Case No. VSA-0051, 25 DOE ¶ 83,012 (OHA May 17, 1996)
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* 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.
DEPARTMENT OF ENERGY
OFFICE OF HEARINGS AND APPEALS
Request for Review
Case Name: Personnel Security Review
Date of Filing: February 6, 1996
Case Number: VSA-0051
This determination considers a Request for Review filed by XXXXX (hereinafter "the individual") concerning his eligibility to retain a "Q" level access authorization under the regulations set forth at 10 C.F.R. Part 710, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." The individual's access authorization was suspended at the direction of the Manager of the Department of Energy's XXXXX Operations Office (DOE/XXXXX) under the provisions of Part 710. The individual requested administrative review of this action before a Hearing Officer, and on December 28, 1995, the Hearing Officer assigned by the DOE Office of Hearings and Appeals issued an Opinion that the individual's access authorization should not be restored. On February 6, 1996, the individual filed a Request for Review of the Hearing Officer's Opinion pursuant to 10 C.F.R. § 710.28. On February 27, 1996, he filed a Statement of Issues to be reviewed. On March 18, 1996, the DOE's Office of Safeguards and Security (OSS) filed a response to the Statement of Issues, and on April 11, the individual submitted a reply to the response. This Opinion considers the matters raised by these latter three filings.
I. BACKGROUND
The individual has been employed since 1978 by the management and operating contractor of the Department of Energy's XXXXXXXXXXXXXXXXX, currently XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. In 1979, the individual received a "Q" clearance. On April 3, 1995, the DOE requested that the individual submit to a random urine screening test. According to the DOE/XXXXX, the individual's urine tested positive for the presence of cannabinoids.<1>
A DOE security analyst conducted personnel security interviews (PSIs) with the individual on April 13, 1995, and April 25, 1995 (hereinafter referred to as "the April 13 PSI" and "the April 25 PSI," respectively), in which he was questioned about the positive drug test result. The individual denied that he had smoked marijuana recently or been in the presence of anyone smoking marijuana. He was unable to explain the result, but asserted that it must be incorrect. See Transcript of April 13 PSI (4/13 PSI Tr.) at 21-22, 27; Transcript of April 25 PSI (4/25 PSI Tr.) at 8-9, 22- 26, 38. During the April 25 PSI, the individual was also confronted with the fact that he had responded in the negative to the question regarding illegal drug use on his August 9, 1988 Personnel Security Questionnaire (PSQ).
These interviews did not resolve DOE Security's concerns and on May 26, 1995, the Manager of DOE/XXXXX suspended the individual's access authorization and subsequently obtained authorization from the Director of the Office of Safeguards and Security to initiate an administrative review proceeding. See 10 C.F.R. § 710.9. The administrative review proceeding was commenced by the issuance of a July 14, 1995 letter which notified the individual that information possessed by the DOE created a substantial doubt concerning his continued eligibility for access authorization (Notification Letter). The Notification Letter specified three areas of derogatory information described in 10 C.F.R. § 710.8. First, under Criterion F (10 C.F.R. § 710.8(f)), DOE/XXXXX alleged that the individual "deliberately misrepresented, falsified, or omitted significant information from a Personnel Security Questionnaire (PSQ)." According to the DOE/XXXXX, this conduct occurred when the individual, despite having used illegal drugs in 1974, signed the PSQ in 1988 stating that he had not done so.<2>
Second, the Notification Letter presented allegations under Criterion K (10 C.F.R. § 710.8(k)). DOE/XXXXX charged that the individual had "trafficked in, sold, transferred, possessed, used or experimented with a drug or other substance listed in the Schedule of Controlled Substances established pursuant to Section 202 of the Controlled Substances Act of 1970." The DOE/XXXXX stated that both the initial laboratory analysis and confirmatory analysis of the individual's April 3, 1995 urine sample were positive for cannabinoids. At the individual's request, a retest was performed by an independent certified laboratory. This retest also had a positive result.
Third, the DOE/XXXXX charged under Criterion L (10 C.F.R. § 710.8(l)) that the individual has "engaged in unusual conduct or is subject to circumstances which tend to show that he is not honest, reliable, or trustworthy, or which furnishes reason to believe that he may be subject to pressure, coercion, exploitation or duress which may cause him to act contrary to the best interests of the national security." In support of that charge, DOE/XXXXX noted that during the April 13 PSI, the individual had stated that he was aware of XXXXXXXXXXXX's drug policy. However, he had tested positive for cannabinoids and was unable to provide any explanation for the positive drug screens.
At the individual's request, a hearing was convened in this matter on XXXXXXXXXXXXXXXX, in XXXXXXXXXXXXXXXXXXXXX. The DOE presented six witnesses, including XXXXXXXXXXXXXXX, supervisor of toxicology at XXXXXXXXXXXXXXXXXXXXXXXX, the company that performed the retest on the individual's sample. The individual testified on his own behalf and called five further witnesses: (i) his supervisor, (ii) and (iii) two longtime friends and colleagues, (iv) his wife, and (v) Dr. XXXXXXXXXXXXXX, a professor at the XXXXXXXXX College of Pharmacy. The witnesses whose testimony is at issue in this phase of the administrative review proceeding are those called by the individual, and Ms. XXXXXXX.
The Hearing Officer's Opinion
Criterion K
The Hearing Officer pointed out that allegations made by the DOE under Criterion K concern the positive results that the individual received on the drug test performed by XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX and a retest done by XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. On the initial immunoassay, the test revealed the presence of cannabinoid metabolites at an unspecified level above 50 nanograms/milliliter (ng/ml), the initial cut off level. A confirmation gas chromatography/mass spectrometry (GC/MS) test showed 9-carboxy-THC to be present in the individual's urine at a level of 23 ng/ml, which is above the cutoff value for that test, 15 ng/ml. The second laboratory, XXX, also performed a GC/MS test for 9-carboxy-THC and discovered it to be a level of 21.049 ng/ml.
As the Hearing Officer noted, the individual contended at the hearing that passive inhalation of marijuana smoke at a club he attended caused these positive results. The Hearing Officer recounted the following testimony of the individual regarding the passive smoke inhalation issue. The individual and his wife testified that they went to a club called XXXXXXX's on the Saturday before his drug test on Monday, April 3. They stated that they spent approximately three and a half hours at this small and busy club. The individual's wife also noted that he ate and drank that night. According to the individual, people at the club were smoking cigarettes and cigars, creating a hazy atmosphere. Although the individual did not smell marijuana smoke, both he and his wife testified that, after the positive test, she told him that she had smelled it that night.
The Hearing Officer also discussed the testimony of an expert witness presented by the individual. This witness, Dr. XXXXXXXXXXXXXX, is a professor of toxicology, pharmacy and pharmacology at the XXXXXXXXX College of Pharmacy. The Hearing Officer described the testimony of Dr. XXXXXXXX as follows. Dr. XXXXXXXX stated that the levels reported in the individual's urine test are "easily within the range" of passive inhalation of marijuana smoke. In support of this opinion, he discussed articles written in the mid-1980s regarding passive inhalation of marijuana smoke. These articles, which found that side stream marijuana smoke would be unlikely under realistic conditions to produce a positive result with current screening levels, reported on studies that used the type of cigarettes furnished by the National Institute on Drug Abuse (NIDA), which contain 2.8 percent THC. But, according to statistics that Dr. XXXXXXXX cited, the marijuana cigarettes currently prevalent "on the street" have between six and eight percent THC, with some cigarettes having as much as 30 percent THC. Because the individual spent well over three hours at XXXXXXX's, and because THC accumulates in the body, Dr. XXXXXXXX believed that passive inhalation of these types of high-THC cigarettes could have resulted in a 23 nanogram per milliliter reading. Dr. XXXXXXXX also believed that the individual did not smell marijuana smoke because it was covered up by the cigarette smoke, alcohol, perfume and food, smells likely to be found at XXXXXXX's, and because cigarette smokers such as the individual have notoriously bad senses of smell. He also suggested that the individual could have ingested about one-third of any THC that fell on his food and beverages. Further, he criticized the Mandatory Guidelines screening level cutoff of 50 ng/ml as being unreasonably low and noted that the industry standard for marijuana screening tests is 100 ng/ml.
After considering this testimony, which was favorable to the individual, the Hearing Officer nevertheless was unwilling to decide in the individual's favor without a "reasonable explanation" for the positive test. He stated that he believed Dr. XXXXXXXX's testimony that because of the generally higher THC content of currently available marijuana, it is possible to have a positive drug test from passive inhalation in some real world situations. However, the Hearing Officer found there simply was not enough credible information in the record for him to make such a finding in this case. The Hearing Officer pointed out that there was no disinterested, objective evidence that anyone was smoking marijuana at XXXXXXX's on the evening when the individual and his wife state that they were there. The Hearing Officer's Opinion also indicated that the testimony of the interested parties was not very convincing on whether anyone was actually smoking marijuana at the club. The individual stated that he did not smell marijuana smoke, yet acknowledged that he had smelled marijuana in public on other occasions. Furthermore, the Hearing Officer noted that although the individual's wife stated that she smelled marijuana smoke, he was unwilling to give much weight to that statement because of inconsistencies between the statements made at the hearing and during the PSIs.
Further, even assuming that there was some marijuana being smoked at XXXXXXX's, the Hearing Officer found that there were too many unknown factors present for him to accept the individual's position. He pointed out that the number and THC content of any marijuana cigarettes that may have been smoked was unknown and thus could not be compared to the number and THC content of cigarettes in the studies relied upon by Dr. XXXXXXXX. The Hearing Officer also stated that he did not know the dimensions of the club but presumed that it must be larger than the rooms used in the studies cited by Dr. XXXXXXXX, which were bathroom size. Accordingly, the Hearing Officer found that there was no meaningful way to apply and adjust the results of the studies cited by Dr. XXXXXXXX to the unknown actual conditions that existed at the club. He therefore found no reasonable alternative exculpatory explanation for the positive drug test.
Mitigating Factors
The Hearing Officer also considered whether there were any mitigating factors in this case. He took into consideration the fact that the evidence against the individual in this case, even at its most detrimental, established only one drug incident within the past 12 months. He noted that the individual successfully completed the Employee Assistance Program that he was required to attend after receiving the positive drug test. The individual also asserted that he would not be involved with drugs while holding a DOE access authorization. However, under the circumstances of this case, the Hearing Officer determined that he could not accept the individual's assurances about future drug use. If, as he found, the positive drug test was accurate and could not be explained by passive inhalation, then the individual in fact, contrary to his denials, voluntarily ingested cannabis. Since the Hearing Officer could not accept his denials about past use, he could not accept his assurances about future non-use. Accordingly, the Hearing Officer did not find that the DOE's security concerns have been mitigated in this case.
Criterion L
The derogatory information alleged under this criterion was based on the same positive drug tests that serve as the basis for the Criterion K allegations discussed above. Having found that these allegations establish a basis for revoking the individual's clearance under that criterion, and that there are insufficient mitigating factors, the Hearing Officer made a similar finding with respect to Criterion L. That criterion refers to information that an individual has "[e]ngaged in any unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable, or trustworthy; or which furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation or duress which may cause the individual to act contrary to the best interests of the national security." 10 C.F.R. 710.8(l). The Hearing Officer stated that if, as the evidence shows, the individual did voluntarily ingest cannabis in or about early April 1995, then he knowingly engaged in an illegal activity. This raises significant doubts as to his trustworthiness. Moreover, the Hearing Officer found that because the individual did not admit this drug use, he would be subject to coercion or duress and his assurances that he will eschew drug use in the future cannot be accepted.
Based on these considerations, the Hearing Officer found that the individual's access authorization should not be restored.
The Statement of Issues, Response and Reply
The Statement of Issues alleges several errors in the Hearing Officer's Opinion, and focuses in particular on the issue of whether there was reasonable evidence that passive inhalation caused the individual's positive drug test.
In its Response to the Statement of Issues, the OSS maintains that passive inhalation is not a reasonable defense to a positive drug test. The OSS does not believe that sufficient exposure can occur through passive inhalation that will cause a urine specimen to be reported positive. In support of its position, the OSS submitted an excerpt from a Federal Register Notice issued by the Department of Health and Human Services (HHS), concerning mandatory guidelines for federal workplace drug testing programs. 59 Fed. Reg. 29908 (June 9, 1994). This Notice sets forth the HHS position that passive smoke inhalation is not a reasonable defense to a positive drug test. The HHS Notice cites a study in support of the proposition that it takes extensive exposure to extremely high concentrations under unrealistic conditions to cause a positive result. Cone, E.J., Passive Inhalation of Marijuana Smoke: Urinalysis and Room Air Levels of Delta-9-Tetrahydrocannabinol, 11 Journal of Analytical Toxicology 89-96 (1987)(hereinafter Cone Study). <3>OSS states that the testimony of Dr. XXXXXXXX posits exposure to an environment that is not similar to the club environment described by the individual. OSS believes it is highly unlikely that the individual could have tested positive under the conditions he described. Accordingly, the OSS concurs in the recommendation of the Hearing Officer.
The Reply by the Individual objects to the conclusion set forth in the Federal Register Notice submitted by the OSS and to the use of the Cone Study to support that conclusion. The Reply maintains that the OSS ignored Dr. XXXXXXXX' testimony at the hearing to the effect that the Cone study does indeed support the proposition that positive drug tests may result from passive inhalation. Transcript of October 25, 1995 Hearing at 356-58 (hereinafter Tr.) In that testimony, Dr. XXXXXXXX also states his belief that the 16 cigarette exposure level of the Cone Study is equivalent to the strength of five of today's cigarettes. He contends that due to these stronger cigarettes, the exposure conditions in the club did not need to be like the exposure conditions in the Cone Study in order to produce the positive test results. Tr. at 348. The Reply also raises a challenge to the accuracy of the testing process.
After reviewing Dr. XXXXXXXX' testimony, I find that it does not overcome the conclusions set forth in the Federal Register Notice. I am convinced that the HHS Federal Register Notice properly cited the Cone Study in concluding that passive inhalation is not a reasonable explanation for positive drug test results.
Dr. XXXXXXXX' views are based on an untested and unsupported assumption that the marijuana cigarettes purportedly smoked at XXXXXXX's on the night in question were three times as potent as those used in the study. He based this conclusion on his view that marijuana cigarettes in use today generally more potent than those used in the test. Dr. XXXXXXXX posits that because more potent marijuana cigarettes are used today than were used in studies such as the Cone Study, fewer cigarettes would be necessary to induce a positive drug test through passive inhalation, even in a larger room than the exposure rooms of the studies. In this regard, Dr. XXXXXXXX cites studies allegedly showing that marijuana cigarettes currently prevalent "on the street" have between six and eight percent THC. Tr. at 346-47.
Dr. XXXXXXXX' evidence concerning cigarette potency is unconvincing. The study cited by Dr. XXXXXXXX states: "According to an analysis of samples from drug seizures and street buys in the United States in 1992, the concentration of THC averages about 3.5% for marijuana, 6% to 10% for sinsemilla marijuana...." Pinger, R. Issues for Today, Drugs (1995) at 310 (Pinger Study). <4> Thus, in referring to marijuana at the six to eight percent THC level, Dr. XXXXXXXX is positing that a significant amount of the substance smoked at XXXXXXX's was not ordinary marijuana but sinsemilla marijuana. <5>There is no evidence of this, and his testimony is conjecture. Neither I nor the Hearing Office had any way of measuring the THC level in XXXXXXX's smoke-filled environment. This is a critical point in Dr. XXXXXXXX' testimony, yet it is supported only by speculation. Moreover, according to the Cone Study, under similar exposure conditions, but with the door to the exposure room opened, THC levels in the room were generally less than 10 percent of those found when the door was closed and sealed. Cone Study at 96. It is simply not plausible to conclude that XXXXXXX's was an unventilated, sealed environment, if only because patrons presumably entered and exited the club room throughout the evening.
Given these factors, I am not at all convinced by Dr. XXXXXXXX' testimony concerning positive drug test results caused by passive inhalation. I conclude that the Cone study provides significant additional evidence that passive inhalation of marijuana smoke will not produce positive test results under normal, everyday circumstances. In fact, I find it highly improbable that passive inhalation will cause positive test results. I am convinced by the conclusion set forth in the Federal Register Notice provided by the OSS that as a general rule, an individual's positive drug test will not be the result of passive inhalation.
Nevertheless, I will review the arguments made by the Statement of Issues in order to test whether the individual has shown that even though it was improbable that the positive drug test was caused by passive inhalation, the conditions at the club were such that it occurred in this case.
ANALYSIS OF STATEMENT OF ISSUES
The Statement of Issues alleges three areas of error in the Hearing Officer's Opinion. First, it states that contrary to the finding of the Hearing Officer, the individual did present persuasive evidence that passive inhalation of marijuana smoke caused his positive drug test. Second, the Statement contends that the DOE's concerns regarding the individual's drug use have been mitigated. Third, the Statement maintains that the Hearing Officer erroneously found the individual untrustworthy
A. The Evidence Did Not Persuasively Demonstrate that Passive Smoke Inhalation Caused the Individual's Positive Drug Test
According to the Statement of Issues, Dr. XXXXXXXX testified that the individual's positive drug test "could 'easily' have resulted from the passive inhalation of marijuana smoke under the circumstances described in the individual's sworn testimony." It also states that Dr. XXXXXXXX' testimony was unrefuted and unchallenged. The Statement asserts that the following facts were therefore proven at the hearing: (a) a 23 nanogram test result is "easily" produced by passive inhalation of marijuana smoke of reasonable potency; (b) it is common for cannabis available on the street to contain 6-8% THC; and (c) the individual's 23 nanogram test result was probably the result of passive inhalation of marijuana smoke during a visit to XXXXXXX's, a night club in the XXXXXXXXXXX Area. The Statement of Issues also points out that the Hearing Officer's opinion indicated that he was persuaded by Dr. XXXXXXXX' testimony that "it is possible to have a positive drug test from passive inhalation in some real world situations." The Statement of Issues contends that, having accepted the validity of Dr. XXXXXXXX' testimony, the Hearing Officer was bound to accept his claim that a reasonable explanation for the individual's positive drug test had been provided.
As this summary of the Statement of Issues suggests, one of the significant matters raised for review here is whether the Hearing Officer established an unreasonable burden of proof for the individual. In order to frame my discussion of that issue, I believe that it will be useful to discuss briefly the burden of proof in cases considered under 10 C.F.R. Part 710. As the Hearing Officer stated in his Opinion, once there is a positive drug test, there is a presumption that the test is correct and the burden is on an individual to establish that he did not knowingly ingest an illegal drug. Personnel Security Hearing (VSO-0051), 25 DOE ¶ 82,784 at 85,736 (1995). Thus, once the security concern is created, it is incumbent on the individual to resolve the concern.
It is important to bear in mind that a DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal matter, where the government would have the burden of proving the defendant guilty beyond a reasonable doubt. This proceeding is also unlike a civil case, in which in order to prevail a plaintiff need only establish his case by a preponderance of the evidence. The standard of proof placed upon the individual in this proceeding is designed to protect national security interests. The hearing is "for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization." 10 C.F.R. §710.21(b)(6). The burden is on the individual to come forward at the hearing with evidence to convince the DOE that restoring his access authorization "would not endanger the common defense and security and would be clearly consistent with the national interest. " 10 C.F.R. §710.27(d). Personnel Security Hearing, (Case No. VSO-0061) 25 DOE ¶ 82,791 (1996). This standard implies that there is a strong presumption against granting or restoring a security clearance. See, Dep't. of Navy v. Egan, 484 U.S. 518,531 (1988). Consequently, it is necessary and appropriate to place the burden of persuasion on the individual in cases involving national security issues. Personnel Security Hearing, (Case No. VSO- 0002) 24 DOE ¶ 82,752 (1995). As a result, the regulations specify that this administrative review process is a proceeding where the individual may present evidence to show that "the grant or restoration of access authorization to the individual would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.27(a).
Thus, contrary to the assertion in the Statement of Issues, the Hearing Officer is not bound to accept any theoretically possible explanation for a positive drug test. In the instant case it was the burden of the individual who had a positive drug test to show there existed another explanation for the positive drug test, and to provide evidence in support of that explanation. See, Personnel Security Hearing, (Case No. VSO-0060), 25 DOE ¶ 82,788 (1996)(individual provided no credible exculpatory evidence). The Hearing Officer found that the individual had not met that burden.
On review, this burden does not diminish. The Statement of Issues and Reply before me now seem to suggest that if the OSS does not successfully rebut claims raised on review by the individual, then the individual must prevail. This position again misconstrues the evidentiary burden in these cases. As stated above, in personnel security cases, the individual is under the obligation to bring forth evidence at the hearing stage to show that granting access authorization would be clearly consistent with the national interest. This burden does not shift or change when the Hearing Officer's Opinion is being reviewed by the Director of the Office of Hearings and Appeals. Therefore, even though the OSS may not respond in detail to the Statement of Issues, it is still the burden of the individual to convincingly establish reversible error in the Hearing Officer's Opinion. The individual must still show that granting access authorization would not endanger the common defense and security. With these considerations in mind, I turn to an examination of the points raised by the Statement of Issues.
As indicated by my discussion above, I find that it was proper for the Hearing Officer to require that the individual produce evidence beyond the theoretical testimony of Dr. XXXXXXXX to the effect that a positive drug test was possible from passive smoke inhalation. It is clear that Dr. XXXXXXXX did not actually testify that this individual's positive drug test resulted from passive inhalation. He believed only that a positive drug test based on side stream marijuana inhalation is "easily possible" under the conditions described by the individual. Tr. at 348. <6>
The Hearing Officer appropriately found that it was necessary for the individual to establish that the scientific evidence elicited from Dr. XXXXXXXX had some relevant application in this particular case. As discussed above, the possibility that under certain conditions a positive drug test could result from passive inhalation does not mean that those conditions prevailed that night at the club. It was certainly proper for the Hearing Officer to test and evaluate whether the conditions at the club, as alleged by the individual, were likely to have existed in fact on the evening that he was there. This was a perfectly reasonable requirement. The possibility that passive inhalation of marijuana could, in some settings, produce a positive drug test certainly does not provide a sufficient explanation for this individual's positive drug test. The assertion in the Statement of Issues "that the individual's drug test was probably the result of passive inhalation" was by no means established by Dr. XXXXXXXX' testimony. Dr. XXXXXXXX did not state that this individual's drug test resulted from passive inhalation. The testimony covered whether, from a scientific point of view, it was possible for a person to have a positive drug test from passive inhalation.<7>I therefore find no error on the part of the Hearing Officer in requiring additional evidence to support a finding of passive marijuana inhalation in this case.
Based on his conclusion that additional evidence was needed from the individual in order to establish that he did passively inhale marijuana smoke, the Hearing Officer then proceeded to discuss the record evidence on the issue of whether it was credible that this individual's positive drug test was produced by passive inhalation.
In reviewing the evidence presented by the individual, the Hearing Officer found first that the testimony of the interested parties, i.e. the individual and his wife, was not convincing. For example, he did not find credible the individual's testimony that he smelled no marijuana smoke on this occasion, when he had indicated that he smelled marijuana in public on other occasions. The Hearing Officer also did not accept the individual's testimony that he did not observe or smell marijuana smoke if, as Dr. XXXXXXXX hypothesized, marijuana cigarettes were being smoked over the course of the evening in reasonable proximity.
The Hearing Officer also stated that he would not give much weight to the statements of the individual and his wife that she had smelled marijuana smoke at XXXXXXX's. As the Hearing Officer pointed out in his opinion, the individual had indicated at both the April 13 and April 25 PSIs that his wife told him that she had not smelled marijuana. Due to this apparent inconsistency, the Hearing Officer was not convinced by testimony at the hearing that she had smelled marijuana.
The Statement of Issues contends that there is no true inconsistency here, because the Hearing Officer was comparing the statements of two different persons: the statement of the individual regarding what his wife told him, and the direct statement of his wife about what she actually smelled. The Statement of Issues explains this asserted difference by claiming that the individual's wife may have had several reasons for not telling the individual that she had smelled the marijuana smoke, and that the Hearing Officer should have questioned her on this point if he believed it to be important. The Statement of Issues also cites to the wife's testimony at the hearing to the effect that she did not point out to her husband that marijuana was being smoked "because she did not think it was relevant." The Statement of Issues therefore maintains that the Hearing Officer improperly gave little weight to this testimony.
Under the regulations, the Hearing Officer is responsible for considering the demeanor of witnesses, the probability or likelihood of the truth of their testimony and their credibility. 10 C.F.R. § 710.27(b). See, Personnel Security Hearing, (VSA- 0014), 25 DOE ¶ 83,002 (1995). Since the Hearing Officer was actually able to observe the witnesses, his assessment of their credibility deserves much deference on review. Therefore, absent some serious material error, I will not overturn his judgment as to the appropriate weight to be accorded their testimony. See id at 86,512.
I find no error by the Hearing Officer with respect to the weight he has given to testimony of the individual and his wife. As an initial matter, the inconsistency identified by the Hearing Officer is not the one propounded by the Statement of Issues. The Statement of Issues alleges that there is simply a difference between what the wife told the individual she smelled, and what she actually smelled. The Statement of Issues has mischaracterized the inconsistency identified by the Hearing Officer. The inconsistency that he saw is that the individual reported at the PSIs that his wife told him she did not smell the smoke. However, at the hearing, both the individual and his wife stated that she had discussed with him that she did smell marijuana smoke.
Specifically, the record indicates that in both the April 13 and April 25 PSIs, the individual stated that his wife told him that she had smelled no marijuana at the club. He was quite emphatic on this point. April 13, 1995 PSI at 21; April 25, 1995 PSI at 26- 27. However, at the hearing, the individual's wife testified that the two of them had discussed her recollection that she smelled marijuana smoke at the club that evening. She implied at the hearing that this conversation took place at about the time the individual received the news of the positive drug test, which he acknowledged on April 10. Tr. at 385. Therefore, according to the wife's testimony, she and her husband discussed the fact that she smelled marijuana smoke at the club before the individual underwent the two PSIs. Nevertheless, on two occasions, the individual denied that his wife ever made such a revelation to him. Thus, there is certainly an inconsistency between the individual and his wife as to what she told him. I find no error in the Hearing Officer's findings that the wife's inconsistent statements diminish the credibility of her testimony on this point. <8>
There is a further inconsistency, arising from the individual's own statements. As indicated above, at the two PSIs, he stated that his wife had told him she did not smell marijuana smoke at XXXXXXX's that night. However, at the hearing, the individual testified that after the positive drug test she did tell him that she smelled marijuana smoke. Tr. at 39. While the individual did not state the specific date on which his wife first indicated that she smelled marijuana, the apparent inconsistency between these statements of the individual further supports the Hearing Officer's overall finding that the testimony by the interested parties on this point is not persuasive.<9>
The Statement of Issues also alleges unfairness by the Hearing Officer in requiring an unreasonable level of proof by the individual. The Statement of Issues refers to the assertion of the Hearing Officer that there were no disinterested witnesses who could testify that marijuana was smoked at XXXXXXX's on the evening in question. The Statement of Issues points out that the club is no longer in business and there was no way for the individual to find out who was there that night.
This argument misunderstands the rationale set out in the Opinion. The Hearing Officer referred to the lack of disinterested witnesses in a section of the Opinion devoted to his evaluation of why he believed that there was not enough credible evidence in the record to convince him that the positive drug test resulted from passive inhalation. The lack of disinterested witnesses in this case was one factor among several set out by the Hearing Officer supporting his conclusion that the individual had not established that he had passively inhaled marijuana smoke. Other factors included the unconvincing nature of the testimony of the individual and his wife, discussed above. The Hearing Officer certainly did not mandate the testimony of disinterested witnesses. He merely indicated the lack of disinterested witnesses as one reason he believed that the record was scant and unconvincing with respect to testimonial evidence supporting the individual. I see no inherent unfairness in the Hearing Officer's suggestion that had there been a disinterested witness, he might have viewed the record differently.
The Hearing Officer also looked at the circumstances surrounding the use of marijuana at XXXXXXX's and found that there were too many unknown factors to allow him to apply the results of the studies submitted by Dr. XXXXXXXX. The Hearing Officer indicated that the number and THC content of marijuana cigarettes used at the club that night were unknown, and therefore could not be compared to the number and THC content of cigarettes in the studies relied upon by Dr. XXXXXXXX. Further, the Hearing Officer pointed out that he did not know the dimensions of the club, but presumed that it must be larger than the bathroom-size space used in the studies cited by Dr. XXXXXXXX. The individual also indicated that the club was well-ventilated, but that in any event, most of the smoke was tobacco smoke. In contrast, the rooms used in the studies submitted by Dr. XXXXXXXX were filled with marijuana smoke. Moreover, as discussed above, the Cone study used a sealed room. Thus, the Hearing Officer provided a number of reasons beyond the unconvincing nature of the testimony of the individual and his wife as to why he believed that the passive inhalation explanation was not persuasive.
The individual contends that it was unreasonable of the Hearing Officer to expect proof of the THC content in the marijuana cigarettes used at the club that night, since he has no way learning this information. Again, I see no unfairness here. First, the individual himself raised this issue, by relying on Dr. XXXXXXXX' testimony. That testimony referred generally to increased THC content in marijuana cigarettes as part of the reason that passive inhalation of marijuana smoke could produce a positive drug test. If the individual wished to rely on that data, it was not unreasonable to point out that the individual failed to produce information indicating that it was applicable to his particular situation. The Hearing Officer's finding was that the individual had not provided enough evidence to support an alternative explanation for the positive drug test. As discussed earlier, it is the burden of this individual to provide that information. In this case, the individual has brought forth some general testimony regarding passive inhalation, but has failed to provide any information establishing that the general testimony is applicable to this particular situation. The Hearing Officer properly found the record unpersuasive on this matter.
The Reply by the individual raises an additional matter, which I will consider at this point. The Reply questions whether the instruments used to test the individual's urine sample were performing reliably. The Reply contends that the DOE's expert witness, Ms. XXXXXXX, stated that the accuracy of the instruments was not "verified 'to the full extent you would expect to see.'" See, Tr. at 284. From this, the Reply concludes that there are grounds to be "suspicious" of the test results.
This is sheer hyperbole. It was Ms. XXXXXXX's clear testimony that the system was "performing acceptably that day." Tr. at 284. She added that one might want to see other information, which was not provided, in order to "say unequivocally that it was performing well." Id. This testimony does not mean that the system was not performing with certainty, but rather that the available information only documents that it was performing at an acceptable level. I see no inherent unfairness in relying on a test result from a system that was working at an "acceptable" level. There is no basis whatever for the brash assertion in the Reply that there is a reason to be "suspicious" of the results.
B. The Hearing Officer Correctly Found That The DOE's Concerns Were Not Mitigated
As the Statement of Issues points out, the Hearing Officer considered whether the individual had offered evidence that mitigated the DOE's security concerns. The Hearing Officer noted that the evidence, even at its most detrimental, establishes only one drug incident within the previous 12 months. The Hearing Officer also noted that the individual had successfully completed the Employee Assistance Program that he was required to attend after the positive drug test. The individual also asserted that he would not use drugs in the future. However, the Hearing Officer pointed out that if the positive drug test could not be explained by passive inhalation, the individual must have voluntarily ingested marijuana, contrary to his assertions. The Hearing Officer determined that he could not accept the individual's assertions that he would not use drugs in the future, since he could not accept the individual's denials about his past drug use. Therefore, the Hearing Officer found that the DOE's security concerns had not been mitigated.
The Statement of Issues asserts that the Hearing Officer's logic is faulty and that he "bootstraps" this faulty logic into an unfair questioning of the individual's honesty. As indicated above, I find no reason to disturb the Hearing Officer's finding that the individual did not establish that marijuana was used at XXXXXXX's on the night in question. I see no faulty logic in this aspect of the Hearing Officer's Opinion. Accordingly, I will not overturn the Hearing Officer's determination that he could not rely on the individual's assertion that he would not use drugs in the future. I therefore find no error in the Hearing Officer's conclusion that the DOE's security concerns have not been mitigated.
C. The Hearing Officer's Determination With Respect To Criterion L Was Not In Error
Criterion L refers to information that an individual has "[e]ngaged in any unusual or is subject to any circumstances which tend to show that the individual is not honest, reliable or trustworthy; or which furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation or duress which may cause the individual to act contrary to the best interests of the national security." 10 C.F.R. § 710.8(l). The Hearing Officer found that since the individual failed to demonstrate that he had not had voluntarily ingested marijuana, there were significant doubts raised as to his trustworthiness. Further, since the individual did not admit to this drug use, he would be subject to coercion or duress.
The Statement of Issues asserts that this finding is flawed. The Statement of Issues maintains that in making this finding, the Hearing Officer failed to take into consideration the testimony of several witnesses, co-workers of the individual, who described him as honest. As I indicated above, I will give deference to the Hearing Officer's assessment of the credibility of the witnesses. I will also give deference to the Hearing Officer's judgment as to the weight and relevance of testimony. It is true that the Hearing Officer did not directly refer to this testimony in his consideration of the applicability of Criterion L.<10>However, I see no error in the fact that the Hearing Officer apparently gave no weight to the testimony of the individual's character witnesses in connection with this issue. It is obvious that implicit in his finding regarding this criterion is a determination that the testimony by the individual's co-workers did not overcome the overall determination that this individual is not trustworthy due to his use of drugs and denial regarding that use.
The Statement of Issues again raises the claim that the Hearing Officer unfairly expected the individual to produce evidence concerning the THC level of the marijuana cigarettes smoked at the club on the night in question. I have responded to this allegation above. This allegation does not affect my assessment that the Hearing Officer did not err in his finding regarding Criterion L.
Conclusion
As discussed above, I concur with the Opinion of the Hearing Officer. Pursuant to 10 C.F.R. § 710.28(d), I am not convinced, based upon a review of the record and having considered the specific issues raised in the Statement of Issues, that restoring the access authorization of the individual would not endanger the common defense and security and would be clearly consistent with the national interest.
The regulations specify that within 30 days of receipt of this opinion, the Director, Office of Security Affairs, will make a final determination regarding restoration of the individual's access authorization based upon a complete review of the record. 10 C.F.R. § 710.28(e). The Director, Office of Security Affairs, shall through the Director, Office of Safeguards and Security, inform the individual and his counsel in writing of the final determination, and provide a copy of the present opinion. Copies of the correspondence shall be provided to the Director, Office of Hearings and Appeals, the Manager, DOE Counsel and any other party. In the event of an adverse determination, the correspondence shall indicate the findings by the Director, Office of Security Affairs, with respect to each allegation contained in the Notification Letter. 10 C.F.R. § 710.28(f).
George B. Breznay
Director
Office of Hearings and Appeals
Date:
* * * *
[On June 27, 1996, a final determination was made by the Director, Office of Security Affairs, to revoke the individual's Department of Energy access authorization.]
<1>1/ Cannabinoids are the psychoactive substances found in the common hemp plant, Cannabis sativa (marijuana). The primary psychoactive cannabinoid is tetrahydrocannabinol (THC).
<2>/ With respect to Criterion F, the Hearing Officer found mitigating factors that led him ultimately to conclude that the individual's falsification should not be a basis for a
revocation of his security clearance. Criterion F has not been raised as an issue in this proceeding. Accordingly, I will not give it any further consideration.
<3>/The Cone Study was also referred to by Dr. XXXXXXXX. It was entered into the record, and was designated as Exhibit 39 in this proceeding.
<4>/Relevant pages from this work are included in the record as Exhibit 42.
<5>/Sinsemilla marijuana plants are "without seeds and produce increased amounts of resin, and therefore more THC than plants with seeds." Pinger Study at 309.
<6>/ As discussed above, I do not necessarily agree with Dr. XXXXXXXX' assertion that a positive drug test based on side- stream marijuana is possible under real world conditions.
<7>/ With respect to the individual's drug test, Dr. XXXXXXXX did
state that it was "impossible at the level which he reported to be certain [whether the individual smoked marijuana in 1995] because the levels were easily within the range of passive inhalation of marijuana smoke." Tr. at 346. This testimony certainly does not establish the reason for the positive drug test, but only that passive inhalation could not be definitively ruled out. Dr. XXXXXXXX continued to equivocate on this point at the hearing. Tr. at 357-58.
<8>/ The Statement argues that if the Hearing Officer believed that this was an important inconsistency, he should have questioned the individual's wife on this point. This misperceives the burden of proof. While the Hearing Officer is certainly free to question witnesses, as I stated above, the ultimate burden persuasion here is on the individual. Thus, it was the individual who had the burden of insuring that any inconsistency in the record was only apparent and was explained.
<9>/ The Hearing Officer recognized some ambiguity in this testimony because it was not clearly stated that the discussion regarding the marijuana smoke actually took place before the PSIs. Nevertheless, the Hearing Officer concluded that since the individual and his wife appeared to have discussed this matter on or about the date of the news of the positive drug test (April 10, 1995), it was likely that their discussion took place before the PSIs. I find that to be a reasonable conclusion.
<10>/ The Hearing Officer did refer to and rely on the testimony of the individual's character witnesses in connection with an issue not raised by the Statement of Issues. See Personnel Security Hearing (VSO-0051), 25 DOE ¶ 82,784 at 85,734 (1995). See also Note 2 above. Thus, it is clear that the Hearing Officer did not ignore this testimony, but rather applied and weighed it when he believed it relevant.