Case No. VSO-0028, 25 DOE ¶ 82,762 (H. O. Klurfeld Aug. 3, 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-0028

This opinion concerns the eligibility of XXXXX (hereinafter referred to as the individual) for continued "Q" access authorization. The regulations governing an 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. In this opinion, I will consider whether, based on the record before me, the individual's access authorization should be restored. For the reasons stated below, I am of the opinion that the individual's access authorization should not be restored.

I. Procedural Background

The individual works for XXXXX, which is the XXXXX subcontractor providing XXXXX services at the Department of Energy's XXXXX. In February 1995, the Department's XXXXX Operations Office (DOE/XXXXX) was informed that drug tests conducted on a random basis indicated that the individual had tested positive for cannabinoids, a marker of marijuana. Pursuant to 10 C.F.R. § 710.10(a), DOE/XXXXX conducted a recorded interview with the individual on February 6, 1995. 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 March 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 continuing 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 two 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 March 24, 1995, the individual requested a hearing. DOE/XXXXX forwarded the individual's request for a hearing to the DOE's Office of Hearings and Appeals. On April 10, 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

XXXXXXXXXXXXX. The DOE called three witnesses to testify: (i) the individual, (ii) Ms. XXXXXXXXXXXXX, a DOE personnel security specialist, and (iii) XXXXX, the employment supervisor for the individual's employer. The individual called four witnesses to testify: (a) XXXXX, a former work supervisor of the individual, (b) XXXXX, (c) XXXXX, and (d) Ms. XXXXXXXXXXXXXXXXXXXX, a licensed professional clinical counselor.

II. Statement of Derogatory Information

As indicated above, the Notification Letter issued to the individual on March 9, 1995, included a list of the derogatory information that created a substantial doubt regarding the individual's continued eligibility for "Q" access authorization. According to the Notification Letter, the information can be categorized as falling within the ambit of two regulatory criteria, subsections (k) and (l) of 10 C.F.R. § 710.8. Criterion (k) involves, in part, the possession, use, or experimentation 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. The Notification Letter cited the following evidence to support this charge:

(1) On January 26, 1995, the individual was tested for drug use. The DOE subsequently received a copy of a drug test report dated January 31, 1995, which indicated a positive result for cannabinoids, a marker of marijuana.

(2) During a Personnel Security Interview (PSI) on February 6, 1995, the individual admitted that he had smoked marijuana on January 22, 1995.

(3) During a 1981 interview, the individual also admitted that he had smoked marijuana from 1973 until late 1980.

(4) On November 22, 1979, the individual was arrested and charged with Possession of Marijuana, Less than One Ounce.

In addition, the Notification Letter stated that information the DOE possessed fell within criterion (l) of 10 C.F.R. § 710.8. Criterion (l) covers information that shows that the individual has engaged in unusual conduct or is subject to circumstances which tended 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. See 10 C.F.R. § 710.8(l). The basis for this statement was the following: On August 21, 1981, 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 holding a DOE access authorization. As described above, the individual subsequently used marijuana.

III. Findings

The individual is XXXXX. He has worked since 1981 at XXXXX for XXXXX or its predecessor contractors. He started as a XXXXXXX and was promoted several times into his current position. He is now a XXXXX at the facility. Because he needs access to buildings behind a security perimeter, his employer has determined that his position requires him to possess a "Q" access authorization. At the hearing held in this case, the employment supervisor for his employer characterized the individual as a "pretty good employee" and a "good worker." Hearing Transcript at 52 [hereinafter Hearing Tr.].

The DOE has granted the individual access authorization since 1981. During a personnel security interview conducted by DOE/XXXXX on August 21, 1981, the individual acknowledged that he had been arrested and convicted of possession of a small amount of marijuana in 1979. The individual also stated that he had smoked marijuana intermittently during the period from 1973 through 1980. Because of this prior drug activity, 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 holding a DOE access authorization. He signed that certification on August 21, 1981. This apparently resolved DOE/XXXXX's concerns at the time, and subsequently the DOE granted the individual a "Q" access authorization.

On January 26, 1995, the individual was administered a drug test at his workplace. The individual provided a urine sample, which was analyzed for the presence or prior use of illegal drugs. On January 31, 1995, the testing laboratory furnished a report that analyzed the sample identified as the individual's and found that it contained cannabinoids, a marker for marijuana.

As a result of the test, the DOE/XXXXX interviewed the individual on February 6, 1995. During the interview, the individual stated that he had smoked marijuana four days before the administration of the drug test. Transcript of Personnel Security Interview at 42 [hereinafter PSI Tr.]. The individual described an incident in which he was offered beer to drink. He stated that he "just didn't want to start drinking at all," PSI Tr. at 18, 31, because alcoholism runs in his family, PSI Tr. at 41. The individual then was offered marijuana to smoke, which he accepted. He stated that this one incident was his only use of marijuana. PSI Tr. at 32.

At the hearing, the individual offered a slightly different story. The individual testified that since alcoholism runs in his family, he tries to keep away from alcohol consumption as much as possible. Hearing Tr. at 16. When he was offered a beer, he told his acquaintances that he had not drunk beer in a long time. Hearing Tr. at 21. While he confirmed that he then smoked marijuana, the individual also testified that he had used marijuana twice a year during each of the last two years. Hearing Tr. at 17, 23-24.

When the individual tested positive for the use of marijuana, his employer required him to see a therapist five times within 90 days. Hearing Tr. at 54. Ms. XXXXXXXXXXXXXXXXXXXX, a licensed professional clinical counselor, was the therapist the individual saw, and she also testified at the hearing. She stated that she was not concerned on a professional level with the individual's illegal drug use because he was a recreational substance user and definitely not addicted to the use of marijuana. Hearing Tr. at 95. She testified that the individual did not exhibit denial and was open and honest with her. Hearing Tr. at 97, 100. However, she also testified that she knew about only the one instance of drug use by the individual on January 22, 1995. Hearing Tr. at 95. Finally, Ms. XXXXXXXXXXXXXXXX testified that she was much more concerned with the individual's alcohol consumption, given his family history of alcoholism. Hearing Tr. at 96.

Three other individuals testified at the hearing in support of the individual. XXXXX, a former work supervisor of the individual who also knows the individual socially, testified that the individual was an excellent role model for children and that his use of marijuana prior to the positive drug test was, in his opinion, an aberation that is difficult to understand. Hearing Tr. at 70-71. XXXXX testified that he met the individual at meetings of Alcoholics Anonymous and that the individual took the meetings seriously. Hearing Tr. at 75, 78. XXXXX also testified that he met the individual at meetings of Alcoholics Anonymous and that the individual took the meetings seriously. Hearing Tr. at 84-85.

The DOE/XXXXX relied on 10 C.F.R. § 710.8(k) as one of the bases for suspending the individual's "Q" access authorization. Criterion (k) involves, in part, the possession, use, or experimentation with an illegal drug such as marijuana. It is clear from the evidence cited above that the individual did in fact use marijuana. He tested positive for the use of marijuana. At a Personnel Security Interview he admitted using marijuana four days before the test but denied any other use of the drug. However, at the hearing the individual admitted using marijuana four times in the last two years. It is therefore uncontroverted that he has possessed, used, or experimented with marijuana.

In suspending the individual's access authorization the DOE/XXXXX also relied on criterion (l) of 10 C.F.R. § 710.8. Criterion (l) covers information that shows that the individual is subject to circumstances that tended to show that he is not honest, reliable, or trustworthy. To support this charge, the DOE/XXXXX has shown that the individual signed a Drug Certification in 1981 and thereafter used marijuana in 1995. These circumstances were not disputed at the hearing. Moreover, it became evident at the hearing that the individual was not being completely honest in his dealings about these matters. For example, the individual stated, both at his personnel security interview and the hearing, that he did not use alcohol because of his family history of alcoholism. However, the licensed professional clinical counselor whom he saw testified that she was concerned about his alcohol consumption. Hearing Tr. at 96. The individual stated at his personnel security interview that he had used marijuana only once before, PSI Tr. at 32, yet at the hearing testified that he had used marijuana two times during each of the last two years. Hearing Tr. at 17, 23-24. This inconsistent testimony, together with the violation of the pledge not to use any illegal drugs contained in the 1981 Drug Certification, leads me to conclude that DOE/XXXXX was correct in invoking criterion (l) to suspend the individual's access authorization.

IV. Conclusions

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). 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. Indeed, the testimony at the hearing confirms that the individual is not being honest, reliable, and trustworthy.

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).

I have found that there is significant derogatory information in the possession of DOE/XXXXX that provided a sufficient basis for invoking the criteria in 10 C.F.R. § 710.8(k) and (l). In particular, I have found that the individual used marijuana, despite his promise in a 1981 Drug Certification to refrain from the use of any illegal substance. He has also testified inconsistently concerning the frequency of his use of marijuana. In addition, he has testified that he drinks alcoholic beverages very rarely if at all, since alcoholism exists in his family history. However, he disclosed use of alcohol to a licensed professional clinical counselor sufficient to make her concerned about the effects of his alcohol consumption. These current inconsistencies support the charge that the individual is not being honest, reliable and trustworthy.

As pointed out by the Personnel Security Specialist in her testimony, the security program is based on trust. If an employee lies to the DOE or breaks a written promise to the DOE, that trust is violated. Hearing Tr. at 46. Furthermore, when an employee knowingly engages in illegal activity, this raises significant doubts as to his trustworthiness. Hearing Tr. at 45-46. In the present case, the individual's use of marijuana 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 1981 to sign a Drug Certification, promising that he would never use illegal drugs while employed in a position requiring an access authorization. He clearly violated this promise. Moreover, in this case there was additional evidence at the hearing from which I have concluded that the individual is not honest, reliable, or trustworthy.

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.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of this Hearing Officer's opinion within 30 calendar days of receipt of the opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585, and served on the other party. If either party elects to seek review of the opinion, that party must file a statement identifying the issues on which it wishes the OHA Director to focus. This statement must be filed within 15 calendar days after the party files its request for review. The party seeking review must serve a copy of its statement on the other party, who may file a response within 20 days of receipt of the statement. 10 C.F.R. § 710.28(b). The address to which submissions must be sent for purposes of serving them on the Office of Security Affairs is as follows:

Director

Office of Safeguards and Security, NN-51

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874

Roger Klurfeld

Hearing Officer

Office of Hearings and Appeals