district court and can go as far
as the supreme court of the United States.
