Case No. VSA-0327, 28 DOE ¶ 83,005 (OHA June 13, 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.

June 13, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: May 5, 2000

Case Number: VSA-0327

This determination considers a Request for Review and Statement of Issues filed by XXXXXXXXXXXXXXXX (hereinafter the individual) concerning his eligibility 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 of 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-0327), 27 DOE ¶ 82,848 (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(f)(Criterion F) and § 710.8(l) (Criterion L). Criterion F refers in relevant part to information that an individual has deliberately misrepresented, falsified or omitted significant information from a Questionnaire for Sensitive Positions (QSP) or in a Personnel Security Interview (PSI). 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.” The security concerns were based on the fact that on March 5, 1990, and on June 26, 1996, the individual signed QSPs in which he claimed he had been awarded a Ph.D. degree in March 1977. Further, in a PSI conducted on December 17, 1991, the individual stated that he had a Ph.D. degree, even though he never received the degree. The matter came to light in 1999, when the individual’s employer received an anonymous fax alleging that the individual did not have a Ph.D. The individual’s employer referred the matter to DOE security. The individual admitted in a second PSI held on September 17, 1999, that information he had provided was false or misleading.

A hearing was convened by an Office of Hearings and Appeals (OHA) Hearing Officer in order to allow the individual to resolve the doubt concerning his continued eligibility for access authorization. The DOE Counsel called two witnesses, a DOE security specialist and a DOE consultant psychiatrist who had previously evaluated the individual at the request of the local DOE security office to determine whether the individual had a mental condition that affected his judgment and reliability. The individual testified on his own behalf, and called ten witnesses, all of whom had worked closely with him at the DOE facility. The individual also submitted 38 letters from colleagues attesting to his good character, explaining his importance to the DOE program, and supporting the restoration of his access authorization.

Based upon the testimony and written evidence submitted, the OHA Hearing Officer issued an Opinion determining that the individual’s access authorization should not be restored. In the Opinion, the Hearing Officer noted many facts that tended to mitigate the security concerns that were raised by the individual’s falsification. The Hearing Officer pointed out that the Ph.D. degree was not a requirement for any of the positions that the individual held with the DOE contractor. He attained the positions he held through stellar performance in the work of the facility and through his leadership ability. The Hearing Officer noted that the DOE psychiatrist found no evidence of a pattern of recurrent lying or dissembling or any mental condition that caused a defect in the individual’s judgment. The Hearing Officer recognized that the individual accepted full responsibility for his action, which he readily recognized as a mistake. The Hearing Officer also noted the testimony and the letters of the individual’s colleagues as the most laudatory of any he had ever heard during the course of his tenure as a DOE hearing officer, and cited liberally from the hearing transcript to support this conclusion. These witnesses all testified to the individual’s overall honesty, integrity, trustworthiness and superb performance on the job.

On the other hand, the Hearing Officer found that the individual’s falsification was serious and was more a pattern of behavior than a singular mistake, since it occurred on the 1990 QSP, in the 1991 PSI and on the 1996 QSP. He also noted that the individual did not come forward voluntarily to DOE security and admit the falsification, even though he could have done so at any time over a period of many years. The Hearing Officer also stated that at the time of his determination, which was less than one year after the anonymous fax revealed that the individual had lied to the DOE, he was not convinced that the individual had yet earned back the right to be trusted by DOE security. Accordingly, the Hearing Officer determined that the individual had not resolved the security concerned raised under Criteria F and L. He recommended that the individual’s access authorization not be restored.

II. Statement of Issues and Response

In his Statement of Issues, the individual asks me to focus on the following factors: (A) the value of his past contributions and potential future contributions to the DOE; (B) his outstanding record of dealing with classified material during the 23 years in which he has held an access authorization; (C) the many witnesses who testified as to his integrity and trustworthiness and the 38 letters from other individuals who cited his reliability and superior performance; (D) a Ph.D. was not necessary for his career, and that he had nothing to gain by having a Ph.D.; (E) the hearing officer’s citation to three cases that the individual believes are inapplicable; (F) the hearing officer’s failure to give adequate consideration to the fact that the security concerns regarding potential for coercion in this case have been eliminated; and (G) the testimony of the individual’s secretary that she filled out the QSP that first set forth the false information and that he signed it hastily in a hectic work environment.

The DOE Office of Safeguards and Security (OSS) filed a response to the statement of issues indicating that it had no additional information to submit.

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 Hearing 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 (VSA-0084), 26 DOE ¶ 83,004 (1996).

IV. Analysis

After fully reviewing the record in this case, I see no error in the Hearing Officer’s Opinion, or any other reason to disturb his ultimate determination. I consider below each of the points raised in the individual’s statement of issues.

A. Pursuant to Section 710.27(b), a Hearing Officer may not consider the possible impact of the loss of the individual’s access authorization upon the DOE program. Therefore, the Hearing Officer in this case was correct in his determination that this individual’s excellent performance is not appropriately given any weight. I believe that I, too, am bound by this provision. I therefore cannot rely on this individual’s stellar performance as a basis for restoring his access authorization. See Personnel Security Review (Case No. VSA-0287), 27 DOE ¶ 83,0324 (2000), affirmed (OSA June 5, 2000).

B. I cannot find that the individual’s unblemished record of handling classified information should be given any additional weight, or warrants a reversal of the Hearing Officer’s determination. If the individual had caused a security breach, this would be an aggravating circumstance, and in and of itself could be reason enough to revoke his access authorization. The fact that this individual has never allowed a security violation to take place is, in my view, a neutral factor in this case. See Personnel Security Hearing (Case No. VSO-0227), 27 DOE ¶ 82,798 (1999).

C. I find that the Hearing Officer exhaustively considered the oral testimony and written statements of those persons who supported this individual and expressed high regard for his integrity and truthfulness. I believe that he accorded them appropriate weight. In security cases involving falsification, we typically look at the length of time of the ongoing falsehood, the time that has passed since the discovery of the false statement and whether the falsification was a pattern or an isolated event. E.g., Personnel Security Hearing (Case No. VSO-0289), 27 DOE ¶ 82,823 (1999), affirmed, 27 DOE ¶ 83,025 (OHA February 17, 2000), affirmed, (OSA June 18, 2000). If virtually all of these elements are resolved in the individual’s favor, it might well be an important final consideration that the individual’s colleagues who knew him well believed him overall to be trustworthy. However, I do not believe that in this case testimonials alone should tip the balance, when these other important factors have not yet been resolved in the individual’s favor. Accordingly, I find these tributes in and of themselves are not sufficient to overcome the stated security concerns.

D. The individual continues to assert the importance of the fact that a Ph.D. was not necessary for his career, and that he had nothing to gain by falsely asserting that he had this degree. Admittedly, this case would have been more serious if the degree were necessary in order for the individual to hold his position. However, the fact that the circumstances could have been even more aggravated than they were does not necessarily provide overall mitigation for the falsehood. There is undoubtedly here a distinct security concern regarding the individual’s willingness to acquiesce in and perpetuate a material misstatement, apart from the issue of whether he had something to gain by it.

Moreover, I do not find that the untruth here is as inconsiderable as the individual maintains. The falsehood was not inconsequential, a mere typographical error or an obvious lapse of memory. The misstatement was not even neutral, as the individual contends. This particular falsehood served to make the individual appear better than he was. Even assuming that the individual had nothing significant to gain from asserting that he held the degree, the appearance of having a Ph.D., if it was considered by others at all, could only serve to enhance the individual’s standing. He allowed that false impression to be perpetuated even after it was specifically brought to his attention in the 1991 PSI. I am not inclined to disregard this acquiescence, or consider the falsehood de minimus.

E. The individual claims that the Hearing Officer incorrectly relied on three cited cases in reaching his opinion: Personnel Security Hearing (Case No. VSO-0057), 25 DOE ¶ 82,786 (1996), affirmed, 25 DOE ¶ 83,009 (OHA Apr. 5, 1996), affirmed (OSA May 16, 1996); Personnel Security Hearing (Case No. VSO-0075), 25 DOE ¶ 82,799 (1996), affirmed, 25 DOE ¶ 83,005 (OHA Nov. 8, 1996), affirmed (OSA Dec. 30, 1996); Personnel Security Hearing (Case No. VSO-0289), 27 DOE ¶ 82,823 (1999), affirmed, 27 DOE ¶ 83,025 (OHA February 17, 2000), affirmed, (OSA May 18, 2000). The individual claims that the security infractions in these cases were far greater than his own. After reviewing the Hearing Officer’s Opinion on this issue, I can find no error. While not identical to the instant case, these cases all involved falsifications. The Hearing Officer properly noted significant distinctions between the falsifications in the cited cases and the falsehood in the instant case. He also pointed out important parallels between those cases and the instant case. Overall, I find that the Hearing Officer validly used the cases as points of reference and for some general instruction, but did not accord them excessive weight in reaching his decision.

F. The individual maintains that there has been extensive reporting of his case in local, national and international press, which eliminates the possibility of coercion or pressure. The Hearing Officer found that the DOE’s concerns regarding coercion of this individual in connection with the falsehood have been resolved. The individual seems to believe that more weight should be given to this finding. I believe that the Hearing Officer was correct in finding that a concern regarding future coercion was resolved, but that overall this did not outweigh and fully mitigate the remaining security concerns in this case.

G. The individual also claims that the Hearing Officer should have given more weight to the testimony of the individual’s secretary. She testified that she filled out the QSP that originally asserted the false credential, and further that the individual signed it without full scrutiny in a hectic work environment.(2) This argument might have some appeal if, upon learning of the mistake, the individual had immediately corrected it. It is clear, however, that even when the mistake was brought to his attention during the 1991 PSI, he failed to take any action to correct it and perpetuated it in a later QSP. Accordingly, I find no basis here for disturbing the Hearing Officer’s decision based on this contention.

As the Hearing Officer noted in his Opinion, this case is unusual because of the extraordinarily glowing testimonials entered into the record supporting this individual’s overall integrity and reliability. I consider this evidence to be significant and have weighed it carefully in my deliberations. It certainly makes this case somewhat closer than it might otherwise have been. Nevertheless, three key factors in my view are determinative in this case, and at this time they override the testimonial evidence. First, the falsehood was material. It served to enhance the individual’s appearance in his community. Second, the individual perpetuated the falsehood for many years, and even reaffirmed it in a PSI and in a second QSP. Third, the individual did not come forward voluntarily and disclose the falsehood. Rather, it came to light through an anonymous fax. Given these adverse factors, I believe that a sustained period of truthfulness after the disclosure of the falsehood is necessary. In this case, less than one year has elapsed since the individual admitted the falsehood. I agree with the Hearing Officer on this point. In light of the circumstances of this case, this is not a sufficient period to conclude that the Criteria F and L security concerns have been resolved. Personnel Security Review (Case No. VSA-0242), 27 DOE ¶ 83,019 (1999), affirmed (OSA November 22, 1999).

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: June 13, 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) The individual recognizes his own responsibility for insuring the accuracy of the statements in the QSP.