Case No. VSA-0125, 26 DOE ¶ 83,013 (OHA September 30, 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.

August 4, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Petitioner: Personnel Security Review

Date of Filing: May 6, 1997

Case Number: VSA-0125

This determination considers a Request for Review filed by XXXXX (hereinafter "the individual") concerning his eligibility to retain 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." The individual's access authorization was suspended by the Department of Energy (DOE) under the provisions of Part 710. The individual requested administrative review of this action before a hearing officer, and on April 4, 1997, the hearing officer assigned by the DOE Office of Hearings and Appeals (OHA) issued an Opinion that the individual's access authorization should not be restored. On May 6, 1997, counsel for the individual filed a request for review of the hearing officer's Opinion pursuant to 10 C.F.R. § 710.28. On May 27, 1997, counsel for the individual submitted a Statement of Issues identifying the matters on which the individual specifically sought review. On June 26, 1997, the DOE Office of Safeguards and Security (OSS) indicated that it concurred in the recommendation of the hearing officer and did not wish to submit any additional information. On July 7, 1997, I closed the record of this proceeding.

For the reasons detailed below, I find that the individual's contentions are without merit and unconvincing. Accordingly, I agree with the hearing officer that the individual's access authorization should not be restored.

I. Background

The DOE issued a Notification Letter to the individual informing him that a substantial doubt had been raised concerning his eligibility for access authorization. Specifically, the DOE

invoked Section 710.8(f) (hereafter Criterion F) and Section 710.8(l) (hereafter Criterion L). Criterion F includes information that an individual has "(d)eliberately misrepresented, falsified, or omitted significant information from ... a personnel security interview [or] written or oral statements made in response to

official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access authorization ...." With respect to Criterion F, the Notification Letter finds that during a personnel security interview conducted on March 15, 1996 (the PSI), the individual provided false information. Specifically, the Notification letter indicates that the individual stated that he did not alter a Police Department report when in fact he did alter the report. The Notification Letter further indicates that the individual made statements that are not consistent, and in some instances are contradictory, during the PSI, at a court appearance, at a DOE investigative services interview, and to his local police department.

Criterion L includes information indicating that an individual "engaged in 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). With respect to Criterion L, the Notification Letter indicates that the individual filed false evidence, i.e., the altered police department report, in a local court proceeding. It also cites the inconsistent or contradictory statements made by the individual as raising Criterion L concerns.

The individual subsequently exercised his right under Part 710 to request a hearing in this matter. At the hearing, the DOE presented three witnesses, a DOE personnel security specialist and two DOE facility police officers. The individual called seven witnesses, a DOE facility police officer and six character witnesses. The individual declined to testify on his own behalf.

II. The Hearing Officer's Opinion

In his Opinion, the hearing officer found that the individual's access authorization should not be restored.

In reaching this conclusion, the hearing officer first evaluated the actions and statements giving rise to the security concerns in this proceeding. These actions and statements are essentially undisputed and are presented in great detail in the hearing officer's opinion. See Personnel Security Hearing (Case No. VSO- 0125), 26 DOE ¶ 82,774 at 85,667-68 (1997). Essentially, the hearing officer found that evidence in the record supported the following version of events. On the evening of May 2, 1995, a junior officer on the internal police force at the DOE facility where the individual is employed performed a routine security check of the license plates on a Honda automobile that had been left after hours at a parking lot inside the gate. After calling the appropriate state agency, he learned that the plates on the Honda had been issued to a Chevrolet. These Chevrolet plates were later found to belong to the individual. The facility police removed the Chevrolet plates from the Honda, and placed a note on the car saying "contact security before moving this vehicle." They asked an officer on overnight duty to watch the car. At about 2:00 a.m. in the early morning of May 3, 1995, the overnight officer left his post to respond to an alarm, and when he returned 30 minutes later, the Honda was gone. Later on May 3, 1995, the individual reported his Chevrolet plates as "lost or stolen" to the municipal police in a nearby community, telling them he had removed the plates when he washed the Chevrolet on April 30, 1995 and did not know where the plates were.

When the facility police traced the Chevrolet plates found on the Honda to the individual, they also discovered another anomaly: the registration tags on the Chevrolet plates came from a third vehicle, which was also registered to the individual. In a May 5, 1995 interview with a senior facility police officer (hereinafter the SFP officer), the individual told the SFP officer that he had been given the Honda by a former tenant who owed him rent, and parked it on the DOE lot because he had no place at home to store it. The individual told the SFP officer that he removed the Honda's plates which were expired, and replaced them with his Chevrolet plates so that people would not complain that the Honda had expired registration.

The facility police referred the individual's case to the local prosecutor's office, in compliance with the policy at this DOE facility which is to refer all probable violations of law that take place on site to the civilian authorities. The prosecutor's office charged the individual with a traffic offense. In the fall of 1995, after a "trial by declarations" which considered the individual's written defense to the charge, he was found guilty of unlawful display of registration, and ordered to pay a fine. He requested a "trial de novo" and the opportunity to appear in person before the traffic court.

On January 9, 1996, the individual appeared in person for his trial before the traffic court. The SFP officer was subpoenaed to appear at this trial and observed the proceedings. The SFP officer heard the individual testify in court that he had not placed his Chevrolet license plates on the Honda parked on the DOE lot, but that his former tenant must have done it. The individual also stated that he did not know his plates were on the vehicle in question, and indicated that he had made a police report because he thought that his plates had been lost or stolen. Once again, the court found the individual guilty, and ordered him to pay the fine.

After leaving court that day, the SFP officer obtained a copy of the police report to which the individual had referred. On January 10, 1996, the SFP officer wrote a memo to the local DOE security office in which he pointed out that the individual had given three inconsistent stories about the license plate incident on three different occasions, e.g., in the May 3, 1995 "lost or stolen plates" police report, in the May 5, 1995 interview with the facility police where he stated that he replaced the Honda plates with the Chevrolet plates, and in the January 9, 1996 trial in traffic court where he contended that his tenant must have placed the Chevrolet plates on the Honda.

On February 1, 1996, the individual wrote a letter to the traffic court to protest the imposition of the fine and to enclose a purported copy of the "lost or stolen plates" report he had made to the municipal police. In this letter, the individual asserted that he had reported his Chevrolet plates lost or stolen on April 3, 1995 -- a month earlier than the date on which they actually had been confiscated by the facility police.

Based on the memo from the SFP officer, the local DOE security office undertook an investigation of the individual's conduct following the initial license plate incident. Among other things, the investigation found that the police report which the individual had sent to the traffic court had been altered in several respects: (1) the report number was different; (2) the appearance of shaded boxes on the report was different; and (3) the dates were different, in order to make it seem that the plates had been reported as "lost or stolen" one month earlier than the date when the report was actually filed by the individual. At the March 15, 1996 PSI, the individual was asked to explain the apparent inconsistencies in his various statements about the license plate incident, and his apparent submission of falsified evidence to the local authorities. The PSI failed to resolve the security concerns raised by the individual's behavior, and a Notification Letter was issued.

Based on this evidence in the record of the proceeding, the hearing officer found that the individual filed false evidence with the municipal police and the traffic court, that he made inconsistent statements about the license plate incident on several different occasions, and that some of these statements were false, including statements the individual made during the PSI. The hearing officer concluded that "[t]aken together, these conflicting and inconsistent statements and the submission of falsified evidence to the court, show a disturbing pattern of dishonest behavior on the part of the individual in the aftermath of the license plate incident." Personnel Security Hearing (Case No. VSO-0125), 26 DOE at 85,670. Accordingly, the hearing officer found that the DOE properly invoked Criterion F in suspending the individual's access authorization.

The hearing officer then considered whether the individual had made a showing of facts and circumstances sufficient to overcome the DOE's legitimate security concerns. The hearing officer found that the individual declined to testify and thereby provide an explanation for his actions following the license plate incident. He therefore concluded that it was proper to draw a negative inference from this refusal to testify. "I could conclude from his silence that the individual has admitted the factual bases for the charges in the Notification Letter." Id. at 85,670. Nevertheless, the hearing officer proceeded to evaluate the evidence of the individual's witnesses and to consider the contentions presented by the individual's counsel at the hearing and in a post-hearing brief.

First, the hearing officer rejected the contention that the DOE had failed to establish that the individual, rather than the individual's wife, was responsible for filing a false police report with the traffic court. In this regard, the hearing officer found that the documents submitted by the DOE include a letter dated February 1, 1996 in which the individual specifically refers to the altered dates on the copy of the report submitted to the traffic court. He therefore concluded that the DOE had shown that individual knew of the alterations in the copy of the police report. The hearing officer found that individuals in Part 710 proceedings bear a heavy burden of coming forward with exculpatory evidence where a reasonable person would conclude from the circumstances of the case that an individual was responsible for submitting a false document. He concluded that in this instance the individual had failed to come forward with evidence to show that someone else could have been responsible for submitting this false report.

The hearing officer next rejected contentions that the conduct and credibility of the SFP officer should lead to the rejection of his testimony. Specifically, the hearing officer found no indication that a possible delay by that officer in giving the individual a written waiver of his Miranda rights to sign resulted in tricking the individual into making statements that were not voluntary. Moreover, the hearing officer found that

technical legal aspects of the warning the individual received in that interview are not relevant in the context of making a common-sense judgment on his eligibility for a security clearance.

Id. at 85,671.

The hearing officer also found that the evidence of several witnesses concerning the individual's good character was insufficient to mitigate the DOE's security concerns. He noted that none of the character witnesses knew about the license plate incident or the individual's subsequent actions. He concluded that information concerning the individual's academic credentials, his deportment in the office, and his positive personality traits was "not entitled to much weight" in mitigating the DOE's concerns, because it did not directly address the actions and statements of the individual that are the bases for the DOE concerns.

Finally, the hearing officer noted that certain factors enumerated in the DOE regulations supported his conclusion that the mitigating evidence presented by the individual did not overcome the valid Criterion F security concerns raised by the DOE.

In considering the factors enumerated in 10 C.F.R. § 710.7(c), I note that the individual was a mature adult at the time of the license plate incident and the series of disturbing events that ensued, and there is no evidence which would lead me to conclude that his actions were not voluntary and deliberate. Finally, I note that there is no evidence that the individual admitted any wrongdoing or showed any contrition for his actions. Thus, I conclude that there is no evidence of rehabilitation or reformation that would weigh in favor of the individual.

Id. at 85,672.

With respect to Criterion L, the hearing officer found the individual's actions and statements with respect to the license plate incident were sufficient to raise valid security concerns regarding the individual's honesty, reliability and trustworthiness that had not been explained or mitigated by the individual. Id.

III. The Individual's Statement of Issues

In the Statement of Issues submitted on behalf of the individual, counsel for the individual requests a review of the hearing officer's findings and recommendation. Specifically, he identifies where he contends that the hearing officer misapplied the law, gave undue weight to the testimony of DOE witnesses, failed to give sufficient weight to the individual's witnesses, or reached unsubstantiated conclusions concerning the individual. These areas of concern may be summarized as follows:

(1) The hearing officer failed in his role as an impartial fact finder. The hearing officer's Opinion indicates that prior to the hearing, he already had made up his mind as to the truth of the charges and guilt of the individual. Anything said by the individual by way of explanation would have been received as yet another lie.

(2) The hearing officer gave unwarranted weight to the testimony of the SFP officer regarding his reports of statements made by the individual at the May 5, 1995 interview and at the traffic court proceeding, where there was no written record of the individual's statements and where the officer admitted that he did not know anything about parking restrictions at the DOE facility.

(3) At the May 5 interview, the SFP officer denied the individual his constitutional right against self incrimination and his right to protection of counsel. The hearing officer should have disregarded any statement taken without these fundamental protections, and any testimony by the SFP officer concerning the individual's statements at the traffic court proceeding.

(4) The hearing officer failed to give sufficient weight to the character witnesses called by the individual, who established that the individual consistently demonstrated character traits of dedication, honesty and diligence over the entire period of his career with the DOE.

(5) It was impossible for the individual to establish rehabilitation or reformation at the hearing, because the hearing officer had concluded that he was untrustworthy whether he spoke or remained silent. The reviewing authority should weigh the character witness testimony and find that the individual worked for over two years in the shadow of this case without endangering national security, and has consistently produced a quality of work that merited the respect and admirations of superiors and co-workers.

(6) The significant period of inaction by DOE security from its March 1996 PSI until this issuance of the Notification Letter, during which the individual continued to hold a security clearance, indicates that the issues of concern raised by the license plate incident are not of sufficient gravity to cost the career of the individual.

As noted above, the OSS indicated that it concurred in the recommendation of the hearing officer and did not wish to submit any additional information in this proceeding.

IV. Analysis

It is during the administrative review process that the individual has a full opportunity to present evidence supporting his eligibility for an access authorization, and to convince the hearing officer 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. §§ 710.21(b)(6), 710.27(a), (d).

This is not an easy evidentiary burden for the individual to sustain. The regulatory standard implies that there is a presumption against granting or restoring a security clearance. See, Dep't. of Navy v. Egan, 484 U.S. 518, 531 (1988)(Egan). Consequently, we generally expect the individual in these cases to bring forward testimonial and other evidence in addition to his own testimony which, taken together, are sufficient to persuade the hearing officer that restoring his access authorization is clearly consistent with the national interest. Personnel Security Hearing (VSO-0002), 24 DOE ¶ 82,752 (1995).

Once a security concern is raised by the DOE, it is incumbent upon the individual to resolve the concern with convincing factual evidence. Personnel Security Hearing (Case No. VSO-0084), 26 DOE ¶ 82,754 (1996) (individual failed to meet his burden of coming forward with evidence to show that he was rehabilitated and that his exhibitionism and voyeurism were unlikely to recur). In cases where there is evidence of false statements or the falsification of documents, an affected individual must provide convincing evidence mitigating the security concern raised by that evidence. Personnel Security Hearing (Case No. VSO-0087), 26 DOE ¶ 83,001 (1996), (record of proceeding, viewed as a whole, lacks sufficient evidence to support conclusion that the individual mitigated DOE security concerns under Criterion F).

In rendering his opinion and recommendation pursuant to Part 710, a hearing officer is required to base all findings relevant to an individual's eligibility for access authorization upon a convincing level of evidence. 10 C.F.R. § 710.27(b), (c) and (d). I, in turn, am required to review the entire administrative record in this matter, with particular attention to the issues raised by the parties in their requests for review, and to render my opinion concerning access authorization based upon the entire record. 10 C.F.R. § 710.28(d). In conducting my review, it is appropriate for me to accord deference to the hearing officer's observations and conclusions to the extent that they are found to be reasonable and based upon substantial evidence, and especially in the case of evaluating the credibility of witnesses who testified at the hearing.

After reviewing the issues raised by the individual and the record in this case, I concur with the hearing officer's recommendation that the individual's access authorization should not be restored. Specifically, I find that the individual's allegations of prejudice concerning the hearing officer are without foundation, and that the individual's challenges to the testimony of the SFP officer are irrelevant and must be rejected. Finally, I find that the hearing officer clearly considered the full record of this proceeding, including mitigating factors, and that his conclusion was based on substantial evidence. I therefore agree with the hearing officer's conclusion that the individual has not presented sufficient evidence to mitigate the concerns raised by the DOE with regard to Criterion F and Criterion L.

A. The Hearing Officer Expressed No Prejudice in his Opinion

As noted above, the individual declined to testify at the hearing and provide an explanation for his statements and actions following the license plate incident. In his Opinion, the hearing officer noted this fact with the following comments:

Indeed, it would have been hard for the individual to advance his own cause by testifying himself, since he had already told several inconsistent and conflicting stories about the license plate incident by the time that his access authorization was suspended. No matter what he could have said in the hearing before me, the individual would have had to contradict some of his own previous statements, and admit that he lied and submitted false information to law enforcement agencies on several prior occasions.

The hearing officer correctly concluded that it would be proper to draw a negative inference from the individual's refusal to testify. "I could conclude from his silence that the individual has admitted the factual bases for the charges in the Notification Letter." Id. at 85,670. Nevertheless, despite the individual's failure to come forward at the hearing with a full and candid description of the facts, the hearing officer proceeded to consider and reject the contentions presented by the individual's counsel at the hearing and in a post-hearing brief.

Based on this discussion in the hearing officer's Opinion, counsel for the individual contends that the hearing officer failed in his role as an impartial fact finder. The counsel argues that this discussion indicates that prior to the hearing, the hearing officer already had made up his mind as to the truth of the charges and guilt of the individual. The counsel contends that because of the prejudicial opinions held by the hearing officer, anything said by the individual at the hearing by way of explanation "would have been received [by the hearing officer] as yet another lie." Statement of Issues at 1.

I do not agree that the comments by the hearing officer in his Opinion indicate either that the hearing officer had prejudged this matter prior to the hearing or that he was unduly prejudiced against the individual in general. The comments at issue were composed after the hearing and after the hearing officer had completed his final review of the entire record in this proceeding. At that time, he had reached conclusions concerning the veracity of the testimony presented by the DOE. For example, in his Opinion, the hearing officer specifically appraises the credibility of the SFP officer and finds his testimony to have been "candid and believable." Personnel Security Hearing (Case No. VSO-0125), 26 DOE at 85,671. Having concluded as an ultimate matter that the version of events presented by DOE witnesses was believable, it is perfectly appropriate for the hearing officer to offer his opinion that if the individual had attempted to explain his previous statements at the hearing, he would have contradicted one or more of these previous statements.

In the Statement of Issues, counsel for the individual agrees with the statement of the hearing officer that a "negative inference" may be drawn from the individual's refusal to testify on his own behalf at the hearing. However, the counsel believes that the hearing officer already had made up his mind with regard to all of the evidence in this proceeding before the hearing was convened. This is not at all apparent to me. Far from prejudging this matter in favor of the DOE, the hearing officer painstakingly evaluated all of the evidence and arguments submitted by the individual, including arguments against DOE witnesses contained in the individual's post-hearing brief. I therefore reject as unfounded the individual's assertions of prejudice on the part of the hearing officer.

B. The Individual's Statements, As Reported, Are Proper Evidence

The individual's counsel maintains that at the May 5, 1995 interview, the SFP officer denied the individual his constitutional rights to a warning against self incrimination and notification of his right to protection of counsel. He contends that the hearing officer should have disregarded any statement made by the individual without these fundamental protections.

This contention must be rejected. Even assuming that the statements reportedly made by the individual at the May 5 interview were made prior to receiving a warning concerning self incrimination and notice of the right to protection of counsel, the statements would not be subject to exclusion from this proceeding, which is concerned only with the issue of access authorization. The sole purpose of a Part 710 proceeding is to determine whether the restoration of the individual's access authorization would pose a security risk. In reviewing the statements and conduct of an individual for the purpose of determining eligibility for access authorization under Part 710, the OHA is not subject to restrictions that attach to judicial proceedings making determinations that subject individuals to civil or criminal penalties. The Part 710 regulations specifically state that in ruling on the admissibility of evidence, "the utmost latitude shall be permitted with respect to relevancy, materiality, and competency." 10 C.F.R. § 710.26(h).

It is important to bear in mind that a DOE administrative review proceeding under this Part is not a criminal matter, where the government would have the burden of proving the defendant guilty beyond a reasonable doubt, and would be subject to evidentiary restrictions aimed at protecting the individual's right against self-incrimination. This proceeding is also unlike a civil case, in which in order to prevail a plaintiff must establish his case by a preponderance of the evidence. The standard in this proceeding, which places the burden of proof on the individual and minimizes restrictions on the admission of evidence, 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 individual must 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 is in keeping with the nature of access authorization, which rests on the presumption that eligibility must be established rather than presumed. This standard implies that there is a strong presumption against the granting or restoring of a security clearance. See Egan, 484 U.S. 518 ("clearly consistent with the national interest" standard for the granting of security clearances indicates "that security determinations should err, if they must, on the side of denials."); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance).

Accordingly, any statements made by an individual may be reviewed to determine if they raise concerns regarding his eligibility for access authorization. In the present case, the hearing officer appropriately reviewed the circumstances under which the individual made his explanation of the license plate incident at his May 5, 1995 interview with the facility police, and found that the individual has not refuted the SFP officer's account of that interview. Under these circumstances, the hearing officer did not err in accepting the SFP officer's testimony concerning the individual's explanation at the May 5 interview.(1) Nor is there any reason to reject the testimony of the SFP officer regarding the explanation that he heard the individual make concerning the license plate incident at the January 1996 traffic court proceeding.

C. The Hearing Officer Did Not Err in Weighing Witness Testimony

Counsel for the individual contends that the hearing officer gave unwarranted weight to the testimony of the SFP officer regarding his reports of statements made by the individual at the May 5, 1995 interview and at the traffic court proceeding, where there was no written record of the individual's statements and where the officer admitted that he did not know anything about parking restrictions at the DOE facility. Counsel also contends that the hearing officer failed to give sufficient weight to the character witnesses called by the individual. He therefore requests that the reviewing authority weigh the character witness testimony and find rehabilitation and reformation, based on a finding that the individual worked for over two years in the shadow of this case without endangering national security, and has consistently produced a quality of work that has merited the respect and admiration of superiors and co-workers.

In personnel security cases under Part 710, it is the role of the hearing officer to issue an Opinion as to whether granting an 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(a). In doing so, the hearing officer must evaluate evidentiary bases for the particular concerns raised by the OSS and then determine whether the individual has brought forward substantial evidence sufficient to mitigate the concerns and support granting an access authorization to the individual. In reviewing the hearing officer's findings and conclusions in this regard, it is not my role to second guess or to substitute my judgment for that of the hearing officer. Generally, the hearing officer's findings of fact and weighing of evidence will not be set aside unless they are clearly erroneous, giving due regard to the fact that the hearing officer is in the best position to judge the credibility of witnesses at the hearing. See Personnel Security Review (Case No. VSA-0088), 26 DOE ¶ 83,003 (1996) and judicial decisions cited therein at 86,518.

With these principles in mind, I have reviewed the hearing officer's determinations concerning the evidence presented in this proceeding and conclude that they are not erroneous. It was not error for the hearing officer to rely on the uncontroverted testimony of the SFP officer, who heard the explanations presented by the individual both at the May 5, 1995 interview with facility police and at the January 1996 traffic court proceeding. The fact that this officer admitted to knowing little about the regulations governing traffic enforcement issues at the facility does not undermine the credibility of the testimony that he presented at the hearing. It does not require a knowledge of those regulations to accurately report the contradictory explanations offered by the individual concerning the license plate incident.(2)

The hearing officer also evaluated the testimony offered by six of the individual's co-workers who testified as character witnesses. In this regard, the hearing officer found that the evidence "indicated that the individual was well qualified in his field, and that he had demonstrated honesty, integrity and cooperation in his work...." Personnel Security Hearing (Case No. VSO-0125), 26 DOE at 85,672, citing Hearing Transcript at 258, 266. He also determined that this mitigating evidence is insufficient to "overcome the serious security concerns under Criterion F based on the individual's false statements to law enforcement officials and to DOE during his PSI, and his submission of falsified evidence to the municipal police and the traffic court." Id.

I cannot agree with individual's counsel that the co-workers' testimony concerning the individual's work place conduct successfully mitigates the DOE's security concerns and is sufficient to justify reversing the hearing officer's recommendation against restoring his clearance. Suitability for a security clearance assumes characteristics such as honesty, judgment, reliability and trustworthiness which must be demonstrated twenty-four hours a day. Satisfactory job performance is a necessary but not a sufficient condition for keeping a security clearance. While the individual's performance at work is a positive factor, his falsification is recent, and good work place performance does not in itself provide sufficient assurance that the individual always can be counted on to provide truthful answers. Accordingly, witness testimony limited to the individual's work place conduct does not establish the individual's suitability for a security clearance. See Personnel Security Review (Case No. VSA-0102), 26 DOE ¶ 83,008 at 86,556 (1997).

D. The License Plate Incident Raises Serious Security Concerns

Counsel for the individual argues that the hearing officer has treated the concerns raised in the Notification Letter as unduly serious when they are in fact relatively minor matters. He contends that the length of time taken by DOE security to conduct its investigation of this matter indicates that DOE security did not regard the license plate incident as a particularly serious matter. Specifically, he identifies a ten month period of inactivity by DOE security from the license plate incident in May 1995 until the March 1996 PSI, and an additional period of several months from the PSI until the issuance of the Notification Letter, during which the individual continued to hold a security clearance. He contends that in light of this pace of investigation, the license plate incident most likely was not viewed by DOE security as a matter of serious concern.

Either the [individual] was too valuable to be taken from his work or the incident ... is not of sufficient gravity to cost the career of a valuable employee.

Statement of Issues at 3.

I find no merit in this argument. There is no basis for attributing an opinion concerning this matter to DOE security based on the length of time that the matter was under investigation.(3) The statement of the team lead security specialist at the hearing that an individual assigned with investigating this matter "procrastinated a bit" [hearing transcript at 49] in no way constitutes an admission by DOE security that it was not concerned with the security issues raised by the individual's contradictory statements and the submission to a court of a falsified document. Indeed, the fact that the team lead security specialist personally took over the case because "I wanted the matter taken care of" [hearing transcript at 49] indicates that DOE security was concerned with resolving these issues. The fact that the individual continued to hold a security clearance for several months pending the issuance of the Notification Letter does not indicate acquiescence to the individual's conduct by DOE security. There is nothing in the record to indicate that DOE security departed from its established procedures and rules concerning persons under investigation when it waited until the issuance of the Notification Letter to revoke the individual's security clearance.

I find that the hearing officer correctly concluded that the issues raised in the Notification Letter constitute serious security concerns. The individual's actions identified in that document - offering contradictory explanations of his actions to DOE officials and traffic court authorities and submitting a falsified police report to the traffic court - have a clear nexus to the DOE's concern for the proper safeguarding of classified material or special nuclear material national security information. A person who makes false and self-serving statements and submits a falsified document to government authorities concerning his automobile license may do the same thing when entrusted with classified information. See Personnel Security Hearing (Case No. VSO-0075), 25 DOE ¶ 82,799 at 85,822-23 (1996).

Nor are the dishonest actions of the individual documented here an isolated event. They involve several statements and actions over a period of several months. The hearing officer correctly identified an "elaborate pattern of falsification and dishonesty" that has not been effectively explained or mitigated by the individual and that raises "serious issues of honesty and trustworthiness." Personnel Security Hearing (VS0-0125), 26 DOE at 85,672; see also, Personnel Security Hearing (Case No. VSO- 0001), 24 DOE ¶ 82,751 at 85,507-08 (1994) (citing "disturbing pattern of altering" documents and troubling "pattern of falsification"). This pattern of dishonesty is still unresolved at this time. To this date, the individual has never specified which, if any, of his three contradictory explanations of the license plate incident is true.

As is evident from my discussion above, I find that the record, when viewed as a whole, contains sufficient evidence to support the conclusion that the individual has not mitigated the DOE security concerns with respect to Criterion F. Specifically, I find that the individual made several contradictory statements to government officials and lied at a PSI when he denied submitting a falsified police report to a traffic court. I therefore find that the DOE properly invoked Criterion F concerning these actions, and that the security concerns raised by these actions have not been mitigated. I also find that the DOE properly invoked Criterion L with respect to these statements and to the individual's submission of the falsified report, and that these concerns also have not been mitigated. Thus, I believe that the security concerns raised by the individual's actions justify the hearing officer's recommendation that the individual's security clearance not be restored.

V. 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 cannot conclude that such continuation would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. § 710.28(d).

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 finding 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: August 4, 1997

(1)1/ In any event, the Hearing Officer found that the individual was given sufficient notice of the nature of the proceeding, and that there is no evidence that the individual was tricked by the facility police into making any statements that were not voluntary.

(2)2/ I also find that it was not error for the Hearing Officer to conclude (i) that the available evidence indicates that the individual was aware of the alterations in the copy of the police report that was sent to the traffic court in February 1996, and (ii) that the individual had failed to come forward with evidence sufficient to show that someone else was responsible for filing this falsified report.

(3)3/ As a factual matter, I believe it is inaccurate to describe the period from the May 1995 interview until the March 1996 PSI as a period of inaction on this matter by DOE Security. The individual did not make his contradictory explanation of the incident to the traffic court until January 1996 and did not submit a falsified version of May 1995 police report to the traffic court until February 1996.