Case No. VSA-0041, 25 DOE ¶ 83,005 (OHA March 7, 1996)

For full history of this case, and links to other cases, click here.

* The original of this document contains information which is subject to withholding from disclosure under 5 U.S.C. 552. Such material has been deleted from this copy and replaced with XXXXX's.

March 7, 1996

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: December 5, 1995

Case Number: VSA-0041

On October 27, 1995, the Office of Hearings and Appeals issued an Opinion stating that restoring access authorization for XXXXX (the Individual) would not be clearly consistent with the national interest. Personnel Security Hearing, VSO-0041, 25 DOE ¶ 82,775. The Individual then requested a review by the Director of the Office of Hearings and Appeals. For the reasons stated below, I concur with the Opinion of the Hearing Officer.

On May 8, 1995, the XXXXXXXXXX Office issued a Notification Letter to the Individual that stated its reasons for suspending the Individual's access authorization. The Notification Letter was predicated upon 10 C.F.R. § 710.8(l) (pattern of financial irresponsibility).

Whether "Cultural Differences" should be considered

The Hearing Officer found support for the allegation of falsification in the Individual's answers to a Questionnaire for Sensitive Positions (QSP) that he signed on November 21, 1994. Question 11 on the QSP asks the Individual to list all full-time work, all part-time work, all paid work, active military duty, self-employment, and all periods of unemployment. In his response, the Individual neglected to list three restaurants that he owned and operated between 1991 and 1994.

Question 19 asks the individual whether he or a company he controlled had, in the past five years, been subject to a legal judgment for a debt. The Individual's answer omitted two judgments obtained by creditors against the restaurants he owned.

Question 27b asks the Individual whether he is now more than 180 days delinquent on any loan or financial obligation. The Individual failed to disclose three debts on which he was more than 180 days delinquent. The three delinquencies totaled more than $13,000.

The Individual cursorily presents issues for review, without providing any additional facts or legal arguments for consideration. Regarding his omissions in answering Questions 11 and 19, the Individual questions whether the Hearing Officer "committed error by not recognizing cultural differences which led [him] to misinterpret the meanings of the terms 'employment' and 'judgment.'" He has not presented any issue that pertains specifically to his answer to Question 27b.

The Individual does not identify the "cultural differences" that the Hearing Officer allegedly failed to consider. Presumably, he is referring to the fact that he was born and raised in a country whose primary language is not English. On the other hand, the transcripts of the security interview and the hearing indicate that he has a substantial understanding of the English language. I note also that the Individual is a citizen of the United States who has resided in the United States for more than fourteen years and graduated from a university here.

Moreover, the Individual never made the claim, before or during the hearing, that cultural differences caused him to misunderstand the words "judgment" and "employment." Concerning the Individual's understanding of the term "judgment," I note that legal documents issued to him in those matters clearly state in nontechnical language that judgments were entered against him.(1) The Individual understood one notice of judgment clearly enough to contact a lawyer for assistance the day after he received it. (2)

In addition, the Individual has not given a consistent account of why he failed to report the judgments on the QSP. Originally, he blamed the omission on a person he identified only as "Cathy," who he said was supervising his completion of the QSP. The Individual explained during his initial security interview, "I told Cathy, hey, I received a judgment. I already negotiated with them." (3) He claims that "Cathy" told him "If you keep up with it, then don't worry about it." (4) He says he interpreted her response to mean that he did not have to mention the judgment if he were making timely payments on it. There is nothing in the instructions for the QSP, however, to support such an interpretation. In addition, there is no corroboration for the Individual's conversation with "Cathy."

In a subsequent security interview, the Individual changed his explanation for omitting the judgments. He claimed he did not reveal them because he did not go to court, and therefore did not "consider" them judgments. (5) The Individual offered no explanation, however, for why he thought the word "judgment" implied a court appearance, or why questions on financial responsibility would be restricted to matters involving a court appearance.

Besides omitting the judgments, the Individual failed to disclose his employment at three restaurants and his credit delinquencies. The omission of the restaurants is significant because he was a part-owner of each, and each closed within a few months of opening, leaving him with heavy debts. The Individual never claimed before or during the hearing that he did not understand the meaning of the term "employment" or "self-employment." On the contrary, he stated in a security interview that "I did not list [the restaurants] first of all probably .... I did not read the question carefully."(6) He has not explained his omission of the delinquent credit accounts.

I find it significant that all the Individual's purported misunderstandings concerned the disclosure of potentially derogatory financial information. I therefore concur with the Hearing Officer that the Individual "deliberately omitted significant information in his response to three questions in the November 1994 QSP ... The Individual's failure to provide that information reflects a lack of truthfulness, good judgment and trustworthiness. It thus creates a doubt as to whether [he] can be trusted to safeguard classified information or uphold security regulations." 25 DOE at 85,761.

The circumstances of the Individual's financial irresponsibility

The Hearing Officer found evidence of financial irresponsibility and poor judgment in a series of questionable transactions that left the Individual with delinquent obligations exceeding his annual net salary. For example, the Individual opened the three restaurants mentioned above between 1991 and 1994. Each restaurant closed after a few months of operation. With each restaurant closure, he was saddled with large debts. In addition, between April 1992 and March 1993, the Individual took out loans to finance the purchase of four cars. When he could not make the required payments on two of the cars, he gave them away without attempting to recover any part of his costs. His explanation for this behavior is that "some people like cars ... it's their hobby." (7)

In light of the evidence, the Individual conceded that he had been financially irresponsible. (8) He now questions, however, "whether the Hearing Officer improperly failed to fully consider the circumstances surrounding the financial irresponsibility of [the Individual] as required by 10 C.F.R. § 710.7(c)." I find no support in the record for the Individual's position.

The Hearing Officer considered the Individual's argument that his financial difficulties were the result of the birth of his four children between 1991 and 1994, and the failure of his restaurants. 25 DOE at 85,675. After considering this argument, the Hearing Officer found it unpersuasive. I agree with this conclusion. When the Individual's arguments are fully considered, they aggravate,

rather than mitigate, his irresponsibility. With four children and a wife to support, the Individual was clearly in no position to embark on a series of precarious business ventures or engage in a car-buying spree.

The Individual's reformation and rehabilitation

Finally, the Individual asks "whether sufficient and credible evidence exists to find that [he] has reformed and rehabilitated his behavior with regard to financial matters." The Hearing Officer found that "there is insufficient evidence of reformation or rehabilitation upon which I could find that the Individual would not be financially irresponsible in the future." 25 DOE at 85,675.

The individual made no serious attempt to reduce his delinquencies until January 1995, when he withdrew about $17,000 from his employee benefits plan to apply to payments. In August 1995, he filed for bankruptcy. Stopgap measures such as these cannot be seriously considered as mitigating a well-established pattern of financial irresponsibility and poor judgment. See Personnel Security Hearing (Case No. VSO-0015, 25 DOE ¶ 82,760 (1995); Personnel Security Hearing (Case No. VSO-0036), 25 DOE ¶ 82,772 (1995); but cf. Personnel Security Hearing, (Case No. VSO-0013), 25 DOE ¶ 82,752 (1995).

Conclusion

The record of this case contains abundant evidence that the Individual has been seriously irresponsible in managing his financial affairs and in providing complete and accurate information to security personnel. This behavior is clearly incompatible with the high degree of responsibility for safeguarding classified material required of persons holding access authorization.

Therefore, based on the criteria set forth in 10 C.F.R. Part 710 and my review of the record in this case, I concur with the Hearing Officer that restoring the Individual's access authorization would endanger the common defense and security and would not be clearly consistent with the national interest. It is thus my opinion that the Individual's access authorization should not be restored.

George B. Breznay

Director

Office of Hearing and Appeals

Date: March 7, 1996

(1) Exhibit 6 at 2.

(2)Hearing Transcripts (Tr.) at 96.

(3)Exhibit 2 at 11.

(4)Ibid.

(5)Exhibit 3 at 9; 41.

(6) Exhibit 3 at 28.

(7)Tr. at 150.

(8)Tr. at 182.