Case No. VSA-0312, 28 DOE ¶ 83,008 (OHA July 31, 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.

July 31, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: May 25, 2000

Case Number: VSA-0312

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 XXXXXXXXXXXXXXXX(hereinafter “the individual”) to hold an access authorization. (1) The DOE regulations governing this matter are set forth at 10 C.F.R. Part 710, and are entitled “Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material.”

I. Background

The events leading to the suspension of this individual’s access authorization are fully set forth in Personnel Security Hearing (Case No. VSO-0312), 27 DOE ¶ 82,846 (2000). I will not reiterate all the details of that case here. For purposes of the instant security review, the relevant facts are as follows.

A DOE Security Office learned of certain derogatory information about this individual, which caused it to suspend his access authorization. That Office issued a Notification Letter to the individual, citing derogatory information that falls within 10 C.F.R. § 710.8 (l) (Criterion L).

Criterion L covers information that shows that an individual has engaged in unusual conduct or is subject to circumstances which tend to show that he is not honest, reliable or trustworthy; or which furnishes reason to believe that he may be subject to pressure, coercion, exploitation, or duress which may cause him to act contrary to the best interests of the national security. Such conduct includes a “violation of any commitment or promise upon which DOE previously relied to favorably resolve an issue of access authorization eligibility.” 10 C.F.R. § 710.8(l).

To support this charge, the Notification Letter stated that the individual had admitted on a 1999 Questionnaire for National Security Positions (QNSP) that he had used marijuana from November 1995 to April 1996, while holding a DOE access authorization. The letter also states that he had received a citation for marijuana possession in 1996, and paid a $150 fine for that infraction. The Notification Letter indicated that by using marijuana in 1996, the individual violated the drug certification that he signed in 1989, in which he promised not to use illegal drugs while holding a DOE access authorization.

A hearing was convened by an Office of Hearings and Appeals (OHA) Hearing Officer in order to allow the individual to resolve the doubt regarding his continued eligibility for access authorization. The DOE Security Office presented the testimony of a DOE Personnel Security Specialist. The individual testified on his own behalf and called as witnesses an Employee Assistance Program (EAP) counselor (EAP counselor) and a physician who is the director of a substance abuse program (physician or doctor).

Based upon the testimony at the hearing and other evidence presented in this case, the Hearing Officer issued an Opinion determining that the individual’s access authorization should be restored. In that Opinion, the Hearing Officer first noted that in the past, the individual had used illegal drugs and had provided false information to the agency regarding that use. She stated that in 1989, the DOE therefore required the individual to sign a drug certification, before he was granted an access authorization.

The Hearing Officer next turned to the specific security concerns raised by the 1995 through 1996 drug use. She described the evidence in the record as follows. In order to mitigate the concerns about his reliability associated with the violation of the drug certification and the citation for marijuana possession, the individual stated that he had used marijuana during the period from November 1995 through April 1996, when he was going through a period of depression. He stated that this depression was associated with his father’s terminal illness and death. As a result of an April 1996 traffic stop during which he was cited for possession of marijuana, the individual decided he was depressed, and sought assistance from the EAP counselor. She found him to be depressed, and recommended that the individual seek medical and psychiatric examinations. The individual went to see his primary care physician, who diagnosed him as suffering from depression and prescribed the drug Prozac. The individual continued to take Prozac for the full term of the prescription, six months, at which time he believed he had recovered from the depression. In March of 1999, during a routine re-investigation of his access authorization, the individual indicated on his QNSP that he had used marijuana within the previous five years and that he had been cited for marijuana possession in connection with a traffic violation. He repeated these assertions in a Personnel Security Interview. Based on this information raising a Criterion L concern, the DOE suspended the individual’s access authorization. Personnel Security Hearing (Case No. VSO-0312), 27 DOE at 86,058- 59.

The Hearing Officer then considered testimony offered at the hearing. She discussed the testimony of the Security Specialist, who stated that the DOE was concerned about the individual’s breaking his promise regarding use of illegal drugs, his history of providing false information to the DOE, and his failure to disclose the April 1996 citation. The Hearing Officer also reviewed the testimony of the physician. The individual consulted the physician at the time of the hearing for the purpose of obtaining an evaluation by a medical professional. The Hearing Officer pointed out that this witness stated that depression often causes severe impairment. She also cited the physician as stating that the depression had caused the individual to “basically lose sight of the security regulations that he had to follow.” Id. at 86,060. She pointed to the physician’s testimony that the individual is no longer depressed, and that it was unlikely that he would use marijuana in the future if he ever became depressed again, because the individual is now aware of the appropriate treatment for depression. Id. at 86,059-60.

In her analysis, the Hearing Officer found that the individual is now trustworthy, and that it is unlikely that he will use illegal drugs in the future. She stated that the doctor had testified that this individual’s judgment was impaired by the depression associated with his father’s illness, but that he is no longer depressed and his judgment is now sound. Based on this testimony, she concluded that the individual mitigated the security concerns associated with the violation of his drug certification and that his access authorization should be restored. Id. at 86,061.

II. Statement of Issues and Response

In its Statement of Issues, the OSS contends that the Hearing Officer erred in finding that this individual’s depression was so severe that he was unable to understand that his use of marijuana was illegal and violated his promise to the DOE. The OSS also objects to the representation by the individual that he was not obligated to report to a DOE security office either the citation for marijuana possession or his EAP counseling. Based on these considerations, the OSS contends that the individual has not mitigated the Criterion L security concerns.

In his response to the Statement of Issues, the individual states that the events in question happened more than four years ago, and that he has been a reliable employee since that time. He continues to maintain that he was not required to reveal the citation for marijuana possession or his EAP counseling. He reiterates that his marijuana use was brought about by a medical condition which was diagnosed and treated, and should therefore no longer be a concern to the DOE. He points out that the doctor testified that the risk of his use of marijuana in the future is low. Accordingly, the individual argues that I should sustain the Hearing Officer’s determination.

III. Standard of Review

Part 710 provides that if, after considering all the factors in light of the relevant criteria, the Director of the Office of Hearings and Appeals is of the opinion that it will not endanger the common defense and security and will be clearly consistent with the national interest to grant or continue access authorization to an individual, he shall render an opinion favorable to the individual; otherwise, he shall render an opinion adverse to the individual. 10 C.F.R. § 710.28(d).

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), aff’d (OSA December 31, 1996).

IV. Analysis

In the present case, I recognize that the Hearing Officer gave considerable thought to her review of the witnesses’ testimony and considered their demeanor and credibility. I cannot overemphasize the importance of this evaluation in the overall administrative review process. In consequence, I am ordinarily quite reluctant to overrule such judgments. However, 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 below, I cannot find that it will be.

I emphasize that my intent here is not to review the Hearing Officer’s determination that the witnesses at the hearing were credible. I do not find error with her assessment that they were truthful. However, I believe that the testimony of the doctor was accorded undue weight. Ultimately, I find that there was insufficient evidence on the circumstances of the individual’s mental state at the time of the admitted drug use to permit a conclusion that his depression impaired his judgment to such a degree that it caused him to violate his drug certification.

It is this individual’s testimony that depression triggered his drug use. However, the DOE’s specific concern here is not the actual use of illegal drugs, or whether the individual needs rehabilitation from that use. 27 DOE at 86,060 n. 7. See Tr. at 60. (2) The security concern identified in this case centers on the individual’s reliability, which was put into question by the fact that he broke his promise to refrain from illegal drug use. I must therefore be convinced not only by the individual’s claim that he turned to an illegal drug to cure his depression, but also that this depression so impaired his judgment that he was unable to recognize and keep his promise. I must further be convinced by the rationale he has raised for failing to reveal in a timely manner information about his drug use, his drug-related citation, and his counseling for depression.

As is by now well-established in these personnel security cases, it is the obligation of the affected individual to bring forth evidence to show that security concerns raised by the DOE are resolved. It is the individual’s obligation to corroborate, through appropriate witnesses, his claims of mitigation of the concerns. E.g., Personnel Security Hearing (Case No. VSO-0273), 27 DOE ¶ 82,814 (1999), aff’d Personnel Security Review (Case No. VSA- 0273), 27 DOE 83,026 (1999), aff’d (OSA June 9, 2000).

In this case, the individual contends that he was not able to keep his promise to the DOE regarding future drug use because of severe depression, caused by his father’s terminal illness and death. The central question that I must therefore address here is whether the individual has brought forth sufficient information to demonstrate that his judgment was so impaired by that depression that he was incapable of following DOE rules regarding illegal drug use and was unable to keep his promise.

Aside from the individual’s own assertion, the record is thin at best on this point. The evidence is certainly not sufficient to allow me to conclude that due to his depression the individual was no longer able to understand the promise that he made and adhere to its tenets.

The Opinion cites the testimony of the physician as support for the determination that the individual’s judgment was impaired by depression. I have carefully reviewed the doctor’s testimony on this issue and note two instances in particular that might shed light on the physician’s thinking about the impact of depression on the individual’s ability to adhere to security regulations. One of those exchanges took place as follows:

Q [By the DOE counsel]: So . . . because of those symptoms [of depression] and the severity, could it have impacted [the individual] to the degree that he basically lost sight of all these security regulations that he had to follow?

A: I’m sure. Tr. at 162.

In this testimony, the doctor was actually indicating only that he was “sure” that depression “could have” caused the individual to lose sight of the security regulations. His testimony was therefore only theoretical and conjectural on this point. He did not confirm that the disease actually caused this individual to lose sight of security regulations.

The doctor also stated, “based on what [the individual] told me, . . . I believe that as a result of the depression his judgment was impaired.” Tr. at 157. This assertion, too, is carefully prefaced with the caveat that it is based on the individual’s self- reporting to the doctor. Further, in this segment, the physician did not state that the individual actually lost sight of the security regulations, but only that his judgment was impaired. Thus, this testimony does not squarely support the individual’s position.

I have a further concern as to the overall soundness of the doctor’s views on the key issue here. This physician only saw the individual for a single instance in January 2000, more than three years after the individual’s depression had purportedly cleared. Thus, this witness’ opinion was based on the individual’s self- reporting regarding his condition several years earlier. This witness had no knowledge about this individual’s condition in 1996 that was derived from his own personal, expert observations. (3)

After considering the evidence given by the doctor in light of his limited direct experience with this individual, I do not consider him to be highly qualified to make a persuasive judgment about how the disease affected this individual in 1995-1996. I do not find that his testimony on this point is entitled to significant weight in this case.

I do find the EAP counselor’s testimony to be quite useful, because she met with the individual very shortly after his citation for marijuana possession. This was at the actual time when the individual claimed to be depressed.

This counselor testified that the individual was depressed. However, she did not state that this individual’s judgment was impaired by his depression.

I believe that this witness, having observed the individual in 1996, had some direct knowledge about this individual’s state of mind during the very period at issue here. I therefore find, in spite of the limitations she placed on her own testimony, that this witness does provide convincing information indicating that the individual was depressed. (4) However, as discussed above, that evidence, alone, does not support this individual’s assertion that his poor judgment regarding adherence to security regulations was caused by his depression.

I note also that the individual could have brought forward testimony of individuals who were familiar with him at the time of his 1995-1996 depression, and could have offered further insight as to their impressions of his mental state during that period. For example, the individual could have offered the testimony of his wife, who seemingly had some knowledge of his mental condition. Tr. at 115. However, he specifically refused to bring her forward as a witness, and suggested it was too painful to discuss. Id.

After according what I believe is the correct weight to the expert testimony offered as to the individual’s mental state at the time of the drug use, I find that there is no persuasive evidence to support the individual’s contention that his ability to follow security regulations was seriously impaired by depression.

There is another matter of considerable concern to me here. It involves the level of this individual’s overall candor during the course of this proceeding. I must address the following rather serious denials and rationalizations by the individual, which were offered as excuses for his failure to comply with security reporting requirements.

First, as noted above, the OSS has expressed a concern that this individual failed to reveal in a timely manner the citation for marijuana possession in 1996. That citation came about in connection with a traffic stop for driving over the center line. The first time the individual disclosed that information to the DOE was in the 1999 QNSP. Under DOE security rules, a holder of an access authorization is not required to disclose to DOE Office of Safeguards and Security a traffic violation for which a fine of $250 or less was imposed. The individual maintains that he was therefore not obligated to report this infraction because he was arrested in connection with a traffic violation and fined only $150. Tr. 6-7; Individual’s Response at 1-2.

This is sophistry, and places the individual’s sincerity into question. DOE security rules clearly provide that holders of access authorizations must report all arrests, criminal charges or detentions for any violations of the law, other than traffic violations for which a fine of less that $250 was imposed. Respondent’s Exh. 10, [DOE Operations Office] Security and Safety Awareness Handbook at 6. The individual admittedly was cited for marijuana possession and fined $150 for that offense. Even though the traffic stop itself was for a driving violation, the individual was also cited during the very same incident for a serious violation of law, which he was indeed required to report. The technical distinction he attempts to draw between his “arrest” for a traffic violation, and the “citation” for the marijuana possession, which came after the arrest, has a hollow ring. In fact, the individual was ultimately detained by a police officer for two reasons, unsafe driving and possession of an illegal drug. Any other interpretation of this event and the concomitant DOE reporting requirement would be nonsensical.

The OSS has also raised a concern regarding the individual’s failure to reveal on the 1999 QNSP that he sought counseling from the EAP. The individual maintains that he was not required to reveal the counseling because EAP rules guarantee confidentiality. Tr. at 13. His reasoning is flawed. The EAP rules envision that employees connected with that program will not disclose information given to them by clients seeking assistance. However, in connection with a security investigation, this individual was specifically asked if he had sought help involving mental health issues. In this context, the individual himself was required to disclose the requested information. Rules regarding confidentiality that must be maintained by EAP employees are irrelevant in this regard. The individual’s assertion to the contrary is not sufficient to overcome this rather clear requirement.

Moreover, I note that at the hearing the individual did not seem to be particularly forthcoming or honest about the extent of his use of marijuana. While admitting that he used marijuana about 5 times a week for a period of about seven months, he adamantly claims that this is “isolated” use, seemingly because it happened within a discrete six-month period. Tr. at 94, 99, 100. This is disingenuous. The fact that this use could be “confined” to a single period, does not mean that the usage pattern was “isolated.” This individual used marijuana on multiple occasions over a number of months. His failure to acknowledge, even at the hearing, that his level of marijuana was regular, and repeated over an extended period, suggests to me a continuing lack of candor.

After reviewing these excuses and denials and giving them appropriate weight, I find that, even at the time of the hearing itself, the individual did not exhibit the type of complete honesty and candor that is required for a person seeking to establish reliability under Criterion L.

Finally, a relatively short period of time has passed since the individual revealed the violation of his promise to the DOE, less than one year at the time of the hearing. I also note that the individual has a history of marijuana use dating back more than 20 years, and a pattern of lies, failures to reveal and personal denial about this use that continues even into the present. Given the relatively short time since he revealed the most recent use to the DOE and the individual’s current attitude, which does not show complete candor, I find that he has failed to demonstrate that the security concerns regarding his honesty, reliability and truthfulness have been resolved. See Personnel Security Review (Case No. VSA-0289), 27 DOE ¶ 83,025, (aff’d OSA May 18, 2000).

After properly weighing and balancing all the relevant evidence, I find that the individual has failed to mitigate the security concerns associated with his reliability and truthfulness.

V. Conclusion

As indicated by the foregoing, I cannot conclude that the continuation of this individual’s access authorization will not endanger the common defense and security and will be clearly consistent with the national interest. Accordingly, it is my opinion that the individual’s access authorization should not be restored. 10 C.F.R. § 710.28.(d).

The regulations specify that within 30 days of receipt of this opinion, the Director, Office of Security Affairs, will make a final determination regarding restoration of the individual’s access authorization based upon a complete review of the record. 10 C.F.R. § 710.28(e). The Director, Office of Security Affairs, shall through the Director, Office of Safeguards and Security, inform the individual and his counsel in writing of the final determination, and provide a copy of the present opinion. Copies of the correspondence shall be provided to the Director, Office of Hearings and Appeals, the Manager, DOE Counsel and any other party. In the event of an adverse determination the correspondence shall indicate findings by the Director, Office of Security Affairs, with respect to each allegation contained in the Notification Letter. 10 C.F.R. § 710.28(f).

George B. Breznay

Director

Office of Hearings and Appeals

Date: July 31, 2000

(1)An access authorization is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. §710.5.

(2)These concerns would be covered under 10 C.F.R. § 708.8(k). (Criterion K). Criterion K refers to information that an individual has used a controlled substance other than as prescribed by a physician. This Criterion has not been raised in the instant case.

(3)The doctor did have a copy of the DOE’s exhibits in this case. He therefore had some documentary evidence about this individual’s history. Tr. at 155.

(4)She qualified her entire opinion by stating that she only saw the individual on two occasions, and her opinions were based on limited information. Tr. at 136. This does not cause us to bar her testimony in these proceedings. We regularly consider the opinions of experts who meet for brief periods with individuals seeking an access authorization, and we take this into account in giving weight to their testimony. In fact, the physician’s evaluation in this case was made under similar circumstances.