* 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.
March 3, 2000
DEPARTMENT OF ENERGY
OFFICE OF HEARINGS AND APPEALS
Opinion of the Director
Case Name: Personnel Security Review
Date of Filing: July 7, 1999
Case Number: VSA-0254
This Opinion considers a Request for Review filed by the Department of Energy (DOE) Office of Safeguards and Security (Security). The Request for Review concerns a May 19, 1999, Hearing Officer Opinion that recommended the restoration of the access authorization of XXXXXXXX (hereinafter referred to as Athe Individual@). The Individual is a DOE contractor employee. As explained below, I cannot conclude that restoring the Individual's access authorization would be clearly consistent with the national interest.
Background
On May 19, 1999, a Hearing Officer of the Department of Energy (DOE) Office of Hearings and Appeals (OHA) issued a Decision and Order concluding that the access authorization of the Individual should be restored. The clearance had been suspended by the Security on the basis that the Individual was a habitual user of alcohol to excess, and that substantial doubt therefore existed concerning his continued eligibility for access authorization. See 10 C.F.R. '710.8(j). A corollary basis for the suspension concerned the Individual's honesty, reliability or trustworthiness. See 10 C.F.R. '710.8(l).
The essential background and record considered in this case involves: several alcohol-related incidents leading to arrest, such as charges that he drove under the influence of alcohol (DUI); a domestic assault charge; an altercation in a "bar," and a DUI charge with a related trespassing incident. There is also information revealed during a May 6, 1996, DOE Personnel Security Interview (PSI) during which the Individual admitted consuming six or more beers during each week and twice that number on a weekend, and stated that he had never tried to stop drinking. The 1996 PSI produced a recommendation for a psychiatric examination. The examining Psychiatrist retained by DOE concluded that: (1) within the meaning of 10 C.F.R. '710.8(j) the Individual was a habitual user of alcohol to excess; (2) the Individual had been alcohol-abstinent prior to the 1996 PSI and should continue abstinence; and (3) the Individual should undertake enrolling in an alcohol awareness program such as Alcoholics Anonymous.
At this point, the Individual was able to retain his security clearance by availing himself of the Employee Assistance Program Referral Option (EAPRO) offered to him by DOE during a November 13, 1996, PSI. During that PSI, Security apparently explained to the Individual that EAPRO was a 24-month program during which there could be no alcohol consumption, that the individual would have to attend regular counseling sessions, and that he would be required to undergo monthly, scheduled urine testing. Security also informed the Individual that failure to complete the EAPRO program could lead to the loss of his security clearance. The Individual signed all necessary forms signifying that he fully understood the terms and conditions of the two year EAPRO program, and notified DOE that the EAPRO provider he would select would be Dr. Burke Tadesse of the ETHOS Foundation, College Park, Maryland.
At this juncture there are two critical matters. The first is that the EAPRO provider that the Individual selected and DOE Security approved, was the same treatment program and counselor with which the Individual was involved under a one-year State Parole and Probation program.[1] The result was that the provider, while conversant with the one-year State program, was not familiar with the terms and conditions of the DOE program that, among other things, required one more year of abstinence than did the state program. The second matter involves the EAPRO document provided to the Individual which states that:
At the completion of the second 12 months period (of the EAPRO program), the EAP Provider should furnish the DOE documentation to substantiate that the individual has continued to abstain from the use of alcohol habitually to excess or the use of illegal drugs.
February 17, 1999 DOE Submission (Individual=s response to Notification Letter, emphasis supplied). At some point after he signed it the Individual apparently understood this statement to mean that during the second year of EAPRO, he could consume alcohol -- but not Ahabitually to excess.@ Personnel Security Hearing, 27 DOE & 82,803 at 85,826 (1999). Security, on the other hand, intended this statement to mean that the Individual had to remain abstinent for the entire two-year EAPRO period. Id. The EAPRO provider was not aware of this aspect of the EAPRO agreement nor the disparity. Id. at 85,827 n.5 (1999).
By January 1998, the Individual had successfully completed the one-year State Parole and Probation program and the first 12 months of EAPRO, and he had abstained from alcohol for 17 months. At that point the Individual informed his EAPRO counselor that he had completed the first year of the DOE EAPRO program, and was therefore able to resume the moderate consumption of alcohol. This declaration was voluntary.
During a June 4, 1998, PSI the Individual again voluntarily revealed that he had recommenced alcohol consumption. As a result, DOE concluded that the Individual had violated the terms of EAPRO and, on September 8, 1998, notified the Individual that his access authorization would be suspended pending the resolution of certain derogatory information received by DOE that created substantial doubt regarding his continued eligibility for a security clearance. On November 18, 1998, a Notification Letter was issued describing in detail the derogatory information.
The May 19, 1999, Hearing Officer Opinion recommending restoration of the Individual=s clearance was based on a number of factors including: The Individual's record of abstinence; the fact that he was involved in two alcohol recovery programs with differing requirements; the fact that the treatment program counselor was not fully conversant with the EAPRO requirements; and inferentially, the ambiguity of the wording of the relevant EAPRO document quoted earlier. In addition, that determination finds that the Individual had been abstinent for a lengthy period, had voluntarily revealed that he was consuming alcohol in moderate quantities, and there was no evidence that this consumption of alcohol involved an overwhelming desire to drink. Id. at 85,829-30.
After weighing these and other mitigating factors, the Hearing Officer opinion concludes that:
The Individual has sufficiently mitigated the security concerns of DOE relating to his past use of alcohol (and) . . . the Individual's eligibility to hold an access authorization should not be revoked on the basis that he is dishonest, unreliable, or untrustworthy.
Id. at 85,830. Having reviewed that Opinion, the full record in the prior proceeding, as well as the Request for Review and the response of the Individual to that request, I see no need to address the particular findings and conclusions of the May 19, 1999, decision. Security has not specifically challenged the reasoning or conclusions of the Opinion.[2]
Request for Review
At the same time, the Request for Review raises an issue that was neither raised nor discussed by the parties, and was therefore not considered by the Hearing Officer during the prior proceeding.[3] Specifically, the Request for Review states that:
In a June 1998 PSI, [the Individual] voluntarily disclosed that he had resumed drinking alcohol the January before. Since this disclosure was a violation of the conditions of EAPRO, a violation made known to Mr. Johnson in the June 1998 PSI, the Department reactivated Administrative Review. Even so, Mr. Johnson continued to drink until September 1998, quitting when the Department suspended his access authorization.
July 7, 1999 Request for Review at 2. Security raises an important point. If the Individual had honestly misconstrued the requirements of EAPRO when he resumed drinking during January 1998, then a further serious question still remains: Why did the Individual continue to imbibe after being instructed during the June 1998 PSI not to drink any alcohol?
Analysis and Consideration
The point Security raises in its Request for Review must be examined carefully. Even if the Individual believed in good faith that he was allowed to resume drinking after completing only one year of EAPRO, Security contends the PSI interviewer clarified that misunderstanding. Security believes that the interviewer thereby removed any ambiguity stemming from the EAPRO document, and that the Individual was instructed to stop drinking. The Individual thus needed to cease drinking immediately. Security claims that the Individual was clearly advised at the June 4 PSI that the EAPRO prohibition was for two years.
Under the circumstances, I carefully reviewed the relevant portions of the transcription of the recording of the June 4, 1998, PSI of the Individual. It was not completely clear to me from the transcript that the Individual was informed that all alcohol consumption during the two year EAPRO period was prohibited. Therefore, by letter dated September 27, 1999, the parties were asked to provide their views on the question of what actually transpired at the June 4 PSI.
Security responded on October 22, 1999, but the Individual did not respond. In the interests of fairness, by letter dated November 8, 1999, the Individual was provided with a copy of the October 22, 1999, Security submission and given an additional period of thirty days in which to comment. A submission from the Individual was received on December 10, 1999.
In its October 22 submission, Security acknowledges Athat there were excessive gaps in the transcript of the June 4, 1998, Personnel Security Interview (PSI) with the individual and that the conduct of the interview was choppy and uneven.@ Memorandum To Richard T. Tedrow, Deputy Director, OHA, from Owen B. Johnson, Director, Office of Safeguards and Security (October 22, 1999). However, quoting the June 4 PSI transcript, the Security submission also states that:
The interviewer, in noting that (the Individual) had completed over half of the EAPRO, asked (the Individual) if he thought he could, AYabstain from alcohol during the completion (sic) of the program?@ (The Individual) replied that he could. In discussing the case, the interviewer said to (the Individual), AYyou must not consume alcohol while in the EAPRO program.@ (The Individual) replied, AOkay, I can do that.@ She (the interviewer) repeated, ABut you must abstain from alcohol the whole time you hold a DOE clearance (blank) during the EAPRO program.@ Later, (the Individual) asked AHow long do I have left in the EAPRO program?@ The interviewer replied that he signed up on November 13, 1996, and had about 6 months to go.
Id. Based upon my review of the Transcript, this reading of what occurred is correct.
In response, the Individual reiterates the claim made during the prior proceeding, i.e., that he never willfully violated the provisions of his EAPRO agreement. Similarly, he again states that he should have more diligently investigated his EAPRO obligations. Regarding the June 4 PSI, the Individual points out that the interviewer:
(T)old me that under the EAPRO agreement I was to abstain for two
years. My response was that I was under the impression that during the
second phase of the program I was allowed to resume drinking in
moderation.
Reply from Individual to Richard T. Tedrow, Deputy Director, OHA (December 10, 1999). The Individual goes on to say that
I told (the Interviewer) about the (EAPRO agreement) form I
had that stated that fact.[4] She wasn=t really sure about the form I was
referring to, but stated there was a new program in effect and according to
the current guidelines, one must abstain from drinking as long as they are
in the program.
Id. As a result, the Individual does not really deny that he was instructed to stop drinking immediately. Gaps notwithstanding, according to the transcript, the interviewer clearly told the Individual that Ayou must not consume alcohol while in the EAPRO program@ and that Ayou must abstain from alcohol the whole time you hold a DOE clearance ( gap in transcript ) during the EAPRO program.@ Transcript of June 4, 1998 PSI at 10 (Tr.) (emphasis supplied). Furthermore, rather than merely saying that alcohol was proscribed, the interviewer explained to the Individual the importance of abstinence:
(W)hen a person has used alcohol to excess, it does tend to show the person is not reliable. . . . And if there is no evidence of rehabilitation or reformation it does cause a secondary concern.@
Tr. at 10-11.
At that point the transcript of the June 1998 PSI records the following colloquy:
(Interviewer) . . . And now that you have completed over half of your EAPRO program, do you feel that, this is my question here, do you feel you can abstain from alcohol during the completion of the program, while you hold a DOE clearance?
(Individual) Yes, definitely from this day.
(Interviewer) Okay, that=s not only for the two year period, but.
(Individual) I understand what you=re saying, as long as I have a DOE clearance. I understand what you=re saying.
Tr. at 10-11.
These portions of the transcript cannot be construed by the Individual as allowing him to continue to drink. Nevertheless, in his hearing testimony the Individual states that after the June 4 PSI he Acontinued to drink . . . (until he) . . . received a letter of suspension in September of =98.@ Hearing Transcript at 43-4; Exhibit 16.
My conclusion is that by drinking alcohol, the Individual deliberately breached his EAPRO commitment B if not in January, 1998 then certainly after the June 1998 PSI. By continuing to imbibe after the June 1998 PSI, the Individual ignored the clear instructions of the interviewer as well as his own commitment to abstain from alcohol during the entire EAPRO program. He offers no valid explanation for this behavior, and this compels an adverse finding under Criterion L.
Recommendation
Under the circumstances, i.e., when the Individual continued to drink even in the face of DOE=s clear concerns and orders to the contrary, I must conclude that there is a significant concern as to the Individual=s reliability under Criterion L. Consequently, I cannot conclude that the Individual has sufficiently mitigated the security concerns under Subpart J regarding his past use of alcohol to excess. As a result, I must reverse the Hearing Officer=s Opinion and recommend that the Individual=s access authorization not be restored.
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. 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: March 3, 2000
[1] The Individual=s participation in this program stemmed from a Probation Before Judgement sentence that he received as a result of a September 1995 DUI charge. The sentence required that the Individual complete an alcohol education program during a one-year probationary period requiring abstinence. The individual entered the State program in September 1996, two months before the provider became his EAPRO provider in November 1996.
[2] In its Request for Review, Security claims that the Hearing Officer erred in not taking adequate account of the fact that the Individual resumed drinking in January 1998. However, this aspect of the case was fully considered in the prior proceeding and Security has not in the Request for Review offered any evidence or argument in support that was not previously considered.
[3] Indeed, it appears to me from my reading of the May 19, 1999, Decision that the Hearing Officer was not aware that the Individual had continued to imbibe after the June 1998 PSI.
[4] The Individual is apparently referring to the language of the EAPRO agreement, which states that during the second year of the program you must have Acontinued to abstain from the use of alcohol habitually to excessY@ (emphasis supplied).