Case No. VSA-0339, 28 DOE ¶ 83,011 (OHA October 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.

October 13, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Personnel Security Review

Date of Filing: August 8, 2000

Case Number: VSA-0339

This Opinion considers a Request for Review and Statement of Issues filed by XXXXXXXXXXXX (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 a decision issued by an Office of Hearings and Appeals Hearing Officer. Personnel Security Hearing (Case No. VSO-0339), 28 DOE ¶ 82,752 (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 Operations 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), (k), and (l) (Criteria F, K, and L respectively).

The Hearing Officer found that the individual had resolved the Criterion K security concern involving whether he currently uses illegal drugs. (2) The Hearing Officer further found that the Criterion L security concern was partially resolved. (3) Specifically, the Hearing Officer determined that the individual had presented sufficient information to resolve the concern regarding whether he had violated his promise, made in a 1979 affidavit, not to use illegal drugs while holding a DOE security clearance. Since these specific concerns are not currently at issue, I will give them no consideration in this determination.

The bases for allegations in the Notification Letter regarding Criterion F and the remaining Criterion L concerns are as follows.(4) Citing Criterion F, the Notification Letter listed several instances, starting with a 1975 Personnel Security Questionnaire (PSQ) and most recently during a 1999 Personnel Security Interview (PSI), when the individual allegedly gave false, misleading or incomplete statements about his 1971 guilty plea to a marijuana possession charge, and about his marijuana use. According to the Notification Letter, the individual’s statements are contradicted by information about the 1971 marijuana possession charge and his marijuana use obtained in a 1979 PSI, and investigations conducted by the Office of Personnel Management (OPM) in 1979, 1998, and 1999. With regard to the Criterion L security concern, the Notification Letter states that the individual’s omissions and falsehoods about his drug use are evidence of unreliability and untruthfulness.

The Hearing Officer convened a hearing in order to allow the individual to resolve the doubt regarding his continued eligibility for access authorization. At the hearing, the DOE Counsel called three witnesses: a DOE security specialist, the individual’s former spouse, and the individual’s longtime friend. The individual testified on his own behalf, and called seven other witnesses, including five of his current or former co-workers at the DOE facility, his brother, and his current spouse.

II. Opinion of the Hearing Officer

The Hearing Officer found that over a period of more than 20 years this individual had consistently lied to the DOE about involvement with marijuana. Specifically, the Hearing Officer determined that the individual failed to indicate on a number of DOE security forms that he pled guilty in August 1971 to a charge of possession of marijuana. The Hearing Officer found that on these same forms, the individual failed to admit that he had used illegal drugs, and had experienced problems on or off the job involving drug use. The Hearing Officer also determined that the individual lied about his marijuana use during PSIs of 1979 and 1999. The Hearing Officer determined that the individual had therefore failed to resolve Criterion F concerns regarding falsification. The Hearing Officer also found that the individual had not mitigated the Criterion L concerns regarding his reliability and trustworthiness, because he had concealed this information about his involvement with marijuana from the DOE. Accordingly, the Hearing Officer recommended that the individual’s access authorization not be restored.

III. Statement of Issues and Response

Pursuant to 10 C.F.R. § 710.28(b), the individual filed a statement setting forth the issues on which he wants me to focus in the review phase of this proceeding (hereinafter referred to as “Statement of Issues,” or “Statement”). The individual raises the following objections to the Hearing Officer’s Opinion that he would like me to consider.

He first alleges that there was no falsification or misrepresentation regarding the August 1971 arrest for possession of marijuana, because the DOE already knew of the incident. Secondly, the individual claims that he was not ultimately convicted in connection with the 1971 arrest for marijuana possession. Thirdly, the individual contends that his drug use during the 1970s was well known to the DOE. The individual maintains he was led to believe through his signing in 1979 of a promise not to use illegal drugs while holding a DOE access authorization and the DOE’s granting him an access authorization in 1979, that all DOE concerns about his historical drug use had been resolved, and that there was no requirement that he continue to reveal his drug use prior to that date. Finally, the individual contends that his last illegal drug use occurred more than 20 years ago. The individual argues that the Hearing Officer erred in not considering, as required by 10 C.F.R. § 710.7(c), that the drug use was not a recent occurrence.

The DOE Office of Safeguards and Security filed a Response indicating that it did not wish to submit any additional information in this case.

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 his overall conclusion.

V. Analysis

In an attempt to resolve the Criteria F and L security concerns, the Statement raises justifications for the individual’s failure to be candid with the DOE about two drug-related matters: (i) his August 1971 arrest for marijuana possession and underage drinking, and (ii) the extent of his use of marijuana.

A. The August 1971 Arrest for Marijuana Possession

Before I turn to an evaluation of the individual’s newest contentions about the 1971 marijuana possession concern, a clarification regarding this issue is in order. The Notification Letter stated that the individual pled guilty to marijuana possession. The Hearing Officer found that the individual had not resolved the security concerns associated with the guilty plea.

The individual objects to the allegation that he pled guilty or was ever convicted of possession of marijuana. The individual continues to maintain that the August 1971 conviction was for underage drinking. The Statement also alleges that the Hearing Officer ignored testimony that the individual was never convicted of a marijuana charge in 1971.

The record is not clear on whether the individual pled guilty to marijuana possession or was convicted of marijuana possession. There is some new evidence purporting to establish that the marijuana charge was dropped. (5) However, whether the individual was actually convicted of marijuana possession in connection with the 1971 arrest is irrelevant. The individual’s failure to list the arrest itself on a number of Personnel Security Questionnaires (PSQs) and Questionnaires for Sensitive Positions (QSPs) is a clear omission. See Criterion F, supra note 4.

Contrary to the assertions in the Statement, the issue here is not whether the individual pled guilty or was convicted of marijuana possession. The key here is that the individual was admittedly arrested in August 1971 in connection with a marijuana-related matter. He was obliged to tell the DOE about it. He knew that the arrest involved possession of marijuana. 1979 PSI, DOE Exh. 9 at 4. Yet, he did not reveal anything about that arrest on the PSQs, which he was required to do. (6) Even if he did not plead guilty to marijuana possession, the Criterion F concerns remain regarding the omission of the very fact of the 1971 arrest on the PSQs. (7)

In spite of the fact that there is no question here that the individual did fail to list the August 1971 arrest in several PSQs and QSPs, the Statement contends that there is no misrepresentation or intentional falsification because the DOE has known about the August 1971 arrest for many years, and has also known that it included marijuana possession and underage use of alcohol. (8)

I am not persuaded by the individual’s argument. I recognize that during an OPM interview, the individual was questioned in 1979 about the 1971 arrest, and that he explained the facts surrounding that arrest in some detail. DOE Exh. 9. I nevertheless find this explanation does not completely resolve the security concerns regarding the individual’s truthfulness. He failed to tell the DOE about the arrest on numerous other occasions. The individual attempts to minimize the seriousness of these misrepresentations, contending that the DOE already knew about incident. I cannot accept that rationalization. The individual in this case clearly omitted material information about his past criminal record from several PSQs. He has also not been completely truthful in several interviews held during the 1970s in connection with his requests to obtain access authorization, and in a 1998 OPM interview. (9)

These omissions fall squarely within the purview of Criterion F. In requiring an applicant for a sensitive position to submit PSQs and undergo interviews, the DOE seeks to develop significant information about the individual’s background. Further, as the security specialist in this case testified, “honesty and the ability to trust individuals who hold a security clearance is the foundation of granting access authorization. Individuals are under the obligation to provide complete and accurate and honest information where requested, even if it reflects derogatory information. That’s a requirement. . . .If a person is dishonest, that would make them an unacceptable risk to national security.” Transcript of Personnel Security Hearing (Tr.) at 32-33.

The fact that the DOE may, through alternative sources, develop additional background information about an applicant for access authorization is irrelevant to whether he must make a complete disclosure on PSQs and in security-related interviews. It is also irrelevant that the DOE did not require or suggest in 1979 that the individual modify his 1979 PSQ after the individual confirmed the DOE’s information about the additional arrest.

I believe the obligation to be truthful rests squarely with the individual. His failure to be complete in responding to questions in 1979 and his carrying forward the error on subsequent questionnaires is therefore a serious security concern, regardless of whether the DOE learned of the information and the individual confirmed the information at an early stage.

In this regard, as noted above, the individual consistently takes the position that for many years the “DOE” knew about all of the omissions at issue. In my own discussion, I, too, refer to the “DOE’s knowledge” of the individual’s 1971 arrest. By and large, I use this phrase for the sake of convenience and brevity in responding to some of the individual’s contentions concerning this point.

However, my use of this shorthand terminology disguises how a sizable agency tracks information about thousands of employees and contractors. To refer to the “DOE” having “knowledge” of an individual’s history, does not correctly depict how large operations conduct business. In fact, the DOE, like other large organizations, is made up of many offices and divisions. Some of these operate independently. Knowledge by one DOE component is therefore not necessarily the equivalent of knowledge by all. This is one reason that QSPs and PSQs ask applicants to furnish information, even though it has been previously provided. Papers may be misplaced; offices are reorganized; functions can be relocated. Important knowledge relating to risk assessment can thereby easily fall through the cracks if not regularly updated and re-checked. It is a perfectly reasonable requirement that individuals who seek an access authorization provide complete answers to questions in their security filings, even if it amounts to a repetition of a previous filing. It is certainly not up to the applicant to assess what the agency already knows and then determine whether it bears repeating on an updated form.

B. The Individual’s Truthfulness About Marijuana Use

The individual has also not been truthful with the DOE regarding his use of marijuana. First, in a 1979 PSI, the individual admitted using illegal drugs in the 1960s, but he stated that he had not used marijuana since 1969. DOE Exh. 9 at 5. However, at the hearing, the individual admitted using marijuana on and off through the 1970s. Tr. at 181. Second, the individual denied any use of illegal drugs whatsoever in a 1987 QSP. DOE Exh. 13, Question 11. Finally, during a 1999 PSI, the individual again denied ever using any illegal drugs. DOE Exh. 22.

The individual argues that his drug usage more than 20 years ago was well known to the DOE. He contends that the drug use issue was resolved in 1979 through his signing a promise not to use illegal drugs while holding a DOE access authorization (drug certification), and the DOE’s granting him an access authorization. The individual believes that after signing the drug certification, he had a “clean slate” with the DOE, that all prior drug use issues were resolved, and that he did not need to refer again to his drug use prior to 1979.

In his Statement of Issues, the individual again seeks to persuade me that for one reason or another his failure to be complete and truthful with the DOE does not constitute misrepresentation. I rejected that type of argument above, and I reject it again now. The individual’s “clean slate” argument is groundless. I fail to see how signing the 1979 drug certification relieved the individual of the obligation to be truthful and to continually report his previous drug use in connection with his requests for access authorization.

In this regard, I also note that he signed the 1979 drug certification after giving the DOE an inaccurate account of the extent of his marijuana use. He indicated that he had last used marijuana at the end of the 1960s. As stated above, he did not reveal to the DOE that he had actually used the drug through the 1970s. (10) Thus, he entered into the drug certification agreement with the DOE based on statements that minimized his drug use. In the Statement, he now attempts in effect to use the drug certification to justify perpetuating the omission. I find his argument regarding the drug certification to be wholly without merit.

The individual’s last denial to the DOE of illegal drug use is especially troubling because it is so recent. It took place during the 1999 PSI, when, despite being directly asked a number of times by the security specialist, the individual asserted that he had never used illegal drugs. PSI Tr. at 5-7. (11) The individual’s apparent position that, by virtue of signing the 1979 drug certification, he is free ever after not to discuss his long-past drug use when directly asked about it in a PSI strains credulity. Such narrow, legalistic reasoning has no place in a program which is based on trust and relies in making risk assessment on common sense and sound judgment. The ill effects of adopting the individual’s position on the personnel security program as a whole cannot be ignored. Determinations regarding the eligibility of persons for access to classified material would be that much less reliable.

The individual also maintains that since the marijuana use alleged in this case took place more than 20 years ago, there are no longer any security concerns regarding his use of illegal drugs. This argument exhibits a misconception about the Hearing Officer’s Opinion, and the specific concerns at issue here. As repeatedly stated, the concerns at this point do not involve the individual’s actual use of illegal drugs during the 1970s. His 1999 denials regarding marijuana use, even when directly asked about it by the DOE security specialist, raise the concern that this individual’s word cannot be trusted.

VI. Conclusion

As discussed above, I see no error by the Hearing Officer that would cause me to disturb the result in this case. The individual’s contentions that the DOE knew about his 1971 arrest for marijuana possession, and further, that he had been given a “clean slate,” allowing him to deny past drug use even when directly asked about it are not persuasive. I therefore find that the Criteria F and L security concerns about this individual have not been resolved.

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).

In spite of my finding above that this individual has not mitigated security concerns about his truthfulness and reliability, I am troubled that the local DOE security office in this case pressed for a Part 710 administrative review of this individual’s fitness to hold an access authorization. I have some serious reservations about the fairness and usefulness in re-examining a 46 year old individual about his drug use, which took place more than 20 years ago, and about an arrest, which occurred nearly 30 years ago, when he was a teenager. Various DOE offices have long known about nearly all the facts that are the subject of the omissions involved here.

I have a further concern about the approach adopted by the local DOE Security Office in this case. It reopens old wounds. It does not permit a mature individual who had a troubled youth to put that adverse period behind him once and for all. Moreover, I seriously doubt the effectiveness of assessing the security risk of this individual based on his understandable reluctance to discuss 30 year old information, which he reasonably believes is well in his past. The approach taken here may well not be particularly predictive for purposes of gauging whether this individual presents any security risk. Since there is really no continuing security concern about the incidents themselves, discussion of these events should have been laid to rest long ago.

Nevertheless, once an individual decides to answer DOE security questions regarding his behavior, he is under an obligation to be complete and truthful. It is therefore my view that even though the local security office in this case was overzealous in processing this case and the events at issue here should not have been resurrected, the individual here has not mitigated the security concerns discussed above.

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: October 13, 2000

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

(2)Criterion K includes information that an individual has ”possessed, used or experimented with a drug. . . listed in the Schedule of Controlled Substances. . . (such as marijuana). . . .”

(3)Criterion L includes information that an individual “engaged in any unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable or trustworthy. . . . Such conduct or circumstances include. . . violation of any commitment or promise upon which DOE previously relied to favorably resolve an issue of access authorization eligibility.”

(4) Criterion F includes information that an individual has “deliberately misrepresented, falsified, or omitted significant information from a. . . Questionnaire for Sensitive Positions [or] a personnel security interview. . . .”

(5)The Statement of Issues enclosed a copy of letter from the Chief Deputy Sheriff of the county in which the individual lives. That letter indicates that it is not possible to determine what occurred at the individual’s August 1971 arraignment, but “the feeling among deputies and others who were working around that time is that a $35 fine would have been an unusual sentence for possession of marijuana.” In my view, this statement describing the “feeling” of other persons who are not even named is entitled to little weight here.

(6)In fact, there was no mention at all of the August 1971 arrest on the individual’s PSQs. Thus, there was a significant omission from the PSQs.

(7)In response to a 1979 PSQ request to indicate all arrests, the individual attached a sheet showing 14 offenses he committed during the period 1963 through 1972. DOE Exh. 6. The offenses included illegal consumption of alcohol, stealing, vandalism, trespassing, burglary, larceny and failure to pay fines. The individual submitted the identical photocopied list for the PSQs of 1983 and 1987. DOE Exhs. 12 and 13. In a 1975 PSQ the individual indicated he had never been arrested. Amendment to DOE Exh. 1. In a 1993 QSP, the individual mentions only two offenses. DOE Exh. 16. In a 1998 QSP, the individual mentions 5 offenses. DOE Exh. 19. In neither of the latter two cases was the August 1971 arrest cited. It is worthwhile noting that the relevant questions on the 1975, 1979, 1983 and 1987 PSQs provided that the applicant was to list all arrests (with some exceptions not relevant here), even if the charges were ultimately dropped. In the later QSPs, he was asked to list felonies and all charges related to alcohol and illegal drugs.

(8)A 1979 OPM report developed in connection with the individual’s application for a position with a DOE laboratory indicates that the individual was arrested in August 1971 for marijuana possession. DOE Exh. 8 at 19. A 1993 OPM interview also indicates that the DOE was aware of the August 1971 arrest for marijuana possession. DOE Exh. 16 at 9. Thus, the DOE has been aware of the August 1971 arrest for many years.

(9)His statements about the August 1971 arrest are certainly inconsistent. In a 1975 interview for a position with a DOE predecessor, he mentioned that he was arrested at the age of 18 (i.e. in 1971) for underage alcohol possession. DOE Exh. 4 at 1. In a 1979 OPM interview, the individual indicated a 1971 arrest for illegal consumption of alcohol, but again did not mention the arrest also included marijuana possession. He also stated that he had never been involved with narcotics. DOE Exh. 8 at 2. In a PSI of August 1979, he admitted the August 1971 incident included an arrest for possession of marijuana. DOE Exh. 9 at 4. In a 1998 OPM interview, the individual did not reveal the August 1971 arrest at all, and specifically denied ever being arrested for possession of controlled substances. The OPM characterized this denial as “discrepant.” DOE Exh. 18 at 1.

(10)The Hearing Officer found that the individual did not use marijuana after signing the drug certification.

(11)The 1999 PSI took place in the month of September. The individual states that after he “thought about it,” he contacted the security specialist who interviewed him, in an attempt to correct the record regarding his misstatement. The individual indicated that the attempt took place in December, at which time the security specialist told him it was too late to change his response. Tr. at 179-180. In any event, I am not impressed under the circumstances of this case by the individual’s belated attempt, after three months of “reflection,” to change his story and correct an obvious lie.