Cases No. VSA-0139, 27 DOE ¶ 83,001 (OHA December 4, 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.

December 4, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case:Personnel Security Review

Date of Filing:September 19, 1997

Case Number: VSA-0139

On September 19, 1997, XXXXXXXX (hereinafter the individual) filed a Request for Review of a Hearing Officer’s Opinion concerning his eligibility to retain a Department of Energy (DOE) 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 DOE office having responsibility for the individual’s place of employment suspended the individual’s access authorization pursuant to the provisions of Part 710. Pursuant to the individual’s request, an Office of Hearings and Appeals Hearing Officer convened a hearing. Subsequently, on August 14, 1997, the Hearing Officer issued an Opinion recommending that the Director of the DOE’s Office of Security Affairs not restore the individual’s access authorization. The individual filed his Request for Review of the Hearing Officer’s opinion pursuant to 10 C.F.R. § 710.28. On October 6, 1997, the individual filed a Statement of Issues that he asked me to consider in my review. Finally, on October 15, 1997, the Director of the DOE’s Office of Safeguards and Security notified me that his Office would not file a response to the Statement of Issues. Accordingly, I closed the administrative record on October 22, 1997, and will now consider the individual’s Statement of Issues.

I. Background

The facts leading to the suspension of the individual’s security clearance concern information that the individual used illegal drugs, which is derogatory information as described at 10 C.F.R. § 710.8(k) (hereinafter Criterion K), and that the individual engaged in conduct tending to show that he is not honest, reliable or trustworthy, as described at 10 C.F.R. § 710.8(l) (Criterion L). The individual tested positive for marijuana and codeine in a random drug test. In a personnel security interview, the individual admitted to a one-time use of marijuana and to ingestion of his wife's prescribed codeine cough syrup. These two actions led to the Criterion K concern. A DOE consultant psychiatrist evaluated the individual, and found that by smoking marijuana, and by using a controlled substance prescribed for another person, the individual exhibited a “deficit” in judgment, which called into question his reliability. This evaluation led to the Criterion L security concern.

Upon learning of the Criteria K and L security concerns, the DOE office suspended the individual’s access authorization. The DOE office followed this access authorization suspension with its issuance to the individual of a Notification Letter outlining the details of its allegations concerning Criteria K and L, as summarized above. Pursuant to the Part 710 regulations cited in the Notification Letter, the individual requested a hearing before an Office of Hearings and Appeals Hearing Officer. Following her appointment, the Hearing Officer convened the requested hearing. On August 14, 1997, the Hearing Officer issued her opinion recommending that the DOE’s Office of Security Affairs not restore the individual’s access authorization. Personnel Security Hearing (VSO-0139), 26 DOE ¶ 82,790 (1997) (August 14 Opinion).

II. The Hearing Officer’s Opinion and Testimony at the Hearing

Based on the individual's admitted use of an illegal substance (marijuana) and his illegal use of a controlled substance (codeine), the Hearing Officer found that the DOE office properly invoked Criterion K in suspending the individual's access authorization. In rendering her opinion, the Hearing Officer considered several possible mitigating factors. With respect to his use of illegal drugs, the individual maintained that his use of marijuana was an isolated event. He testified that he was at a party and went off to a secluded spot with a friend to play chess. During the game, his friend offered him the marijuana. The individual stated that he refused the marijuana several times, but that after he had consumed several glasses of wine, and was feeling "high," he finally succumbed to his friend’s offer. He stated that he has never before or since used marijuana. Transcript of Hearing (hereinafter Tr.) at 233, 241.

To support his contention that he used marijuana only once, the individual brought forward six witnesses who, based on their longtime acquaintance with him, testified that they did not believe that he was a regular marijuana user. His pastor testified that he has known this individual for about four years. Tr. at 23. He stated that the individual is very involved in church activities and that he sees this individual on virtually a daily basis. Tr. at 34-35. The pastor testified that he believed the marijuana incident was an isolated event. Tr. at 29.

The individual's wife testified that she has known the individual for nearly 30 years. She stated that in all that time she has never known her husband to be involved in any illegal drug use. Tr. at 57, 61. She viewed the marijuana use as a spontaneous, isolated event that occurred in an unfortunate moment of weakness. Tr. at 67.

Four co-workers/friends who have all known the individual for at least 12 years also testified. Tr. at 80, 90, 108, 168. Each of these witnesses testified that he had contact with the individual in both workplace and social settings, and had never known the individual to use marijuana. Tr. at 83, 97, 114, 176. Moreover, these witnesses clearly had more than a passing acquaintance with this individual. They and their families had significant social contacts with the individual and his immediate family for many years. Tr. at 82, 97, 114, 169, 176. Based on their broad knowledge of the individual's lifestyle, they expressed surprise and even shock about the individual's positive drug test. Tr. at 83, 98, 113, 176. The Hearing Officer found the testimony of these co-workers/friends very convincing.

The individual also presented, in an attempt to mitigate the charges with respect to his use of illegal drugs, the testimony of a licensed clinical psychologist employed in the employee assistance program at the individual's workplace. The psychologist testified that when an employee, such as the individual, tests positive for illegal drugs, typically his employer offers him the option of entering the Employee Assistance Recovery Program. The individual chose this option. In entering this program, the employee agrees to a period of complete sobriety, in which all mood altering drugs, including alcohol, are prohibited for a period of two years. Tr. at 206-07. The psychologist indicated that other components of this individual's rehabilitation plan included attendance at 90 Alcoholics Anonymous or Narcotics Anonymous meetings in 90 days, a minimum of one meeting with her per month and random toxicology screens twice per month for the first year. Tr. at 209

The psychologist testified that as of the hearing date, the individual had participated in this program for about five months. Tr. at 214-15. She indicated that the individual had, at that time, complied with all of the requirements of the program. She also testified that all of his random drug tests, which occurred twice a month since he entered the program, had been negative. Tr. at 217. As of the date of the hearing, she had seen the individual for nine, one-hour long, individual therapy sessions. Tr. at 218. She stated that at these meetings, the individual's attitude had been "very, very positive," and that the individual took the program very seriously. Tr. at 208, 219. She did not believe that the individual had a chronic substance abuse problem. Tr. at 214. She believed that his risk of relapse was very low. Tr. at 222.

The Hearing Officer found that the individual’s witnesses provided accounts strongly in the individual's favor. The individual's wife, his pastor, and the four friend/coworker witnesses all convinced the Hearing Officer through their testimony that the individual did not use marijuana in his current home or work setting. Moreover, the psychologist testified that based on her observations, the individual was not a chronic substance abuser. In view of the above, the Hearing Officer found that the individual is not a chronic marijuana user.

However, the individual asserted a one-time use of marijuana that did not take place in either his current home or work environment. According to the individual, the usage occurred in his hometown (the city where he grew up, and where his mother and sisters still live). Thus, the Hearing Officer found that the testimony of the individual’s witnesses, while convincing as to the individual's habits in his home and work environment, did not shed light on his behavior in his hometown. The Hearing Officer found that the individual’s witnesses had no direct knowledge of the circumstances under which the individual used the marijuana. Thus, the Hearing Officer found that the testimony of these witnesses alone did not adequately support the individual's claim of a one time marijuana use. The Hearing Officer also found that the individual brought forth no other evidence to support his version of the events surrounding the marijuana incident.

While the Hearing Officer stated that it was not necessary to her conclusion, she noted that some additional evidence suggests that the marijuana use may not have been a one-time event. The Acting Clinical Manager in the health services department of the DOE office testified concerning the positive marijuana test. This witness, a Medical Review Officer (MRO), reviews drug tests to make sure the process was appropriate and interviews employees who test positive. Tr. at 135. The MRO stated that marijuana is normally cleared from the system within two to three days. He further testified that "for the occasional user or rare user, you would expect [the marijuana] to be absent within 24 to 48 hours." Tr. at 143-44. The individual stated that he used the marijuana four days prior to the drug test. However, the MRO indicated that testing positive 96 hours after usage would be highly improbable (although not impossible) for an occasional user of marijuana. Tr. at 164. This statement contradicted the DOE psychiatrist’s statement that a single use of marijuana can result in a positive drug test one or two weeks later. Tr. at 196. However, the DOE psychiatrist admitted that he is not a toxicologist. Id. Furthermore, the DOE psychiatrist later offered a somewhat contradictory opinion that marijuana "can show up [for] one or two weeks in chronic users.” Tr. at 197. For these reasons, the Hearing Officer found that the DOE psychiatrist’s level of expertise on drug testing was not as great as that of the MRO. Since the individual had not completed his rehabilitation program, and further, since the Hearing Officer did not believe that the individual was completely candid about the marijuana incident, the Hearing Officer found that the individual did not sufficiently mitigate the security concerns surrounding his use of marijuana.

The Hearing Officer found that the individual mitigated the security risks associated with his positive test for codeine. Specifically, the Hearing Officer found that the individual had suffered from a severe cough for several weeks that caused him to use his wife’s prescription cough syrup with codeine on the night before his random drug test. The individual convinced the Hearing Officer that he is now educated and sensitized as to the importance of never using controlled substances prescribed for another person. Since the Hearing Officer found that the individual mitigated the concerns regarding his use of codeine prescribed for his wife, and due to the significant education he received regarding his use of prescription substances, the Hearing Officer found the individual trustworthy and reliable regarding his codeine usage.

However, since the individual did not mitigate the security concerns regarding his marijuana use, the Hearing Officer could not make a similar finding with respect to the individual’s marijuana use. Specifically, the Hearing Officer had continuing concerns about the individual's candor with respect to his alleged one time use of marijuana. Thus, the Hearing Officer could not be certain that the individual was entirely trustworthy, honest and reliable. Accordingly, the Hearing Officer found that the individual presented a security concern with respect to Criterion L.

In summary, the Hearing Officer found significant derogatory information in the possession of the DOE that raised serious concerns under Criteria K and L as to the eligibility of the individual for access authorization. In addition, since the Hearing Officer found that the individual failed to bring forth sufficient evidence to mitigate these security concerns, she determined that she was unable to conclude that restoring the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, the Hearing Officer recommended that the DOE not restore the individual’s access authorization.

III. Analysis

A. Standard of Review

Part 710 provides that if, after considering all the factors in light of the relevant criteria, the OHA Director is of the opinion that it will not endanger the common defense and security and will be clearly consistent with the national interest to grant or continue access authorization to an individual, he shall render an opinion favorable to the individual; otherwise, he shall render an opinion adverse to the individual. 10 C.F.R. § 710.28(d). As discussed below, after reviewing the record in this case, I cannot conclude that restoring the access authorization of the individual would be clearly consistent with the national interest.

Generally, I will not set aside findings of fact made by a hearing officer in these types of cases unless they are clearly erroneous. See Personnel Security Review (Case No. VSA-0049), 25 DOE ¶ 83,002 at 86,512 (1995); see also Oglesbee v. Westinghouse Hanford Co., 25 DOE ¶ 87,501 (1995). In rendering findings of fact, a hearing officer considers the demeanor and credibility of witnesses, and the appropriate weight given to their testimony and other evidence. Therefore, I will not ordinarily supplant my judgment for that of a hearing officer in such matters.

B. The Individual’s Statement of Issues

In his Statement of Issues, the individual argues that the Hearing Officer erred when she found that he had not sufficiently mitigated the DOE’s security concerns in this case. In particular, he contends that he sufficiently supported his claim that he only used marijuana once without premeditation through his testimony and that of his witnesses. Accordingly, he asserts that the Hearing Officer should not have required that he provide corroboration of his account of the marijuana incident and his assertion that the incident was an isolated event. For the reasons presented below, I find that the individual has not demonstrated that the Hearing Officer’s findings are erroneous.

1. Sufficiency of Testimony Regarding One Time Use of Marijuana

The individual states that the Hearing Officer acknowledged and agreed with his six witnesses, and the DOE facility psychologist, that he is not a chronic substance abuser or chronic marijuana user. Thus, since these witnesses and the Hearing Officer agreed that the individual was not a chronic marijuana user, the individual argues that the Hearing Officer should have accepted his statement that the marijuana incident was an isolated and unpremeditated event, even without witnesses to shed light on his behavior in his hometown. The individual states that he is the same person at his residence and work place as he is in his hometown. He states that he attends church in both places and gets his hair cut in his hometown because his son provides the service and there are “few Black barber shops” in his area of residence. Furthermore, the individual argues that he proved through the testimony of his witnesses that he does not lead a double lifestyle.

Indeed, it was on the basis of the testimony of those witnesses that the Hearing Officer found that “the individual is not a chronic marijuana user.” August 14 Opinion at 85,779. However, the Hearing Officer also stated that she believed the individual was not totally candid regarding his marijuana usage and that the individual did not submit sufficient corroboration of his claim that his use of marijuana was an isolated or infrequent event. The Hearing Officer differentiated between the individual’s life in his hometown versus his life where he works and has his residence. I cannot find any error in a Hearing Officer’s judgment where, based on the individual’s presentation of his case, and his explanation of the facts surrounding the marijuana incident, she did not believe the testimony of the individual regarding a specific portion of his life. The individual’s testimony at the hearing allowed the Hearing Officer to see that the individual may have acted differently in his hometown than in his place of work and residence. Accordingly, I do not believe the Hearing Officer committed an error when, after doubting his credibility, she felt there was insufficient evidence to support the individual’s assertions that he had not used marijuana on other occasions in his hometown.

2. Witnesses Who Did Not Testify

In addition to questioning the validity of the Hearing Officer requiring corroboration of his hometown behavior, the individual takes issue with the Hearing Officer’s rulings with respect to potential witnesses to substantiate his account of the marijuana incident.

a. The Marijuana Provider

The individual states that the Hearing Officer should not have “penalized” him because the individual who gave him the marijuana refused to testify. He argues that the Hearing Officer placed an unreasonable amount of importance on the failure of this uncooperative witness, the drug provider, to testify. The individual believes that the Hearing Officer based her entire adverse recommendation on his inability to get the drug provider to testify. He states that the Hearing Officer had the testimony of the individual himself, as someone who was present during the marijuana incident. The individual believes that his testimony, as someone who has 23 years of security experience, who did not deny the mistake, and who was found trustworthy many times in government Q clearance investigations, is more valuable than the testimony of an admitted provider of illegal substances. Therefore, he argues, the Hearing Officer should have found that the individual’s testimony is more reliable than the testimony the drug provider would have given.

There can be no doubt that the Hearing Officer placed a great deal of importance on the individual providing testimony from someone who would corroborate his testimony about the marijuana incident. The Hearing Officer concurred on an extension of time, offered to reconvene the hearing, and held the record open for several weeks, to allow the individual the opportunity to provide testimony from a corroborating witness. Although difficulties may have arisen in the individual’s efforts to provide convincing testimony on a central issue to his case, it is not the Hearing Officer who penalized the individual. Ultimately, the Hearing Officer had to evaluate the individual’s case based on the evidence before her, as it is the individual who carries the burden of proving that he should receive access authorization. See Personnel Security Hearing (VSO-0151), 26 DOE ¶ 82,793 at 85,795 (1997).

Since the Hearing Officer believed that the individual was not completely candid about his marijuana usage, the Hearing Officer sought the testimony of the drug provider who had direct knowledge of the marijuana incident and who did not have anything to gain by the outcome of this case. I find that the Hearing Officer carefully considered all of the available evidence in this case, but ultimately felt the need for corroborating testimony on the central issue in this case: Was the individual telling the truth about the events surrounding his marijuana usage? Accordingly, I do not believe that the Hearing Officer placed an unreasonable amount of importance on wanting to hear the testimony of the drug provider.

b. The Party Guest

The individual contends that the Hearing Officer incorrectly stated in her opinion that she offered to hold a second hearing for the sole purpose of taking testimony from another party guest. Also, the individual states that the Hearing Officer was incorrect when she wrote that she impressed upon him the importance of having some testimony to support his version of the incident involving marijuana. The individual cites a July 11, 1997 letter from the Hearing Officer to the individual stating that one of the party guests (not the drug provider) would not be a witness worthy of reopening the hearing. The individual concludes that the Hearing Officer only wanted to hear the testimony of the drug provider and not that of any other party guest.

I have carefully reviewed all of the correspondence and memoranda of telephone conversations. In these communications, the Hearing Officer discussed many times with the individual the importance of corroborating the events surrounding his marijuana usage. Thus, the record reflects the Hearing Officer’s consistent efforts to encourage the individual to provide relevant and important testimony.

It is true that the Hearing Officer’s statement in her August 14 opinion that she offered to hold a second hearing for the purpose of taking testimony from a party guest other than the drug provider is inconsistent with the July 11, 1997 letter the individual cited. In fact, in that letter, the Hearing Officer wrote, “. . . it might not be fruitful to reopen the hearing simply in order to take the testimony of XXXXXX, since he has no direct knowledge of the marijuana incident.” XXXXXXX was a guest at the party, but was not the drug provider. Furthermore, in a July 15, 1997 letter to the individual and the DOE counsel, the Hearing Officer wrote, “[a]s I indicated to you in our conversation, I was not totally convinced that taking XXXXXX’s testimony without that of . . . [the drug provider] would be fruitful.” At this time, a month after the hearing, I believe the Hearing Officer was still trying to give the individual an opportunity to find and present a key witness, the drug provider, to corroborate the individual’s statements regarding the marijuana incident. However, when it became apparent that the drug provider would not testify, the Hearing Officer changed her approach. Later, in a July 25, 1997 telephone conversation, confirmed by letter on July 28, 1997, the Hearing Officer told the individual and the DOE counsel that XXXXXX’s testimony “is a key piece of testimony” and “that this was a very important part of his case.” At this point the Hearing Officer was willing to settle for any testimony concerning the party that the individual would be able to provide.

The individual did not take advantage of the opportunity to present relevant evidence about the party. Thus, the record is devoid of material to support his version of the marijuana incident. The fact that the Hearing Officer gave the individual mixed signals as to whether or not she wanted XXXXX to testify is irrelevant. It has no bearing on the Hearing Officer’s findings on the security concerns present in this case.

3. Drug Test Results

Finally, the individual contends that the Hearing Officer did not properly weigh the drug test evidence in the record. The individual argues that the MRO’s statement, which the Hearing Officer cited, that there is a high improbability the individual would test positive 96 hours after a single usage of marijuana, is inconclusive in light of the DOE psychiatrist’s testimony that one or two weeks can pass after a single use and still result in a positive drug test. In addition, the individual states that since the marijuana incident, the DOE has tested him 23 times, all with negative results.

I find that the Hearing Officer properly considered all of the expert testimony surrounding the individual’s positive drug test result. Contrary to the individual’s statement, there is no doubt that the Hearing Officer considered the DOE psychiatrist’s testimony in her opinion. Specifically, she found contradictory his testimony regarding the time required to pass for marijuana to not show up on a drug test. August 14 Opinion at 85,782 n.7. I find that the Hearing Officer correctly gave little weight to the DOE psychiatrist’s testimony on this issue because she recognized that the MRO has a greater level of expertise than the DOE psychiatrist, who admitted that he is not a toxicologist. Thus, I find that the Hearing Officer did not make any errors in weighing the expert opinions in reaching her recommendation.

Finally, the recent 23 negative drug test results since the individual’s marijuana incident are not at all indicative of a one-time usage prior to his positive drug test. Thus, this fact sheds no light on the evidence in the record regarding the individual’s frequency of drug usage.

IV. Conclusion

As explained in the above discussion, I find no errors that impact on the outcome of the opinion of the Hearing Officer, and no basis for reversing any of her findings. Therefore, I cannot conclude that a restoration of the individual’s access authorization would be clearly consistent with the national interest pursuant to 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 in writing of the final determination, and provide a copy of the present opinion. The Director of the Office of Security Affairs should provide copies of the correspondence to the Director, Office of Hearings and Appeals; the Manager of the DOE office; DOE counsel; and any other interested party. In the event of an adverse determination, the correspondence shall indicate findings by the Director, Office of Security Affairs, with respect to each allegation contained in the Notification Letter. 10 C.F.R. § 710.28(f).

George B. Breznay

Director

Office of Hearings and Appeals

Date: December 4, 1997