Case No. VSA-0255 (OHA September 23, 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.

September 23, 1999

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Opinion of the Director

Case Name: Personnel Security Review

Date of Filing:July 12, 1999

Case Number: VSA-0255

This determination considers a Request for Review and Statement of Issues filed by the Office of Safeguards and Security (OSS) of the Department of Energy (DOE), concerning the eligibility of XXXXXXXXXXX (hereinafter referred to as “the individual”) to hold an access authorization. As explained below, I cannot conclude that restoring the individual’s access authorization would be clearly consistent with the national interest.

I. Background

A. The Applicable Regulations

The Department of Energy (DOE) regulations governing this matter are set forth at 10 C.F.R. Part 710 (“Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material”). As the title indicates, these regulations specify both the criteria and the procedures for determining eligibility for access to classified matter or special nuclear material. The administrative determination that an individual is eligible for access to classified matter or special nuclear material is referred to as an “access authorization” or a “security clearance.”

B. The Notification Letter

A DOE office issued a Notification Letter to the individual informing him that his access authorization was suspended due to derogatory information that created substantial doubt about his continued eligibility. The specific information was set forth in an enclosure to the Notification Letter. In that enclosure, the DOE office stated that this information falls within the purview of two of the criteria set forth in 10 C.F.R. § 710.8, subsections (f) and (l). The DOE office invoked Criterion F because it had information which indicated that the individual “misrepresented, falsified, or omitted significant information” from his 1990 Questionnaire for Sensitive Positions (QSP) and his 1996 Questionnaire for National Security Positions (QNSP). 10 C.F.R. § 710(f). Both of these falsifications concerned his illegal drug use.

In addition, the DOE office invoked Criterion L because it had information which indicated the individual has “[e]ngaged 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 the individual 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(l). To support this charge, the Notification Letter stated that the individual had continued to use illegal drugs after signing a drug certification promising that he would not use illegal drugs at any time while holding a DOE access authorization.

The individual requested a hearing and a Hearing Officer was appointed. At the hearing, the DOE presented the testimony of two witnesses: a DOE consultant psychiatrist and a DOE security specialist. The individual presented the testimony of eight witnesses: himself, his wife, his brother, a current colleague who is also a friend and a former supervisor, a high-level supervisor, a longtime friend, a co-worker who is also a close friend and another co-worker who is also the individual’s former computer security officer.

C. The Hearing Officer’s Opinion

Based upon the testimony at the hearing and other evidence presented in this case, the Hearing Officer issued an Opinion recommending that the individual’s access authorization should be restored. See Personnel Security Hearing (Case No. VSO-0255), 27 DOE ¶ 82,801 (1999).

In the Opinion, the Hearing Officer first considered the individual’s misrepresentations under Criterion F. She noted that in 1998 the individual admitted that he had used marijuana in 1985. However, in a 1990 QSP, the individual denied having used drugs within the previous five years. In 1998, the individual also admitted that he had used marijuana once in 1992 or 1993. However, in a 1996 QNSP, the individual denied having used drugs within the previous seven years. The individual admitted that he deliberately failed to answer questions accurately regarding his drug use on his 1990 and 1996 security questionnaires.

In addition to these misrepresentations, the individual disclosed other information bearing on Criterion F concerns. In the individual’s 1998 Personnel Security Interview (PSI), he was questioned as to whether he really meant his statement in a 1982 PSI that he intended to stop using illegal drugs. In the 1998 PSI, he responded with various explanations, eventually stating that he thought he lied in the 1982 PSI. One week after the 1998 PSI, he sent a letter to the DOE security specialist admitting that he either knew or should have known in 1982 that he would not stop using illegal drugs at that time. Moreover, he admitted that by the time of the 1982 PSI “lying about illegal drug use had become routine.” Finally, the individual made several other disclosures: (1) that he had lied in 1982 when he said he stopped cultivating marijuana plants two years previously; in reality, he stopped cultivating it either right before or right after the 1982 PSI; (2) that he had minimized the amount of his drug use in the 1982 PSI; and (3) that there may have been other sporadic uses of marijuana between 1985 and 1993.

The Hearing Officer considered mitigating circumstances brought forward by the individual. She noted the individual’s testimony that his drug use in the early 1980s, as well as his falsification during his 1982 PSI, were a product of “those times,” when there were more casual attitudes about drug use. The individual freely admitted that he did not believe until 1998 that lying on the security questionnaires about drugs was “that serious” a matter. He felt it was simply enough that he did not view himself as a security risk.

According to the individual, a series of events changed his perceptions about his past drug use and subsequent lies. The individual testified that in 1998, he applied for a job at another agency and was informed that a polygraph examination would be required. Because he did not think he could “beat” the polygraph test, he withdrew his job application. He testified that his lying and drug use were more serious than he had earlier believed, and that he realized how vulnerable he had become to blackmail and coercion. After consulting with his supervisor, he then disclosed to the local DOE security office his past drug use and lying about that use on the 1990 and 1996 security questionnaires. The Hearing Officer referred to the testimony of the individual’s co-worker and wife who stated that the individual had reached a point where he was unwilling to keep lying, and wanted to disclose the truth to make a fresh start.

In her analysis, the Hearing Officer specifically noted that the individual “voluntarily” came forward to disclose his past lying and drug use despite his belief that his career would be severely harmed. She further noted that at the time he came forward, the individual was not being investigated for his drug use, nor was there any indication that the DOE suspected his falsifications and drug use. In addition, the Hearing Officer found that the individual’s falsifications do not accurately reflect his “current behavior or overall character.” She referred to the testimony of several witnesses, including the individual’s wife and the DOE consultant psychiatrist, who testified to the individual’s straightforwardness and honesty. Moreover, the Hearing Officer opined that the individual attempted to be “scrupulously honest” in his description of his drug use and lying.

After weighing the mitigating factors - the individual’s voluntarily coming forward and disclosing the facts at issue, his disclosure of all instances of derogatory information, and his straightforwardness regarding his drug use and testimony corroborating the individual’s honesty, the Hearing Officer found that reformation had occurred. She believed that the individual fully learned and realized the risks of falsifying and will not falsify in the future. Based on the above evidence, the Hearing Officer found that Criterion F had been mitigated.

Similarly, the Hearing Officer found that the Criterion L concerns regarding the individual’s continued drug use, despite signing a drug certification in 1982, had been mitigated. The individual revealed for the first time in his 1998 PSI that he regularly smoked marijuana until 1985 (smoking it once in 1992 or 1993), that he used cocaine once in 1983 and that there may have been several other instances of marijuana use between 1985 and 1993 that he cannot remember. The Hearing Officer noted that the individual’s continued drug use after having signed a drug certification raises a serious security concern. (1) However, she found that the testimony at the hearing concerning the individual’s overall trustworthiness, honesty and reliability was convincing enough to mitigate this concern. During the hearing, several witnesses testified that the individual conscientiously follows security rules. Moreover, the DOE consultant psychiatrist concurred with these witnesses and noted that although the individual has displayed defects in judgment in the past by using and lying about illegal drugs, he currently displays no defect in judgment.

With respect to Criterion L, the Hearing Officer also noted that the individual’s drug use has ended. The DOE consultant psychiatrist found no evidence of a current substance abuse problem. The Hearing Officer referred to the individual’s testimony that his casual attitude towards drugs has changed and he now fully understands the security concerns presented by his drug use. The Hearing Officer believed the individual’s vow to never use drugs again.

In her analysis, the Hearing Officer was convinced by the individual’s willingness to come forward to disclose his drug certification violation as well as his demonstration of six years of abstinence. She was further impressed by the testimony regarding the individual’s trustworthiness and reliability, his production of credible and forthright witnesses and the DOE consultant psychiatrist’s opinion that the individual displays no current defect in judgment. The Hearing Officer believed that the individual demonstrated a gradual transformation into an honest, trustworthy and reliable person. Based on the evidence presented by the individual, the Hearing Officer found that the individual sufficiently mitigated the Criterion L concern.

II. 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 it would be clearly consistent with the national interest to restore the access authorization of the individual.

As a general rule, I will not set aside findings of fact made by a hearing officer in these types of cases unless they are clearly erroneous. Compare Pullman Standard v. Swint, 456 U.S. 273 (1982), with Amadeo v. Zant, 486 U.S. 214, 223 (1988) (quoting Fed. R. Civ. P. 52(a)). 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, as well as the appropriate weight to be given to their testimony and other evidence. Personnel Security Review (Case No. VSA-0049), 25 DOE ¶ 83,002 at 86,512 (1995). Therefore, I will not ordinarily supplant my judgment for that of a hearing officer in such matters. Id.

B. Statement of Issues and Response

In its Statement of Issues, the OSS contends that the individual’s actions regarding drug use from 1982 to 1998 disqualify him from possessing access authorization. The OSS points out that in 1982 the individual signed a drug certification, later admitting that he had no intention at that time to abstain from the use of illegal drugs. He also admitted to his continued use of illegal drugs on a frequent basis until 1985, and admitted to deliberately omitting information relative to this drug use on 1990 and 1996 security questionnaires. The OSS points out that contrary to the individual’s claim that he later realized his use of illegal drugs constituted a security risk, another factor could be the real motivation. OSS believes that the individual’s disclosure of his illegal drug use after signing a drug certification came about because he filed a false QNSP with another agency which he subsequently withdrew because of his fear of taking a polygraph examination. The OSS further notes that the individual waited about eight months to inform the DOE of his falsifications. The OSS maintains that the individual possesses a “long-term pattern of deceit that even a voluntary admission does not remedy.” See Statement of Issues at 1. Moreover, it views a violation of a drug certification as breaking a solemn promise not to use illegal drugs while holding a DOE access authorization, raising a real concern about the ability of the DOE to ever trust the individual in the future. Id. Finally, OSS noted that the individual further aggravated the violation of the drug certification by admitting that he had no intention of observing the rules at the time he signed it. Id. According to OSS, it believes there is no way to absolve the individual without diminishing the purpose and effect of the drug certification. Id.

In his response to the Statement of Issues, the individual reasserts his position that national security concerns played a significant role in his decision to disclose his drug certification violation and falsifications on security questionnaires. He states that the eight-month period of time it took him to disclose his falsifications was based on a realization that he could be immediately dismissed. He further states that he chose a XXXXXX date for his disclosure because he would reach his 50th birthday by this date and there would be medical benefit considerations. In response to the Statement of Issues, the individual asserts the following three points: (1) at the time he signed the drug certification in 1982, the individual had a drug dependency and a routine history of lying about illegal drug usage, neither of which is now true; (2) his commitment to be trustworthy is demonstrated by the fact he chose to voluntarily disclose past untrustworthy behavior; and (3) he has matured with age, and his current behavior and overall character reflect his commitment to trustworthiness. Finally, the individual states that he understands the seriousness of his actions and takes full responsibility for them.

C. The Present Case

In my view, the key issue in this case is whether the individual has brought forward sufficient evidence of reformation to demonstrate that he can now be trusted to be consistently honest and truthful with the DOE. In her discussion of the individual’s deliberate falsifications on security questionnaires and use of illegal drugs after having signed a drug certification, the Hearing Officer gave a significant amount of weight to several factors: the individual’s “voluntarily” coming forward to disclose derogatory information, his straightforwardness, corroborating testimony of his honesty and truthfulness, his production of credible and forthright witnesses and the DOE consultant psychiatrist’s opinion that the individual displays no current defect in judgment. (2) She states that the individual’s gradual transformation process has resulted in an honest, trustworthy and reliable person. While I am in agreement with the Hearing Officer’s conclusion that all of the above factors are mitigating factors, I do not believe they sufficiently resolve the serious concerns raised by a long- standing pattern of lying to the DOE and the knowing and intentional violation of the individual’s promise not to use illegal drugs.

As stated earlier, the individual has a long-term pattern of dishonesty. He deliberately falsified two security questionnaires in 1990 and 1996 regarding his illegal drug use and admitted that he lied in a 1982 PSI about drug use. I find significant how serious, intentional and pervasive the individual’s lying was. In addition, the promise the individual gave in the drug certification in 1982 was not an insignificant one. The DOE fully relied on it and relies on it in many other, similar cases. An individual who enters into one of these agreements must fully understand and accept that it requires a serious, sustained commitment to keep a signed promise. In the present case, I do not believe the individual has demonstrated a sustained commitment to keeping his signed promise. I therefore do not consider his overall trustworthiness and reliability to measure up to the standards expected of holders of access authorization.

Moreover, the individual’s changed perceptions and rationalizations about illegal drug use admittedly occurred only approximately one year ago when he applied for a job at another agency and considered falsifying a polygraph examination concerning his illegal drug use. It was at this time the individual came to realize that his lying and drug use were serious security concerns. Given the individual’s long history of repeatedly lying to the DOE about illegal drug use, I find that the approximately one-year period in which the individual claims he has transformed into an honest, trustworthy and reliable person is simply not enough to fully abate the security concerns and risks associated with his long-term pattern of dishonesty and his intentional violation of his promise. I find that the Hearing Officer did not give due weight to this consideration.

I note in this regard that the Hearing Officer accorded significant weight to the individual’s decision to “voluntarily” disclose his long pattern of lying about drug use. I do not believe that she gave proper consideration to the circumstances surrounding these revelations. As mentioned above, the individual revealed his drug use and falsifications in the context of withdrawing a job application with another agency primarily because of his fear that a polygraph examination would reveal his lies about his illegal drug use. Even so, the individual did not come forward immediately to make his disclosure to the DOE, but waited approximately eight months, until he reached age 50 when he could retire early with health benefits if he lost his clearance. Taken together, these factors convince me that he consistently placed his self-interest above the national interest. Moreover, there was an extended period during which the individual covered up his lies and falsifications, and was certainly vulnerable to blackmail, extortion and coercion, all of which are serious security concerns. While as a matter of public policy the DOE wants to encourage people to admit their previous mistakes, I do not believe that voluntary admission here constitutes a sufficient basis to restore an access authorization. The applicable standard is whether the individual has clearly demonstrated that it is in the national interest to grant him an access authorization. The individual’s voluntary admission, coming years too late as it did, fails to meet this standard.

As mentioned earlier, the individual stated that he now fully understands the seriousness of his actions and takes full responsibility for them. While taking full responsibility for one’s actions is certainly an important step in the process of reformation and commendable, it is not automatically dispositive of security concern issues. Acceptance of responsibility for lying, while it denotes a recognition that a problem exists, does not immediately and fully mitigate the security concerns associated with lying. It is only a subsequent pattern of honesty and responsible behavior that can abate the security concerns that arise from a lengthy prior pattern of dishonest behavior. Personnel Security Hearing (Case No. VS0-0013), 25 DOE ¶82, 752 (1995) (thirteen-month period subsequent to covering up use of illegal drugs did not constitute a sufficient pattern of honest behavior).

Given the individual’s long-term pattern of lying regarding his illegal drug use and the seriousness of his deception, I cannot consider the period of apparent truthfulness of approximately one year that the individual has advanced to be adequate enough to conclude that he no longer presents a security concern. Accordingly, I disagree with the Hearing Officer’s recommendation.

I recognize that the Hearing Officer made conscientious efforts in her review of the witnesses’ testimony and consideration of their demeanor and credibility. My disagreement with her conclusion relates not to her evaluations of this testimony but to the weight she gave to the testimony, the implications and conclusions she drew from it, and whether other factors were given appropriate consideration. Section 710.28(d) requires me to consider whether I believe that continuing the access authorization of an individual will be clearly consistent with the national interest. In this case, for the reasons discussed above, I find that the Hearing Officer erred in concluding that restoring the individual’s access authorization would be clearly in the national interest.

III. 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 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: September 23, 1999

(1) A drug certification is a written promise by the individual to the DOE stating that the individual will not use illegal drugs as long as he possesses an access authorization.

(2) It is important to note here that his case is not about having a defect in judgment. It is about the long-term pattern of dishonesty exhibited by the individual and whether he has demonstrated reformation.