Case No. VSA-0102, 26 DOE ¶ 83,008 (OHA March 25, 1997)

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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 XXXXXXX's.

March 25, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case:Personnel Security Review

Date of Filing:December 16, 1996

Case Number: VSA-0102

This opinion concerns the eligibility of XXXXXXXXXXX ("the individual") for continued access authorization under the regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material.(1) The individual's access authorization was suspended by an office of the Department of Energy (the DOE office) under the provisions of Part 710. The individual subsequently requested a hearing before a DOE Hearing Officer pursuant to 10 C.F.R. § 710.21. After considering the testimony presented at the hearing, the Hearing Officer issued on November 14, 1996 an Opinion recommending against restoring the individual's access authorization. See Personnel Security Hearing (Case No. VSO-0102), 26 DOE ¶ 82,763 (1996) (November Opinion). On December 16, 1996, the individual filed a request for review of the November Opinion pursuant to 10 C.F.R. § 710.28. This Opinion considers whether, on the basis of the regulations and the record before me, the individual's access authorization should be restored.

I. Background

The provisions of 10 C.F.R. Part 710 govern the eligibility of individuals who are employed by or are applicants for employment with DOE or its contractors, agents, DOE access permittees, and other persons designated by the Secretary of Energy for access to classified matter or special nuclear material. Part 710 generally provides that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all relevant information, favorable or unfavorable, as to whether the granting of access authorization would not endanger the

common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.7(a).

The DOE office issued a Notification Letter to the individual informing him that information in the possession of DOE created a substantial doubt concerning his eligibility for access authorization. The Notification Letter specified two types of derogatory information. First, it stated that the individual had 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. See DOE Exhibit 1 (Case No. VSO-0102) (citing 10 C.F.R. § 710.8(k) (hereinafter Criterion K)). Specifically, the Notification Letter alleged that the individual in early 1996 tested positive for cannabinoids (marijuana) during a random drug screen test conducted by his employer, a DOE contractor.

The second type of derogatory information the Notification Letter specified was that the individual had engaged in unusual conduct that tends to show that he is not honest, reliable, or trustworthy, or furnishes a reason to believe that he may be subject to pressure or duress that may cause him to act contrary to the best interest of national security. See DOE Exhibit 1 (Case No. VSO-0102) (citing 10 C.F.R. § 710.8(l) (hereinafter Criterion L)). Under this criterion, the Notification Letter detailed two allegations. The first was that the individual, by his own admission, elected to use marijuana several times over the course of one weekend in early 1996 when he went on a fishing trip, despite the fact that he was aware of DOE's and his employer's drug policies and was aware that the use of marijuana is illegal. The second allegation was that during a Personnel Security Interview (PSI) conducted after his positive drug test the individual stated that the only time he ever used illegal drugs was during the weekend fishing trip. However, 13 days prior to the PSI the individual informed a counselor that he used marijuana once or twice, more than 20 years ago when he was attending college.

The individual requested a hearing in order to resolve the issue of his eligibility for access authorization. At the hearing, the five witnesses who testified were: the individual, a personnel security specialist, two co-worker character witnesses, and the individual's counselor, who is a licensed clinical social worker. On November 14, 1996, the Hearing Officer issued an opinion in which he found that the individual had used marijuana and failed to show sufficient evidence that the security concerns raised by the marijuana use were mitigated by the individual's claim that the use was a unique, isolated event that was instigated by others. The Hearing Officer also found that the individual had failed to establish that he had been rehabilitated from his marijuana use. With regard to Criterion L, the Hearing Officer found that the individual had provided false answers in the PSI about his prior marijuana usage and had not offered sufficient evidence of mitigation regarding his false statements. Therefore the Hearing Officer found that the individual's access authorization should not be restored.

On December 16, 1996, the individual's request for review was received by the Office of Hearings and Appeals (OHA). On January 29, 1997, the OHA received the individual's Statement of Issues (Statement).(2) The Office of Security Affairs (OSA) declined an opportunity to respond to the individual's submissions and stated that it relied on the Hearing Officer's findings. See Memorandum from Edward J. McCallum, Director, OSA, to Director, OHA (February 7, 1997). On February 7, 1997, the administrative record of this proceeding was closed.

II. Statement of the Issues

In his Statement, the individual argues that he should be permitted to have an opportunity to complete a year of counseling and demonstrate his abstinence from illegal drugs in order to retain his security clearance. In support of this argument, the individual asserts that since the hearing, he has had a negative drug test (in December 1996) and that testimony from his counselor at the hearing indicated that he had less than a five percent chance of relapse.

The individual also challenges several of the findings made by the Hearing Officer. Specifically, the individual finds fault with the evidentiary weight the Hearing Officer assigned to the testimony of his two character witnesses. The individual asserts that it was erroneous to have essentially dismissed their testimony because of their lack of opportunities to observe the individual at social activities. The Hearing Officer concluded that their testimony as a result was not relevant to whether the individual used drugs at such activities. The individual asserts that given his family responsibilities he has not engaged in many social activities about which any witness might testify. The individual apparently also challenges the Hearing Officer's general assessment of his character. The individual points out that since the loss of his clearance, he has performed well at his position and has been a positive and productive employee at work. The individual asserts that his positive contributions at work should be a factor considered in the decision whether to restore his clearance.

Lastly, the individual also apparently challenges the Hearing Officer's opinion that the individual may have been a frequent or regular user of marijuana since the individual's negative drug test in October 1992. The individual points out that testimony from his counselor indicates that he did not meet the diagnostic criteria for Substance Abuse or Substance Dependency, and that a continued program of regular drug testing in the future would refute the Hearing Officer's finding. The individual also points out that he has undergone four security clearance investigations while at his present position and none has indicated that he has had involvement with illegal drugs.

III. Analysis

Under 10 C.F.R. § 710.28(a), either the OSA or the individual involved may file a request for review of a Hearing Officer's opinion with the OHA Director. In considering requests for review, I generally confine my inquiry to those issues raised in the statement or response. The regulations provide that, under limited circumstances, I may consider additional information which was not before the Hearing Officer. 10 C.F.R. § 710.28(c); 10 C.F.R. § 710.29(b)(2). In the present case, neither party has submitted any additional evidence. Accordingly, I will concentrate my focus on the contentions contained in the individual's Statement.

A. Request for Stay of Decision

The individual has requested that he be allowed to complete a year of counseling and abstinence, the period cited by the Hearing Officer as being necessary for rehabilitation from his recent drug use. He apparently asks that the final determination regarding his security clearance be held in abeyance until the completion of that one year period or that his access authorization be conditionally restored in the interim. In support of this request, the individual draws my attention to his counselor's testimony that the individual has less than a five percent chance of relapse for illegal drug use and to the fact that his most recent drug test in December 1996 was negative.

I must deny this request for temporary relief. The concept of staying access authorization actions was considered and specifically rejected on national security grounds in the Preamble of the Federal Register Notice announcing the most recent amendments to the DOE security clearance regulations. 59 Fed. Reg. 35178, 35179 (July 8, 1994). Moreover, I have only limited discretion under 10 C.F.R. § 710.28 to allow the record to remain open, namely to investigate a statement in the request for review or to obtain information that is relevant to the review from either the individual or OSA. No broader purpose is mentioned in the regulations. Clearly, the regulation contemplates neither the conditional reinstatement of individuals who may be serious security risks nor the allowance of additional time to establish a sufficient period of abstinence from illegal drug use. See Security Clearance Review (Case No. VSA-0018), 25 DOE ¶ 83,006 (1995). Further, holding this case in abeyance would tend to prolong the administrative review process, thereby causing a waste of administrative resources. Id. at 86,530. Consequently, I will deny the individual's request for interim relief.

B. Weight of Evidence to be Assigned to Testimony of Character Witnesses

I also reject as baseless the individual's arguments regarding the weight that the Hearing Officer assigned to his two character witnesses. In the November Opinion, the Hearing Officer surmised that both character witnesses were, in part, being offered to support the individual's claim that his only drug usage (outside college) occurred during the cited weekend fishing trip. 26 DOE at 85,590. However, the Hearing Officer found that both character witnesses had little current social contact with the individual and thus provided no persuasive evidence that the individual's recent drug use had in fact been limited to the weekend fishing trip. Id. A review of the transcript indicates that the Hearing Officer had sufficient evidence to support these findings. One of the witnesses testified that he called the individual "from time to time" and met with the individual "sometimes on the weekends" but that his social interaction with the individual is "[n]ot too often, but occasionally." Transcript of Hearing (Case No. VSO-0102) (hereinafter Tr.) at 82. The other character witness testified that he saw the individual approximately twice a year at social events outside of work. Tr. at 92. Given the limited amount of outside social interactions these witnesses had with the individual, I find that the Hearing Officer correctly gave little or no weight to their testimony regarding the issue of the frequency of drug use by the individual.

The individual asserted at the hearing and on appeal that, given his limited time for outside social activities, these character witnesses were the best available. He claims these witnesses have the best knowledge regarding his social activities and consequently, no unfavorable inference should be drawn from these witnesses. See Tr. at 95-96. In response to this assertion, the Hearing Officer stated that "an affected individual must provide convincing evidence mitigating the security concern related to illegal drug use . . . [i]t is therefore the obligation of the individual to offer an explanation for the positive drug test that mitigates the DOE's security concern and to establish the truthfulness of the explanation. " 26 DOE at 85,587. The Hearing Officer explained that he found "very little evidence in the record" to support the individual's assertion of isolated marijuana use. Although the Hearing Officer found the individual's demeanor positive, he noted the individual's self-interest and without more could not accept the individual's assertion of only one time use. The Hearing Officer had previously advised the individual that knowledgeable witnesses "who can corroborate his . . . use of marijuana" were critically important to his case. 26 DOE at 85,589. He noted that the individual's wife, who presumably could best corroborate the individual's assertions regarding his recent drug use, failed to testify at the hearing and that the individual's failure to present his wife's testimony indicated that she may have possessed information unfavorable to the individual. 26 DOE at 85,591. (3)

I believe that the Hearing Officer was correct in his conclusion that the individual's wife would have been a better witness to call to corroborate the individual's claims regarding his abstention from drug use. I also believe that it was allowable for the Hearing Officer to make a negative inference from the wife's unavailability at the hearing. See generally 2 McCormick on Evidence § 264 (4th ed. 1992) (inference proper if witness not called can reasonably be assumed to be favorably disposed to a party). By way of excuse, the individual testified that his wife was not available due to a scheduling conflict with their child's preschool. However, the Hearing Officer found that this excuse was implausible in light of the importance of the hearing to the individual and the extensive notice given to the individual prior to the hearing regarding the importance of witnesses for corroboration. I believe that the Hearing Officer's analysis of the wife's unavailability to testify was reasonable. Consequently, I find that the Hearing Officer's findings regarding the wife's failure to testify and the testimony of the character witnesses, and his negative inference arising from the lack of witnesses supporting the individual's account of his marijuana use, were adequately supported by the record.

C. Character and Job Performance Evidence

The individual also apparently requests that his character and job performance should be considered in the decision to restore his clearance. In this light, the individual draws my attention to a number of work-related projects he has accomplished since his clearance was suspended. He apparently contends that his outstanding conduct during the stressful period of his clearance suspension should demonstrate that his character is of a sufficient quality to hold a security clearance.

I cannot agree with the individual's arguments. Assuming the individual's work performance since the suspension of his clearance has been superior, that fact alone would not justify reversing the Hearing Officer's findings. Successful, even outstanding, job performance alone does not alleviate

national security concerns raised by an individual's conduct. Suitability for a security clearance assumes characteristics such as judgment, reliability and trustworthiness, which must be demonstrated twenty-four hours a day. In other words, satisfactory job performance is a necessary but not a sufficient condition for keeping a security clearance. Accordingly, the individual's work place conduct provides little evidence regarding his suitability for a security clearance and is not sufficient in the present case to justify reversing the Hearing Officer's recommendation against restoring his clearance. See Personnel Security Hearing (Case No. VSO-0005), 24 DOE ¶ 82,753 at 85,530 (1995).

D. Hearing Officer's Findings Regarding the Individual's "Frequent or Regular" Use of Marijuana

In the November Opinion, the Hearing Officer determined that the individual had not established that his recent use was limited to the weekend fishing trip. He stated, "The individual's positive drug test in [March] 1996 raises a strong concern that he could be a frequent or regular user of marijuana." 26 DOE at 85,591. Although the Hearing Officer did not make an explicit finding that the individual was a frequent or regular user of marijuana, I believe that he made an implicit determination on this issue as evidenced by his use of a rehabilitation standard for individuals where "illegal drug use is not an infrequent event." See 26 DOE at 85,592-93. In this regard, the Hearing Officer stated that the individual "may have been a frequent recreational user of the drug [marijuana]. [U]nder these circumstances, I believe that it is appropriate to require a full year of demonstrated abstinence by the individual in order to establish rehabilitation." Id. at 85,593.

The individual challenges the Hearing Officer's characterization of him as a frequent or regular user of marijuana. He draws my attention to the fact that the counselor's testimony indicated that he did not fit the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV) for Substance Abuse or Substance Dependence, and that none of his prior four security clearance investigations discovered any evidence indicating that he was involved with illegal drugs.

After reviewing the record, I can find little evidence to support an affirmative finding that the individual was a frequent or regular user of marijuana. Therefore, I find that this characterization of the individual's drug use by the Hearing Officer was overstated. The Hearing Officer did note factors tending to support that conclusion. For example, the counselor testified that individuals tend to under- report their drug use and that it would be unusual for a one-time user to be caught with a random drug test. Further, the Hearing Officer considered it significant that the counselor was unwilling to state that he accepted the individual's assertion that he used marijuana on only one recent occasion. These factors provided some basis for the Hearing Officer's view that the individual had probably used marijuana more than once. However, on the other hand, we have the individual's assertions to the contrary and a letter from his wife stating that she had not seen him use drugs. There is no other evidence regarding the individual's level of drug use. I conclude that while the Hearing Officer correctly found that the individual failed to establish one-time use, that finding in itself and the evidence in the record do not support a conclusion that the individual was a frequent or regular drug user.

The individual himself raised the claim that he had been rehabilitated. Thus, it was understandable that the Hearing Officer engaged in a rehabilitation analysis. However, that analysis was unnecessary as I will explain later, in view of the Hearing Officer's conclusion that the individual had failed to mitigate the security concerns raised by his marijuana use. Moreover, the Hearing Officer's use of a rehabilitation analysis was based on his faulty premise that the individual was a frequent or regular user of marijuana. Not only is there no evidence that the individual used drugs frequently; there is no evidence in the record that he has been diagnosed with any type of substance abuse or dependence illness. In fact, the counselor testified that the individual did not meet the DSM-IV criteria for Substance Abuse or Substance Dependence. Tr. at 105. While the Hearing Officer cited numerous Hearing Officer opinions to support establishing the particular standard for rehabilitation he used, almost all of these cases involved individuals who had been diagnosed with Substance Abuse or Substance Dependence Disorders or who had been determined to be users of alcohol habitually to excess. Consequently, I believe that the Hearing Officer's use of his rehabilitation analysis was inappropriate in light of the fact there had been no showing that the individual was a frequent or regular user of marijuana or had suffered from any diagnosed substance abuse or dependence disorder. (4)

Nevertheless, the well-developed record in this case provides more than sufficient evidence to support a finding that the individual has failed to mitigate the security concerns raised by his marijuana use. Given the individual's prior falsification in the PSI, discussed below, and his failure to present evidence corroborating his claim of isolated drug use, the Hearing Officer had sufficient reason to doubt the individual's judgment and reliability in general and his specific claims that his recent marijuana use was limited to the weekend fishing trip and instigated solely by others. The Hearing Officer noted that the individual failed to present testimony from any of the individuals who participated in the fishing trip despite his urging, and that neither character witness had adequate experience with the individual in social settings. 26 DOE at 85,589-90. The Hearing Officer also noted that the individual's description of the circumstances regarding the use of the marijuana on the trip, and of how the marijuana was obtained, was vague. 26 DOE at 85,592. As also described above, the Hearing Officer found it significant that the individual failed to have his wife testify at the hearing. 26 DOE at 85,591. In addition, the Hearing Officer found it significant that the counselor testified that persons who use drugs tend to under-report their usage to officials and that in the counselor's opinion it was unusual for a person to use marijuana once and then be identified in a random drug test. 26 DOE at 85,589. When these factors are added to the individual's falsification of the PSI, they support the Hearing Officer's doubts concerning the individual's veracity as to the extent of his recent use of marijuana.

I therefore agree that there was sufficient evidence for the Hearing Officer to find that the individual is likely to be under reporting his recent marijuana use. Since his counseling program was also still on-going at the time of the hearing, I believe that the individual failed to present sufficient evidence such that I can conclude that the security concerns raised by his recent marijuana use have been mitigated. In sum, I find that the individual has used marijuana, an illegal drug, and that the DOE has properly invoked Criterion K and that the security concerns raised by his use of marijuana have not been mitigated.

E. Criterion L Finding

After reviewing the record, I also find that the individual provided false information at the PSI and that DOE properly invoked Criterion L. This finding also justifies the Hearing Officer's recommendation that the individual's clearance not be restored. The Hearing Officer based his Criterion L finding on the grounds that until there can be reasonable assurance that the individual would not use marijuana again, a substantial doubt exists with respect to the individual's future truthfulness regarding drug use issues. 26 DOE at 85,593. The record indicates that the individual stated three times during his PSI that his use of marijuana during the weekend fishing trip was his first use of illegal drugs despite the fact that 13 days prior he had told his counselor that he had used marijuana once or twice in college. Id. The Hearing Officer clearly had sufficient ground to find that the individual had therefore given false information to the DOE. Further, there is nothing in the record that supports a finding that the security concerns raised by that falsification have been mitigated. While the individual's performance at work is a positive factor, his falsification is fairly recent and a good workplace performance does not alone provide sufficient assurance that the individual always can be counted on to provide truthful answers. Thus, I believe that the serious security concerns raised by the individual's falsification justify the Hearing Officer's recommendation that the individual's security clearance not be restored.

IV. Conclusion

I have thoroughly considered the record of this proceeding, including the submissions of the parties and the evidence and testimony presented at the hearing convened in this matter. In resolving the question of the individual's eligibility for access authorization, I have been guided by the applicable factors prescribed in 10 C.F.R. § 710.7(c). After due deliberation, it is my opinion that the individual's access authorization should not be restored since I conclude that such continuation would endanger the common defense and security and would not be clearly consistent with the national interest. 10 C.F.R. § 710.27(a).

George B. Breznay

Director

Office of Hearings and Appeals

Date: March 25, 1997

(1)"An access authorization is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will be referred to variously in this Opinion as access authorization or clearance.

(2)In his request for review, the individual asked for an extension of the deadline for submitting the Statement until January 31, 1997. I subsequently granted the individual's request and extended the deadline for the submission of the Statement until January 31, 1997. See Letter from George B. Breznay, Director, OHA, to the individual (December 23, 1996).

(3)The individual submitted a written statement from his wife regarding the events surrounding the fishing trip and his use of illegal drugs. See Letter from individual's spouse to Hearing Officer (Case No. VSO-0102) (October 1, 1996). The Hearing Officer, however, gave this letter little weight in light of the fact that it was unsworn and its assertions were not subject to cross-examination. 26 DOE at 85,591. I agree with his treatment of the letter.

(4)Even if the consideration of rehabilitation would have been appropriate, the Hearing Officer applied a standard which I cannot endorse at this time. Specifically, in the rehabilitation analysis, the Hearing Officer used a general standard which he described as follows: "[H]owever, where illegal drug use is not an infrequent event, a twelve month period of abstinence is generally required to demonstrate adequate evidence of rehabilitation and reformation. Indeed, there is a consensus among substance abuse professionals that habitual users of marijuana and other drugs are not sufficiently rehabilitated until they have abstained from the use of all psychoactive substances for a period of at least 12 months" (12 month standard). 26 DOE at 85,592-93. To support this proposition, the Hearing Officer cited four Hearing Officer opinions and the cases cited therein. Id. However, he stretched too far in applying those cases. It is true that DOE Hearing Officers have generally required at least 12 months of abstention to find that a frequent or habitual drug user is rehabilitated. However, each Hearing Officer in the cases cited utilized an individual diagnostic evaluation which specified a recommended required period of abstinence for the individual involved in the case depending on a professional's assessment of that individual's condition. There is no testimony in the record of this proceeding, nor reference to testimony in the cases cited by the Hearing Officer, to the effect that a consensus of professional opinion exists regarding the minimum period of time abstinence is required to demonstrate rehabilitation. Given this, I believe the Hearing Officer was incorrect in referring to a medical consensus regarding the required period of abstinence needed for rehabilitation. Further, the period of abstinence necessary for rehabilitation does not appear to be the type of fact which properly can be established through the doctrine of "official notice." See Fed. R. Evid. 201(b) (a judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned).