Case No. VSA-0273 (OHA December 15, 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.

December 15, 1999

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case:Personnel Security Review

Date of Filing:September 14, 1999

Case Number: VSA-0273

This Opinion considers a Request for Review and Statement of Issues filed by xxxxxxxxxx (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

This case concerns the suspension of the individual’s access authorization. The events leading to the suspension in question are fully set forth in Personnel Security Hearing (Case No. VSO-0273), 27 DOE ¶ 82,814 (1999) and will not be reiterated here. For purposes of the instant security review, the relevant facts are as follows.

The individual has been employed for many years by a DOE contractor in a position that requires him to maintain a security clearance. He recently volunteered to be included in the DOE’s Personal Assurance Program (PAP), a DOE nuclear weapons and nuclear explosives safety program created to assure the reliability and safety of individuals in certain critical positions. As a prerequisite to his participation in the PAP program, the individual submitted to a mandatory drug test. The individual tested positive for tetrahydrocannabinol (THC), the active ingredient in marijuana. DOE Exhibits (Ex.) 4, 5, 6, 7. After confirming the positive test result, the DOE asked the individual in a personnel security interview (PSI) to explain the presence of THC/marijuana in his system. In response to the DOE’s inquiries, the individual repeatedly denied using marijuana or any other illegal drug at any time in his life, including the period just prior to the drug test. DOE Ex. 8. He speculated, however, that the positive test might have resulted from his inadvertent exposure to marijuana at a party he had attended ten days prior to taking the drug test. Nevertheless, the individual refused to identify any persons at the party who might be able to corroborate or verify his version of events at the party. The individual made this choice despite the DOE’s warning that his failure to cooperate in this regard could have an adverse impact on his access authorization.

The DOE issued a Notification Letter to the individual suspending his access authorization and citing his confirmed positive drug test and his refusal to cooperate fully about all the circumstances of the drug exposure as derogatory information. According to the DOE, the derogatory information falls within the purview of 10 C.F.R. § 710.8(k) and (l) (Criteria K and L respectively).(2)

The individual requested a hearing, and a Hearing Officer was appointed. At the hearing, the DOE presented the testimony of two witnesses, a personnel security specialist and a DOE consultant- psychiatrist. The individual offered his own testimony and that of four other witnesses, including his wife, a long-term friend, a supervisor, and a forensic toxicologist.

II. The Hearing Officer’s Opinion

Based upon the testimony at the hearing and other record evidence, the Hearing Officer issued an Opinion recommending that the individual’s access authorization not be restored. Personnel Security Hearing (Case No. VSO-0273), 27 DOE ¶ 82,814 (1999). In her Opinion, the Hearing Officer discounted the individual’s testimony that his passive inhalation of marijuana smoke and/or oral consumption of food laced with marijuana at the party caused the individual’s positive drug test. She found the individual’s uncorroborated testimony about the circumstances of his drug exposure to be confusing, evasive, and simply not credible.

The Hearing Officer also rejected the individual’s explanation as to why he was unable to provide corroboration for his account of the events that transpired at the party. She opined that it is not credible that the individual would risk his security clearance to protect a friend “from adverse family implications.” Opinion at 6. In addition, the Hearing Officer pointed out that the individual was well aware of the necessity of providing appropriate corroboration for his assertion that his use of the marijuana was inadvertent. She asserted that the DOE raised the matter in the PSI and that she mentioned the need for corroborating testimony to the individual four times at the hearing stage, twice orally and twice in writing. Id. The individual’s failure to provide this essential corroboration also caused the Hearing Officer to conclude that the individual had not mitigated the DOE’s security concerns under Criterion L with regard to his failure to cooperate in the administrative process. In the end, the Hearing Officer found that the individual had not mitigated the security concerns attendant Criteria K and L in view of his uncorroborated, unbelievable account of how he came to have a confirmed positive drug test.

III. Request for Review

The individual filed a Request for Review of the Hearing Officer Opinion, followed by a statement identifying the issues on which he wishes me to focus. The individual also supplemented the record with two letters from professional associates and a letter from an Employee Assistance Program Manager which relayed the results of 14 random drug tests he has taken in the last seven months. In response to the individual’s Request for Review, the DOE’s Office of Safeguards and Security stated that it concurred with the recommendation of the Hearing Officer in the case and would not be filing any further comments.

IV. Analysis

A. Standard of Review

As a general rule, findings of fact in these kinds of cases will not be set aside unless they are clearly erroneous, giving due regard to the fact that the trier of fact is in the best position to judge the credibility of witnesses. 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)). 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. 10 C.F.R. § 710.27(b). Ordinarily, 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). Findings not supported by substantial evidence are taken to be clearly erroneous. Freeport Sulpur Co. v. S/S Hermosa, 526 F.2d 300 (5th Cir. 1976). Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552 (1988). A finding is considered clearly erroneous, when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. U.S. v. United States Gypsum Co., 333 U.S. 364, 395 (1948).

In personnel security cases under Part 710, it is the role of the Hearing Officer to issue an Opinion as to whether granting an access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. § 710.27(a). Thus, in reviewing the Hearing Officer’s Opinion in this case, I must assess whether there is substantial evidence to support a finding that granting an access authorization to this individual would not endanger the common defense and security and would be clearly consistent with the national interest.

As discussed below, after reviewing the entire record in this case, I find that it does not contain substantial evidence that restoring this individual’s access authorization would be clearly consistent with the national interest. In particular, there is not substantial evidence that the events surrounding the individual’s ingestion of marijuana occurred as he alleged. This is the key finding of the Hearing Officer, a finding I determine to be correct.

In order to frame my discussion of how I reached that conclusion, it is useful to discuss briefly the individual’s responsibility to bring forth persuasive evidence concerning his eligibility for access authorization under 10 C.F.R. Part 710. A DOE administrative review proceeding under this Part is not a criminal matter, where the government has the burden of proving the defendant guilty beyond a reasonable doubt. This proceeding is also unlike a civil case where the plaintiff must establish his case by a preponderance of evidence in order to prevail. Personnel Security Review (Case No. VSA-0087), 26 DOE ¶ 83,016 (1996). The standard in this proceeding places the burden of proof on the individual to convince the DOE that restoring his access authorization “would not endanger the common defense and security and would be clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). Personnel Security Hearing (Case No. VSO-0061), 25 DOE ¶ 82,791 (1996).

The regulatory standard implies that there is a presumption against granting or restoring a security clearance. See Dep’t of Navy v. Egan, 484 U.S. 518, 531 (1988). Consequently, it is generally expected that the individual in theses cases will bring forward testimonial and other evidence in addition to his own testimony which, taken together, are sufficient to persuade the Hearing Officer that restoring his access authorization is clearly consistent with the national interest. Personnel Security Hearing (Case No. VSO-0061), 25 DOE ¶ 82,791 (1996). In the case at hand, the individual had the burden of offering an explanation for the confirmed positive drug test, establishing the truthfulness of that explanation, and demonstrating that the explanation mitigates the DOE’s security concerns under Criteria K and L. See Personnel Security Hearing (Case No. VSO-0207), 27 DOE ¶ 82,772 (1998). With these considerations in mind, I turn to the issues raised on review and the additional documentary evidence submitted by the individual.

B. Statement of Issues

In his Statement of Issues, the Individual identifies four general issues for review. First, the individual contends that the Hearing Officer completely disregarded the testimony of the forensic toxicologist who is an expert in the science of drug metabolism and interpretation. Second, the individual claims the Hearing Officer did not accord enough weight to his testimony that he is in a drug screening program and has tested negative for illegal drugs since March 1999. Third, the individual disagrees with several findings made by the Hearing Officer regarding his credibility. Fourth, the individual believes the Hearing Officer disregarded testimonial evidence supporting his honesty, reliability, and trustworthiness and contends the Hearing Officer should have given more weight to his many years of stellar performance and dedication to his employer.

1. The Expert Testimony Proffered

At the hearing, the individual presented the testimony of a board-certified forensic toxicologist to support his position that his positive drug test could have resulted from his involuntary ingestion of marijuana in food. Tr. at 117-156. The forensic toxicologist discussed at the hearing two scientific studies conducted in the 1980s that addressed the forensic, physiologic and behavioral effects in humans following oral ingestion of marijuana. Id. at 117-22, citing, Individual’s Exhibits 1 and 2. According to the forensic toxicologist, these studies suggest that a person could orally ingest marijuana in food and have a positive drug test at the levels detected in the individual ten days after ingestion. Id. at 126, 132-33. The forensic toxicologist admitted, however, that a number of variables could affect his theory, including the amount of food the individual consumed, and the purity of the marijuana. Id. at 126. Moreover, the forensic toxicologist cautioned that there is no way to tell from a urine test the manner in which a person is exposed to the marijuana, i.e., oral ingestion or inhalation. Id. The forensic toxicologist then opined that one has to rely on other evidence to learn how marijuana got into a particular person’s system. Id.

The DOE also presented a medical expert, a psychiatrist who is board-certified in Addiction Medicine (DOE consultant-psychiatrist), to address the theory of oral ingestion advanced by the individual in this case. After listening to the testimony of the individual and the forensic toxicologist,(3) the DOE consultant-psychiatrist concluded that it is possible for a person to have marijuana in his urine up to 14 days after oral ingestion if that person consumed such large quantities of food laced with marijuana that the person became intoxicated. Id. at 164. The DOE consultant-psychiatrist opined that it would be almost impossible for a person not to know that he was under the effect of something if he has ingested quantities of marijuana-laced food sufficient to yield a positive drug test results ten days later. The DOE consultant-psychiatrist then questioned how the individual could claim that he did not know during the party or shortly thereafter that he had ingested marijuana. The DOE consultant-psychiatrist further dismissed the individual’s suggestion that the physiological effects of the marijuana were masked by the alcohol he had consumed at the party. According to the DOE consultant-psychiatrist, since marijuana and alcohol affect a person’s nervous system in different ways, it is unlikely that a person could confuse the effects attributable to marijuana to those flowing from alcohol. In the end, the DOE consultant-psychiatrist opined that it is highly unlikely that the individual unknowingly and unintentionally consumed sufficient marijuana in his food causing a positive drug test ten days after consumption. Id. at 167, 180-81. He believes that the individual’s positive drug test was the result of his own deliberate exposure to marijuana. Id.

After carefully reviewing the entire record in this case, I find that it was proper for the Hearing Officer to require the individual to produce evidence beyond the theoretical testimony of the forensic toxicologist in order to meet his burden in this case. The individual’s burden here is to establish convincingly that he did not knowingly ingest an illegal drug. See generally Personnel Security Review (Case No. VSA-0051), 25 DOE ¶ 83,012 (1996); Personnel Security Hearing (Case No. VSO-0019), 25 DOE ¶ 82,759 (1995). The possibility that under certain conditions a positive drug test could result from oral ingestion of marijuana does not mean that this occurred in the instant case. The individual’s assertion in his Statement of Issues that the testimony of the forensic toxicologist corroborated his version of events is simply not correct. The forensic toxicologist’s testimony is that, from a scientific point of view, it is possible for a person to have a positive drug test from oral ingestion of marijuana under certain circumstances. Even the forensic toxicologist acknowledged that there is no way to know from a positive drug test how the marijuana got into the individual’s system. It was the individual’s burden to prove through some other means that the “theoretic possibility” recognized by his forensic toxicologist was in fact true. See Personnel Security Review (Case No. VSA-0087), 26 DOE ¶ 83,016 (1996).

What is lacking here, as the Hearing Officer pointed out, is some corroboration of his claim that involuntary oral ingestion of marijuana in fact caused the individual’s drug test. The common sense inference most often drawn from a confirmed positive THC test is that the subject of the test voluntarily smoked marijuana. While I recognize the inherent difficulty facing a person who is in fact “drug-free” to refute a positive drug test, I am mindful in this case that corroborative evidence was within the knowledge and control of individual. Specifically, the individual could have provided the testimony of the person who took him to the party to confirm, if true, that a party did indeed occur, that marijuana was used at the party, and that marijuana had been put in the chili at the party. That friend could have identified the party host who might have been able to verify the presence and quantity of marijuana in the chili. Curiously, the individual refused to even disclose the identity of either his friend, or the party host, who might have substantiated the individual’s testimony.(4) Under the circumstances, even admitting that the individual’s rendition of events is conceivable, the Hearing Officer was correct in requiring the individual to bring forward appropriate, adequate corroborating evidence that the events, as alleged, actually occurred. See Personnel Security Review (Case No. VSA-0087), 26 DOE ¶ 83,016 (1996); Personnel Security Review (Case No. VSA-0051), 25 DOE ¶ 83,012 (1996).

Given the above considerations, the argument raised by the individual in his Statement of Issues is not persuasive. It appears from the record that the Hearing Officer did not disregard the forensic psychiatrist’s testimony, nor did she find that the DOE consultant-psychiatrist’s opinion outweighed the opinion of the forensic psychiatrist. What the Hearing Officer correctly determined was that the lack of objective, corroborating evidence prevented her from finding the individual involuntarily ingested marijuana at a party thereby triggering the positive drug test ten days later. I find no error in this regard.

2. The Individual’s Subsequent Drug Tests

The individual complains that the Hearing Officer accorded no weight in her Opinion to the fact that he has been in an intensive drug-screening program since his positive drug test and that all the drug tests he has taken since that time have not shown any traces of drugs in his system. The individual is correct that the Hearing Officer did not discuss in her Opinion the individual’s participation in the drug-screening program or the results of his subsequent drug tests.

My review of the hearing transcript reveals that the individual did not provide any documentary evidence prior to or at the hearing showing that all the drug tests the individual has taken since January 1999 have been negative. When asked by the DOE Counsel whether he had brought any proof of his negative drug tests to confirm his testimony in this regard, the individual responded, “no,” adding that he never actually received the test results. Tr. at 97. The individual then related his belief that someone would have called him if any of those drug tests had been positive. Id.

In a supplemental Statement of Issues, the individual explained why he had provided no corroboration for his testimony. See Letter from the individual to the OHA Director (October 29, 1999). In that submission, the individual states he had intended to present testimony at the hearing from the Employee Assistance Program (EAP) Manager, the person who oversees the intensive drug screening program in which the individual currently participates. He relates that during the pre- hearing telephone conference in the case (in which he allegedly was not permitted to participate) his lawyer, the DOE Counsel and the Hearing Officer decided not to include the EAP Manager as a witness.

The individual’s assertions in this regard are supported by a letter dated July 8, 1999 from the Hearing Officer to the DOE Counsel and the individual’s Attorney in which the Hearing Officer memorialized the issues discussed at the pre-hearing telephone conference. In the letter, the Hearing Officer states in relevant part as follows: “[w]e agreed that the testimony of [the EAP Manager] will not be necessary.” There is no indication in the letter or elsewhere why the decision was reached. There is also nothing in the record suggesting that the individual’s attorney objected to that decision.

Without knowing the rationale for the decision to exclude the Manager’s testimony, I cannot opine whether that decision was appropriate. Since the individual’s lawyer apparently acquiesced to the decision not to present the testimony of the EAP Manager, the individual has no cause to complain. Nevertheless, the individual requested, and I granted him permission, to supplement the record on the issue of his participation in the drug screening program. In this connection, he submitted a letter on November 1, 1999 from the EAP Manager. In the letter, the EAP Manager confirms that the individual has been monitored by his employer’s EAP since his positive drug test for THC. The EAP Manager further relates the following relevant information: (1) the individual has participated in the program since March 9, 1999; (2) the screening program consisted of eight weekly random samples followed by four monthly samples; (3) the individual has completed 14 drug tests as of October 25, 1999 and has tested negative on all tests; and (4) the EAP Program has decided that the individual should complete a full year of drug screening.

The fact that the individual has tested drug-free as part of an intensive drug screening program is clearly a positive factor in his favor. It suggests that he has not used drugs for a period of seven months. However, this information does not itself prove the individual’s contention that he involuntarily ingested the marijuana ten days before his positive drug test. Nor does it suggest that the individual did not voluntarily smoke marijuana prior to the positive drug test. He may well have smoked marijuana, and in fact that is a valid inference from a positive drug test for THC. As a result, and because the DOE cannot verify the circumstances surrounding the individual’s positive drug test, there are still lingering doubts about the individual’s rendition of events leading to his positive drug test and hence his honesty, reliability and trustworthiness. Even had the Hearing Officer considered the favorable evidence set forth above, I find that it is not sufficient to outweigh the lack of corroborating testimony in this case.

3. The Individual’s Credibility

The individual maintains that, contrary to the Hearing Officer’s findings, he (1) presented a credible explanation for his positive drug test, (2) provided a credible reason for not disclosing the identity of the person who took him to the party, (3) presented clear, direct testimony regarding all issues in the case, (4) provided a reasonable explanation for not leaving the party in question after he discovered illegal drugs were being used, and (5) proved convincingly that his exposure to the marijuana was unintentional.

As an initial matter, I point out that the Hearing Officer is uniquely suited to consider the demeanor and credibility of witnesses since she was able to observe them at the hearing. Absent some clear error of her part, I will not disturb her findings on this issue.

Regarding the individual’s contention that he provided a credible explanation for his positive drug test, the record is clear that he failed to establish the truthfulness of his explanation. Given the facts of this case, more was required than a credible explanation. In other similar cases, Hearing Officers have held that mere denial, no matter how often or how sincerely stated, is not sufficient to meet the burden of establishing that a person did not knowingly ingest an illegal drug. Personnel Security Review (Case No VSA-0087), 26 DOE ¶ 83,016 (1996); Personnel Security Hearing (Case No. VSO-0051), 25 DOE ¶ 82,784 (1995). The individual’s refusal to provide corroborating evidence to support his explanation prevented him from meeting his burden in this case.

As for the reasons the individual provided to shield the identity of potential corroborating witnesses, I agree with the Hearing Officer that those reasons are unpersuasive. According to the record, the person who took the individual to the party is the fiancé of a relative. The explanations given by the individual and his wife for refusing to reveal the identity of the person in question are the following: it would strain family relationships, it is unfair to put that person through what the individual has been put through in this administrative process, and potential fear of reprisal.

As the Hearing Officer commented, I, too, find it surprising that the individual is willing to put his security clearance in jeopardy and perhaps his job as well to preserve his harmonious relationship with the fiancé of a relative. The individual’s choice in this regard, if true, leads me to question his judgment. As for his second explanation, the individual seems to imply that the DOE is somehow at fault in “putting him through the administrative process.” The DOE did not create the situation in which the individual finds himself. It was the individual who tested positive for marijuana, and it was the individual’s choice to attend a party at an unknown location hosted by an unknown person and remain there despite observing the use of illegal drugs. Moreover, since the fiancé, by the individual’s own testimony, does not hold a security clearance, the fiancé should have no concerns about going through the DOE’s administrative review process. Finally, as for the individual’s alleged fear of retribution, the individual failed to articulate any basis for his concern in this regard. Accordingly, I am unable to accord any weight to this explanation for refusing to divulge the name of his relative’s fiancé.

I further affirm the Hearing Officer’s finding that the individual provided confusing responses during the hearing. In fact, from my reading of the transcript the individual appears to have provided conflicting testimony regarding the question of whether he felt intimidated by persons at the party. For example, early in the hearing, the DOE Counsel asked the individual if he felt intimidated by those at the party. Tr. at 62. The individual stated quite clearly that he did not feel intimidated. Id. Later in the hearing, the Hearing Officer asked the individual if he felt intimidated by the person at the party who blew marijuana smoke into his face. Id. at 190. In response, the individual stated he did feel intimidated. Id. When the DOE Counsel pointed out the seeming inconsistency in the individual’s testimony, the individual replied as follows: “I didn’t feel intimidated by the use of the material at the party, but I didn’t like this person blowing smoke into my face. That’s a different kind of intimidation.” Id. at 190. This exchange regarding the issue of intimidation, in my judgment, exemplifies quite clearly why the Hearing Officer expressed concerns about the individual’s forthrightness. This is not to say that the individual’s statements were necessarily false and cannot be reconciled. However, because of this troubling inconsistency and ambiguity and others like it in the record, I simply cannot sustain the individual’s arguments that the Hearing Officer erred in finding the individual’s testimony to be confusing and not credible.

The individual also challenges the Hearing Officer’s finding that he failed to provide credible reasons for not leaving the party after he ascertained there was widespread drug-use there. The individual claimed that he could not leave the party because he had no transportation, having come to the party with his relative’s fiancé. The individual further maintained that he was too far from a pay phone to call for assistance. When the Hearing Officer asked the individual if there was a telephone in the house, he responded, “They probably did, but I felt so intimidated by being with these criminals, I don’t think I would have gone down to use their phone.” Id. at 109. When the Hearing Officer pointed out that the individual had testified earlier that he did not feel intimidated, the individual replied he was not intimidated. Id. Given the record on this issue, I find that the Hearing Officer was justified in questioning the individual’s credibility with regard to why he failed to leave the house where the party was convened.

Finally, the individual contends he proved convincingly that his exposure to marijuana was unintentional and complains that the Hearing Officer disregarded his evidence because she did not believe his version of events. As I explained in Section IV.B.1. above, the individual did not prove that his exposure to marijuana was unintentional. I concluded that the Hearing Officer was correct in requiring more than the theoretical possibility that the individual orally ingested marijuana when he consumed chili allegedly laced with marijuana. I concluded further that the lack of corroborating evidence in this case prevented the Hearing Officer from finding that the individual had mitigated the DOE’s security concerns. Even had the Hearing Officer believed the individual’s recitation of events leading to the positive drug test, she still would have required corroboration for the individual’s version of events.

4. The Individual’s Honesty, Trustworthiness and Reliability

The individual claims the Hearing Officer did not give proper consideration to the testimonial evidence he presented regarding his honesty, trustworthiness and reliability. Specifically, he points to his own testimony at the hearing regarding a number of matters, including his dedication to his employer, his commitment to safeguarding classified information and national security, and his stellar job performance. The individual also submits that his wife, his supervisor, and a long-term friend all confirmed through their testimony that he has a reputation for honesty, trustworthiness and reliability.

The individual claimed that the Hearing Officer discouraged him from presenting character witnesses at the hearing because she believed the testimony would be repetitious and take up too much time at the hearing. On review, the individual requested, and I granted him permission, to submit character references from two of his colleagues. One of those colleagues was to have testified at the hearing but was prevented from doing so because he was delayed in transit. I will refer to the two colleagues as Character Reference # 1 and Character Reference # 2.

a. Testimonial Evidence Proferred at the Hearing

As an initial matter, the individual’s excellent job performance and dedication to his work, including the safeguarding of classified information are not sufficient bases for reversing the Hearing Officer’s Opinion. Successful, even outstanding job performance alone does not alleviate the national security concerns raised in this case. Suitability for a security clearnance assumes characteristics such as judgment, reliability and trustworthiness, which must be demonstrated twenty-four hours a day. See Personnel Security Review (Case No. VSA-0102), 26 DOE ¶ 83,008 (1997). In order words, “satisfactory job performance is a necessary but not a sufficient condition for keeping a security clearance.” Id.

The individual’s wife testified that her husband is a loyal employee who works long hours and is a devoted husband and father. Curiously, the individual never told his wife about the drugs being used at the party until he received the positive drug test in question. She testified, “I still haven’t asked him the details of the party.” Tr. at 221. It seems unusual to me that the wife does not know the details surrounding her husband’s exposure to marijuana even at this late date. Rather than supporting the individual’s contention regarding his forthrightness, the wife’s testimony raises additional questions.

The individual’s supervisor praised the individual’s hard work and dedication. Under questioning, the supervisor revealed he may have socialized with the individual on three or four occasions. The supervisor’s testimony is helpful to the individual, but by no means determinative. The individual’s reliability during non-work hours is as important as his reliability during work hours. Hence, the supervisor’s testimony cannot fully mitigate the security concerns in this case which stem from off- the-job behavior.

As for the testimony of the individual’s long-term friend, I find the Hearing Officer was correct in not considering it. While the long-term friend has known the individual for 35-40 years, he last saw the individual last year. Furthermore, the individual did not even tell the long-term friend about the positive drug test or the circumstances that led to the suspension of his security clearance. These facts suggest that the individual did not share many confidences with this friend regarding the event under consideration here. Therefore, I find that little weight should be accorded to the long-term friend’s knowledge of the individual’s current behavior.

After carefully reviewing the record, I am unable to conclude that any of the testimonial evidence presented at the hearing, either alone or cumulatively, adequately mitigates the DOE’s security concerns in this case. I turn now to the new evidence tendered by the individual in this case.

b. New Evidence Submitted on Review

Character Reference # 1 relates in writing that she has known the individual for four years. She states that he is “one of many capable, committed, and hardworking xxxxxxxxx who has dedicated his entire . . career . . .” to the DOE’s mission. According to Character Reference # 1, the individual has always deported himself in a serious and professional manner. She concludes her statement by opining that it would be a tragedy for the DOE to lose such a dedicated person.

Character Reference #2 relates that the individual is an honest, decent and moral person who has contributed significantly to our Nation’s defense. He states that he has known the individual for 14 years. During the 1980s Character Reference #2 interacted on a social as well as professional basis with the individual and his wife. Character Reference #2 asserts that during his social interactions with the individual he never observed any inappropriate or illegal behavior or actions on the individual’s part. From 1990-99, Character Reference #2 was aware of the individual’s job responsibilities and performance deliverables. During this time, according to Character Reference #2, the individual acted and behaved just like many other outstanding professional employees -- he protected the special information entrusted to him with extreme care and respect. Character Reference #2 concludes by stating that he does not believe the individual poses a risk to national security.

The written statements from the two character references collectively portray the individual as a dedicated professional who performs his job impeccably. As discussed above, however, stellar job performance is not sufficient to mitigate security concerns under Criteria K and L. It must be emphasized again that the individual’s honesty, trustworthiness and reliability are security concerns because he tested positive for marijuana and he refused to cooperate fully with the DOE when the agency attempted to resolve the circumstances surrounding his exposure to the illegal drug. While the two character witness statements, on their face, imply that the individual is trustworthy and reliable, they do not explain or mitigate the individual’s lapse in judgment or unreliability in failing to cooperate with the DOE by revealing the circumstances surrounding his drug exposure. Nor can they prove that the individual’s positive drug test was due to involuntary consumption of marijuana- laced chili.

Finally, the character witnesses ask that I consider the effect of an administrative determination not to restore loss the individual’s access authorization on the DOE’s mission. Had this argument been before the Hearing Officer, she would not have been able to consider it as the regulations prohibit Hearing Officers from considering the effect of the loss of a person’s access authorization on the mission of the DOE. 10 C.F.R. § 710.27. See Personnel Security Hearing (Case No. VSO-0289), 27 DOE ¶ (November 18, 1999), n.6. Likewise, I will not consider this matter on review.

C. Summary

In sum, after reviewing the testimonial evidence presented at the hearing and the new evidence tendered on review, I am unable to conclude that the individual has met his burden of mitigating the security concerns attendant Criteria K and L. I will not, therefore, overturn the Hearing Officer’s Opinion.

V. Conclusion

As indicated by the foregoing, I cannot conclude that the restoration 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 the findings of 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 Hearing and Appeals

Date: December 15, 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. Such authorization will be referred to variously in this Opinion as access authorization or security clearance.

(2)Criterion K involves, in relevant part, the possession, use or experimentation with a drug or other substance listed in the Schedule of Controlled Substances established pursuant to section 202 of the Controlled Substances Act of 1970. 10 C.F.R. § 710.8(k). Criterion L concerns information that the individual “has engaged in any unusual conduct or is subject to any circumstances which tend to show that the individual 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 the individual to act contrary to the best interests of the national security.” 10 C.F.R. §710.8(l).

(3)The individual complains that the Hearing Officer allowed the DOE consultant-psychiatrist to question the forensic toxicologist; but that the forensic psychiatrist was not available to hear the DOE psychiatrist’s testimony. I do not find that the Hearing Officer erred in this regard. It is common practice in Part 710 cases for experts to listen to each other during their respective testimony. There is nothing in the record suggesting that the individual’s attorney objected to the DOE consultant-psychiatrist being present while the individual’s expert testified via telephone. Furthermore, there is nothing in the record indicating why the individual’s expert did not listen via telephone to the DOE consultant-psychiatrist’s testimony.

(4)It is difficult to speculate whether the testimony of the person who took the individual to the party or the party host would have provided adequate corroborating evidence, or sufficiently established that the individual had mitigated security concerns. See Personnel Security Review (Case No. VSA-0051), 25 DOE ¶ 83,012 at 86,560-61 (1996) .