Case No. VSA-0114, 26 DOE ¶ 83,011 (OHA June 16, 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.

June 16, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Opinion of the Director

Case Name: Personnel Security Review

Date Filed: April 1, 1997

Case Number: VSA-0114

This Opinion concerns a Request for Review filed by XXXXXXXXXXX (the "Respondent") regarding his eligibility to hold an 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." On March 5, 1997, a Hearing Officer from the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) issued an opinion recommending against restoring the Respondent's access authorization. On April 1, 1997, the individual filed a Request for Review of the Hearing Officer's Opinion pursuant to 10 C.F.R. § 710.28. On April 22, 1997, he filed a Statement of Issues to be reviewed. On April 25, 1997, DOE's Office of Safeguards and Security (OSS) notified OHA that it would not file a response to the Statement of Issues and I closed the administrative record in this case. This Opinion considers the matters raised by the Statement of Issues.

I. Background

The Respondent is employed by a DOE contractor. On October 26, 1995, the local DOE security office conducted a personnel security interview in which the Respondent provided information which created a substantial doubt regarding his eligibility for access authorization. The DOE asked the Respondent to undergo a mental examination by a DOE consultant psychiatrist, which took place in December 1995. The DOE psychiatrist concluded that the Respondent had a personality disorder that caused a significant defect in the Respondent's judgment and reliability. As a consequence, the local DOE security office suspended the Respondent's access authorization and obtained authority from the OSS to initiate an administrative review proceeding.

The DOE commenced the administrative review proceeding on August 8, 1996 by issuing a Notification Letter to the Respondent. The Notification Letter states that the individual has an "illness or mental condition of a nature which, in the opinion of a board-certified psychiatrist . . .

causes, or may cause, a significant defect in judgment or reliability." The DOE psychiatrist's conclusion regarding the Respondent's mental condition raises a security concern under 10 C.F.R. § 710.8(h) (Criterion H). In addition, the Notification Letter states that the DOE uncovered derogatory information which indicated that the Respondent has engaged in unusual conduct tending to show that he is not honest, reliable, or trustworthy. See 10 C.F.R. § 710 .8(l) (Criterion L). According to the Notification Letter, the DOE reached this determination based on the following information: (i) the Respondent disclosed two extra-marital sexual relationships to an Office of Personnel Management (OPM) investigator, but failed to disclose a third relationship; (ii) the Respondent engaged in sexual activities outside of his marriage for a ten year period and during that period he kept these activities secret from his wife; (iii) the Respondent failed to properly disclose his past use of illegal drugs on a supplemental security report he filed with his DOE contractor employer and (iv) the Respondent attempted to keep his use of alcohol secret from his wife. See Notification Letter, "Information Creating a Substantial Doubt Regarding Eligibility for Access Authorization," at 2-4.

After receiving the Notification Letter, the Respondent requested a hearing to respond to the DOE's allegations. The DOE transmitted the Respondent's Request for a Hearing to OHA on September 23, 1996, and I appointed a Hearing Officer who convened a hearing on this matter.

During the hearing, the Respondent asserted that he is mentally fit to maintain his access authorization. He also claimed that he has become a better person by attending therapy sessions, improving his communication skills and making serious efforts to reform his behavior. In addition, during the hearing, the Respondent stated that he had contacted a psychiatrist to perform an evaluation of his mental condition. However, according to the Respondent, due to scheduling difficulties, the psychiatrist was unable to conduct an evaluation to submit as evidence at the hearing. Therefore, the DOE consulting psychiatrist's diagnosis and testimony were unchallenged. Since the end of the hearing, however, the Respondent has been able to obtain an evaluation from his psychiatrist. In his request for review, the Respondent has submitted this evaluation as new evidence to support his claim that he is mentally fit to maintain his access authorization.

II. The Hearing Officer Opinion

After considering all the relevant information, the Hearing Officer issued an Opinion in which he found that the derogatory information set forth in the Notification Letter raised legitimate security concerns which the Respondent failed to mitigate. Personnel Security Hearing, 26 DOE ¶ 82,770 (1997). With respect to Criterion H, the Hearing Officer found that the Respondent failed to mitigate the DOE security concerns because he failed to present any evidence to controvert the DOE consulting psychiatrist's diagnosis and testimony. Id. In addition, the Hearing Officer found that the Respondent's failure to divulge to the OPM investigator his past drug use and a third extra-marital sexual relationship called into question his honesty, reliability and trustworthiness under Criterion L. Id. The Hearing Officer also found that the Respondent was not rehabilitated with respect to his dishonesty in his marriage and in his dealings with others. Based on these factors, he concluded that there continues to be a security concern that the Respondent will likely engage in further deceptive behavior. Therefore, the Hearing Officer concluded that the Respondent failed to show that restoration of his access authorization would not endanger the common defense and security and would be clearly consistent with the national interest.

III. The Request for Review

Under 10 C.F.R. § 710.28(a), either the Office of Security Affairs or the individual involved may file a request for review of a Hearing Officer's opinion with the Director of the Office of Hearings and Appeals. The regulations provide that (i) the party seeking review must file a statement with the OHA identifying the particular issues on which it wishes me to focus my review and (ii) the other party may file a response to that statement. 10 C.F.R. §§ 710.28(a) and (b). The regulations also permit me to accept submissions that are relevant to my review from either the individual or the Office of Security Affairs. 10 C.F.R. § 710.28(c).

As noted above, the Respondent has submitted a new and favorable psychiatric evaluation conducted after the hearing by a psychiatrist he retained. The Respondent contends that he is rehabilitated from the mental disorder that led the DOE psychiatrist to conclude the Respondent's judgment and reliability were impaired. The Respondent further asserts that he now has a better relationship with his wife, has become a better person and intends to continue to be honest and trustworthy in his dealings with others. See Statement at 2.

IV. Analysis

The Respondent relies on his psychiatrist's report to support his claim that he no longer has a mental condition that adversely affects his judgment and reliability. He attributes the late submission of this favorable evidence to scheduling difficulties and his psychiatrist's recent illness, and claims that she was unable to prepare a written evaluation until three weeks after the issuance of the Hearing Officer's Opinion. "Whenever reasonably possible," it is preferable for an important witness like the Respondent's psychiatrist to testify in person during the hearing and be subject to cross-examination. See 10 C.F.R. § 710.26(d). While that did not happen in this case, it appears that the Respondent made a sincere effort to obtain a timely evaluation from his psychiatrist. I have therefore considered her report, despite its tardiness, in reaching a recommendation on the merits of the present review. As explained below, however, the late submission of the new psychiatric report does not affect the ultimate outcome of this case.

A. Whether the Respondent is Rehabilitated or Reformed from a Mental Illness as Diagnosed by DOE's Consulting Psychiatrist

After reviewing the above-mentioned psychiatric evaluation submitted by the Respondent's psychiatrist, and the Hearing Officer's Opinion in this case, I find that the Respondent's most recent psychiatric evaluation provides a sufficient basis for reversing the Hearing Officer's Opinion with respect to Criterion H.

On the basis of information supplied to him by DOE and his examination of the Respondent on December 4, 1995, the DOE consulting psychiatrist concluded that the Respondent had a mental condition, a personality disorder, that caused a significant defect in judgment and reliability. During the hearing, the DOE consulting psychiatrist described the Respondent as follows:

I see him as a mixture of a narcissistic personality, a dependent type personality, avoidant type personality, and I think he has compulsive obsessive defense mechanisms, meaning that

when things are not working well for him I think he becomes very obsessed about certain things and will absolutely miss the big issues and focus in on the little things.

Personnel Security Hearing, 26 DOE ¶ 82,770 at 85,642 (1997), citing Hearing Transcript at 104.

The DOE consulting psychiatrist stated that those personality traits were likely to cause a defect in the Respondent's judgment. See Hearing Transcript at 122. As examples, he cited the Respondent's prior undisclosed affair and failure to disclose his prior drug use as evidence of defective judgment. Id. at 123. For these reasons, the DOE consulting psychiatrist concluded that the Respondent's personality disorder could only be treated by undergoing long term therapy. Id. at 133.

According to the Respondent's statement, his psychiatrist conducted an evaluation of him on January 21, 1997. See Psychiatric Report at 1. In preparation for the Respondent's evaluation, his psychiatrist stated that she reviewed the DOE consulting psychiatrist's report, which included the results of the Respondent's psychological testing. Id. In addition, she states that the Respondent provided her with a copy of the hearing transcript and that she interviewed the Respondent and his wife for one and a half hours. Id. Moreover, the Respondent's psychiatrist states that she has seen the Respondent on at least two other occasions. Based on her recent examination and observations of the Respondent, she reached the following conclusion:

His [the Respondent's] thought processes were free of psychotic symptoms or rumination. His thought content was appropriate and relevant to the interview. The relationship between the patient and his wife was observed and they appeared to be relaxed and exchanging information easily. His judgment and insight was good at the time of my interview. His impulse control was felt to be improved tremendously to a good situation.

Psychiatric Report at 2.

The Respondent's psychiatrist concluded that "[the Respondent] does not meet the criteria for any single personality disorder, and that he has been in remission of psychiatric problems without the use of medication for a long enough time to provide a reasonable degree of certainty that he is not going to have a relapse." Id. In her opinion, she also found that the Respondent has undergone sufficient counseling "to be considered effective as the rehabilitation process." Id. at 3. For example, the Respondent's psychiatrist noted that the Respondent has engaged in marital therapy sessions with two separate therapists, in addition to receiving counseling from his church Bishop for at least 30 to 40 sessions. For these reasons, the Respondent's psychiatrist found that the Respondent has been rehabilitated from the personality disorder that was diagnosed in 1995.

Under the Part 710 regulations, the Hearing Officer is directed to make a common-sense judgment whether restoring access authorization "would endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.7(a). See also Personnel Security Hearing (Case No. VSO-0044), 25 DOE ¶ 82,780 (1995), aff'd, Personnel Security Review (Case No. VSA-0044), 25 DOE ¶ 83,007 (1996). In his Opinion, the Hearing Officer made a judgment with respect to Criterion H. He found that the DOE consulting psychiatrist's diagnosis and testimony were unchallenged and therefore concluded that the Respondent had failed to mitigate the Criterion H security concern. However, the favorable psychiatric evaluation conducted by the Respondent's psychiatrist is significant evidence that the Respondent no longer has a mental condition that adversely affects his judgment.

I am persuaded by the fact that the Respondent's psychiatrist, who has been treating the Respondent since 1994, is of the opinion that the Respondent has been rehabilitated through his use of various therapeutic regimens. For example, the Respondent's psychiatrist reports that the Respondent has engaged in multiple marital therapy sessions, as well as many counseling sessions with his Bishop. Based on my review of the new, thorough report by the Respondent's psychiatrist, I find her evaluation of the Respondent to be convincing. I find that the conclusion reached in her recent report, i.e., that he is in remission, should be entitled to more weight than the DOE consulting psychiatrist's report, because the report is a thorough, comprehensive evaluation of the Respondent's current condition. See Personnel Security Hearing, (Case No. VSO-0027), 25 DOE ¶ 82,764 (1995) (Hearing Officer agreed with more recent psychiatric evaluation which concluded that individual's formerly pathological mental condition was in remission). It is also significant to note that the OSS was served with a copy of this report and elected not to challenge any aspect of it. On the strength of the newly tendered evidence, I find that the security concern raised by the DOE with respect to Criterion H has been satisfactorily resolved and I will reverse the Hearing Officer's Opinion with respect to his finding on Criterion H.

B. Whether the Respondent Has Mitigated the DOE's Security Concern Raised Under Criterion L

The Respondent maintains that he has mitigated the DOE's security concern raised under Criterion L, which refers to the presence of information that tends to show 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." 10 C.F.R. § 710.8(l). As stated earlier, the DOE referred to four kinds of behavior by the Respondent as raising a concern that the Respondent is not honest, reliable or trustworthy. These include the Respondent's failure to disclose significant derogatory information to his DOE contractor employer and to the OPM investigator, and the Respondent's pattern of secretiveness and deception in his marriage.

In his statement, the Respondent contends that he has improved his communication skills and now has a better relationship with his wife. He further contends that he has "every intention of continuing to be honest and trustworthy with his dealings at home and work." Statement at 2. In addition, the Respondent states that he is willing to see a psychiatrist or pastoral counselor on a frequent basis in order to convince the DOE that he is a better person. Id. The Respondent has made these precise arguments before, and they were considered and ultimately rejected by the Hearing Officer.

The ultimate issue in this case is whether restoring the access authorization of the Respondent "would endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.7(a). In considering this issue, the Hearing Officer found that "the individual's failure to divulge his past drug use and provide a complete account about extra-marital relationships to the OPM investigator indicate outright dishonesty." Personnel Security Hearing, 26 DOE ¶ 82,770 at 85,640. He further opined that if the DOE is unable to rely on information that the Respondent provides, it is impossible to trust the Respondent to follow security rules and regulations. Id. With respect to the Respondent's pattern of deceptiveness in his marriage, the Hearing Officer considered the testimony of the Respondent's wife and his Bishop (a leader in the Respondent's church) to determine whether the Respondent has mitigated the security concern about his history of deceptive behavior. Although the Respondent's wife stated that she believes that the Respondent has worked to improve their relationship, she testified that she was uncertain whether he would return to his former deceptive behavior. Id. citing Hearing Transcript at 80 and 81.

The Hearing Officer found that while the Bishop testified about how the Respondent had obtained treatment for his pattern of dishonesty, there was no testimony, from the Bishop or anyone else familiar with the Respondent, "regarding the efficacy of the Bishop's counseling on the individual's secretive behavior pattern." Id. The Respondent's dishonest behavior was not trivial, and it took place over a period of many years. He engaged in extra-marital sex for ten years, he lied to his wife about these sexual activities and his drinking, he withheld information from his employer about his illegal drug use, and he failed to disclose one of three admitted extra-marital affairs to the OPM investigator. Notification Letter at 2-4. The Hearing Officer's conclusion that the Respondent has not mitigated his pattern of deceptive behavior is supported by his overall impression of the Respondent's behavior at the hearing. For example, the Hearing Officer noted a lack of candor in the Respondent's responses to several questions. Personnel Security Hearing, 26 DOE ¶ 82,770 at 85,642 (1997). The Hearing Officer elaborated further by stating that "without expert testimony concerning the efficacy of the treatment received, I find the individual has failed to bring forth any credible evidence to convince me that the treatment he received has mitigated the security concern relating to dishonesty in dealing with others." Id.

Although the Respondent claims he has worked on becoming more honest with others, and claims to have substantially improved his relationship with his wife, I do not find that these changes are significant enough to convince me that the Respondent has reformed his long-established pattern of deceptive and dishonest behavior. In contrast to the new evidence about the Respondent's mental condition, no new evidence on this issue is included in the Respondent's post-hearing submissions. Thus, I find nothing in the record that would lead me to disturb the Hearing Officer's conclusion concerning the Respondent's honesty and trustworthiness. Moreover, I will defer to the Hearing Officer's overall impression of the Respondent's demeanor during the hearing on this matter.

It is important to note that the Respondent has a long history of being dishonest in his dealings with others. Although it is commendable that the Respondent has tried to improve his behavior, I find it especially significant that even the Respondent's wife is still uncertain whether the Respondent will return to his former deceptive behavior. See Personnel Security Hearing (Case No. VSO-0001), 24 DOE ¶ 82,751 (1994) (individual's pattern of dishonesty casts serious doubts on the individual's reliability and judgment); Personal Security Hearing, (Case No. VSO-0125), 26 DOE ¶ 82, 774 (1996) (individual's pattern of falsification and dishonesty tends to show he is not honest, reliable or trustworthy). The DOE personnel security program is based on trust, and this Respondent has a decade-long history of dishonest, untrustworthy behavior. Therefore, I find that the Respondent still poses an unacceptable security risk.

Even if the Respondent's personal psychiatrist does not believe that he has a current, active mental disorder, I am still not persuaded that the Respondent's deceptive behavior will not recur. I reach this conclusion because there is no specific evidence from either psychiatrist that the Respondent's dishonesty was caused by a mental disorder. Rather, the evidence in the record indicates that the Respondent's dishonest behavior was one of many observations cited by the DOE psychiatrist to support the original diagnosis of a mental disorder. It is clear that one does not have to have a mental disorder to engage in deceptive behavior.

Based on the foregoing, I find that the Hearing Officer properly found that the Respondent failed to show he has reformed his long-standing pattern of deceptive behavior. Based on the Respondent's history, I find there is an unacceptably high risk that he is likely to be dishonest, unreliable or untrustworthy in the future. Therefore, with respect to Criterion L, I affirm the Hearing Officer's recommendation that the Respondent's access authorization should not be restored.

V. Conclusion

I have carefully considered the record of this proceeding, the Opinion of the Hearing Officer and the matters raised by the Respondent in his Request for Review. 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). I find that the Opinion reflects "a comprehensive common-sense judgment made after consideration of all relevant information" and accordingly should not be disturbed with respect to Criterion L set forth in the Notification Letter. I find further that the DOE security concerns raised with respect to Criterion H have been satisfactorily resolved by the recent psychiatric report submitted by the Respondent. However, based upon the foregoing, it is my opinion that the individual's access authorization should not be restored since I am unable to conclude that, with respect to Criterion L, such restoration would not endanger the common defense and security and would be clearly consistent with the national interest.

George B. Breznay

Director

Office of Hearings and Appeals

Date: June 16, 1997