Case No. VSA-0238 (OHA June 8, 1999)

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* The original of this document contains information which is subject to withholding from disclosure under 5 U.S.C. 552. Such material has been deleted from this copy and replaced with XXXXXXX’s.

June 8, 1999

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: April 7, 1999

Case Number: VSA-0238

This determination considers a Request for Review and Statement of Issues filed by XXXXXXXXXXX (hereinafter “the individual”) concerning his eligibility to hold 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-0238), 27 DOE ¶ 82,796 (1999). 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. That Office issued a Notification Letter to the individual, citing derogatory information that falls within 10 C.F.R. § 710.8(l) (Criterion L).

Criterion L covers information that shows that an individual has engaged in unusual conduct or is subject to circumstances which tend to show that he is not honest, reliable or trustworthy; or which furnishes reason to believe that he may be subject to pressure, coercion, exploitation, or duress which may cause him to act contrary to the best interests of the national security.” 10 C.F.R. § 710.8(l). To support this charge, the Notification Letter stated that a DOE Office of Inspector General Report (OIG Report) (DOE Exh. 7) determined that (i) the individual submitted 23 fraudulent travel vouchers and received at least $8,868.35 to which he was not entitled; (ii) the individual stole a government- owned laptop computer valued at $2,500; (iii) the individual received $481.00 as a reimbursement for the unused portion of his monthly utility deposit to which he was not entitled. The Notification Letter also indicates that during a Personnel Security Interview (PSI), the individual admitted that (i) he owed his former employer at least $3,000 for payments he received from submitting incorrect travel vouchers and claiming mileage for use of his personal vehicle; (ii) he made no attempt to make restitution for the money he owed his former employer; and (iii) he did not return a laptop computer at his former employer's request, but waited until DOE Office of Inspector General agents recovered it from him.

A hearing was convened in order to allow the individual to resolve the doubt regarding his continued eligibility for access authorization. Six witnesses testified at the hearing: a DOE security specialist, four persons who worked with the individual and the individual, himself.

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. In the Opinion, the Hearing Officer recognized that the individual and his former employer had reached an agreement regarding the travel debts in which the individual paid his former employer $6,500 to settle a lawsuit regarding the disagreement over expenses. The Hearing Officer found that while the individual acknowledged the debt to his employer, his inaction for several years in resolving that debt constituted irresponsibility. He found that the individual acted negligently in filling out his travel vouchers. He found that the individual’s failure to promptly return his employer’s laptop computer, and his delay in resolving the monetary dispute with his employer, collectively demonstrated that the individual is not honest, reliable or trustworthy. The Hearing Officer concluded that the individual’s behavior constituted a security concern under Criterion L. Accordingly, the Hearing Officer recommended that the individual’s access authorization not be restored.

II. Statement of Issues and Response

In his Statement of Issues, the individual raises four matters for me to consider: (i) whether the regulations applicable to this proceeding fail to accord him justice and fairness; (ii) whether the Hearing Officer correctly decided that the individual was negligent in filling out travel vouchers; (iii) new evidence that purportedly sheds light on the settlement agreement reached by the individual and his former employer; and (iv) whether the Hearing Officer correctly found that the individual was irresponsible because he made no effort to repay his former employer for the improperly received travel reimbursements until a final settlement was reached two days before the hearing.

In its Response, Office of Security Affairs states that it does not wish to submit any additional information in this case.

III. 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 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).

IV. Analysis

A. Justice and Fairness

The individual fist claims that he has been denied the “fundamental right to confront his accusers.” Specifically, he claims that he was only permitted a one-hour interview with the auditor who provided the basis for the OIG Report. I see no unfairness here. In fact, the individual was obviously able to confront this important potential witness, since a one-hour interview admittedly took place. The individual has not stated why this one-hour time frame was insufficient, how much more time was necessary, what questions he was unable to pose, and what information he was unable to obtain because of limited time. This allegation is vague and unsubstantiated. I see no unfairness to the individual with respect to the ability to question a witness.

The individual also claims that the DOE acted unfairly by circumventing the criminal and civil justice systems, in which the Agency would have the burden of proof, and proceeding instead under Part 710, in which the burden of proof is shifted to the individual. I see nothing improper here. In this proceeding the DOE is not attempting to impose any criminal or civil liability on the individual. It is simply engaged in an administrative review of this individual’s fitness to maintain access authorization. Accordingly, the DOE is not circumventing criminal and civil burdens of proof. Rather, these burdens are irrelevant in a proceeding under Part 710. It is perfectly appropriate for the DOE to make the assessment of whether this individual is entitled to retain his access authorization under the procedures set forth in 10 C.F.R. Part 710.

In this regard, as we have repeatedly noted in these personnel security administrative review cases, the burdens of proof that adhere in a criminal or civil proceeding do not apply in these personnel security proceedings. Because holding access authorization is not a right, it is the obligation of the affected individual to bring forth evidence to establish that he is entitled to access authorization. Personnel Security Review (Case No. VSA- 0087), 26 DOE ¶ 83,011 (1996). Accordingly, it is entirely proper to expect the individual in this case to bring forth evidence establish that he is entitled to maintain his access authorization.

B. Negligence in Filling Out Travel Vouchers

The Statement of Issues challenges the Hearing Officer’s conclusion

that the individual was negligent in filling out the travel vouchers. The Statement of Issues contends that this standard is overly harsh, and at most this individual negligently violated company policy, not a law. The Statement of Issues suggests that this minimal negligence should be forgiven.

In his Opinion, the Hearing Officer noted that the individual readily acknowledged mistakes in his travel vouchers, but claimed that there was no training in how to fill out the vouchers, and asserted that the travel rules were complex. Based on these factors, the Hearing Officer concluded that although he was “somewhat suspicious of the individual’s motives concerning his numerous incorrectly filled out travel vouchers,” he believed that the individual “probably acted in good faith” and decided to “give the individual the benefit of the doubt regarding his intent in filling out the travel vouchers.” He therefore concluded that “the individual acted negligently” in filling out the vouchers. He gave as examples of the individual’s negligence: (i) claiming reimbursement for mileage expenses from two locations for the same time period; (ii) allowing his secretary to sign his name to travel vouchers; and (iii) failing to scrutinize his expense reports before signing and submitting them.

The Hearing Officer did not apply the correct standard. It is by now well established that once the DOE raises a cognizable concern regarding an individual’s eligibility for access authorization, the individual must come forward and address the derogatory information. The individual must demonstrate that restoring his access authorization “would be clearly consistent with the national interest.” 10 C.F.R. § 710.7(a). E.g., Personnel Security Hearing (Case No. VSO-0166), 27 DOE ¶ 82,754 (1998). If the DOE brings forth evidence indicating that an individual has provided untruthful information, and the individual’s position is that the falsehood was unintentional, the burden is on that individual to show that he was not intentionally dishonest.(2) In this case, the Hearing Officer stated that he was “somewhat suspicious of the individual’s motives.” It was an error to give the individual “the benefit of the doubt,” and thereby conclude that the inaccurate information was negligently provided.

In fact, in this case the individual did not bring forward even a shred of useful evidence to establish that he did not intentionally deceive his employer. The Hearing Officer pointed to several actions taken by the individual, which in his view established negligence: the individual allowed his secretary to sign his vouchers; he claimed duplicate mileage expenses; he did not always scrutinize his expense reports before submitting them. While these actions might be some evidence of negligence, standing alone, they are insufficient to establish negligence. They could be advanced with equal vigor by someone who had intended to violate the travel rules all along. In fact, these actions do not preclude a finding of intentional deceit by the individual, particularly the claims for duplicate mileage. Indeed, there is no evidence in the record from the individual to show that the incorrect claims were negligent rather than unintentional. His claims that there was inadequate training and that the travel rules were complex were just that--only claims.

A single example will suffice to elucidate this point. The record in this case indicates that the individual was asked by his employer if he wished to undertake a temporary assignment at a DOE site located several thousand miles from his regular work location. This reassignment was to last for one year. The individual moved out to the new site. However, instead of finding lodging in the town where the work site was located, he rented an apartment in a town about 40 miles away. The per diem allowance for meals was somewhat higher in this town, and the individual consistently claimed that higher allowance. He also claimed mileage reimbursement of $22 per day for his travel back and forth between his work site and his lodging site. The reimbursement that the individual received for the excess meal allowance and mileage was more than $5,000.

The individual knew that he was expected to reside in the town where he was assigned to work. He admitted that he looked for lodging in that town, but stated that nothing suitable was available. Transcript of Personnel Security Hearing (hereinafter Tr.) at 160. See also Transcript of Personnel Security Interview (hereinafter PSI Tr.) at 17. He therefore asserts that he was justified in settling in the town that was 40 miles away. Tr. at 155. The individual also alleges that his employer’s travel rules were complex and that he was not given any training in how to fill out travel vouchers. Tr. at 103, 106. These attempted explanations in and of themselves do not satisfy the individual’s burden of showing that his requests for excessive reimbursement were unintentional.

First, the individual has brought forward no evidence to support any of these assertions. He has not shown that there was no suitable housing at his new work site. Further, even if there were no housing at the work site, he has not demonstrated that, without his employer’s approval, he was entitled to reimbursement at the higher rates which applied to the site he selected. (3) See PSI Tr. at 22.

In addition, the individual has not pointed to any travel regulation issued by his employer that would support his position that the rules were complex or confusing. He has not brought forward any evidence suggesting that a reasonable person could have misunderstood the travel provisions at issue here. (4)

The burden in this case is clearly on the individual to show the truthfulness and legitimacy of his position. Personnel Security Review (Case No. VSA-0087), 26 DOE ¶ 83,001 (1996). In the absence of any corroboration whatsoever for the individual’s claims, I must conclude that the requests for excessive travel reimbursements were intentional.

Accordingly, I do not agree with the Hearing Officer’s conclusion that the inaccuracies in the individual’s travel vouchers were negligently provided. I will therefore give no further consideration to the arguments made in the Statement of Issues to the effect that the provision of incorrect information by the individual barely rises to the level of negligence and should therefore be overlooked.

C. Consideration of New Evidence

The individual requests that I consider several pieces of new evidence. See 10 C.F.R. § 710.29(b)(2). This evidence includes (i) a letter dated December 21, 1998, written by the individual’s attorney to the attorney for the individual’s employer; and (ii) a letter from the individual’s employer to the individual’s attorney enclosing a copy of the complaint filed against the individual in a state court, demanding return of excess travel monies and (iii) a civil warrant dated February 22, 1999, summoning the individual to appear in court regarding that lawsuit.

The individual points out that the Hearing Officer noted that the individual only settled the travel reimbursement matter with his employer two days before the hearing. The individual claims that the Hearing Officer improperly concluded from this eleventh-hour settlement that the individual only entered the settlement so that the reimbursement issues would be resolved before the commencement of the hearing. The individual contends that the new evidence shows that he was the moving force behind the settlement and that settlement was only possible once his former employer actually instituted the lawsuit.

As an initial matter, I certainly do not agree with the individual’s line of reasoning. I fail to see why he was unable to settle this matter prior to the filing of a complaint by his former employer. In any event, I find the fact that the individual eventually settled his differences with his employer by payment of $6,500 does not support the individual’s position that he is entitled to maintain his access authorization. The act of settling this matter does not resolve the issue with which the DOE is primarily concerned, which is whether the individual intentionally provided inaccurate information in connection with travel reimbursements. Accordingly, I find that the new evidence provided by the individual does not convince me to alter the result in this case. As discussed above, I find that the individual has not shown that the request for excess reimbursement was not intentional. The settlement agreement itself does not exonerate the individual of blame in filing the requests for excessive reimbursement. Accordingly, the issues surrounding the timing and the motivation of the settlement agreement, and even the existence of the settlement agreement itself, are not determinative.

D. There Was No Fixed Debt Owed By The Individual

The Statement of Issues also argues that until the individual and his employer reached the settlement agreement, there was no judgment that obligated the individual to make any reimbursement to his former employer. The Statement of Issues contends that it was therefore proper for the individual not to repay any of the debt until there was final agreement on the exact amount owed.

This is sophistry. I am certainly not convinced that the individual had no legal obligation to reimburse his employer in the absence of a judgment or settlement agreement. In any event, as I have repeatedly made clear, the central issue in this case is whether the individual intentionally requested excessive travel reimbursements. As discussed above, the individual failed to establish that he did not intentionally request excessive reimbursement. The contention raised in the Statement of Issues, that there was no unreasonable delay in making the repayment, is irrelevant to this key point. The fact that this individual was willing to repay the excess monies he received, once the amount was reduced to a sum certain through a settlement agreement, does nothing to convince me that this individual is honest and can be trusted.

V. Conclusion

As indicated by the foregoing, I cannot conclude that the continuation of this individual’s access authorization will not endanger the common defense and security and will be clearly consistent with the national interest. Accordingly, 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: June 8, 1999

(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)In many cases, security concerns about an individual’s honesty are dealt with under 10 C.F.R. § 710.8(f), which refers to falsification of information regarding eligibility for access authorization. In order to mitigate the security concern raised by the derogatory information, the individual must bring forward evidence. For example, the individual may show that the inaccuracy was unintentional. Personnel Security Review (VSA-0185), 27 DOE ¶ 83,011 (1998). I find that in a case under Criterion L involving untruthfulness, this same requirement should apply, i.e., that in order to mitigate the security concern associated with a dishonest filing, the individual must show that the untruth was not intentional.

(3)The individual could certainly live at the site he selected. He was simply not entitled, on the stated facts, to receive the higher travel allowances that are associated with that town.

(4)There was some general testimony from one of the individual’s witnesses that the company’s travel rules were complex, but not confusing. Tr. at 134. This witness made no specific reference to any rule that was “complex,” and his testimony provides no support for the individual’s position that he could not understand the rules.