Case No. VSO-0034, 25 DOE ¶ 82,768 (H.O. Brown Sept. 26, 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 Opinion

Case Name: Personnel Security Hearing

Date of Filing:May 5, 1995

Case Number: VSO-0034

This Opinion concerns the continued eligibility of XXXXX (hereinafter referred to as "the individual") to hold a level "L" access authorization under the regulations set forth at 10 C.F.R. Part 710, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material."<1> The Department of Energy's XXXXX Operations Office (DOE/XXXXX) suspended the individual's access authorization under the provisions of Part 710. This opinion considers whether, on the basis of the evidence and testimony presented in this proceeding, the individual's access authorization should be restored.

I. Background

The provisions of 10 C.F.R. Part 710 govern the eligibility of individuals who are employed by or are applicants for employment with DOE contractors, agents, DOE access permittees, and other persons designated by the Secretary of Energy for access to classified matter or special nuclear material. Part 710 generally provides that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all 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).

The DOE granted the individual an access authorization, in this instance an "L" clearance, in conjunction with his employment beginning in 1988 as an engineer with XXXXX, a DOE contractor which operates DOE's XXXXX plant located in XXXXX. However, on April 5, 1995, DOE/XXXXX issued a Notification Letter informing the individual that his access authorization had been suspended based upon information in the possession of the DOE which created substantial doubt concerning his continued eligibility. The specific information in support of the determination by DOE/XXXXX is set forth in Enclosure 1 accompanying the Notification Letter, and is summarized below.

During a DOE personnel security interview (PSI) conducted on August 25, 1994, the individual stated that on or about August 17, 1994, he received a misdemeanor citation for Indecent Exposure from the XXXXXXXXXXXXXX Police after being stopped while driving his car because there was no license plate on the car. The citation was issued following a determination by the police that the individual's car fit the description of one in which a complainant had seen a man expose himself in the parking lot of the XXXXXXXXXXXXXX. The individual conceded during the PSI that he removed his license plate from the car, but only as a precaution. According to the individual, he parked in the mall lot to masturbate in his car, but he asserts that it was not his intention to expose himself and believed that he would not be conspicuous among the cars parked in the mall lot. The individual stated that his masturbating in a public place had occurred several times previous to that incident, and he had sought treatment and consultation with both a psychiatrist and, on a more regular basis, from a licensed clinical social worker. With regard to the Indecent Exposure offense, the individual received six months probation with conditional counseling.

Following the PSI, the individual was referred to Dr. XXXXX, M.D., a DOE consultant psychiatrist, who made an evaluation of the individual based upon a one-hour clinical interview and a screening test conducted on October 3, 1994. During the evaluation, the individual explained the circumstances of the arrest for indecent exposure and provided background information concerning his treatment for abnormal behavioral conditions which may have led to the incident of his arrest. On the basis of his evaluation, Dr. XXXXX issued a report on October 11, 1994, in which he diagnosed the individual as having the following psychiatric disorders: (1) Paraphilia, Exhibitionism (302.40), (2) Generalized Anxiety Disorder (300.02), and (3) Obsessive Compulsive Personality Disorder (301.40).<2> Dr. XXXXX further opined, in part:

The question is to what extent that it interferes with his judgment and reliability. It would appear to be a problem confined to his personal life, off the job . . . . This behavior would seem to fall under paragraph L in criteria 710.8, in that he is susceptible to blackmail pressure from people who are aware of his behavior or any further incidents.

Notification Letter, Enclosure 1 at 2. Subsequently, however, DOE/XXXXX requested that Dr. XXXXX clarify his statements concerning "judgment and reliability" and, on February 9, 1995, Dr. XXXXX provided a supplement to his initial report, stating in pertinent part regarding his diagnosis:

I think it adversely affects [the individual's] judgment and reliability as evident by his arrest. As indicated, I think there is a poor prognosis reflected by the arrest occurring after he had sought treatment. My comments about his being susceptible to blackmail were indefinite because I do not consider myself to be an authority in that area . . . . I do think the condition causes a significant defect in his judgment and reliability.

Id. at 3.

On the basis of the foregoing, Enclosure 1 to the Notification Letter states that the derogatory information regarding the individual falls within the meaning of the disqualifying criteria set forth in 10 C.F.R. § 710, on two grounds: (1) under 10 C.F.R. § 710.8(h), that the individual has "[a]n illness or mental condition of a nature which, in the opinion of a board-certified psychiatrist . . . causes, or may cause, a significant defect in judgment or reliability," and (2) under in 10 C.F.R. § 710.8(l), that the individual has "[e]ngaged in [] unusual conduct or is subject to 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." The Notification Letter notifies the individual of his right to have the issue of his eligibility for continued access authorization resolved by personal appearance before a Hearing Officer.

In a letter that was forwarded to OHA by DOE/XXXXX on May 5, 1995, the individual exercised his right under Part 710 to request a hearing in this matter, 10 C.F.R. § 710.21(b), and on May 12, 1995, I was appointed as Hearing Officer in this case. After conferring with the individual and the DOE Counsel that had been appointed in the case, 10 C.F.R. § 710.24, I set a hearing date. Thereafter, on June 8, 1995, DOE Counsel filed a compilation of documents relied upon as evidence by DOE/XXXXX in support of the derogatory information contained in the Notification Letter.<3> Then, on June 23, 1995, I conducted by telephone a prehearing conference between DOE Counsel and the individual who was represented by counsel, as required under 10 C.F.R. 710.25(f).<4> During that conversation, it was determined that DOE Counsel would call only one witness at the hearing, Dr. XXXXX, the DOE consultant psychiatrist. The individual elected to testify on his own behalf, and to call as witnesses, Dr. XXXXX, his psychiatrist, Mr. XXXXX, his work supervisor, Ms. XXXXX, a co-worker, and XXXXX, his wife. Accordingly, the hearing in this matter was convened in XXXXXXXXXXXXXXXXXXXX, on XXXXXXXXXXXXXX, with the specified witnesses.

II. Analysis

I have thoroughly considered the record of this proceeding, including the submissions of the parties, the evidence presented and the testimony of the witnesses at the XXXXXXXXXXXXX hearing convened in this matter. In resolving the question of the individual's eligibility for access authorization, I have been guided by the applicable factors prescribed in 10 C.F.R. § 710.7(c): the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the voluntariness of the participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct; the potential for pressure coercion, exploitation, or duress; the likelihood of continuance or recurrence; and other relevant and material factors. After due deliberation, it is my opinion that the individual's access authorization should not be restored since I am unable to conclude that such restoration would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. § 710.27(a). The specific findings which I make in this matter are discussed below, segmented in accordance with the derogatory information alleged in the Notification Letter under sections 710.8(h) and 710.8(l).

A. Section 710.8(h)

As noted above, Part 710 provides that an individual may be ineligible to hold an access authorization when the DOE is unable to resolve derogatory information that the individual has a "mental condition of a nature which, in the opinion of a board-certified psychiatrist, . . . causes, or may cause, a significant defect in judgment or reliability." In the present case, there is agreement between the DOE consultant/psychiatrist, Dr. XXXXX, and the individual's psychiatrist, Dr. XXXXX, that the individual has a very serious mental condition which requires both psychiatric treatment and daily medication. However, there is a substantial divergence between the diagnoses presented by these psychiatrists as to the specific nature of the individual's mental condition and, consequently, the appropriate kind and potential success of treatment. This disparate viewpoints are examined in greater detail in the succeeding section.

1. Psychiatric Evidence and Testimony

Dr. XXXXX is convinced of his diagnosis following his one-hour clinical interview that the individual's mental condition falls in the DSM IV classification of Paraphilia, Exhibitionism, a very serious form of sexual dysfunction.<5> It is Dr. XXXXX's judgment that, despite the individual's insistence that he did not intend to be seen, his choosing to masturbate in his car in the shopping mall parking lot and the resulting arrest for indecent exposure stemmed from an uncontrollable sexual urge to expose his genitals to an unsuspecting stranger.<6> See Tr. Exh. 8, 10/11/94 Report at 2; Tr. at 12-13. Dr. XXXXX asserts that the individual's vague and guarded statements, denial and minimization of the real nature of his problem are characteristic of person's having this form of paraphilia, based upon his experience in treating a dozen cases of this paraphilia over 30 years of practice. Id.; Tr. at 24.

In support of his position, Dr. XXXXX states that the individual's claim that he did not intend to expose himself is irreconcilable with the individual's deciding to first remove his license plate from his car to conceal his identity. Dr. XXXXX further states in his report that the individual "acknowledges incidences of exhibiting himself while driving." Tr. Exh. 8 at 2.<7> While Dr. XXXXX also recognizes that the individual suffers from Generalized Anxiety Disorder and Obsessive Compulsive Personality Disorder, he maintains that the primary diagnosis is Paraphilia, Exhibitionism and therefore gives a poor prognosis for rehabilitation since this disorder "is extremely difficult to treat in psychotherapy or on medication." Id. at 3; Tr. at 15. Indeed, Dr. XXXXX opines that based upon his experience, there is a substantial likelihood of recurrence, stating that the "probability of it continuing is greater than fifty percent, it is better than fifty/fifty." Tr. at 37. Finally, although Dr. XXXXX was somewhat ambiguous in his initial report regarding judgment and reliability, he is now firm in expressing his belief that the individual's condition does cause a significant defect in judgment and reliability. Tr. at 14; 19-21.

Turning to the individual's psychiatrist, however, Dr. XXXXX is equally as adamant in her conviction that the individual was improperly diagnosed by Dr. XXXXX as a paraphiliac. According to Dr. XXXXX, who has seen the individual on seven different occasions starting before the incident, the individual's condition is properly diagnosed as Generalized Anxiety Disorder coupled with Obsessive Compulsive Disorder, and Depression. See Tr. Exh. 10; Tr. at 39. Dr. XXXXX explains that the individual reported symptoms of anxiety beginning at age 16, which despite medication developed in 1989 into panic attacks with intense episodic symptoms of fear and tremulousness lasting several minutes. Tr. Exh. 10 at 1. Dr. XXXXX further states that the individual has tried a number of different medications but with limited success and turned to masturbation to relieve his anxiety, a behavior which became compulsive in later years to the point that he felt he must masturbate to relieve his anxiety. Id. at 3. Thus, contrary to Dr. XXXXX, Dr. XXXXX fully accepts the individual's assertion that the incident in the shopping mall parking lot which precipitated his arrest for indecent exposure involved "a private incident of masturbation." Id. In Dr. XXXXX's view, "[h]e had no intent to expose himself to the public, but merely to relieve himself of the anxiety which usually builds before masturbation." Id.; Tr. at 53. Dr. XXXXX believes that Dr. XXXXX's diagnosis of Paraphilia, Exhibitionism was based upon misinformation, particularly regarding the existence of prior incidents of exposing himself on the part of the individual. Tr. at 54-55; see note 7, supra.

On the basis of her diagnosis, Dr. XXXXX has a substantially more optimistic outlook regarding the individual's potential for rehabilitation. Dr. XXXXX states that after trying several different medications, she has now prescribed Wellbutrin, an anti-depressant, which has resulted in a noticeable improvement in the individual's anxiety. Tr. Exh. 10 at 2; Tr. at 45. In addition, the individual is in weekly (sometimes bi-weekly) consultation with Ms. XXXXXXXXXXXXXX, a licensed clinical social worker to whom the individual was referred by Dr. XXXXX in June 1994. According to Dr. XXXXX, Ms. XXXXXXXX has obtained success in her psychotherapy of the individual which "explores the psychological dynamics leading to the intense anxiety, obsessions, compulsions, which have produced this masturbation." Tr. at 46. Ms. XXXXXXXX, in turn, referred the individual to Sexaholics Anonymous (SA)<8>, which the individual has attended on a weekly basis since September 1994. Dr. XXXXX reports good success on the part of her patients in controlling the compulsive component of aberrant sexual behavior who have committed themselves to the twelve-step SA program. Tr. at 42; Tr. Exh. 10 at 3. Dr. XXXXX maintains that based upon the individual's demonstrated commitment to continue the medication and sessions with Ms. XXXXXXXX, both of which she monitors, and the individual's stated desire to continue SA, she believes that the individual is likely to become rehabilitated from the compulsive behavior that has caused him difficulty. Tr. at 47; Tr. Exh. 10 at 4. Finally, regarding judgment and reliability, Dr. XXXXX opines that the individual's mental condition and associated behavior do not impair his judgment and reliability to a significant degree particularly with respect to his ability to perform his job, which is proven by the fine track record he has established at work. Tr. Exh. 10 at 4; Tr. at 55-56.<9>

The discrepancy between the respective psychiatric diagnoses rendered by Dr. XXXXX and Dr. XXXXX makes it difficult to draw a clear picture of the individual's psychiatric condition. While both psychiatrists hold strongly to their opinions, they differ markedly with respect to the nature of the individual's condition and most notably the basis for the behavior which led to his arrest. I note that Dr. XXXXX has considerably more experience in the recognition and treatment of Paraphilia, Exhibitionism.<10> However, his diagnosis is based upon a one-hour clinical interview with the individual and a psychological screening test which did not detect Paraphilia.<11> Further, there was apparently some miscommunication during the clinical interview between the individual and Dr. XXXXX regarding any other similar incidents. See note 7, supra.

On the other hand, Dr. XXXXX has seen the individual on a number of occasions and is in frequent consultation with Ms. XXXXXXXX, the licensed social worker, who sees the individual on a weekly basis. Thus, some weight should be accorded to her conviction that the individual is being truthful in his assertion that he did not intend to expose himself while parked in his car at shopping mall lot. According to Dr. XXXXX, the individual chose to pull into the mall parking lot to masturbate because at that point he was "exploding with anxiety" and he was a 45-minute drive from home; she explains "when obsessions and compulsions come over someone it is not something you can dismiss . . . I don't believe it is controllable at that moment of extreme anxiety." Tr. at 53. Dr. XXXXX holds this opinion despite the individual's action in removing the license plate from his car prior to the incident.

2. Findings of Fact

It is my opinion that irrespective of the inconsistencies in the psychiatric diagnoses, the individual does have a "mental condition of a nature which . . . causes, or may cause, a significant defect in judgment or reliability", within the meaning of section 710.8(h). In that opinion, I form no conclusion whether the individual has been properly diagnosed with Paraphilia, Exhibitionism, i.e. whether he intentionally exposed himself when masturbating in his car in the mall parking lot. While there may be ample evidence to support that diagnosis, I do not believe it is necessary to reach that determination. Rather, I find sufficient basis for this determination under section 710.8(h) in the behavior that has been admitted by the individual and the psychiatric condition that has been acknowledged by his own psychiatrist.

In my view, the individual's choice of the shopping mall parking lot to masturbate, when he claims that he did not intend to be seen, reflects a serious defect in judgment and reliability. I find irrational the individual's professed belief that he would be less conspicuous among the many cars parked in the lot when in less time than it took to remove his license plate he could have driven to a secluded area, which would certainly have been accessible in the rural environs of XXXXX. The individual admits that the possibility that he would be seen entered his mind and was distinct enough to lead him to remove his license plate, yet still he chose to proceed apparently unable, or unwilling, to comprehend the consequential fear, disgust and mental anguish on the part of an unsuspecting victim who might observe him. In addition, I find the individual's decision on a number of occasions to masturbate while behind the wheel of a moving vehicle,<12> whether or not he intended to be seen, to be further indicative of a significant defect in judgment and reliability caused by his mental condition.

Having made this finding concerning the individual's mental condition, I also find that although the individual has diligently sought treatment and appears to be determined in his efforts, the individual is clearly not rehabilitated at this time. The individual's psychiatrist, Dr. XXXXX, confirmed that while she believes that the individual is likely to become rehabilitated, he is not rehabilitated now. Tr. at 47. Indeed, she believes that the individual must continue to take medication indefinitely and should not decrease his therapy sessions with Ms. XXXXXXXX below once per week for at least one more year. Tr. at 48-49, 62-63. Thus, I am not assured that the type of behavior which culminated in the individual's arrest for indecent exposure will not arise again. Nor, in that vein, can I escape the observation that the mall incident occurred at a time when the individual was already taking medication and had begun therapy. Moreover, for the reasons below, I have reservations concerning the effectiveness of his treatment with respect to both his present medication and psychotherapy.

Dr. XXXXX states that the individual's current medication, Wellbutrin, an antidepressant which she prescribed in May 1995, has resulted in a noticeable improvement in the individual's anxiety and irritability. However, the individual has been treated with a variety of antidepressants and similar medications since 1989, all of which have proven to be ineffective or which were discontinued by the individual due to intolerable side effects. Indeed, Dr. XXXXX resorted to Wellbutrin because the individual has shown that he cannot take medications normally recommended, and would have been preferable, to control the individual's obsessive compulsive symptoms.<13> Tr. at 49, 58.

Regarding the individual's psychotherapy, Dr. XXXXX believes that the individual shows promise based upon his demonstrated commitment to his weekly, sometimes twice weekly, sessions with Ms. XXXXXXXX and regular attendance at SA meetings. Notwithstanding, Dr. XXXXX states that the individual's mental condition stems from unresolved conflicts in his family life as a child, particularly regarding his relationship with his father, and dealing with those matters "is the only thing that will keep [the individual] from repeating this set of circumstances because what caused the anxiety in the first place is unresolved." Tr. at 61. Dr. XXXXX confirms, however, that the process of resolving those matters in therapy sessions with Ms. XXXXXXXX has only recently begun. Id. In a letter dated June 26, 1995, Ms. XXXXXXXX expresses optimism that now the individual has become open to discussing these "root issues", the individual has made "steady progress" which she expects to continue, but states nonetheless that "[i]t is not possible to predict that [the individual] will not relapse." Tr. Exh. 11 at 1. Finally, I note the individual himself acknowledges the early stage of his rehabilitation, stating that he is prepared to continue SA meetings indefinitely, if necessary for "a lifetime", and that he must continue in sessions with Ms. XXXXXXXX until he has "resolved some things." Tr. at 73.

B. Section 710.8(l)

Next, I am called upon to consider whether the circumstances presented in this case "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). As stated in his October 11, 1994 report, Dr. XXXXX believes the "[the individual] is susceptible to blackmail or pressure from people who are aware of his behavior or any further incidents." Tr. Exh. 8 at 3. As discussed below, I must agree with Dr. XXXXX and it is my opinion that there are "reasons to believe that the individual may be subject to pressure, coercion, exploitation, or duress," as stated in section 710.8(l).

Dr. XXXXX's view that the individual would be susceptible to coercion or blackmail in the event of further behavior is based upon his diagnosis that the individual suffers from Paraphilia, Exhibitionism. Tr. at 22-23. Dr. XXXXX remains convinced that the individual is concealing the real nature of his problem, which is characteristic of this type of Paraphilia. Tr. at 26-28.<14> Dr. XXXXX further states on the basis of his considerable experience in treating cases of Paraphilia, Exhibitionism, there is a greater than 50 percent chance that the behavior will in fact occur again. Tr. at 37.<15> While the individual maintains that he is not an exhibitionist, and is believed by both his psychiatrist and therapist, I cannot ignore the possibility, which is supported by the circumstances of his arrest, that Dr. XXXXX is correct in his diagnosis of Paraphilia, Exhibitionism. Dr. XXXXX believes that the individual sought to privately perform compulsive masturbation and pulled into the mall parking lot since at that point he was "exploding with anxiety." However, I am unable to reconcile Dr. XXXXX's depiction of the circumstances with the individual taking the time to remove the license plate from his car prior to the incident. Not only does that act evidence the individual's cognizance that there was a distinct possibility of being seen, but it also demonstrates that he was not so besieged with anxiety that he was unable to perform this deliberate act which ostensibly would require some degree of mechanical dexterity and concentration to perform, if indeed the incident was not predetermined by the individual.<16> Thus, I believe that there is a substantial possibility that the individual is in fact a paraphiliac as diagnosed by Dr. XXXXX and, if so, the individual would be susceptible to coercion and blackmail in the event of future behavior, since he continues to conceal the true nature of his condition.

Further, even if the correct explanation for the individual's behavior is Excessive Anxiety and Obsessive Compulsive Disorder resulting in an uncontrollable urge to masturbate, I believe there is still a possibility, albeit less likely, that the individual might be subject to coercion or blackmail. Dr. XXXXX and Ms. XXXXXXXX assert that the individual's arrest for indecent exposure, which was reported in the local newspaper, has forced the individual out of secrecy and he is now able to openly and truthfully discuss his problem in therapy and with friends, family and co-workers; thus, they maintain that the individual is not subject to blackmail. See Tr. Exh. 10 at 3; Tr. Exh. 11. Nonetheless, as discussed in the preceding section, the individual is not yet rehabilitated. I note further that the individual is very concerned that he has been identified by the DOE psychiatrist as an exhibitionist and indeed states that he sought the present administrative review proceeding principally to clarify this matter. See Tr. at 68. However, if the compulsive behavior were to resurface and the individual were once again observed masturbating in a public place, the probable consequence is that the individual would be indelibly labeled as a paraphiliac exhibitionist by those cognizant of the prior incident. My opinion is that the individual might be subject to coercion or blackmail to avoid that consequence.

III. Conclusion

As explained in this Opinion, I find that DOE/XXXXX properly invoked 10 C.F.R. §§ 710.8(h) and 710.8(l) in suspending the individual's access authorization. It is my opinion that, within the meaning of those provisions, the individual has a "mental condition of a nature which, in the opinion of a board-certified psychiatrist, . . . causes, or may cause, a significant defect in judgment or reliability" and, the individual has "[e]ngaged in unusual conduct . . . which furnishes reason to believe that the individual may be subject to pressure, coercion or exploitation." In view of these criteria and the record before me, I cannot find that restoring the individual's access authorization would not endanger the common defense and security and would be consistent with the national interest. Accordingly, I find that the individual's "L" 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

Fred L. Brown

Hearing Officer

Office of Hearings and Appeals

<1> An "L" 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 an access authorization, security clearance, or "L" clearance.

<2> The classification codes of these disorders, specified parenthetically, are taken from the fourth revised edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (DSM IV).

<3> The documents submitted by DOE Counsel on June 8, 1995, generally include: (1) the Notification Letter, (2) several DOE procedural memoranda and regulations, (3) the individual's hearing request, (4) the transcript of the August 25, 1994 PSI, (5) the October 11, 1994 psychiatric evaluation report of Dr. XXXXX as supplemented on February 9, 1995, and (6) a letter from XXXXXXXXXXXXXXXXX, a licensed clinical social worker who treats the individual. These documents were supplemented by DOE Counsel on June 29, 1995, by a

letter from XXXXX, M.D., the individual's psychiatrist. Finally, the individual submitted two documents during the hearing convened in this matter, including another letter from Ms. XXXXXXXX and a brochure describing the

Sexaholics Anonymous program. All of these documents were made part of the official record of this proceeding and constitute exhibits to the transcript of the hearing; they are cited in this Opinion as "Tr. Exh.".

<4> Section 710.25(f) provides: "At least 7 calendar days prior to the date scheduled for the hearing, the Hearing Officer will convene a prehearing conference for the purpose of discussing stipulations and exhibits, identifying witnesses, and disposing of other appropriate matters. The conference will usually be conducted by telephone." I initially scheduled the prehearing conference for June 16, 1995, but determined that it should be postponed one week in order to provide the respondent an opportunity to retain counsel.

<5> The DSM IV states that the Paraphilias are characterized by recurrent, intense sexual urges, fantasies, or behaviors that involve unusual objects, activities, or situations and cause clinically significant distress or impairment in social occupational, or other important areas of functioning. The Paraphilias include Exhibitionism, Fetishism, Frotteurism, Pedophilia, Sexual Masochism, Sexual Sadism, Transvestic Fetishism, Voyeurism, and Paraphilia Not Otherwise Specified. DSM IV at 493.

<6> The diagnostic criteria specified in DSM IV for Paraphilia, Exhibitionism (302.4), are:

A. Over a period of at least 6 months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving the exposure of one's genitals to an unsuspecting stranger.

B. The fantasies, sexual urges, or behaviors cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

DSM IV at 526.

<7> This statement in Dr. XXXXX's report was subject to considerable scrutiny during the hearing. The individual claims that he never told Dr. XXXXX that he "exhibited" himself while driving, but only intended to say that he previously had the compulsion to masturbate while driving and had privately masturbated in his car on such occasions. The individual explained that Dr. XXXXX apparently misinterpreted the meaning of his response to Dr. XXXXX's question whether there had been "behavior like this before?" Tr. at 74. When I questioned Dr. XXXXX concerning this matter, he could not recall what precisely the individual had told him. Tr. at 32. Nonetheless, Dr. XXXXX maintains his position: "Well, my note says exhibit himself while driving, so I'll stand on that." Tr. at 33.

<8> At the hearing, Dr. XXXXX presented a brochure describing the SA program. Generally, SA is a 12-step program to achieve sexual "sobriety" primarily through group encounter sessions with other recovering "sexaholics", patterned after the more familiar Alcoholics Anonymous. Tr. Exh. 12. Pertinent to the individual, the SA brochure does describe masturbation, which it refers to as "sex with self", as the behavior of a "sex addict." Dr. XXXXX was confident that the individual could not successfully mislead his SA group concerning his efforts towards sexual sobriety: "My experience has been that when people are not abstaining from the behavior they do not continue in their groups. The group is ruthless toward people who come and lie." Tr. at 44.

<9> The individual's supervisor, XXXXX, and a co-worker, XXXXX, concurred during their testimony that the individual is a fine employee and has never, to their knowledge, demonstrated any unusual behavior on the job. See Tr. at 83-84, 88-89.

<10> According to DSM IV, the act of masturbating is consistent with Dr. XXXXX's diagnosis of Exhibitionism. In describing this Paraphilia, DSM IV states: "Sometimes the individual masturbates while exposing himself (or while fantasizing exposing himself). If the person acts on these urges, there is generally no attempt at further sexual activity with the stranger." DSM IV at 525.

<11> In his report, Dr. XXXXX states that he had the individual take the Millon Clinical Multiaxial Inventory-11, a screening psychological test. Concerning the results, he states:

He does appear, on the testing, to be suffering from Generalized Anxiety Disorder (300.02). His scales for anxiety and compulsive behavior were at high. Testing scores are also consistent with a diagnosis of Obsessive Compulsive Personality Disorder (301.40). The testing would not pick up on Paraphilia, but the anxiety and Obsessive Compulsive symptoms that were apparent in the clinical interview come out in the testing.

Tr. Exh. 8 at 3.

<12> The individual acknowledges that there were may be a dozen instances of masturbating outside of his home within the two years prior to the mall incident. Tr. at 69-70. Concerning several instances within his car, the individual states that he would generally pull off the road (Tr. at 79), but explained: "I did not do it anytime that I thought I could be seen while driving because it would be dangerous driving with other cars on the road." Tr. at 76. Thus, it is apparent that the individual would masturbate while driving if he did not detect other vehicles within close proximity.

<13> Dr. XXXXX reports that in response to panic attacks which developed in 1989, the individual's family doctor prescribed Paxil, an antidepressant, which caused side effects of confusion and dizziness. Tr. Exh. 10 at 1. He also tried Valium, Librium, Tranxene, and Xanax before finding Paxipam (up to 40 mg. per day) to control his anxiety. He was also given Prozac, an antidepressant which caused vertigo, and Paxil to try to control the anxiety without causing addiction to the tranquilizer. Id. Since beginning to see Dr. XXXXX, the individual has also tried two other antidepressants, Effexor, and Anafranil, which has demonstrated excellent control over obsessive compulsive symptoms in many patients. However, the individual discontinued both of these medications because they resulted in extreme, unpleasant side effects in the case of the individual. Id. at 2; Tr. at 44. According to Dr. XXXXX, the individual's present medication, Wellbutrin, is not one of the drugs recommended in psychiatric literature for treating obsessive compulsive disorder: "Wellbutrin is not one of them, but it is an antidepressant which is effective and can help people who cannot take the other medications that are normally recommended for obsessive compulsive symptoms." Tr. at 45. The individual continues to take Paxipam also. Tr. Exh. 10 at 2.

<14> As stated previously, Dr. XXXXX is equally convinced that the individual is being honest and is not hiding anything when he says that compulsive masturbation led him to the mall parking lot. I must observe, however, that when the individual first saw Dr. XXXXX in June 1994, two months prior to the mall incident, he did not reveal to Dr. XXXXX his behavior of compulsive masturbation outside of the home which had begun to occur, but merely described his problem of excessive anxiety. See Tr. at 41; Tr. Exh. 10 at 1-2.

<15> According to Dr. XXXXX, the fact that there has been only one incident for which the individual has been arrested does not mean that the incident was rare or isolated. In response to my inquiry, Dr. XXXXX stated: "I think in my personal experience and from the literature and discussions with other psychiatrists, the behavior occurs many times more than there is an arrest. Arrests are really rare. It may go for years and years without an arrest. And it may -- again, I don't know exactly, but I just have an impression that ten or twenty times or more, maybe a hundred times for some people before there is an arrest." Tr. at 35-36.

<16> When asked during the PSI at what point he had removed the license plate, the individual responded evasively:

I had removed that, uh, sometime after I went to the Mall, maybe before. I don't, I don't remember exactly, sometime before, you know, uh, between lunch and, and, and that time, let's say.

Tr. Exh. 7, August 25, 1994 PSI at 14.