Case No. VSA-0414, 28 DOE ¶ 83,025 (OHA June 7, 2001)

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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 7, 2001

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case:Personnel Security Review

Date of Filing:April 10, 2001

Case Number: VSA-0414

This Opinion considers a Request for Review and Statement of Issues filed by XXXXXXXXXXX (individual) concerning her 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-0414), 28 DOE ¶ 82,794 (2001) 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 her to maintain a security clearance. In December 1998, the individual and her husband filed a joint Petition for Bankruptcy under Chapter 7 of the United States Bankruptcy Code. Most of the individual and her husband’s debts were discharged in the Chapter 7 bankruptcy proceeding with the exception of a few accounts that the individual and her husband agreed to pay after the bankruptcy proceeding had concluded. The individual notified the DOE of her bankruptcy petition filing and the DOE continued her clearance based on her explanation that the subject bankruptcy filing had resulted from her husband’s employment situation and an excessive accumulation of credit card debt.

In July 2000, the DOE received a credit report on the individual that revealed two matters of concern. First, the accounts that the individual and her husband had agreed to pay after the bankruptcy proceeding had concluded were delinquent. Second, the individual’s mortgage payments were in arrears and the bank had initiated foreclosure proceedings. The individual admitted that the information on the credit report was accurate, and explained that her inability to discharge her financial responsibilities was directly related to her gambling activities, i.e., the monthly purchase of $800 to $1,400 in lottery tickets.

The DOE issued a Notification Letter to the individual suspending her access authorization and cited the individual’s pattern of financial irresponsibility as the reason for the suspension. According to the DOE, the derogatory information regarding the individual’s finances falls within the purview of 10 C.F.R. § 710.8 (l) (Criterion L).(2)

The individual requested a hearing, and a Hearing Officer was appointed. At the hearing, the DOE presented the testimony of one witness, a personnel security specialist. The individual offered her own testimony and that of three other witnesses, her husband and two supervisors.

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-0414), 28 DOE ¶ 82,794 (2001). In her Opinion, the Hearing Officer found that the individual’s conduct following the discharge of most of her debts through bankruptcy showed a pattern of financial irresponsibility raising a concern under Criterion L. According to the Hearing Officer, the individual’s failure to make timely payments on the debts she agreed to pay after the bankruptcy proceeding had concluded, her purchase of lottery tickets using her mortgage money, and her inability to improve her financial situation after most of her debts had been discharged in bankruptcy raise serious doubts regarding the individual’s judgment, trustworthiness and reliability.

The Hearing Officer also concluded that the individual had not mitigated the Criterion L security concern. The Hearing Officer rejected the individual’s defense that her gambling compulsion led her to make the poor choices that she did. Further, the Hearing Officer opined that even had the individual presented evidence that she was suffering from a gambling addiction, the addiction itself would have raised another security concern. In addition, the Hearing Officer found that as of the hearing date the individual had not taken any affirmative steps to improve her financial situation. Specifically, the individual had not sought credit counseling, had not adhered to a budget for more than one week, had not attempted to supplement her income and had not made a mortgage payment since mid-1999. In the end, the Hearing Officer found that the individual had not mitigated the security concerns attendant Criterion L.

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 she wishes me to focus. In response to the individual’s Request for Review, the DOE’s Office of Safeguards and Security declined to file any comments in the case.

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 Sulphur 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 no errors in the Hearing Officer’s conclusion in this case.

B. Statement of Issues

In her Statement of Issues, the individual sets forth numerous reasons why she disagrees with the Hearing Officer’s recommendation not to restore her access authorization. She first questions the Hearing Officer’s finding that a legitimate security concern exists with regard to her financial difficulties. See Request for Review filed on April 10, 2001; Supplement to Request for Review filed on May 8, 2001. In this regard, the individual first points out that her recent financial difficulties never impacted her job performance. See Request for Review at 1; Supplement to Request for Review at 1. Second, she claims that she has never been, nor ever could be, subject to pressure, coercion, exploitation or duress. Id. She adds that she was not now, and never has been, “in such a financial state of ruin that [she] would act contrary to the best interests of national security.” Supplement to Request for Review at 2.

Next, the individual contends that even if a legitimate security concern exists regarding her finances under Criterion L, she has mitigated that concern. She argues that she has regained financial control of her life and has submitted evidence purporting to show that she is currently meeting all of her financial obligations in a timely manner. Request for Review at 2-3. She also advises that she is now receiving unemployment benefits and is currently seeking other employment opportunities. Request for Review at 3-4; Supplement to Request for Review at 2. She argues that these actions address the Hearing Officer’s concern that the individual had not supplemented her income with a second job during her financially trying times. Id.

In addition, the individual maintains that she has attended Gambler’s Anonymous (GA) on a weekly basis since January 17, 2001. See Request for Review at 2. To corroborate her statement, the individual has submitted weekly “sign-in” sheets from GA for the period January 25, 2001 to April 12, 2001. See Attachment to Request for Review. According to the individual, she has also attended “Pressure Relief” meetings at GA which are almost identical to credit counseling sessions. Request for Review at 2. The individual then points out that the Hearing Officer faulted her in the Opinion for not attending credit counseling sessions. Id. It is the individual’s belief that her attendance at the “Pressure Relief” meetings should allay the concern underscored by the Hearing Officer regarding the individual’s failure to obtain credit counseling prior to the hearing. Id.

The individual also contends that the Hearing Officer should have given more weight to her many years of stellar performance and dedication to her employer in considering whether the individual had mitigated the security concerns associated with her financial difficulties. Request for Review at 1. Finally, it is the individual’s contention that the Hearing Officer did not accord any weight to her candor in promptly reporting her bankruptcy filing to the DOE and her subsequent admission in July 2000 of her financial problems. Supplement to Request for Review at 1. The individual believes that her actions in this regard should have mitigated any concern about her honesty, reliability, and trustworthiness under Criterion L .

1. Whether a Legitimate Security Concern Exists Regarding the Individual’s Financial Difficulties?

As an initial matter, it is worth noting that financial difficulties do not always constitute serious security concerns. Personnel Security Hearing (Case No. VSO-0425), 27 DOE ¶ _____ (May 8, 2001). It is only when those financial difficulties result from a person’s irresponsibility that serious security concerns arise. Id. In this case, the Hearing Officer found that the individual’s conduct subsequent to the discharge of most of her debts through bankruptcy showed a pattern of financial irresponsibility that raised a concern about her judgment and reliability. Specifically, the Hearing Officer pointed to the individual’s use of her mortgage money to purchase lottery tickets as evidence of the individual’s financial irresponsibility. The Hearing Officer also questioned the individual’s judgment in failing to make timely payments on debts she had agreed to pay after the bankruptcy proceeding had closed in view of an admonition during a Personnel Security Interview in July 2000 (PSI) that failure to make such payments might jeopardize her security clearance. In addition, the Hearing Officer explained that the individual’s reliability and trustworthiness were questionable because she had failed to improve her financial situation after having articulated a firm and apparently sincere intention to do so during the PSI.

The individual does not challenge the reasons articulated by the Hearing Officer for finding the existence of a legitimate security concerns. Instead, she implies that other considerations outweigh those the Hearing Officer relied on in rendering her finding on this issue. I do not agree. While the individual’s financial difficulties do not appear from the record to have negatively impacted her job, there is no guarantee that the individual financial problems purportedly stemming from her gambling activities will not adversely affect her job performance in the future. As for the individual’s contention that her financial difficulties were never so bad that she could have been, or would ever be subject to pressure, coercion, or blackmail, the record in this case suggests otherwise. Of great significance is the undisputed fact that the individual concealed her gambling activities from her husband until one month before the hearing. See Transcript of Hearing (Tr.) at 61. The individual’s failure to apprise her husband of the reason for their inability to make the mortgage payments and to pay other outstanding debts suggests strongly that the individual could have been susceptible to coercion, blackmail, or pressure during the period she concealed this information from her husband. To be sure, the possibility of coercion, blackmail, or pressure has diminished since the individual’s husband learned of the individual’s gambling. Nevertheless, in other personnel security cases, Hearing Officers have held that “[f]inancial problems resulting from a person’s gambling are precisely the conduct or circumstance that “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 national security” under Criterion L. See Personnel Security Hearing (Case No. VSO-0244), 27 DOE ¶ 82,797 (1999) (affirmed by OSA, 1999); Personnel Security Hearing (Case No. VSO-0041), 25 DOE ¶ 82,775 (1995), aff’d, Personnel Security Review (Case No. VSA- 0041), 25 DOE ¶ 83,005 (1996) (affirmed by OSA, 1996). While it may well be true that the individual has not, to date, succumbed to any pressure, coercion, or exploitation because of her financial difficulties, the risk is too great to ignore.

Based upon my review of the record, I find that the Hearing Officer correctly examined the individual’s conduct in its totality before concluding that the individual’s actions constituted a pattern of financial irresponsibility.

2. Whether the Hearing Officer Erred in Not Finding Mitigation in this Case?

a. The import of the individual’s job performance on the security concerns at issue

The individual points to her exemplary employment service over two decades as evidence of her reliability, and suggests that the Hearing Officer should have considered her job performance as a mitigating factor under Criterion L. While the individual is to be commended for her admirable work performance during personally troubling times, I find that excellent job performance and dedication to one’s work 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 with regard to the issue of financial irresponsibility. Eligibility for a security clearance involves a determination concerning national security concerns that are different from the standards used to evaluate employee performance. See Personnel Security Hearing (Case No. VSO-0353), 28 DOE ¶ 82,782 (2001) (affirmed by OSA, 2001). Those entrusted with a security clearance are assumed to possess such characteristics as judgment, reliability, and trustworthiness, all of which must be demonstrated seven days a week, twenty-four hours a day. See Personnel Security Review (Case No. VSA-0273), 27 DOE ¶ 83,026 (1999). In the end, “satisfactory job performance is a necessary but not a sufficient condition for keeping a security clearance.” See Personnel Security Review (Case No. VSA-0102), 26 DOE ¶ 83,008 (1997).

b. The weight, if any, to be accorded to the individual’s actions during the administrative review process

The individual believes that the Hearing Officer should have accorded some weight to her honesty during the administrative review process. Specifically, the individual argues that the Hearing Officer should have considered as mitigating factors the following information: (1) the individual voluntarily reported her bankruptcy filing to the DOE in 1998; and (2) the individual readily admitted during the PSI the extent of her gambling problem.

All persons holding DOE access authorizations are under a continuing obligation to keep the DOE informed of all matters that bear on his or her access authorization such as bankruptcy filings, arrests, etc., and to be completely honest and open with the DOE when completing security documents and responding to questions posed by security officials. The fact that the individual discharged her security obligations in the manner required of her is a matter entitled only to neutral weight. Accordingly, I find that the Hearing Officer did not err in not commenting on the individual’s discharge of her security obligations and candor during the administrative review process.

c. New information regarding the individual’s alleged improvement of her financial situation and her attendance at Gamblers’ Anonymous

The individual claims that her actions after the administrative review hearing demonstrate that she has acted responsibly in addressing her financial problems and her self-described gambling problem. Specifically, she asserts that she is continuing to pay down balances on her outstanding accounts. In addition, she has tendered into the record of the case evidence in the form of sign-in sheets from GA indicating that she has regularly attended that support group after the hearing. She adds that she receives the equivalent of “credit counseling” during “Pressure Relief” meetings at GA. Furthermore, she asserts that she is now receiving unemployment benefits and seeking a new job. She concludes that she has “done everything in her power to mitigate” the DOE’s concerns.

The individual is to be commended for seeking assistance and counseling from GA after the hearing, attempting to make regular payments towards the reduction of her outstanding debts, and supplementing her income through unemployment benefits. However, the doubts that are raised by past financial difficulties are not necessarily resolved when an individual puts his or her financial affairs in order. See Personnel Security Hearing (Case No. VSO-0132), 26 DOE ¶ 82,780 at 85,711 (1997), aff’d, 26 DOE ¶ 83,019 (1997) (affirmed by OSA, 1998) (payment of debts does not in itself definitively establish that an individual will conduct his financial affairs responsibly in the future). Generally, once a pattern of financial irresponsibility has been established, the individual must demonstrate a sustained, new pattern of financial responsibility for a period of time that is sufficient to demonstrate that a recurrence of the past pattern is unlikely. See Personnel Security Hearing (Case No. VSO-0108), 26 DOE ¶ 82,764 at 85,699 (1996)(affirmed by OSA, 1997); Personnel Security Hearing (Case No. VSO-0240), 27 DOE ¶ 82,790 (1999)(affirmed by OSA, 1999). In this case, even had the individual had made the effort to improve her financial situation before the hearing, the Hearing Officer most likely would have examined whether sufficient time had passed for her to predict whether the individual will remain financially responsible, or whether she will resume her past pattern of financial irresponsibility. Since the individual did not make a concerted effort until after the hearing to ameliorate her financial condition, I cannot conclude that sufficient time has elapsed to predict that the individual will remain financially stable. Moreover, the record in this case suggests that the individual’s financial stability is probably tied to her recovery from her self- described gambling problems. Since the individual has just begun that recovery process, it would be difficult for me to conclude based on the new evidence regarding the individual’s attendance at GA for the past four months that she has mitigated the DOE’s security concerns associated with her past financial irresponsibility. (3)

C. Summary

After carefully considering the record in this case and the new evidence tendered by the individual on review, I conclude that the Hearing Officer did not err in finding that the individual had not mitigated the security concerns associated with Criterion L. I find further that the new evidence submitted by the individual during the review stage of the administrative review process is not sufficient for me to reverse the Hearing Officer’s recommendation not to restore the individual’s access authorization. I therefore affirm the Opinion of the Hearing Officer in Case No. VSO-0414.

D. 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: June 7, 2001

(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 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 also complains that the Employee Assistance Program at her worksite failed to provide her with the assistance she needed to address her gambling problem. She claims that her employer assists employees with drug and alcohol problems, and questions why her employee does not assist those with gambling issues. This concern is not the proper subject of a Request for Review and, as a consequence, will not be considered in this Decision.