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STATE OF MICHIGAN
MICHIGAN ADMINISTRATIVE HEARING SYSTEM

Table with 3 columns and 3 rows

In the matter of

Docket No.

2010-1260

Sheila Stelmach, Petitioner

Agency No.

n/a

v Michigan Commission for the Blind, Respondent ___________________________/

Agency: Case Type:

Michigan Commission    for the Blind Appeal

table end

Issued and entered
this 10th day of May, 2011
by Renée A. Ozburn
Administrative Law Judge

RECOMMENDED DECISION OF THE ADMINISTRATIVE LAW JUDGE

PROCEDURAL HISTORY

This is a proceeding conducted pursuant to 1978 PA 260, as amended, MCL 393.351 et seq. (Act 260), Chapter IV of 1969 PA 306, as amended, MCL 24.271 et
seq.(Act 306), Administrative Rule 393.1, and the Michigan Administrative Procedures Act, MCL 24.201 et seq.

  By correspondence dated October 26, 2010, Sheila Stelmach (Petitioner) filed a complaint with the Michigan Commission for the Blind (MCB/Respondent).
On November 17, 2010, an Administrative Review

Docket No.  2010-1260 Page 2

was held. An Administrative Review Report was issued on November 22, 2010. By email dated November 23, 2010, Ms. Stelmach requested an evidentiary hearing.
A telephone prehearing was conducted on February 18, 2011. An Order Following Prehearing Telephone Conference was issued on February 23, 2011.

An evidentiary hearing was held on April 12, 2011. Gregory Keathley represented Ms. Stelmach, who testified on her own behalf. Joseph Pelle represented
MCB. James Hull testified as a witness on behalf of MCB. ISSUE

Were the proper amount of points awarded to Ms. Stelmach under the BEP Operator Selection Points System in order for her to bid on Highway Location #39
(Grayling, Fredrick, Gaylord and Vanderbilt)?

APPLICABLE RULES AND POLICIES

Rule 47(1) & (2) of the BEP State Rules provide:

                        (1) The bid process is governed by this rule. A licensee may be promoted to another or a more profitable, vending facility when
a vending facility becomes available. To be promoted, a licensee shall bid on the facility, be willing to relocate, and be qualified. All of the following
shall be included as licensee qualification factors:

                         (2) A licensee shall participate in mandatory in-service training and shall not be eligible for promotion until training is completed.
A licensee may be excused from mandatory in-service training only with written supervisory approval.

(a)  Certification to operate the specific type of facility.

(b)  Evaluation of past performance.

(c)  Participation in the in-service training programs

(d)  Seniority.

(e)  Compliance with all program rules and regulations. When all factors are equal, seniority shall prevail. Promotion procedures shall be uniformly applied
and developed with the active participation of the committee.

Rule 44(2) & (3) of the BEP State Rules provide:

                        (2) A licensee shall receive upward mobility training including further education and additional training or retraining for improved
work opportunities. Upward mobility training includes training a vending facility licensee to become a cafeteria facility licensee, which is appropriate
upward mobility training as described in subrule (4)(a) of this rule.

                        (3)       If a licensee and his or her promotional agent have identified specific training needs that would improve the management
of a vending facility, then the promotional agent may arrange for the training. The following training is authorized:

                        (a) Classroom           training at the Michigan commission for the blind training center in Kalamazoo.

                        (b) On-the-job training, either at a licensee’s facility or at another program facility.

                        (c) Regional group training classes.

                        (d)       Training provided by a third person that is approved by the commission or training provided by another preapproved source.

Selection Point System, revised March 2009, in pertinent part:

 Point Accumulation:

1                    Seniority (from date of first agreement):     Licensed operators accumulate 1 point per year of service. Temporary operators accumulate
½ point per year of service. Potential operators (including those who are working for an operator) accumulate 0 points.

2                    Profit expectation (based on the previous 12 months average): An operator is given 1 point for every percentage point that the operator’s
facility exceeds its profit expectation, not to exceed five points per 12-month period. If an operator, who has been granted a profit percentage exception,
exceeds the facility’s permanently assigned profit percentage expectation, the operator is awarded points for exceeding the permanently assigned profit
percentage expectation, also not to exceed five points per 12-month period.

3                     Training (from 10.1.1994): Bidders are awarded 2 points for each required training session attended

(e.g. annual workshop) and 3 points for each voluntary session attended (e.g. college class). Only 1 point is awarded for voluntary attendance at a food
show, with a limit of 2 food shows per year.

To be awarded points for voluntary training, the training must be sanctioned by the EOC Training Subcommittee.

Notes ? Training does not include the initial, basic vending stand training.

?    Operators earn 3 points upon successful completion of all upward mobility training (e.g. cafeteria certification training) required for a specific
location.

SUMMARY OF EVIDENCE

Petitioner Exhibits:

Exhibit 1 Not Offered/Not Admitted.
Exhibit 2 Training Requirements for Alpena CTRC Facility.
Exhibit 3 Not Offered/Not Admitted.
Exhibit 4; 4A-4D Training Documentation.
Exhibit 5 Internet Training Verification.
 Exhibit 6  Training Documentation.
Exhibit 7 Not Offered/Not Admitted
Exhibit 8 Ms. Stelmach’s self-calculated Point Summary.
Exhibit 9 BEP’s Operator Selection Points System Summary.
Exhibit 10 Not Offered/Not Admitted.
 Exhibit 11  BEP Rules.
Exhibit 12, 13 Not Offered/Not Admitted.
Exhibit 14 Ms. Stelmach’s Recommendations re: complaint.
Exhibit 15 Administrative Review Report dated 11/22/2010.
Exhibit 16 Not Offered/Not Admitted.
Exhibit 17 Emails between Ms. Stelmach and MCB.

Respondent Exhibits:

Exhibit A BEP’s Operator Selection Points System Policy.
 Exhibit B  Rule 24(1)(l).
 Exhibit C E-mails.

Sheila Stelmach has been in the MCB Business Enterprise

Program (BEP) since 2005. During her participation in BEP, James Hull,

Patrick Duffy and Chris Elliot have been assigned, at various times, to work

Docket No.  2010-1260 Page 6

with Ms. Stelmach as her BEP Promotional Agent.  In February 2007, Ms. Stelmach interviewed to provide food service for the Alpena Combat Readiness Training
Center (Alpena CRTC).  Alpena CRTC requires that its vendors participate in mandatory annual training as a condition of working on the base. Conversations
Ms. Stelmach had with Promotional Agent James Hull led her to believe that Alpena CRTC’s annual mandatory training would count towards point accumulations
under BEP’s Operator Selection Points System. In a memorandum from Alpena CRTC Services, Superintendent Edward Hoskinson, Jr., dated November 2010, (Exhibit
2) he confirms that Ms. Stelmach completed all mandatory training requirements for the years 2007, 2008, 2009 and 2010.

  James Hull, currently Assistant BEP Manager, testified that BEP assigns points automatically for attendance at BEP’s mandatory annual operators’ workshops,
but not for on-going in-service training.  BEP also determines whether operators qualify for upward mobility training points under Rule 44(2) & (3). Mr.
Hull acknowledges that Rule 44(2) defines upward mobility training broadly and could encompass training to improve management and internet skills related
to an operator’s current facility. Ms. Stelmach asserts that she submitted a written plan to BEP for

Docket No.  2010-1260 Page 7

cafeteria training and obtained approval for designating this training as upward mobility training.

Mr. Hull asserts that, pursuant to the Selection Point System policy (Exhibit A), points for voluntary training unique to a facility or business (e.g. food
shows or security clearance training) need approval/sanctioning by the Elected Operators Committee (EOC).  Further, BEP relies on notification from EOC
regarding voluntary training points approved by EOC. It was unclear how BEP informs operators of the process for applying to EOC for voluntary training
points.

It is BEP’s policy that each operator should receive an Operator System Selection report of total point accumulations at BEP’s annual mandatory workshop
and in quarterly reports.  Sometime between 2007 and the April 2010 workshop, due to significant eyesight loss, Ms. Stelmach had requested that she receive
her point accumulation reports in audio CD or cassette format. She did not receive a report in her requested format at the April 2010 workshop.

Ms. Stelmach was aware that it was necessary to obtain EOC approval for certain categories of voluntary training points.  Ms. Stelmach sent correspondence
in 2006, 2007, 2008 and 2009 regarding voluntary training to BEP/EOC staff persons including Bill Myers, Shane Jackson,

Docket No.  2010-1260 Page 8

Lucy Edmunds, and Sheri Eagle (Exhibit 4, 4A, 4B, 4C & 4D).  She followed instructions for timely submission of documentation to EOC for point determinations.
In addition, in February 2008, Ms. Stelmach completed internet computer training through BEP’s Vocational Rehabilitation Services in Kalamazoo, which she
believed fit the criteria for designation as “upward mobility training” under BEP Rule 44(3)(a).  She also submitted a request for Operator Selection Points
for this coursework (Exhibits 5 & 5A). Further, in October 2008, Ms. Stelmach attended a seminar presented by the Unemployment Insurance Agency (UIA) to
learn about changes that could affect some of the 43 employees working for her (Exhibit 6).

In July or August 2010, Ms. Stelmach informed Promotional Agent Chris Elliot of additional mandatory Alpena CRTC facility training she had completed subsequent
to the mandatory workshop in April 2010.  She assumed points would automatically be added to her totals for this mandatory facility training because points
were automatically assigned for attending BEP’s mandatory annual workshops.

Docket No.  2010-1260 Page 9

In BEP’s Operator System Selection report for Ms. Stelmach covering the period 9/1/2009 to 8/1/2010 (Exhibit 9), Ms. Stelmach is deemed to have accumulated
only 19.98 points, including seniority points and points for attendance at BEP’s annual workshops held in 2006, 2007 2008. Points for her attendance at
the 2009 and 2010 workshops are missing from this report. There are no EOC points listed on this report for any voluntary training and no upward mobility
training points.  Ms. Stelmach saw the Exhibit 9 Operator System Selection report point totals for the first time in October 2010.

When Ms. Stelmach contacted EOC support staff person Lucy Edmunds, Ms. Edmunds acknowledged receiving documentation regarding training/food shows attended
in 2006 and 2007 that were not on the Exhibit 9 report. Ms. Edmunds also acknowledged that the report did not include her attendance at the annual mandatory
BEP workshops in 2009 and 2010.

In the fall of 2010, the operator of Highway Location #39 (Grayling, Fredrick, Gaylord, Vanderbilt) gave notice of impending retirement. On October 5, 2010,
BEP opened bids for Location #39. On October 8, 2010, Ms. Stelmach placed her bid for the facility.  During the bid process, BEP’s James Hull interviewed
bidders.  When Ms. Stelmach asked if mandatory annual training at the Alpena CRTC would be included

Docket No.  2010-1260 Page 10

in her total point accumulations, Mr. Hull responded that EOC might consider awarding voluntary points for such participation and indicated that he would
support Ms. Stelmach’s request for such points.

On October 13, 2010, BEP awarded Location #39 to a bidder other than Ms. Stelmach based on total operator point accumulations.  Only after the bid was awarded
did Ms. Stelmach learn that she lost the bid because of an incorrect determination of her point accumulations.  On October 26, 2010, she contacted BEP
to file a complaint/grievance and ask for a corrected point summary (Exhibit 15).  She also suggested that a temporary operator be assigned to Location
#39 while her complaint was pending (Exhibit 14). Exhibit 8 contains Ms. Stelmach’s calculations of her correct point totals. Under Ms. Stelmach’s calculation
she had accumulated 53.98 points, not the 19.98 total points indicated in BEP’s Operator System Selection report (Exhibit 9).

An Administrative Review was held on November 17, 2010, with reviewer Elizabeth White. An Administrative Review Report was issued on November 22, 2010 (Exhibit
15).  During the review, Ms. Stelmach presented the training she believed qualified for points that were not included on her point summary for purposes
of awarding Location #39.

Docket No.  2010-1260 Page 11

BEP acknowledged that Ms. Stelmach had not received her quarterly reports in a timely manner. BEP acknowledged that beginning in 2007, Ms. Stelmach requested
all point reports be provided in audio format, which BEP failed to provide even as recently as the April 2010 mandatory annual workshop report. BEP acknowledged
that the most recent Operator System Selection summary for Ms. Stelmach was missing points and not in chronological order. BEP/EOC acknowledged that Ms.
Stelmach had followed EOC’s directions for submitting documentation to qualify for voluntary training points. Further, the Administrative Review Report
indicates that BEP/EOC staff lost documentation sent by Ms. Stelmach in accordance with procedures (e.g. to Shane Jackson, Lucy Edmonds and Bill Myers)
in a timely manner. At the November 17, 2010 Administrative Review, an EOC representative acknowledged problems with their system and indicated EOC was
working on a fix.

The Administrative Review Summary (Exhibit 15)

contains four recommendations which state as follows:

1) As with other national and state certifications and licensures – if

a contract that BEP won requires mandatory training, a more

formal reporting process needs to be instated. The

understanding by BEP is something is pointable if it is training

of equipment or needed to run facility. It appears Sheila’s

training is needed to run her facility.

2) [It is recommended] that all of Sheila’s information go back to James Hull for review and consideration as it appears she did the right process at the
time to have these be considered for points.

3) It was shared by Joe (Pelle) that the mandatory training on base cannot be given at this time. She can, however, submit them as voluntary. Recommend
that Sheila pursue this avenue for retroactive years of 2006 to present.

4) Recommend a more consistent process for receiving documentation relative to the point awarding system; perhaps have a permanent MCB person also collect
when operator mailing to EOC subcommittee. It appears papers have been lost through the years, with other operators as well. It sounds like EOC is currently
exploring this avenue and making recommendations themselves.

Exhibit 17 contains an email, dated November 23, 2010, from

Mr. Hull to Ms. Stelmach and the author of the Administrative Review

Report, Elizabeth White, indicating that points can not be awarded

retroactively. In addition, Exhibit 17 incorrectly asserts that “any requests

for points were not done in a timely fashion.”

In December 2007, Ms. Stelmach received an email from Shane

Jackson of EOC indicating that an EOC subcommittee voted down

awarding points for her attendance at annual mandatory Alpena CTRC

base training, but approved 3 points for internet training and points for

certain food shows attended between 2006 and 2009. Mr. Shane

Docket No.  2010-1260 Page 13

acknowledged that documentation sent by Ms. Stelmach had been lost and he requested that she resubmit documents (Exhibit C).

As of the date of hearing on April 12, 2011, Ms. Stelmach had not received a correction of her point totals for purposes of going forward in the future.

FINDINGS OF FACT

1                   Sheila Stelmach has been an operator in the BEP program since 2005.

2                   MCB/BEP takes bids and awards facilities using an operator point accumulation system (i.e. Operation Selection System).

3                   Under the Operator Selection System some points are awarded automatically and some points (e.g. for voluntary training) are approved
by the Elected Operators Committee.

4                   At BEP’s mandatory annual workshop, a summary of point accumulation is provided to operators.  Thereafter, BEP is supposed to issue
a quarterly point summary report.

5                   Ms. Stelmach has participated in BEP’s mandatory annual workshop training from 2006 through 2010.

6                   In 2007, Ms. Stelmach requested that her point summaries be provided in an audio/CD format instead of a regular print format because
of her deteriorating sight. BEP failed to accommodate this request.

7                   Ms. Stelmach has a contract to operate a facility at the Alpena CRTC which requires mandatory annual facility-specific training.

8                   Ms. Stelmach has participated in numerous voluntary training programs between 2006 and 2010 and timely submitted verification to EOC
for purposes of receiving EOC sanctioned points.

9                   Ms. Stelmach appropriately communicated with BEP and EOC staff in a timely fashion to obtain upward mobility training points for an
internet class completed in February 2008.

10             Ms. Stelmach’s Operator System Selection report (Exhibit 9) for the period 9/1/2009 through 8/1/2010, indicates a total of 19.98 points.
This report failed to include valid points for BEP workshop attendance and EOC points. Ms. Stelmach did not receive this report until after October 8,
2010.

11             On October 5, 2010, BEP opened bids for Location #39.  On October 8, 2010, Ms. Stelmach placed a bid on Location #39.

Docket No.  2010-1260 Page 15

On October 13, 2010, BEP awarded the facility to another operator who allegedly had the highest point accumulation.

1                   After discovering that her Operator System Selection report did not include points for attending BEP’s mandatory annual workshop in
2009 and 2010 as well as for upward mobility and voluntary training she completed, and correctly applied for, Ms. Stelmach filed a complaint/grievance
on October 26, 2010, seeking to stop the transfer of Location #39 pending correction of her points and reconsideration of the bid award.

2                   On November 17, 2010, an Administrative Review was conducted. The reviewer concluded that BEP had failed to accurately total and communicate
Ms. Stelmach’s point accumulation. EOC staff acknowledged that Ms. Stelmach followed procedures for obtaining voluntary training point approval. EOC acknowledge
that it failed to properly maintain records, failed to consider documents timely submitted and failed to communicate training point decisions to BEP.

3                   Subsequent to the findings and recommendations of the Administrative Review report, BEP informed Ms. Stelmach that it would not retroactively
award points or revoke its award of Location #39.

4                   Ms. Stelmach’s request of BEP/EOC for an updated, corrected Operator System Selection report based on the documents that she filed timely,
and repeatedly, still had not been provided to her in audio/CD format as of April 12, 2011.

CONCLUSIONS OF LAW

Rule 47(1) & (2) indicate that in awarding bids for a vending facility, BEP is to consider an evaluation of a licensee’s past performance, participation
in in-service training programs, seniority, compliance with all program rules and regulations and participation in mandatory in-service training. Further,
pursuant to the Selection Points System there are standard points assigned for seniority, meeting or exceeding profit expectations and different types
of training. Some potential points for voluntary training must be sanctioned by the EOC training subcommittee. Inherent in these rules and policies is
an understanding between operators and BEP, that BEP will make an accurate assessment of seniority, profits

Docket No.  2010-1260 Page 17

and point accumulations before determining who wins a bid for a facility/location.

BEP and EOC staff did not act in accordance with governing rules and policies on a number of occasions resulting in a failure to give Ms. Stelmach a fair
opportunity in the October 2010 bidding process for Location #39.  Contrary to Rule 47(1) and the Selection Points System policy, Ms. Stelmach was in compliance
with all program rules including participation in mandatory workshops, but did not receive accurate point accumulation totals for purposes of bidding on
Location #39.  Contrary to Rule 44(3)(a) and the Selection Points System policy, Ms. Stelmach completed internet upgrade training at the center in Kalamazoo,
but did not receive accurate point accumulation totals for purposes of bidding on Location #39.  Contrary to the Selection Points System policy, Ms. Stelmach
submitted adequate and timely documentation for voluntary training points that were not properly considered and acted on by EOC.

If an operator is following rules and procedures, it is the responsibility of BEP/EOC to accurately record and act on information provided. Ms. Stelmach
was not responsible for the BEP/EOC’s mistakes in tallying her point totals for purposes of awarding Location #39.  There

Docket No.  2010-1260 Page 18

are no statutory or rule provisions, and no written policies, that would prohibit MCB/BEP from correcting an operator’s point accumulation reports.

Although BEP/EOC did not properly follow the rules and policies designed to guarantee a fair and accurate comparison of operators bidding on Location #39,
the record is not sufficient to definitively determine that Ms. Stelmach would have won the bid if an accurate point accumulation had been determined and
considered. RECOMMENDED DECISION

To remedy the unfair bidding opportunity Ms. Stelmach was subject to in October 2010, I recommend that the Commission order the following:

1                   EOC must review all training documentation submitted by Ms. Stelmach between 2006 and October 2010. If EOC determines that any or all
of these training segments qualifies for voluntary training points, the totals should be clearly communicated to BEP and Ms. Stelmach.

2                   BEP shall issue a corrected Operator System Selection Report to Ms. Stelmach reflecting all EOC sanctioned voluntary training points
she is entitled to and accurate totals for BEP’s mandatory annual workshop attendance and upward mobility

Docket No.  2010-1260 Page 19

training.  This report should be in the audio/CD format previously requested by Ms. Stelmach.

3.          If the accurate point totals for Ms. Stelmach as of October 5, 2010 indicate that she had the highest point accumulation for purposes of the
Location #39 bid determination, Ms. Stelmach should be given priority for the next available facility/location that she qualifies to operate as long as
she is in compliance with all pertinent rules and policies at the time the facility/location becomes available.

Renée A. Ozburn Administrative Law Judge

PROOF OF SERVICE

I hereby state, to the best of my knowledge, information and belief, that a copy of the foregoing document was served upon all parties and/or attorneys
of record in this matter by Inter-Departmental mail to those parties employed by the State of Michigan and by UPS/Next Day Air, facsimile, and/or by mailing
same to them via first class mail and/or certified mail, return receipt requested, at their respective addresses as disclosed by the file on the 10th day
of May, 2011.

Shirley Dacus Michigan Administrative Hearing System

Greg Keathley Victor Bldg. 2nd Floor 4098 Hulett 201 N. Washington Okemos, MI 48864 Lansing, MI 48909

Joseph Pelle Carla Haynes Michigan Commission for the Blind Michigan Commission for the Blind Business Enterprise Program 201 N. Washington, 2nd Floor
3038 W. Grand Blvd, Suite 4-450 Lansing, MI 48909 Detroit, MI 48202

Chris Elliott Sheila Stelmach Michigan Commission for the Blind
2293 Grouse Drive Business Enterprise Program Traverse City, MI 49684 State Office Building

125 East Union, 7th Floor James Hull Flint, MI 48502 Michigan Commission for the Blind Business Enterprise Program