Case No. VSO-0035, 25 DOE ¶ 82,767 (H.O. Goering Sept. 15, 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:May 8, 1995

Case Number:VSO-0035

This Opinion concerns the continued eligibility of XXXXX [hereinafter "the individual"] to hold a level "Q" access authorization<1> 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." On March 7, 1995, the individual's access authorization was suspended at the direction of the Manager of the Department of Energy's XXXXX Operations Office (DOE/XXXXX) pursuant to the provisions of Part 710. In this Opinion, I will consider whether, based on the record before me, the individual's access authorization should be restored. As indicated below, I am of the opinion that the individual's access authorization should not be restored at this time.

I. Background

The individual is employed as a security inspector by XXXXX, a DOE contractor that manages and operates the Department's XXXXX. In 1991, the individual received a "Q" clearance from the DOE enabling him to work at the facility. Prior to receiving the clearance, the individual signed a document which stated, in pertinent part: "I agree that I will not buy, sell, accept as a gift, experiment with, traffic in, use or be involved with illegal drugs . . . at any time, in any country, in any job in which I have been given a DOE access authorization or security clearance." DOE Exhibit 8. In December 1994, the individual made

available to the DOE medical records from a psychiatric facility where the individual was hospitalized from September 27 to October 12, 1994. These records revealed that the individual's diagnoses included one of cocaine abuse. See Individual's Exhibit 5. This diagnosis prompted the DOE to conduct a personnel security interview (PSI) with the individual, which took place on January 4, 1995. In that interview, the individual admitted to using cocaine for the first time in 1986 or 1987, and stated that he had used cocaine "three or four times" from his first use to the present. DOE Exhibit 8.

The DOE/XXXXX determined that the information in its possession regarding the individual was substantially derogatory and created questions regarding his eligibility for access authorization. Accordingly, the DOE/XXXXX's Manager suspended the individual's level "Q" access authorization and obtained authority from the Director of the Office of Safeguards and Security to initiate an administrative review proceeding. DOE Exhibits 1, 2.

On March 28, 1995, DOE/XXXXX began the administrative review proceeding by issuing a letter to the individual notifying him that the DOE possessed information which created a substantial doubt concerning his continued eligibility for a "Q" access authorization. Letter from XXXXX, Manager, DOE/XXXXX, to the individual (March 28, 1995) [hereinafter Notification Letter]. The Notification Letter specifically identified the derogatory information at issue and explained how that information came within the purview of criteria set forth at 10 C.F.R. § 710.8(f), (k) and (l). In addition, the Notification Letter informed the individual of his right under the regulations to file a written response to the derogatory information and to request a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his continued eligibility for access authorization.

On April 13, 1995, the individual filed with the Manager of DOE/XXXXX a request for a hearing concerning this matter. DOE Exhibit 4. DOE/XXXXX transmitted the individual's hearing request to the Office of Hearings and Appeals (OHA) Director pursuant to the provisions of 10 C.F.R. § 710.25(a) on May 8, 1995. DOE Exhibit 5. The OHA Director appointed me as Hearing Officer in this case on May 15, 1995. I convened a hearing in this matter in XXXXXXXXXXXXXXXXXXXX, on XXXXXXXXXXXXX.

At the XXXXX hearing, the individual was represented by an attorney and testified on his own behalf. In addition, the individual called the following three witnesses to testify on his behalf: XXXXX, the individual's sponsor at Narcotics Anonymous; XXXXXXXXXXXXXXXX, Ph.D., a clinical psychologist; and XXXXX, the individual's father. DOE/XXXXX presented no witnesses at the hearing.

II. Substantive Regulatory Criteria At Issue

As noted above, the Notification Letter issued to the individual on March 28, 1995, included a specific description of information in the possession of the DOE that the agency regards as derogatory and which, in the opinion of the DOE, creates a substantial doubt as to the individual's eligibility to hold a "Q" clearance. According to the Notification Letter, the information can be categorized as falling within the ambit of three regulatory criteria, subsections (f), (k), and (l) of 10 C.F.R. § 710. 8. Criterion (f) concerns information which reveals that a person has:

[d]eliberately misrepresented, falsified, or omitted significant information from a Personnel Security Questionnaire, a Questionnaire for Sensitive Positions, a personnel qualifications statement, a personnel security interview, written or oral statements made in response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access authorization, or proceedings conducted pursuant to § 710.20 through § 710.31.

10 C.F.R. § 710.8 (f). Criterion (k) describes information that a person has

[t]rafficked 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 (such as marijuana, cocaine, amphetamines, barbiturates, narcotics, etc.) except as prescribed by a physician licensed to dispense drugs in the practice of medicine, or as otherwise authorized by law.

10 C.F.R. § 710.8(k). Criterion (l) pertains to information evidencing that a person has:

[e]ngaged 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. Such conduct or circumstances include, but are not limited to, criminal behavior, a pattern of financial irresponsibility, or violation of any commitment or promise upon which DOE previously relied to favorably resolve an issue of access authorization eligibility.

10 C.F.R. § 710.8(l).

III. Findings of Fact

Based on my consideration of all the evidence in the record of this proceeding, which includes the transcript of the XXXXX Personnel Security Hearing and all documents submitted by the parties to OHA in connection with that hearing, I make the following findings of fact:

In his January 4, 1995 PSI, the individual stated that he used cocaine for the first time "[a]round 86/87." DOE Exhibit 8, Transcript of January 4, 1995 Personnel Security Interview at 6 [hereinafter January 1995 PSI Tr.]. When asked how many times he had "used cocaine over the years," he "guess[ed] about three of four times (pause) between 1986 or ?87 to the present." Id. In his hearing testimony, the individual stated that he had used cocaine for the first time in 1986, and did not use it again until using it "about once or twice" a couple of weeks prior to being admitted to a psychiatric facility on September 27, 1994. Transcript of XXXXX Hearing at 28, 29 [hereinafter Tr.]. While these two statements regarding the number of times the individual used cocaine are obviously not identical, neither are they necessarily contradictory. If, as he testified at the hearing, the individual used cocaine once in 1986 and possibly twice in 1994, this would not necessarily contradict his prior statement that he used cocaine for the first time "[a]round ?86/87" and that "over the years," he "guessed" he used cocaine "about three or four times . . . ." Moreover, the DOE has presented no reason why these two statements should not be construed consistently with one another, and clearly they can be. I therefore conclude, based on the statements of the individual, that he used cocaine once in 1986 and twice in 1994.

The individual stated in a PSI conducted on October 20, 1988, that he used marijuana on two occasions, once in the spring of 1987 and again in March 1988. See DOE Exhibit 8. At the hearing, the individual stated that he had used marijuana "once or twice . . . around ?86." Tr. at 15, 16. These two statements are more difficult to reconcile than those of the individual regarding his cocaine use. The individual's 1988 statement appears more reliable because it was given almost seven years closer in time to the actual events in question than was his hearing testimony. Moreover, the individual was able in October 1988 to recall more precisely when he had smoked marijuana, i.e. the spring of 1987 and March 1988, in contrast to his testimony at the hearing that he smoked marijuana "once or twice . . . around ?86." As a result, I will give more weight to the individual's October 1988 statement, and therefore conclude that the individual smoked marijuana once in the spring of 1987 and again in March 1988.

In addition, the following facts, which were set forth in the Notification Letter, are not in dispute:

(1)on October 20, 1988, the individual signed a Drug Certification stating, among other things, "I agree that I will not buy, sell, accept as a gift, experiment with, traffic in, use or be involved with illegal drugs . . . at any time, in any country, in any job in which I have been given a DOE access authorization or security clearance." DOE Exhibit 8;

(2)on a Personnel Security Questionnaire (PSQ) dated May 25, 1988, the individual answered "no" to the question "Are you now, or have you ever been a user of any narcotic, hallucinogen, stimulant, depressant, or cannabis (to include marijuana and/or hashish) except as prescribed by a licensed physician?" DOE Exhibit 7;

(3)during an October 20, 1988 PSI, the individual stated that he had never used any illegal drug other than marijuana; DOE Exhibit 8;

(4)on two Questionnaires for Sensitive Positions (QSPs) dated February 15, 1991, and June 13, 1991, the individual answered "no" to the question "Do you now use or supply, or within the last 5 years have you used or supplied, marijuana, cocaine, narcotics, hallucinogenics, or other dangerous or illegal drugs?" DOE Exhibit 7; see DOE Exhibit 8;

(5)during an April 12, 1991 PSI, the individual stated that he had neither used nor had any involvement with illegal drugs since signing the Drug Certification statement on October 20, 1988. DOE Exhibit 8.

IV. Analysis

The applicable DOE 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). Among the factors I will consider in rendering a determination concerning the individual's 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 the 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 or material factors. 10 C.F.R. §§ 710.7(c), 710.27(a). It is the totality of these facts and circumstances that will guide me in evaluating whether the individual's access authorization should be restored. As will be discussed below, after careful consideration of the record in view of the standards set forth in 10 C.F.R. Part 710, I find that the DOE/XXXXX properly invoked the criteria set forth in the Notification Letter in suspending the individual's "Q" clearance. I further find that the arguments advanced by the individual in his defense do not sufficiently mitigate the security concerns with respect to the criteria cited by the DOE. Therefore, it is my opinion that the individual's access authorization should not be restored.

The DOE relies on 10 C.F.R. §§ 710.8(f), (k), and (l) as the bases for suspending the individual's "Q" access authorization. Since the charges based on subsections 710.8(f) and (l) stem from statements the individual made regarding past and future drug use, I will begin by examining the evidence about the nature and extent of his involvement with drugs, a discrete charge based on section 710.8(k).

A. Criterion (k)

1. Derogatory Information

To support its contention that the individual has trafficked in, sold, transferred, possessed, used or experimented with illegal drugs, the agency relies on transcripts of PSIs held on July 28, 1994, and October 27, 1994. Based on the individuals' statements in these interviews and in his hearing testimony, I have concluded above that the individual used cocaine once in 1986 and twice in September 1994, and smoked marijuana in the spring of 1987 and in March 1988.

Several concerns are raised by evidence that an individual has engaged in trafficking, selling, transferring, possessing, using or experimenting with illegal substances. First, any involvement with illegal drugs demonstrates a disregard for the law. In addition, an individual who uses illegal drugs opens himself to blackmail or other forms of coercion, because he may want to conceal his usage. Moreover, even if the individual is only an occasional user, while the individual is under the influence of drugs, he may be more susceptible to pressure, coercion, or exploitation. Finally, any drug usage while the individual possesses a "Q" clearance and is aware of the DOE's policy of absolute abstention demonstrates poor judgment.

2. Mitigating Factors

The individual does not deny that he used drugs, but admits only to use on an experimental basis, and contends that he is not and never has been an abuser of drugs. The individual also presented evidence that he had regularly attended meetings of Narcotics Anonymous beginning at the end of May 1995 and continuing up to the time of the hearing. Tr. at 36-38, 50; Individual's Exhibits 1, 2. At the hearing, the individual's attorney stressed the "need to take into consideration the mitigating factors and also . . . that this man is in an informal rehabilitation and reformation program . . . ." Tr. at 110. The counsel for the individual suggests that I order that this program be continued "on an either voluntary or involuntary basis to see whether or not he does comply . . . ." Id.

First, whether or not the individual is or was an abuser of drugs is really not an issue in this case. The DOE Counsel admitted that, were it an issue, the individual "would have presented a pretty compelling case. He presented several witnesses and I don't think there is any dispute that [the individual] is not an addict. He is not addicted to cocaine, he is not an habitual user of cocaine." Tr. at 102. The relevant issue raised is whether the infrequency of the individual's past drug use should mitigate the security concern of the DOE regarding possible future drug use.

As stated above, among the factors I am to take into account in reaching my opinion are the nature, extent, and seriousness of the individual's past conduct and the frequency and recency of that conduct. In this case, both the fact that the individual's past drug use has been relatively infrequent and the fact that the individual has abstained from using illegal drugs for approximately one year lessen the chance that the individual may use illegal drugs in the future. On the other hand, prior to his use of cocaine in September 1994, the individual had only used illegal drugs three times before in his life, and had abstained from illegal drugs for over six years. Moreover, as set forth more fully in the discussion of Criterion (l) below, prior to his most recent use of illegal drugs, the individual assured the DOE in writing that he would not "buy, sell, accept as a gift, experiment with, traffic in, use or be involved with illegal drugs . . . at any time, in any country, in any job in which I have been given a DOE access authorization or security clearance." DOE Exhibit 8. These facts render less reliable any assurances that the individual may now make regarding his intention not to use illegal drugs in the future.

As for the request by the attorney for the individual that I order the continuation of the individual's "informal rehabilitation and reformation program" through Narcotics Anonymous "to see whether or not he does comply," the role of the Hearing Officer in these proceedings is to render an opinion as to whether access authorization can be granted or restored at the present time. Consistent with this role, prior Hearing Officer opinions have found that "it is premature for the individual to invoke her partially completed rehabilitation program as a mitigating factor to the security concerns raised . . . ." Personnel Security Hearing, 24 DOE ¶ 82,753 at 85,529 (1995), appeal docketed, OHA Case No. VSA-0005 (Mar. 13, 1995). This is in no way intended to discourage an individual's ongoing attempts at reformation, as the regulations provide for reconsideration of an individual's eligibility for access authorization where the individual has presented "[c]onvincing evidence of reformation or rehabilitation." 10 C.F.R. § 710.31(b)(2).

The DOE regulations state that my decision as to access authorization is to be "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). Employing this common-sense approach, after considering the mitigating factors discussed above, I conclude that the DOE properly relied upon the criterion at 10 C.F.R. § 710.8(k) in suspending the individual's access authorization.

B. Criterion (f)

1. Derogatory Information

10 C.F.R. § 710.8(f) sets forth a category of derogatory information, based on falsification, that the DOE considers to create a question concerning an individual's eligibility for access authorization. In the present case, the DOE contends that the individual deliberately misrepresented, falsified or omitted significant information from a May 25, 1988 PSQ, two PSIs of the individual on October 20, 1988, and April 12, 1991, and two QSPs completed by the individual on February 15, 1991, and June 13, 1991. DOE Exhibits 7, 8.

a. 1988 PSQ and PSI

First, on his May 25, 1988 PSQ the individual answered "no" to the question "Are you now, or have you ever been a user of any narcotic, hallucinogen, stimulant, depressant, or cannabis (to include marijuana and/or hashish) except as prescribed by a licensed physician?" DOE Exhibit 7. Then, in an October 20, 1988 PSI, the individual stated that he had never used any illegal drug other than marijuana. DOE Exhibit 8. However, as discussed above, the individual had used illegal drugs (both marijuana and cocaine) at least three times in the prior two to three years (1986-88). Thus, both the individual's answer to the May 1988 PSQ and his statement in the October 1988 PSI were false.

The individual claimed in the October 1988 PSI that his failure to note his marijuana usage on his May 1988 PSQ was due to the fact that he did not read each question on the PSQ before answering it. DOE Exhibit 8. This explanation, however, made no mention of his use of cocaine in 1986. Thus, the individual's October 1988 explanation of his May 1988 falsification appears to be both insufficient, because it does not account for his prior cocaine use, and seriously lacking in credibility, because in the same October 1988 statement the individual maintained that he had never used a drug other than marijuana, a fact now known to be false.<2>

b. 1991 QSPs

On February 15, 1991, and June 13, 1991, the individual completed QSPs in which he answered "no" to the question "Do you now use or supply, or within the last 5 years have you used or supplied, marijuana, cocaine, narcotics, hallucinogenics, or other dangerous or illegal drugs?" DOE Exhibit 7; see DOE Exhibit 8. While the individual's answer on the June 13, 1991 QSP may have been truthful as to his use of cocaine, the individual has admitted to using marijuana in the spring of 1987 and again in March 1988. Thus, it appears clear that the individual provided false information on both 1991 QSPs regarding his involvement with marijuana in the previous five years.

In his April 12, 1991 PSI, the individual stated that he had answered "no" to the question regarding his past use of drugs on his February 15, 1991 QSP because he had not read the question correctly. However, even assuming that the individual did not understand this question on February 15, 1991 (although the phrase "within the last 5 years have you used or supplied[] marijuana" contained in the question seems fairly straightforward and unambiguous), there is no contention that he did not understand the same question when filling out his June 13, 1991 QSP. Given the findings of fact above regarding the individual's past marijuana use, the inescapable conclusion is that his "no" answer on the latter QSP was a deliberate falsification.

c. 1991 PSI

Finally, in an April 12, 1991 PSI, the individual stated that he had neither used nor had any involvement with illegal drugs since signing the Drug Certification statement on October 20, 1988. DOE Exhibit 8. This statement appears to be truthful insofar as the DOE has not specifically alleged that the individual was in any way involved with illegal drugs between May 25, 1988, and April 12, 1991, and I have made no finding to that effect. Therefore, although the DOE in the Notification Letter cites the individual's statement in his April 12, 1991 PSI as evidence of falsification, I do not agree that this statement constitutes the type of derogatory information described in 10 C.F.R. § 710.8(f).

2. Mitigating Factors

There are essentially no factors present in this case which would mitigate the concerns raised by the individual's deliberate falsification. The record reveals not just one isolated incident, but at least three separate instances of falsification, and there is no evidence that the individual volunteered to correct these falsifications until being confronted with the facts by the DOE. Nor can I excuse as youthful indiscretions deliberate falsifications occurring when the individual ranged in age from 20-23 years old. As an adult, the individual must be held accountable for his conduct, particularly when that conduct reflects a pattern of misrepresentation.

In arriving at an opinion, the Hearing Officer is also required to consider the absence or presence of rehabilitation or reformation and the likelihood of continuation or recurrence. The individual has presented no evidence that he has sought rehabilitation or reformation regarding his falsifications, and he in fact continues to deny that he misrepresented his past drug use on his June 1991 PSQ. Because the individual makes no claim of rehabilitation or reformation, and in light of the lack of evidence that would support such a finding, I am not convinced that the individual in this case has been rehabilitated or reformed from this behavior.

I find the individual's deliberate falsification on three separate occasions to be a very serious matter. Further, in considering the factors set forth at 10 C.F.R. § 710.7(c), I find that they do not mitigate the security concerns present in this case. An individual's trustworthiness is essential to the DOE's security program. Falsification by an individual with access authorization raises serious, legitimate doubts about whether he should be entrusted with responsibility for safeguarding classified materials. In this case, moreover, the falsification concerns drug use, a serious matter in its own right. I therefore conclude that the DOE properly relied upon the criterion at 10 C.F.R. § 710.8(f) in suspending the individual's access authorization.

C. Criterion (l)

Finally, in invoking 10 C.F.R. § 710.8(l), the DOE cites in its Notification Letter the fact that the individual admitted that he had used illegal drugs since signing a Drug Certification in 1988 stating that he would not "buy, sell, accept as a gift, experiment with, traffic in, use or be involved with illegal drugs . . . at any time, in any country, in any job in which I have been given a DOE access authorization or security clearance." DOE Exhibit 8. At the hearing, the individual acknowledged that he read and signed this statement in 1988, and that although he remembered the agreement in 1994 at the time he was offered cocaine, he decided nonetheless to use the drug. Tr. at 30, 42-43, 45-46.

As summed up by the DOE Counsel at close of the hearing, the individual "acknowledged that he signed a Drug Certification. He acknowledged that that was pretty important. He understood that he could lose his job, his clearance, if he ever used cocaine even one time and despite that he used cocaine . . . . He didn't live up to that obligation and I think that reflects upon his trustworthiness. He understood it was an agreement and he failed to live up to his end of the deal." Tr. at 101-02.

The DOE security program is based on trust. If an employee breaks a written promise to the DOE, that trust is violated. It was precisely because of the individual's prior illegal drug use that he was asked in 1988 to sign a Drug Certification, promising that he would never again use illegal drugs while employed in a position requiring an access authorization. He clearly violated this promise when he used cocaine twice in 1994. Moreover, the violation of his agreement with the DOE occurred in the very recent past and cannot be excused as a youthful indiscretion. Thus, I find that the DOE had ample justification to rely on 10 C.F.R. § 710.8(l) in suspending the individual's access authorization.

VI. Conclusion

As explained in this Opinion, I am convinced that the DOE/XXXXX properly invoked 10 C.F.R. § 710.8(f), (k), and (l) in suspending the individual's access authorization. In view of this 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 clearly consistent with the national interest. Accordingly, I find that the individual's "Q" 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 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

Steven J. Goering

Hearing Officer

Office of Hearings and Appeals

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

<2> . At the hearing, the attorney for the individual argued that the individual was "hired" not on the basis of his false statements in 1988, but rather on the basis of the PSQs he completed in 1991. Tr. at 104-05. However, past evidence of falsification is relevant because it indicates that the individual may provide false information to the DOE in the future,

and thus casts doubt on the reliability of the individual. Therefore, the relevance of the information as an indicator of future behavior is not dependent upon the purpose for which the false information was used when it was provided to the DOE.