Case No. VSO-0019, 25 DOE ¶ 82,759 (H.O. Dugan May 25, 1995)

Case No. VSO-0019, 25 DOE ¶ 82,759 (H. O. Dugan May 25, 1995)

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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 XXXXX's.

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Case Name: Personnel Security Hearing

Date of Filing:February 2, 1995

Case Number: VSO-0019

This opinion concerns the eligibility of Mr. XXXXX ("the individual") for continued "Q" access authorization. The regulations governing the individual's eligibility are set forth at 10 C.F.R. Part 710, "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material."<1> In this Opinion, I will consider whether, based on the record before me, the individual's access authorization should be restored.

I. Procedural Background

The individual works for XXXXX. (XXXXX), a Department of Energy (DOE) contractor at XXXXX. On November 7, 1994, the DOE XXXXX Operations Office (DOE/XXXXX) was informed that tests conducted as part of a routine annual physical examination indicated that the individual had used an illegal drug. Pursuant to 10 C.F.R. § 710.10(a), DOE/XXXXX authorized the conduct of a recorded interview with the individual. Since information creating doubt as to the individual's eligibility for a clearance remained unresolved after that interview, DOE/XXXXX requested from the Director of the Office of Safeguards and Security the authority to conduct an administrative review proceeding.

The administrative review proceeding began with the issuance of a Notification Letter dated January 9, 1995. See 10 C.F.R. § 710.21. That letter informed the individual that information in the

possession of the DOE created a substantial doubt concerning his eligibility for a "Q" access authorization. In accordance with 10 C.F.R. § 710.21, the Notification Letter included a statement of that derogatory information. In particular, it specified three areas of derogatory information described in 10 C.F.R. § 710.8. The Notification Letter also stated that the individual was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his eligibility for access authorization. On January 26, 1995, the individual requested a hearing without filing a separate written response to the allegations specified in the Notification Letter. Under the regulations, such a request is deemed a general denial of all the derogatory information listed in the Notification Letter. 10 C.F.R. § 710.21(b)(5). DOE/XXXXX forwarded the individual's request for a hearing to the DOE's Office of Hearings and Appeals. On February 3, 1995, I was appointed the Hearing Officer in this matter.

In accordance with 10 C.F.R. § 710.25(e) & (g), the hearing was convened in XXXXX, on XXXXXXXXXXXXXX.<2> At the hearing, the individual was represented by an attorney. The following witnesses were called to testify: (i) the individual, (ii) Ms. XXXXX, the individual's wife, (iii) Ms. XXXXX, administrator of the DOE facility's drug-testing program, (iv) Dr. XXXXXXXXXXXX, Vice-President of Laboratory Operations and Chief Toxicologist at XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, (v) Dr. XXXXX, Medical Review Officer for the DOE facility, (vi) Ms. XXXXX, DOE Personnel Security Specialist, (vii) Mr. XXXXX, Employment Supervisor for XXX, and (viii) Mr. XXXXXXXXXXXXX, the individual's supervisor. DOE Counsel submitted 24 exhibits (designated by numbers), and the individual submitted seven exhibits (designated by letters).<3>

II. Statement of Derogatory Information

As indicated above, the Notification Letter issued to the individual on January 9, 1995, included a list of the derogatory information in possession of the DOE that created a substantial doubt regarding the individual's eligibility for continued "Q" access authorization. On the basis of that derogatory information, DOE/XXXXX found that:

The individual had trafficked in, sold, transferred, possessed, used, or experimented with a drug or other substance listed in the Schedule of Controlled Substances established pursuant to section 202 of the Controlled Substances Act of 1970. See 10 C.F.R. § 710.8(k). The bases for this statement were as follows: (a) On November 7, 1994, the DOE was notified that the individual had tested positive for illegal drug use. On November 15, 1994, the DOE received a copy of the drug test report confirming that the test was positive for cocaine. On November 10, 1995, a different laboratory tested the same specimen and reported the same result. (b) During a Personnel Security Interview (PSI) on August 7, 1986, the individual admitted that he had smoked marijuana between 1976 and 1981. During this period, he smoked it as often as once a week. (c) During the 1986 PSI, the individual also admitted that he had smoked hashish two or three times between 1977 and 1979. (d) On December 12, 1979, the individual was arrested and charged with Possession of a Controlled Substance (marijuana).

The individual had deliberately misrepresented, falsified, or omitted significant information from a PSI. See 10 C.F.R. § 710.8(f). The basis for this statement was that during a PSI conducted on November 10, 1994, the individual denied ever using cocaine despite the positive drug-test results in the possession of the DOE.

The individual had engaged in unusual conduct or was subject to circumstances which tended to show that he was not honest, reliable, or trustworthy, or which furnished 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. See 10 C.F.R. § 710.8(l). The basis for this statement was as follows: On October 24, 1986, the individual signed a DOE Drug Certification providing written assurance that he would refrain from using or becoming involved in any way with illegal drugs while employed in a position with a DOE access authorization. As described above, the individual subsequently tested positive for use of cocaine.

III. Factual Background

The individual is a XXXXX-year-old man who is employed as a pump operator at the DOE's XXXXX in XXXXX. His employer has determined that his position requires him to possess a "Q" access authorization.<4> The individual has worked at XXXXX, with XXXXX or its predecessor contractors, since XXXXX and received a "Q" access authorization in the same year. On December 12, 1979, the individual was arrested and charged with Possession of a Controlled Substance (one to eight ounces of marijuana), and on January 14, 1980, he was convicted of the charged offense (Ex. C at 23). During a PSI conducted by DOE/XXXXX on August 7, 1986, the individual stated that he had smoked marijuana approximately once a week from 1976 to 1979 and that he had last smoked marijuana in 1981. In this PSI, the individual also stated that he had smoked hashish two or three times during the period from 1977 through 1979. Because of this prior drug use, the individual was asked to sign a DOE Drug Certification stating that he agreed not to buy, sell, use, or be involved with illegal drugs while employed in a position with a DOE access authorization. He signed that certification on October 24, 1986.

On October 31, 1994, the individual participated in a drug-screening program as part of his annual physical examination conducted at his workplace. As part of that program, the individual provided a urine sample, which was analyzed for the presence or prior use of illegal drugs. On November 1, 1994, XXXX analyzed the sample identified as the individual's and found that it contained benzoylecgonine, a metabolite produced by the body when a person uses cocaine. The individual requested that the specimen be retested by a different laboratory, and the DOE authorized the retest. On November 11, 1994, the retest laboratory, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, reported to DOE/XXXXX that its test also showed that the specimen contained benzoylecgonine. The individual does not dispute these facts. Nevertheless, in a PSI conducted by DOE/XXXXX on November 10, 1994, the individual denied ever using cocaine.

IV. Analysis

The regulations state that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all the relevant information, favorable or unfavorable, as to whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.7(a). As discussed below, after carefully considering the record in view of the standards set forth in 10 C.F.R. Part 710, I find that the derogatory information presented by DOE/XXXXX in this case is accurate and that the individual has failed to present sufficient evidence to rebut or mitigate that derogatory information.

The individual in this case maintains that he has never used cocaine (Tr. at 219; Ex. 13 at 44). I am therefore confronted, on the one hand, with the results of two tests indicating the presence of the cocaine metabolite in the urine specimen identified as the individual's and, on the other hand, with the adamant and consistent denial of the individual. The individual does not claim that the positive test results for cocaine were "false positives."<5> Instead, the individual bases his defense to the Notification Letter on the claim that the specimen that was tested was not his. He does not directly challenge any specific step in the chain of custody of the specimen. He instead argues that his use of three over-the-counter drugs (Advil, Sineoff, and Robitussin AC, which contains codeine) and an influenza vaccination which he received should have caused the tests to render positive results for drugs other than cocaine. The individual testified that during the week prior to the drug test, he was taking Advil and Sineoff in amounts not exceeding the recommended dosages and that the last time he took those medications was on Sunday, October 30, 1994, the day before the drug test (Tr. at 19-20). He also testified that during that week he was taking Robitussin AC in accordance with the dosage recommendations on the bottle and that he last took that medication (and finished the bottle) on Saturday, October 29, 1994, late in the afternoon (Tr. at 17). The individual's wife also testified that she recalls her husband taking Robitussin AC during the week prior to the drug test, but she cannot recall on what day he last took that medicine (Tr. at 31, 34-5).

Understanding the individual's argument requires familiarity with the types of drug tests which are performed on urine samples from DOE contractor employees. Employee urine samples are analyzed pursuant to procedures set out in the Mandatory Guidelines for Federal Workplace Drug Testing Programs promulgated by the U.S. Department of Health and Human Services (the Mandatory Guidelines). See 10 C.F.R. § 707.5(a) (requiring DOE contractors to establish drug-testing programs consistent with the Mandatory Guidelines); 53 Fed. Reg. 11970 (April 11, 1988) (provisions of the Mandatory Guidelines). Laboratories approved to participate in federal and contractor drug testing are generally required to perform two types of tests. A laboratory first uses an immunoassay to screen the urine sample for the presence or past use of five categories of drugs: amphetamines, cannabinoids (the active components of marijuana), cocaine, opiates (morphine and codeine), and phencyclidine (PCP). If any of these initial tests are positive, the laboratory performs a gas chromatography/mass spectrometry (GC/MS) test to confirm the positive result and to identify which of the drugs in the category (or which of their metabolites) is present in the specimen. The confirmatory test is not required, and is usually not performed, for those drug categories for which the screening test is negative.

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XXXX used an immunoassay to test the specimen involved in this case for the five categories of drugs. That test revealed the presence of the cocaine metabolite at a level above the standard set under the Mandatory Guidelines. XXXX then performed a confirmatory GC/MS test for the cocaine metabolite and found it at a level above the standard set for that test. The second laboratory, XXXXXXXXX, also performed a GC/MS test for the cocaine metabolite and confirmed its presence in the specimen. None of these tests showed the presence of any of the other four categories of drugs. The individual contends that if this specimen had been his urine sample, the tests would have shown the presence of the over-the-counter medications he had been taking during the prior week. In support of his argument that the specimen that was tested was not his, he has submitted the results of a third test which XXXXXXXXX performed on the specimen on April 19, 1995. That test, a GC/MS, was performed specifically to determine whether codeine or morphine was present in the specimen. The results of that test were negative (Ex. G).

After reviewing the complete record, including all of the testimony provided at the hearing, I have concluded that the tested specimen was the individual's urine sample. The testimony of two witnesses is particularly helpful in this regard. In her testimony, the administrator of the drug-testing program provided a detailed description of the procedures which are followed and the checks which are built into the drug-testing process to safeguard against errors in the chain of custody or contamination of the sample (Tr. at 47-50, 52-54). I have reviewed these procedures, and I am convinced that they provide a very high level of assurance that the collection and custody of urine samples is properly performed. There is no evidence whatsoever in the record of this proceeding that all normal procedures were not followed in the collection and custody of the specimen. I have personally reviewed the chain-of-custody documents, and I have found nothing to suggest any irregularity. The record contains a photocopy of the seal on the bottle containing the tested specimen, and that seal is marked with the individual's initials in his handwriting (Tr. at 224; Ex. 22). The chain of custody of the sample is documented in the normal manner, and the individual has not pointed to any irregularity or departure from the proper procedures.

Dr. XXXXXX, the Chief Toxicologist at XXXX, also testified in great detail regarding the procedures that his laboratory follows in order to ensure accuracy in both the testing and the identity of samples that it receives (Tr. at 72-75). I am convinced that these procedures provide a strong assurance of accuracy in the testing and handling of specimens. All of the normal procedures were carefully followed in this case, and the chain of custody is well documented. The individual has not identified any irregularity in the testing or custody of his specimen by either XXXX or XXXXXXXXX.

Dr. XXXXXX's testimony is also extremely helpful in understanding the effects that legal ("over-the-counter") medications might have on the results of a drug test. First, he testified that none of the medications allegedly taken by the individual in this case (Advil, Sineoff, Robitussin AC containing codeine, or influenza vaccine) could have caused the positive test result for the cocaine metabolite (Tr. at 105-106). He also testified that there is no known substance which will cause a false positive for the cocaine metabolite (Tr. at 106). That expert opinion is supported by the affidavit of Dr. XXXXXXXXXXXXXX, Laboratory Director of XXXXXXXXX's Workplace Drug Testing Division, in the litigation report prepared by that laboratory for purposes of this hearing (Ex. 23 at 3). Dr. XXXXX also testified that Advil, Sineoff, and the influenza vaccine allegedly taken by the individual prior to the drug test would not have shown up in any drug test for the five categories of substances (Tr. at 116, 119).

With regard to the Robitussin AC, he testified that although this type of over-the-counter cough medicine generally contains only small amounts of codeine, that substance is an opiate and Robitussin AC could therefore cause a positive test result for opiates. He further testified, however, that the half-life of codeine in humans ranges from 1.9 to 3.9 hours (or an average of about three hours) and that the drug will be eliminated completely from a person's system in about five half-lives (Tr. at 107-108).<6> Consequently, codeine would not appear in a drug test for opiates if the specimen were collected more than 15 to 20 hours after the codeine was ingested (Tr. at 108-109). The individual in this case has testified with a high degree of certainty that he took his last dose of Robitussin AC containing codeine a day and a half, or approximately 36 hours, prior to providing the urine specimen for the drug test (Tr. at 17). Given this testimony and Dr. XXXXXX's testimony regarding the period in which codeine would be detectable in a urine specimen, I must conclude that there is little significance to the fact that the tests which have been performed on the specimen identified as the individual's were negative for opiates. In fact, in view of the amount of time that elapsed between the individual's last dose of Robitussin AC and the time that the specimen was provided, it is reasonable to expect the results of the tests to be negative for opiates. Therefore, I give little weight to the negative test results for opiates upon which the individual bases his argument.

In view of the testimony discussed above, I find, despite the individual's denials, that the tested specimen was his and that he must have used cocaine. He has therefore used an illegal substance listed in the Schedule of Controlled Substances established pursuant to Section 202 of the Controlled Substances Act of 1970, and this action falls within the scope of 10 C.F.R. § 710.8(k). I therefore believe that his denials of cocaine use in the November 10, 1994, PSI and, under oath, during the hearing were falsifications within the meaning of 10 C.F.R. § 710.8(f). Furthermore, the individual has violated the drug certification which he signed on October 24, 1986, and this raises significant doubt as to his honesty, reliability, and trustworthiness within the meaning of 10 C.F.R. § 710.8(l).

V. Conclusion

Among the factors I have considered in rendering this opinion concerning the individual's eligibility for access authorization are the following: the nature, extent, and seriousness of his conduct; the circumstances surrounding his conduct, including knowledgeable participation; the frequency and recency of his conduct; his age and maturity at the time of the conduct; the voluntariness of his participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for his conduct; the potential for pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and material factors. See 10 C.F.R. §§ 710.7(c), 710.27(a).

In the above analysis, I have found that there is significant derogatory information in the possession of DOE/XXXXX which provided a sufficient basis for invoking the criteria in 10 C.F.R. § 710.8(f), (k), and (l). In particular, I have found that the individual used cocaine, despite his promise in a 1986 drug certification to refrain from the use of any illegal substance, and that he subsequently lied about that drug use. As pointed out by the Personnel Security Specialist in her testimony, the security program is based on trust, and if an employee lies to the DOE or breaks a written promise to the DOE, that trust is violated (Tr. at 165). Furthermore, when an employee knowingly engages in illegal activity, this raises significant doubts as to his trustworthiness (Tr. at 166). In the present case, the individual's use of cocaine was a serious breach of his relationship of trust with the DOE. The drug use occurred in the recent past and was not a youthful indiscretion. It was precisely because of the individual's prior illegal drug use that he was asked in 1986 to sign the drug certification, promising that he would never use illegal drugs while employed in a position requiring an access authorization. His violation of this promise shows very poor judgment. In this case, there has been no indication of rehabilitation, nor even an acknowledgement that rehabilitation is appropriate. The only argument presented has been the individual's assertion that the specimen which was tested was not his. As discussed above, I have not been convinced by this argument.

In view of the criteria set forth in 10 C.F.R. § 710.8 and the record before me, I am unable to find that restoring the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, it is my opinion that the individual's access authorization should not be restored.

Richard W. Dugan

Hearing Officer

Office of Hearings and Appeals

<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>/ During the course of the hearing, the parties agreed that the individual would be permitted to submit, after the hearing, the results of an additional drug test and that DOE Counsel would be permitted to respond to that submission. I received the individual's submission on May 2, 1995, and the DOE's response on May 3, 1995. I therefore deemed the administrative record closed on May 3, 1995.

<3>/ The exhibits are cited herein as Ex., and the transcript of the hearing is cited as Tr.

<4>/ During the hearing, DOE counsel and the individual's attorney elicited testimony as to whether access authorization is actually necessary for the position held by the individual. That question is outside the scope of this proceeding, and I will not address it in this opinion.

<5>/ Although the individual's attorney questioned the XXXX Toxicologist about the accuracy of urine testing for drug use, the individual did not allege that the test results showing the cocaine metabolite were incorrect. In fact, at the hearing, the individual and DOE Counsel stipulated that the DOE had received test results which were positive for the cocaine metabolite (Tr. at 132).

<6>/ The half-life of a drug is the time required to eliminate half of the amount of the drug present in an individual.