Case No. VSA-0289 (OHA February 17, 2000)

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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.

February 17, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: December 20, 1999

Case Number: VSA-0289

This Opinion considers a Request for Review and Statement of Issues filed by XXXXXXXXXXXXXXXXXXX (the individual) concerning his eligibility for access authorization(1) under the regulations set forth at 10 C.F.R. Part 710, entitled "Criteria for Access to Classified Matter or Special Nuclear Material." As discussed below, after carefully considering the record before me in light of the relevant regulations, I recommend against restoring the individual’s access authorization.

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-0289), 27 DOE ¶ 82,823 (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(f) and (l) (Criteria F and L). (2)

With respect to Criterion F, the Notification Letter identified the following derogatory information as security concerns: the individual’s deliberate omission of significant information about his illegal drug use from a 1987 security questionnaire, and his failure to disclose fully the extent of his post-1982 drug use in a 1998 security form that he was required to file.(3) With respect to the Criterion L concerns, the Notification Letter cited multiple violations of a 1982 drug certification, in which the individual provided written assurance that he would refrain from using any illegal drugs for as long as he remained employed in a position requiring DOE access authorization.

A hearing was convened before an Office of Hearings and Appeals hearing officer in order to allow the individual to resolve the doubt regarding his continued eligibility for access authorization. At the hearing, the DOE presented the testimony of one witness, a Personnel Security Specialist. The individual offered his own testimony and that of 12 other witnesses, including his wife, a long-term friend, two social acquaintances, a DOE official, and several high level managers employed by the DOE contractor which also employs the individual.

II. Opinion of the Hearing Officer

The Hearing Officer did not recommend the restoration of the individual’s access authorization. She noted that the individual executed a drug certification in 1982, to allay the DOE’s concerns about his prior illegal drug use many years earlier. The DOE granted the individual a security clearance in 1982 based on the individual’s written assurance provided in the drug certification that he would refrain from using or becoming involved in any way with illegal drugs while holding a DOE access authorization. Within a year or two of receiving his access authorization, the individual violated his drug certification several times by smoking marijuana.(4)

The Hearing Officer also pointed out that in 1987, the individual completed a Personnel Security Questionnaire (PSQ) as part of a routine five-year security reinvestigation. On that questionnaire, the individual responded affirmatively to a question asking, in relevant part, if he had ever used any cannabis, including marijuana. However, he admitted only the early drug use and did not mention use of illegal drugs within the prior five year period.

The Hearing Officer further noted that when the individual’s next routine five-year security reinvestigation occurred in 1993, he responded in the negative to a question on a Questionnaire for National Security Position (QNSP) about whether the individual had used illegal drugs in the prior five years

As the Hearing Officer stated, by 1998, the QNSP question regarding drug use had been revised. On February 22, 1998, the individual executed another QNSP in connection with another routine five-year security reinvestigation. This time the relevant question on the QNSP read, in pertinent part, as follows: “Have you ever illegally used a controlled substance while . . . possessing a security clearance . . . ?” The individual answered “yes” to this question, revealing for the first time that he had used marijuana “less than ten times in approximately 1983-84.”

The Hearing Officer found that the individual manifested dishonesty in several ways. First, he violated the 1982 drug certification on several occasions, thereby breaching the solemn promise he made to the DOE in order to obtain his security clearance. Second, he deceived the DOE in 1987 when he responded to a question on the PSQ by omitting significant information regarding his past drug use. Third, he concealed the derogatory information about his illegal drug use in the 1980s and his abrogation of the drug certification for more than a decade, which the Hearing Officer considered to constitute a pattern of long-term deceit. She therefore concluded that the individual failed to resolve the Criteria F and L security concerns regarding his falsification and his reliability.

III. Statement of Issues and Response

In his Statement of Issues, the individual argues that the Hearing Officer’s Opinion should be reversed because (i) it is based on flawed analysis; (ii) the ultimate conclusion is inconsistent with the findings made in the opinion; (iii) the decision does not mention certain relevant information presented at the hearing; (iv) the decision is contrary to public policy; and (v) the factors set forth in 10 C.F.R. § 710.7(c) were improperly applied. The DOE’s Office of Security Affairs (OSA) filed a Response to the Statement of Issues. The OSA submission took no position on the issues raised, indicating only that OSA reviewed the record in this case, and did not have any additional information to submit.

IV. 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).

As a rule, the Hearing Officer is responsible for considering the demeanor and credibility of witnesses. 10 C.F.R. § 710.27(b). He also assesses the appropriate weight to be given to their testimony. Absent some error, I will not supplant my judgment for that of the Hearing Officer in such matters. Personnel Security Review (Case No. VSA-0084), 26 DOE ¶ 83,004 (1996). As discussed below, I see no errors of any kind in the Hearing Officer’s analysis or in her overall conclusion.

V. Analysis

1. The Statement of Issues first claims that the Decision is based on a flawed analysis. The Statement objects to the conclusion by the Hearing Officer that the individual engaged in long term deceit, including concealment of information for more than a decade. Rather, it claims that the individual did not actively and continuously deceive the DOE for that time, since he has been totally honest since the falsification on the 1987 PSQ.

This reasoning is obviously errant. The individual has certainly been deceptive, by breaking his promise not to use drugs, as made in the 1982 drug certification, and concealing that broken promise for more than a decade. The individual has also been deceiving the DOE in another important sense, since he did not correct the 1987 false PSQ.

The Statement next claims that it is unfair to consider as serious the individual’s failure to bring forth the information concerning the violation of the drug certification. In this regard, the statement makes the claim that the DOE does not consider use of drugs more than five years ago to be of “any consequence.” It cites in support of this assertion a 1993 QNSP, which only asked about whether the applicant had used drugs within the past five years.

This argument is unpersuasive. As an initial matter, the five year window set out by the DOE in the 1993 QNSP has no direct bearing on how seriously the DOE may view evidence of earlier drug use. In any event, the issue here is not the drug use itself, but the concealment of that drug use from the DOE and the individual’s broken promise to the DOE to refrain from illegal drug use. Regardless of whether the individual’s use of drugs was a minor matter, and I do not think it was, his broken promise to the DOE is a very serious concern. Personnel Security Review (Case No. VSA-0242), 27 DOE ¶ 83,019 (1999). See 10 C.F.R. § 710.8(l)(“. . . unusual conduct. . .include[s]. . . violation of any commitment or promise upon which DOE previously relied to favorably resolve an issue of access authorization eligibility.”)

The Statement next contends the individual voluntarily made the disclosure that he violated the drug certification, and the Hearing Officer did not accord sufficient weight to that so-called voluntary disclosure.

I have reviewed the Hearing Officer’s determination on this point and see no error. As she noted in her opinion, the individual waited more than a decade to reveal his multiple violations of his drug certification. His disclosure to the DOE Security Office was made only after he was directly confronted in 1998 with the choice of outright lying or being truthful on the security form. She further noted that the individual admitted that in 1998, he would not have disclosed his violation on the QNSP had the relevant question on that form regarding drug use been worded as it had been in the 1993 QNSP. She found that if the individual had the sincere commitment to the security program as he claims, he would have disclosed the violation earlier. 27 DOE at 85,932.

I fully agree with her analysis here. The individual did not come forward immediately and admit to illegal drug use and violation of the drug certification. He only revealed this usage when directly asked. In my view this does not constitute the type of voluntary disclosure which might support mitigation of a Criterion F or L security concern.

2. The Statement then claims that the ultimate conclusion of the Hearing Officer is inconsistent with her findings in the Opinion. The Statement points out that the Hearing Officer found the individual to be honest, trustworthy and reliable in the workplace, and further that the individual had been drug free since 1987. She also believed any further violation of the individual’s drug certification to be unlikely. The Statement argues that the individual has thus demonstrated to the satisfaction of the Hearing Officer a 12 year period of responsible behavior, in not violating his drug certification, and also demonstrated that he will be responsible by not breaking that promise in the future. The Statement contends that it was inconsistent for the Hearing Officer not to recommend that the individual’s access authorization be restored.

This argument completely misses the mark. It exhibits a fundamental misconception about the Hearing Officer’s Opinion and the DOE’s specific security concerns in this case. As repeatedly stated, those concerns do not involve the individual’s drug use nearly two decades ago.(5) In this case, the concern has been and is with the individual’s overall reliability and trustworthiness, given that he broke his promise to the DOE not to use illegal drugs, and further covered up that broken promise for more than a decade. The individual’s trustworthiness in the workplace, and the fact that he may be unlikely to use drugs in the future, are not determinative in evaluating the concerns raised by his failure to keep his promise not to use drugs and his covering up the broken promise. Those concerns involve trustworthiness issues and the individual’s overall reliability.

The Statement also maintains that the last time the individual omitted relevant information from a PSQ was in 1987. It maintains that the individual has been truthful since that time, which is more than a decade. In the individual’s view, this length of time is sufficient to establish a pattern of reliability.

I disagree with the assumptions about the individual’s truthfulness upon which this argument is based. As stated above, the individual has been untruthful with the DOE for the entire period during which he did not reveal the broken promise. In continuing the individual’s access authorization from 1982 through 1998, the DOE wrongly believed that the individual had not used illegal drugs since 1982, when he signed the certification. The individual knew or should have known that the DOE was relying on his own falsehood. The individual allowed that deception to continue until 1998.

The Statement argues that questionnaires for security positions have no questions that would require the individual to disclose the violation of the drug certification. According to the Statement, the hearing officer has imposed an additional requirement that is nowhere to be found on the QNSPs.

This is a nonsensical argument. The fact that there is no specific item in a questionnaire directing an applicant to reveal past falsehoods that he told the DOE does not mean that the access authorization holder is free to consider that he is not under an obligation to be fully and absolutely truthful to the DOE. An access authorization holder is held to a higher standard of conduct, and is expected to correct inaccuracies in any QNSP or other official document. See 10 C.F.R. § 710.6(a)(“It is the responsibility of the individual to cooperate by providing full, frank, and truthful answers to DOE’s relevant and material questions. . . .This obligation to cooperate applies when completing security forms, during the course of a . . . reinvestigation, and at any stage of DOE’s processing of the individual’s access authorization, including but not limited to, personnel security interviews. . . and other authorized DOE investigative activities. . . .”). Even though there may be no specific question on the questionnaire asking for disclosure of past falsehoods, there are certainly other forums to which an access authorization holder should turn in order to fulfill the obligation to maintain truthfulness with the DOE. For example, an individual could go to the appropriate security office and inquire about the proper procedures. The individual’s failure to follow this rather basic course of action simply aggravated his own deception and coverup in this case.

3. The Statement next claims that the Hearing Officer did not take into account relevant information presented at the hearing. Specifically, it alleges that she ignored the fact that the individual has passed a counterintelligence polygraph examination; has been a trusted employee in security matters for approximately ten years, holding a very high security clearance; and has specifically stated that he would have immediately disclosed any attempt to blackmail or coerce him. These arguments are irrelevant to the legal sufficiency of the Hearing Officer’s Opinion. There is no claim by the DOE here that the individual has breached national security. None is necessary to support a claim that a security concern exists. Personnel Security Hearing (Case No. VSO- 0227), 27 DOE ¶ 82,798 at 85,798 (1999). Instead, as should be evident in this proceeding, the individual has lied and covered up. That behavior in and of itself creates a security concern, which the individual has the burden of resolving.

4. The Statement contends that the Hearing Officer’s opinion is contrary to public policy and common sense. It points out that the individual came forward on his own volition and revealed the prior falsehood. The Statement claims that if the individual’s clearance is not restored, it would send the message that it is better to lie and risk being found out, than to tell the truth and lose an access authorization.

I do not agree with this analysis. As discussed above, I am not impressed by the so-called “voluntary” aspect of the revelation, since the individual only disclosed the falsehood when confronted with a choice of telling an outright lie or revealing the truth. In this case, I therefore do not believe that the circumstances of the disclosure should be accorded special consideration for purposes of evaluating mitigation of the security concerns.

Further, the standard currently applicable in Personnel Security Review proceedings is whether the individual has clearly demonstrated that it is in the national interest to grant him an access authorization. 10 C.F.R. § 710.28(d). The focus of my concern here is whether this particular individual is fit to hold a security clearance. The public policy argument advanced by the individual does not address the relevant criteria, nor does it convince me that it is clearly consistent with the national interest to continue his access authorization. See Personnel Security Review (Case No. VSA-0242), 27 DOE ¶ 83,019 (1999).

5. Finally, the Statement claims that the Hearing Officer reached the wrong result in considering the factors set forth at 10 C.F.R. § 710.7(c). Specifically, the Statement contends that the Hearing Officer gave inadequate weight to the remote likelihood of coercion or recurrence and to the evidence of the individual’s rehabilitation.

It is true that the Hearing Officer found that since the individual had admitted the falsification and broken promise, the potential for coercion has been reduced. 27 DOE at 85,392. I agree with her finding in this regard. However, I see no error in her overall determination. As the Hearing Officer stated, it is the subsequent pattern of responsible behavior that is the key to abating security concerns that arise from irresponsible actions. Here, that pattern is in its incipience. The Hearing Officer found that in this case, the 19-month period that elapsed between the date the individual disclosed the falsification and the hearing was insufficient to establish that there is a remote likelihood of recurrence of the unreliable and untruthful behavior.

I believe that this is a key consideration in this case. I agree with the Hearing Officer’s determination that given the long period of deception, the 19-month period since the individual’s attempted reformation is too brief. This is particularly so since the individual has yet to acknowledge the full import and extent of his falsification and cover-up. The fact that the individual continues to advance arguments that the DOE’s security concerns do not extend beyond the date of the last illegal drug use, rather than to recognize that the DOE’s concerns span the entire period of ongoing deceit, indicates to me an unwillingness to acknowledge the full scope and seriousness of the DOE’s valid security concerns. It further indicates to me, although admittedly in the context of this legal proceeding, a desire to minimize the implications of his conduct. It thereby tends to confirm to me that the individual is not in fact rehabilitated from his deceit and untruthfulness. I see no error in the manner in which the Hearing Officer considered the Section 710.7(c) factors.

VI. 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: February 17, 2000

(1)1/ An access authorization is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will be referred to from time to time in this Opinion as access authorization or security clearance.

(2)Criterion F concerns, in relevant part, information that a person has “[d]eliberately misrepresented, falsified, or omitted significant information from a Personnel Security Questionnaire, a Questionnaire for Sensitive Positions,. . . a personnel security interview, written or oral statements made in response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access authorization, or proceedings conducted pursuant to § 710.20 through § 710.31.” 10 C.F.R. § 710.8(f). 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)In the Notification Letter, the DOE raised a concern that the individual may have used illegal drugs as late as 1987, and that this was not disclosed in the 1998 Personnel Security Questionnaire. The Hearing Officer found that the individual had not provided false or incomplete information on this point. 27 DOE at 85,930. The DOE’s Office of Security Affairs has not objected to this finding. Accordingly, I will give this aspect of the Notification Letter no further consideration.

(4)The Hearing Officer’s specific finding was that the individual smoked marijuana multiple times after 1982, each time abrogating the promise he made to the DOE. 27 DOE at 85,928, note 4.

(5)These types of security concerns are expressed at 10 C.F.R. § 710.8(k), which explicitly refers to involvement with controlled substances, except as prescribed by a physician.