Active Participation - Mississippi State University

Active Participation - Mississippi State University

Active Participation Randolph-Sheppard Training Module Purpose To explain the concept of active participation, which is required by the Randolph-Sheppard Act, so that BEP staff can utilize the concept to make program enhancements and improve the ongoing working relationship with the members of the Elected Committee of Blind Vendors. Learning Objectives 1. The trainee will have a better understanding of active participation and the requirements under the law.

2. The trainee will learn what active participation is and what it is not. 3. The trainee will learn how to use active participation to build a stronger BEP. Introduction The concept of active participation is a relatively simple concept but one that creates many problems for state licensing agencies (SLA). It is probably the greatest source

of friction between blind vendors and SLA. Why is that? How is it that such a simple concept has taken on almost mystical qualities? No one really knows exactly what it is. No one can tell you exactly how it works. Where does it start and where does it end? Introduction Why are these two little words, active participation, so confounding to so many?

There are several reasons and we will examine a few of these. Foreign Concept to Government No Definition No Federal Guidance Power Sharing is Not Natural Foreign Concept to Government Where else in a government bureaucracy can you find such a mandate for a government agency?

Government agencies are used to advisory committees. They can be found throughout the state government and play an important role. Your state VR program is required to have a State Rehabilitation Council (SRC) which is a consumer oriented advisory council that is appointed by the Governor. However the SRC, like similar committees in other departments of state government, is strictly advisory. At the end of the day, the VR agency can do what it wants. Foreign Concept to Government When Randolph-Sheppard Act talks about the Committee of Blind Vendors, the term advisory is nowhere to be found. When the implementing regulations talk about active

participation, it is clear that it is not a synonym for advisory. Congress intended the Committee to be engaged and participate in major programmatic decisions. This is a totally foreign concept to state bureaucrats. Its hard for them to share power or control. No Definition Generally, when a government entity writes rules to implement a law, it defines the key terms that will be used in the rules.

Implementing regulations for the Randolph-Sheppard Program can be found at 34 C.F.R. 395. The first section defines key terms like: blind, cafeteria, set aside funds permit, and satisfactory site. However, there is no definition of active participation. States are left to their own imagination to determine what it really means. Without the term defined anywhere, is there any wonder there is confusion in the states? No Federal Guidance

The concept of active participation came into being with the 1974 Amendments of the Randolph-Sheppard Act. Its been more than 40 years and the Rehabilitation Services Administration has failed to provide definitive guidance on how states are to implement the practice when administering their business enterprise programs. In the absence of federal guidance, states are tempted to fall back to what they know and that is an advisory committee.

When the Elected Committees of Blind Vendors is treated as advisory, conflict arises. Power Sharing is Not Natural Sharing power and authority is not something that comes naturally for state governments. This is exactly what the law requires them to do when administering their Randolph-Sheppard Program. At times, the blind entrepreneurs feel they have to pry the power away from the state personnel who have been entrusted with the program.

Conflict is the only outcome that can be expected in such a scenario. What is REQUIRED under the law? The responsibilities of the Elected Committee of Blind Vendors, 34 C.F.R. 395. 14(b), states the Committee shall: 1) Actively participate with the state licensing agency in MAJOR administrative decisions and policy and program development decisions affecting the OVERALL administration of the states vending facility program;

2) Receive and transmit to the state licensing agency grievances at the request of blind vendors and serve as advocates for such vendors in connection with such grievances; What is REQUIRED under the law? 3) Actively participate with the state licensing agency in the development and administration of a state system for the transfer and promotion of blind vendors; 4)

Actively participate with the state licensing agency in the development of training and retraining programs for blind vendors; and, 5) Sponsor, with the assistance of the state licensing agency, meetings and instructional conferences for blind vendors within the state. What is REQUIRED under the law? These are all important functions and it is clear that the regulations anticipate the Committee being actively engaged in the administration of the program.

We will address each of these functions but will focus on the first one - requiring that the Committee actively participate in major administrative decisions. Major Administrative Decisions In reading the first function of the Committee, two words are key- MAJOR and OVERALL. The Committee must actively participate in all major decisions that affect the overall operation of the program. What are examples of such decisions that may require the active

participation of the Committee? A few might include but are not limited to: Developing Program Rules Developing Policies and Procedures Budgeting Determining Set Aside Rate Selecting Contractors Accepting New Facilities Recommending SLA Personnel Rule/Policy Development The best way to explain this process is that the SLA and Committee together set the parameters by which the program is to be administered.

This is done through the development of program rules and regulations/policies and procedures. The SLA manages the program on a day-to-day basis pursuant to those rules and policies. Rule/Policy Development The Committee then assumes an oversight or watchdog role to ensure that the SLA does so. The Committee is not generally involved in the day-to-day administration of the program. Example: The Committee should actively participate in establishing

an equipment budget. It generally would not be involved in a decision as to whether or not Vendor X gets a new vending machine. Budgeting Determining the programs budget is obviously a major administration decision. The SLA must provide the Committee with all pertinent information about past revenue, anticipated revenue, past expenditures, anticipated expenditures, etc.

Enough information must be provided so that the Committee can make informed decisions related to the budget. Determining Set Aside Rate Approximately two-thirds of the states assess the RandolphSheppard entrepreneurs a set aside fee, which is a fee paid as a percentage of their net profits. These set aside fees are used to help fund the program. Establishing the set aside rate can be part of the budget

process. In some states, the set aside schedule is adjusted based upon program needs. In others, the amount is fixed in statute. Selecting Contractors Many states enter into contract agreements with private companies. Examples: Equipment, repair and maintenance, third-party vending, etc.

The Committee must actively participate in decisions about awarding such contracts. It is understood that state procurement laws may limit the SLAs decision-making in these areas but the Committee should participate equally with the SLA to the extent state procurement laws offer flexibility in establishing contract specifications and selecting the vendor. Accepting New Facilities Some of the most significant decisions the SLA must make relate to whether or not to accept a location for a vending

facility and whether to make it a stand-alone facility or an attachment to an existing facility. The Committee has a role to play in these decisions. Recommending SLA Personnel This is an area that makes many state administrators uncomfortable. However, there is no decision that is more major or has a greater overall impact on the program.

Hiring the right person as the BEP Director can be critical to a programs future and can have dramatic impacts on the lives of blind people who work in the program. Having a subcommittee participate in the interview process is a common way SLAs do this. Recommending SLA Personnel Also, it must be determined for which positions the Committee will be involved in the decision-making. Example: The Committee and SLA may choose to involve the Committee in decisions related to hiring a new BEP Director but probably wouldnt necessarily be involved in the selection of a secretary.

Like with procurement, it is understood that state personnel guidelines must govern the selection process for state positions but it is highly unlikely that such guidelines preclude the Committee from at least interviewing candidates and making a recommendation. If they do, the state personnel guidelines could be viewed as in conflict with the federal law that requires the active participation of the Committee in all major administrative decisions. Other Areas of Active Participation Admittedly, what constitutes major and overall can be somewhat gray.

In the absence of specific guidance from RSA, we have to rely on our own interpretation of what it means. However, the other areas in which the Committee must actively participate are much more straightforward. Grievances Transfers/Promotions Training/Retraining Vendor Conferences Grievances

Members of the Committee are obligated under law to try to resolve issues raised by individual blind vendors. If a blind vendor is dissatisfied with an action taken by the SLA, (s)he has the right to seek the assistance of the Committee. This should not be interpreted to mean licensed blind vendors must go through the Committee in order to pursue his/her right to due process. It simply means that blind vendors can go through the Committee to attempt to resolve concerns. Grievances

The Committees responsibility goes further in that it must advocate for the vendor in regard to such complaints. On the other hand, do not mistake Committee members for union stewards. The Committees role as an advocate is to facilitate a resolution. It doesnt mean support the blind vendor right or wrong. Transfers/Promotions The Committee, by law, must actively participate in designing a fair and equitable system for promoting and transferring blind vendors.

This doesnt mean the Committee must be involved in the actual selection process; however, most states have chosen to do so and it is an advisable approach. Training/Retraining States are required to ensure that those individuals licensed by the SLA are qualified. In order to meet this requirement,

most SLAs offer entry level training for prospective licensees. The Committee should be active in designing that training program and helping determine the curriculum. Vendor Conferences The Committee must sponsor, with the assistance of the SLA, vendor conferences and instructional meetings for the states blind licensees.

In most cases, this is accomplished with what have become to be known as Annual Statewide Blind Vendor Meetings. It should be noted that the Committee, by law, must take the lead in such planning. The SLAs role is to be a support role. Defining Active Participation RSA did not offer a definition of the term active participation when it promulgated the rules and regulations.

However, that doesnt mean there are not definitions out there. Many states have defined the term in their rules and regulations and have set forth protocol for active participation. RSA attempted to define the term through a policy guidance memorandum in the early 2000s. That effort fell apart after seeking input from all RandolphSheppard stakeholders including SLA representatives and consumers. Defining Active Participation As part of the process the National Council of State Agencies

for the Blind (NCSAB) endorsed a definition. Active Participation - an ongoing process of good faith negotiations between the state licensing agency and the Committee to achieve joint planning and approval of program policies, standards and procedures affecting the overall operation of the vending facilities program, prior to their implementation by the Agency. The implementation of agreed-upon policies, standards, and procedures affecting the overall operation of the vending facilities program, shall be subject to review by the Committee. It is understood that the Agency bears final authority and responsibility for the administration and operation of the vending facilities program, including the assurance of continuing, active participation with the Committee. Defining Active Participation

Many states have adopted this, or a variation of this, definition in their state rules and regulation. One should note the terms good faith negotiations and joint planning and approval. These terms reflect the true meaning of active participation and how it should be implemented. Final Authority

Much like the term active participation, the concept of final authority can be confusing. The SLA must maintain ultimate authority for administration of the program and cannot delegate this to anyone including the Committee of Blind Vendors. RSA holds the SLA accountable for the administration of the program, not the Elected Committee. This includes assuring active participation by the Committee. Final Authority

The SLA must move forward when there is an impasse with the Elected Committee and a decision needs to be made. On the other hand, the SLA should not move forward if the decision is not one of necessity until consensus can be achieved. Example: The program must have a budget and there are usually deadlines for submitting the budget. If the SLA and Committee simply cannot agree on how dollars are going to be spent and good faith negotiations failed to resolve the differences, the SLA must move forward and submit the budget as required.

In the case of a lessor issue whereby a decision isnt absolutely necessary, negotiations should continue. Final Authority Final authority does not mean an SLA can simply listen to the Committee and then exert its final authority and do what it wants. Active Participation is NOT It is not simply an opportunity to comment.

If an SLA develops new rules and sends them to the Committee and advises the Committee that it has a fixed number of days to comment, it has violated the spirit and intent of the concept of active participation. The Committee is not simply advisory. It is a process of negotiations. Active Participation is NOT Active participation is also not intended to be a democratic

process. Issues are not simply presented to the Committee for a vote. The Committee must be more integrally involved than simply voting. The Committee of Blind Vendors does not have veto power over the SLA, however. The SLA and the Committee must both engage in good faith negotiations. The SLA has final authority. What it is

Active participation is: Ongoing Information Sharing Discussion Good Faith Negotiations Consensus Joint Decision Making A Process A Partnership Difficult and Challenging at Times Active Participation Not an easy process, and can be very challenging.

If both parties are committed to a true partnership and a process of joint decision making through information sharing and good faith negotiations, then consensus can be achieved on most, if not all, major decisions. It is not a process to be feared or intimated by. Why bother? Several reasons that it is in the best interest of the SLA to engage in meaningful participation: 1. Its the law and the RSA will hold an SLA accountable to ensure

active participation occurs. 2. Active Participation acts as an insurance policy for SLAs when making controversial decisions. Its good to know you have the support of the Committee when dealing with difficult issues, and you are not acting alone. 3. The Committee can file a grievance if not allowed to actively participate. Some debate as to whether or not the Committee as an entity can file a grievance, but the individual members certainly can. An SLA can avoid expensive litigation simply by buying into the process of active participation. Why bother? 4. Decisions in which the Committee actively participates are hard to challenge. Example: An individual blind vendor will have a difficult time

challenging an agency action made in compliance with rules approved by the Committee. 5. Active participation helps to minimize conflict between vendors and the SLA. If vendors have ownership in the decision, they are more likely to support that decision. Active Participation is a Mindset! What does it take? Open Communication Commitment Honesty

Follow Through Trust Flexibility Conclusion Congress intended for the blind vendors to enjoy a degree of self-determination, and active participation is the vehicle to ensure that objective is achieved. Active participation can be challenging.

It can be frustrating, but its the law. SLAs should fully commit to the process. By engaging in active participation, an SLA can best position itself to move the program forward.

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