Case No. VSA-0185, 27 DOE ¶ 83,011 (OHA August 5, 1998)

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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 5, 1998

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Case Name: Personnel Security Review

Date of Filing: June 9, 1998

Case Number: VSA-0185

This Opinion considers a Request for Review filed by XXXXX (hereinafter referred to as "the individual") concerning his eligibility to retain an access authorization. (1) The Department of Energy (DOE) regulations governing this matter are set forth at 10 C.F.R. Part 710, and are entitled “Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material.”

I. Background

The events leading to the suspension of this individual’s access authorization are fully set forth in Personnel Security Hearing (Case No. VSO-0185), 27 DOE ¶ 82,764 (1998). I will not reiterate all the details of that case here. For purposes of the instant security review, the relevant facts are as follows.

A DOE Security Office learned of certain derogatory information about this individual, which caused it to suspend his access authorization. The DOE Security Office issued a Notification Letter to the individual setting forth the nature of that derogatory information. The Notification Letter stated that the DOE Security Office believed that the individual “engaged in unusual conduct. . . which tend[ed] to show that the individual is not honest, reliable or trustworthy.” 10 C.F.R. §710.8(l)(Criterion L). Specifically, the DOE Security Office learned that the individual pled guilty to a charge of simple battery, stemming from an incident in which he went into a restaurant with two of his daughters, walked around a counter into an employee area, hugged a 19 year old waitress against her will and touched her breast. Further, the DOE received information indicating that the individual also engaged in inappropriate touching of several other women who worked in a convenience store or restaurant. The Notification Letter also cited the individual’s failure to abide by rules and regulations in connection with his work as a volunteer with the local fire department. Among other actions, the Notification Letter cited his failure to use approved equipment, and his taking firefighting clothing to his home.

The DOE Security Office also stated in the Notification Letter that it was in possession of information that indicated that the individual deliberately misrepresented, falsified or omitted significant information from a Personnel Security Interview (PSI) and during an official psychological evaluation. The misrepresentations related generally to his inappropriate contact with women. This falsification constitutes derogatory information under 10 C.F.R. ¶ 710.8(f) (Criterion F).

A hearing was convened in order to allow the individual to resolve the doubt regarding his continued eligibility for access authorization. At the hearing, the DOE Office presented nine witnesses: a security specialist; a psychiatrist; the waitress that the individual allegedly fondled in the restaurant; three other individuals who also worked in that restaurant; two women who worked in a convenience store that the individual patronized; and a member of the local fire department. The individual testified and presented the following witnesses: his wife, two of his daughters, two co-workers, a supervisor, and three current neighbors.

Based upon the testimony at the hearing and other evidence presented in this case, the Hearing Officer issued an Opinion determining that the individual’s access authorization should not be restored. Personnel Security Hearing (Case No. VSO-0185), 27 DOE ¶ 82,764 (1998). In the Opinion, the Hearing Officer found that the individual did not overcome the security concern that he engaged in inappropriate hugging or touching of several women who were waitresses or convenience store workers, and that he deliberately violated the rules of the fire department. Accordingly, he found that the individual had not mitigated the concerns raised by the DOE Security Office under Criterion L.

The Hearing Officer further found that the individual had failed to overcome the security concern that he was dishonest when he denied that he inappropriately touched female employees of a local restaurant and convenience store. He therefore found that the individual failed to mitigate the security concerns related to Criterion F.

The individual filed a Request for Review and a statement of the issues on which he wanted me to focus (Statement of Issues). 10 C.F.R. § 710.28(a), (b). The DOE Office of Safeguards and Security filed a response, stating that it agreed with the recommendation of the Hearing Officer and did not wish to submit any additional information in this proceeding.

II. Analysis

A. Standard of Review

Part 710 provides that if, after considering all the factors in light of the relevant criteria, the Director of the Office of Hearings and Appeals (OHA) 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 the individual has overcome the security concerns and that it would be clearly consistent with the national interest to restore the individual’s access authorization.

B. The Statement of Issues

The Statement of Issues first disputes the Hearing Officer’s finding that the individual failed to overcome the concern that he inappropriately touched the waitress at the restaurant. In this regard, the individual points out that both he and his daughters testified that the individual did not touch the waitress. The individual then challenges the reliability of the testimony of the waitress’ two co-workers who testified about the incident. The individual refers to one co-worker’s testimony that he was unable to identify the individual in the hearing room. Transcript of Hearing (hereinafter Tr.) at 89. The individual further claims that the testimony of the other co- worker, identifying the individual as the person who touched the waitress, is also unreliable because he was told prior to the hearing that the individual would be present. Tr. at 98. The individual further points out that the battery charge filed against him in connection with this incident was eventually dismissed. In view of these alleged evidentiary errors, the individual asserts that there is insufficient evidence to support the Hearing Officer’s conclusion on this point.

As is evident from the above assertions, several of the issues raised by the individual relate to the Hearing Officer’s findings regarding the credibility of witnesses. In these types of cases, the Hearing Officer is responsible for considering the demeanor and credibility of witnesses. 10 C.F.R. § 710.27(b). He also assesses the appropriate weight to be given to their testimony. Absent some error, I will not supplant my judgment for that of the Hearing Officer in such matters. Personnel Security Review (Case No. VSA-0084), 26 DOE ¶ 83,004 (1996).

In the instant case I see no error on the part of the Hearing Officer in his conclusion that the individual has failed to overcome the security concern arising in connection with his inappropriate contact with the waitress.

The individual claims that the testimony of both of the waitress’ co-workers regarding the incident is suspect. He points out that at the hearing, one co-worker was unable to identify the individual, even though the individual was present in the hearing room. The individual states that the other co-worker admitted that he was alerted prior to testifying that the individual was in the hearing room. The individual implies that the testimony of these two witnesses should not have been given any weight.

I disagree. In view of the arrest and other evidence brought forward in this case, it is clearly the individual’s burden to demonstrate either that he was not involved in the touching incident or in some other fashion to mitigate the security concern raised by that incident. Both co-workers strongly supported the waitress’ version of the events that took place. They clearly remembered the details of the incident, and corroborated that inappropriate behavior took place. Tr. at 88, 93-97. I do not agree with the individual’s suggestion that the co-worker who was made aware that the individual was in the hearing room necessarily gave suspect testimony in his identification of the individual. The individual has brought forward no evidence to suggest that the identification was in any way tainted.

I also find that the Hearing Officer had adequate evidence for deciding that the individual had failed to bring forth sufficient evidence to show that he was not involved in the incident. The Hearing Officer fully discussed his reasons for finding the waitress’ testimony more credible than that of the individual and his daughters. 27 DOE at 85,588. He discussed how and why she was very familiar with the individual. The Hearing Officer described the waitress’ testimony as vivid and full of detail. As indicated in the Opinion, the waitress strongly identified the individual as the person involved in the event. She indicated that she had seen him on prior occasions and remembered his name. She also stated that within 24 hours of the incident she verified his name by looking at the check that he used to pay for his food on that evening. 27 DOE at 85,587. Further, I find that the fact that one of the two co-workers could not identify the individual does not nullify the substantial evidence given by the other co-worker and the waitress.

Overall, the Hearing Officer was in the best position to judge the demeanor of the waitress, her co-workers, the individual and his daughters. I therefore will not overturn his finding that the testimony of the waitress and the co-workers was more credible than that of the individual and his daughters.

The individual also points out that the battery charge against him was dismissed approximately two years after the guilty plea. The individual apparently considers this fact as diminishing the overall likelihood that the inappropriate contact with the waitress occurred. I cannot agree. The record contains no evidence regarding the circumstances of the dismissal. The individual, under questioning by his attorney, stated that he had received a “withheld judgment” and that the charges were eventually dismissed. Tr. at 221. No other relevant evidence was introduced. This does not convince me that the guilty plea never occurred, or should not have been considered in this proceeding. It was the individual’s obligation to provide further evidence, e.g., that the reason for the dismissal was directly related to the validity of the guilty plea. I see no basis whatsoever for excluding the guilty plea from consideration here.

Based upon the above considerations I find no error in the Hearing Officer’s determination that the individual inappropriately touched the waitress.

In the Statement of Issues, the individual also challenges the reliability of the testimony of three other female witnesses, each of whom stated that the individual had inappropriate contact with her. This testimony relates to the assertion in the Notification Letter, also related to Criterion L, that the individual had improper contacts with women besides the waitress in the incident described above. The individual believes that these three witnesses provided inconsistent testimony concerning the individual’s contact with them. In particular the individual claims that the record indicates that one of the witnesses told an Office of Personnel Management (OPM) investigator that the individual forcibly hugged and kissed her. However, at the hearing, this witness stated that the individual only forcibly hugged her.

The individual apparently believes that due to this discrepancy this witness’ testimony should be disregarded. I strongly disagree. As I stated above, the Hearing Officer was in the best position to judge the credibility of this witness. The Hearing Officer implicitly found that this witness’ overall credibility was not diminished by the fact that the OPM interviewer included in his report that the individual hugged and kissed this witness. What is clear from this witness’ testimony, and consistent throughout, is that the individual made inappropriate contact with her. Whether the contact involved only hugging and not kissing is irrelevant, and I cannot find that the discrepancy nullifies the value of her testimony. (2)

The individual also claims in the Statement of Issues that this witness testified that the incident was “no big deal,” and that it made her only a “little uncomfortable.” He apparently thereby intends to minimize the seriousness of the occurrence.

As an initial matter, this witness did not testify in this proceedid this witness, “You didn’t consider it a big deal, did you, really?” The witneng that the incident was “no big deal.” The individual’s attorney askess responded, “Well, it bugged me. I mean honestly, it really did.” Tr. at 106. The witness also stated that the incident scared her. Tr. at 105. Thus, the witness certainly was upset by the incident. It made her more than “uncomfortable.” Thus, the assertions in the Statement of Issues in this regard are manifestly incorrect.

Further, I am not at all convinced by this attempt to minimize the incident, through the claim that the witness was not upset by it. Hugging relative strangers in a commercial environment, is an action that is not within the bounds of normal business interaction. The individual has not brought forward any evidence to show that his hugging the waitress was the normal practice in this environment. Thus, I conclude that the individual’s action was clearly inappropriate, regardless of whether the witness was highly offended, or not at all disturbed by it. In view of this individual’s unusual social behavior, the security concern remains, regardless of the magnitude of the effect of the behavior on the witness. I find that the individual has not mitigated the concerns raised by these actions.

The individual also claims that the Hearing Officer incorrectly concluded that the individual’s violation of fire department rules during the time he was a volunteer fireman demonstrated unreliability. The individual argues that he has scrupulously followed DOE rules and regulations for more than 11 years, and therefore that his record as a volunteer fireman is not relevant.

I cannot find any error on the part of the Hearing Officer with respect to this finding. The individual admittedly violated fire department rules. For example, he disregarded a fire department rule by taking his firefighting clothes to his home. He acknowledged that this action could contaminate others, including his family, outside of the fire station. Tr. at 255-56.

This willingness to disregard rules and regulations is a clear security concern to the DOE, even if that disregard takes place outside of the DOE workplace. An overall willingness and ability to follow laws and regulations is essential to maintaining the security of classified documents and material. Personnel Security Hearing (Case No. VSO-0061), 25 DOE ¶ 82,791 (1996), aff’d Personnel Security Review (Case No. VSA-0061), 25 DOE ¶ 83,015 (1996). Behavior that shows a failure of judgment in this area poses a security threat no matter where it occurs. The fact that an individual might engage in such behavior off the job and still be a dependable worker does not eliminate the security risk factor. Personnel Security Review (Case No. VSA-0084), 26 DOE ¶ 83,004 (1996).

The individual next contends that the behavior related to his position with the fire department took place more than 10 years ago. He implies that the passage of this period of time should have been considered in assessing whether those actions still constitute a security concern. (3)

The passage of time may in some cases provide some degree of mitigation with respect to security concerns, and I am directed to consider that as a factor in my deliberations. 10 C.F.R. § 710.7(c). See also Personnel Security Hearing (Case No. VSO- 0183), 27 DOE ¶ 82,761 (1998). In this case, however, I do not find that the fact that a number of years has passed since the fire department episodes took place mitigates the security concerns that arise in connection with those events. It is evident to me that the individual here has engaged in a pattern of unreliable and unusual conduct, which included his behavior with the fire department, as well as a number of inappropriate contacts with women. The conduct apparently took place during the period 1987 through 1996. 27 DOE at 85,586. In such a case, it would not be appropriate to remove a particular set of incidents, the fire department episodes, from consideration. Once a pattern of behavior posing a security concern is demonstrated, we will not generally accept the contention that a particular incident should be considered in isolation from the pattern. See Personnel Security Hearing (Case No. VSO-0183), 27 DOE at 85,568.

The individual also claims that the Hearing Officer erred in not adopting the “ultimate conclusion of the DOE consultant psychiatrist that the individual was not a significant security risk.” I have reviewed the DOE consultant psychiatrist’s evaluation in which he stated the following:

As to security concerns, it is my opinion that the risk is likely not significant, since it seems the subject has a close allegiance to the family and particularly to the daughters, as depicted in their testimonies. I believe the subject would have difficulty being seen by work peers as not loyal and not meeting the expectations they expressed in testimony.

DOE Exh. 12 at 9.

I cannot find that this statement supports the individual’s apparent view that his security clearance should be restored, on the grounds that the DOE consultant psychiatrist does not see him as a security risk. As an initial matter, the security risk that the DOE consultant-psychiatrist was referring to in this statement concerned the individual’s loyalty. However, there are other types of security risks that may arise. For example, if an individual’s unusual behavior in social circumstances suggests that he is unreliable, he may represent an unacceptable security risk. That is the case here. In fact, at the hearing, the DOE consultant-psychiatrist expanded on his views and made this very point. He stated:

I really think that there is enough substantial concern about his judgment and reliability, about his honesty and ability to be honest, and I think that goes into a lot of psychodynamics that I mentioned in my report relating to his growing up years.

Tr. at 49. He clarified his statement in the report by explaining that while he believed the individual to be a minimum security risk under normal conditions, under pressure he might represent a greater risk. Tr. at 48. See also Tr. at 47. Thus, the individual’s contention in the Statement of Issues that the DOE consultant psychiatrist did not view him as a security risk is not borne out by the testimony at the hearing.

The Statement of Issues also claims that the Hearing Officer failed to consider the testimony of the individual’s supervisor, two female co-workers, a female former co-worker and two female neighbors. These witnesses generally testified that the individual is a good worker, a good father and husband, and that they knew of no inappropriate touching incidents by the individual.

It is true that the Hearing Officer did not give explicit consideration to this evidence in his Opinion. Accordingly, I reviewed their testimony. I have considered their statements and as explained below, I find that they do not provide any basis for changing the result in this case.

The fact that the individual is a good employee, a devoted father and husband, and a reliable neighbor does not overcome the information that he engaged in improper touching. In this regard, the individual’s inappropriate behavior took place with relative strangers outside his workplace and neighborhood, in the relative anonymity of a convenience store and a restaurant. The individual’s neighbors and co-workers might not be aware of the individual’s behavior in these environments. (4)

In sum, the arguments raised in the Statement of Issues do not establish that there was any error on the part of the Hearing Officer in this case. I therefore cannot find that restoring this individual’s access authorization would not endanger the common defense and security and would be clearly consistent with the national interest.

A final matter regarding one conclusion set forth in the Opinion should be addressed here. The Opinion stated the following:

DOE Security has not sufficiently persuaded me that there exists a security concern regarding the individual’s statements during his PSIs that (1) he did not act in “an unusual matter” with females; (2) he did not conduct himself inappropriately with women and denied any complaints about his behavior; and (3) no negative information or questions would arise following an investigation of the individual. Specifically, I find that DOE Security has not established that the individual deliberately falsified these statements during his PSIs. I cannot infer from the individual’s testimony that (1) he believed he acted in an “unusual manner” with females; (2) he believed he conducted himself inappropriately with women and knew of any complaints about his behavior other than the simple battery charge; and (3) he knew negative information would arise following an investigation. There is simply not enough proof from the individual’s testimony or actions to make an inference concerning the individual’s state of mind during the PSIs. Based on the individual’s frequent denials concerning his alleged actions, it is reasonable to assume that the individual actually believed that his behavior with women was within the bounds of social norms.

27 DOE at 85,590 (emphasis in original).

I find that the Opinion does not correctly express the relative burdens of proof in this instance. The Opinion seems to indicate that with respect to Criterion F, the DOE Security Office must at the outset prove that the falsification, omission or misrepresentation was intentional.

This is incorrect. Section 710.9 provides that “when the reports of investigation of an individual or other reliable information reasonably tend to establish the validity and significance of one or more items in the criteria. . . such information shall be regarded as substantially derogatory and create a question as to the individual’s eligibility for access authorization.” 10 C.F.R. § 710.9(a).

Thus, to satisfy its regulatory burden, the DOE Security Office needs to bring forward information which reasonably tends to establish the validity of the security concern. To the uninitiated this may seem odd, but due to the special nature of these proceedings, the DOE Security Office is not required to prove the ultimate validity of the concern. In this case, the DOE Security Office brought forward information in the form of witness interviews conducted by OPM personnel, which discuss improper contacts with women by this individual. Since the individual was the actor in these incidents, he knew of the encounters. In his discussion with the DOE, the individual denied that there was additional pertinent information related to complaints against him by people, other than the waitress involved in the battery case. He denied that there would be derogatory information regarding his treatment of females in general. Transcript of May 21, 1996 PSI at 22-23. His denial was erroneous. The information contained in the OPM reports is sufficient evidence for purposes of Section 710.9 to demonstrate that an omission occurred that raises a Criterion F security concern.

It was then the burden of the individual to mitigate the concerns that arose in connection with his assertions that he had not had inappropriate contact with women. In fact, it is the individual himself who is in the best position to establish his mental state regarding his own representations, demonstrate that the omissions were wholly unintentional, or advance some other explanation, and thereby mitigate the concern. In this case, if the individual had advanced the position that the omissions were not deliberate, the Opinion could have made a specific determination as to whether the individual had provided sufficient evidence of his intentions and overall state of mind to overcome the security concerns that arose

in connection with the misrepresentation. Thus, it was erroneous for the Hearing Officer to conclude that the DOE Security Office had failed to persuade him that the individual’s falsifications were deliberate. Instead, the burden was on the individual to mitigate the concern that the DOE Security Office had raised.

However, in view of the fact that no change in the ultimate result in this case is warranted, I will not specifically overturn any of the individual findings made regarding this issue.

III. Conclusion

As indicated by the foregoing, it is my opinion that the individual’s access authorization should not be restored. 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 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: August 5, 1998

(1)1/ An “access authorization” is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5.

(2)The individual claims that there were discrepancies in the testimony given by the other convenience store workers. However, he has not identified those discrepancies in the Statement of Issues and I find nothing in the record to support that claim.

(3)The record indicates that the individual was experiencing difficulties in his volunteer fireman position as recently as 1992, and that he was terminated from that position in 1993. DOE Exh. 9 at 34-35. Thus, the difficulties are more recent than the Statement of Issues alleges.

(4)For example, the co-workers had little or no contact with the individual outside of the workplace. Tr. at 113, 120, 130, 164. Thus, their knowledge of his behavior was limited.