Case No. VSO-0045, 25 DOE ¶ 82,774 (H.O. Woods Oct. 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's Opinion

Case Name: Personnel Security Hearing

Date of Filing: June 28, 1995

Case Number: VSO-0045

This Opinion considers the continued eligibility of XXXXX (hereinafter referred to as "the individual") to hold a level "Q" 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." As explained below, it is my opinion that the individual's access authorization should be restored.

STATEMENT OF THE CASE

On May 22, 1995, the Department of Energy's XXXXX Operations Office (DOE/XXXXX) issued a Notification Letter to the individual. The Notification Letter charged that the individual had engaged in conduct subject to 10 C.F.R. § 710.8(l) (Criterion L).

Criterion L concerns unusual conduct or circumstances that "tend to show [the individual] is not honest, reliable, or trustworthy, or that furnishes a reason to believe that he may be subject to pressure or duress that may cause him to act contrary to the best interests of national security." The Notification Letter makes two allegations with respect to Criterion L. First, it finds that the individual violated his DOE Drug Certification. Specifically, it finds that the individual (i) "signed a Drug Certification on September 18, 1979, whereby he certified that he would not be involved with illegal drugs while employed with a DOE security clearance"; and (ii) "tested 'positive' for marijuana during a random drug test administered by his employer . . . on September 13, 1994." The Notification Letter's second allegation relates to the same incident. It finds that during a Personnel Security Interview conducted on September 21, 1994 (the 1994 PSI), the individual stated that he (i) was aware of the DOE's policy prohibiting the use of illegal drugs by DOE clearance holders, and (ii) admitted to using marijuana on September 10, 1994, while at home with his wife and a friend of his wife, and subsequently testing positive for marijuana in the September 13, 1994 random drug test.

The Notification Letter explained that the individual's conduct caused the DOE/XXXXX to have substantial doubts about his continued eligibility for access authorization. Because of these doubts, the DOE/XXXXX informed the individual that his access authorization was suspended, pending administrative review under 10 C.F.R. Part 710.

In his Response dated June 21, 1995, the individual requested a hearing to answer the charges in the Notification Letter. In the Response, he made the following assertions:

When I signed the Drug Certification on September 18, 1979, it was my full intent to never be involved with illegal drugs. In the fall of 1987 my wife . . . was diagnosed with Multiple Sclerosis. Her condition continually deteriorated to the point of total dependency on myself and our daughter. The stress caused by these circumstances and the situation, caused me a temporary lapse that I immediately regretted. My admission, rather than denial, indicates my willingness to be honest of my short comings, and reflects my reliability and trustworthiness. At no time have I ever compromised the security entrusted to me through the issuance of a "Q" Clearance. Furthermore, under no circumstances would I ever compromise the security of the United States of America. I have since taken control of my life and hereby assure the Department of Energy that I will never be involved with illegal drugs again.

The Office of Hearings and Appeals received the case on June 28, 1995, and a hearing was held before the undersigned hearing officer on XXXXXXXXXXXXXXXXXX. The individual and five other witnesses, one presented by the DOE and four by the individual, testified at the hearing. The Office of Hearings and Appeals received the transcript of the hearing on XXXXXXXXXXXXXXXXXX.

FINDINGS OF FACT

There are no material disputes about the facts in this case. The individual has admitted to the factual allegations made in the Notification Letter.

The individual began working at the DOE's XXXXXXXXXXXX in 1979. Because he admitted that he had used marijuana prior to 1979, he was required to sign a Drug Certification as a precondition to his employment at XXXXXX. On September 18, 1979, he signed the following certification:

Whereas, I have been made aware of the U.S. Department of Energy's concern with regard to the non-medical use of any illegal drug or narcotic by individuals engaged in the important missions of the nation's energy program, I hereby certify that I will not use narcotics, hallucinogens or other illegal drugs, except as prescribed by a physician licensed to dispense drugs in the practice of medicine, at any time while employed in a position with a "Q" access authorization.

The individual has been continually employed at XXXXXX from 1979 until the present. At the time of his September 13, 1994 drug test, he had been working for several years as a production technician handling special nuclear materials. As a result, the individual participated in the DOE's Personnel Assurance Program (PAP).<1>The PAP is designed to promote employee reliability through a system of annual medical examinations, psychological evaluations and drug tests designed to identify those individuals whose judgment may be impaired by physical and/or emotional disorders, illegal drug use, or alcohol abuse.

On September 13, 1994, the individual submitted to a random drug test administered through the PAP. The results of the drug test showed that the individual had recently used a cannabinoid.

The individual's "Q" access authorization was suspended in September 1994 following his positive drug test. On September 21, 1994, the individual participated in a Personnel Security Interview concerning his involvement with drugs (the 1994 PSI). The individual told DOE security personnel that since he started working for the DOE in 1979, he had used an illegal drug only once, when he smoked marijuana following a Saturday night barbecue at his home on September 10, 1994. He said that he had no present recollection of signing a Drug Certification when he came to work for the DOE in 1979, but stated that he was aware that the DOE prohibited the use of illegal drugs by employees. He stated that his wife suffers from Multiple Sclerosis, and that the marijuana was brought to his house by a friend who thought that it might have a positive effect on his wife's condition. He also stated that he had about seven beers that evening and was "too drunk to drive" at the time that he sampled the marijuana. Transcript at 29. He admitted that the stress of caring for his invalid wife and his daughter occasionally caused him to drink to excess. PSI Transcript at 31.

After learning of his positive drug test, the individual voluntarily enrolled in the DOE's Employee Assistance Program (EAP). Following an initial interview on September 21, 1994, the individual was admitted for in-patient treatment for alcohol detoxification at the XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX from September 27 through October 4, 1994. Following this in-patient treatment, the individual participated in the EAP's recommended out-patient treatment program for alcohol and drug abuse, consisting of individual and group therapy sessions, and attendance at Alcoholics Anonymous meetings. The individual completed the requirements of the program. He was discharged from the program on January 16, 1995.

The EAP counselors advised the individual to access appropriate social services in order to alleviate the highly stressful home environment engendered by his wife's chronic illness. The individual contacted the XXXXXXXX chapter of the Multiple Sclerosis Foundation, where he was referred to XXXXXXXXXXXXXX, Director of Social Services, XXXXXXXXXXXXXXXXXX, for family counseling. Ms. XXXXXXXX found that the individual's wife suffered from Multiple Sclerosis deterioration to such an extent that the individual and his teenage daughter could no longer provide adequate care for her in their home. At her recommendation, the family members agreed to consider nursing home placement for the wife, which was accomplished on May 31, 1995.

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). I have examined the evidence in light of the requirements of Part 710, and assessed the credibility and demeanor of the witnesses who gave testimony at the hearing.

There is no dispute that the individual smoked marijuana on September 10, 1994, that he was aware of the general DOE policy prohibiting employees from using illegal drugs, and that in 1979 he had signed a DOE Drug Certification. Accordingly, the DOE has established a prima facie case regarding its Criterion L findings that (i) the individual knowingly violated DOE drug policy and (ii) violated the terms of his DOE Drug Certification. The burden now shifts to the individual to show that restoring his clearance would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. § 710.27(d); Personnel Security Hearing, VSO-0002, 24 DOE ¶ 82,752 at 85,511 (1995). I will first evaluate the individual's actions in light of the DOE's general policy prohibiting the use of illegal drugs by DOE clearance holders. I will then discuss the significance of the individual's violation of his 1979 DOE Drug Certification.

The individual clearly used marijuana on September 10, 1994 in spite of his awareness of the DOE's drug policy prohibiting such use. <2>Although any violation of DOE drug policy is a very serious matter, it is possible under certain circumstances for an individual to mitigate the DOE's security concerns. In making a determination on this issue, I must consider the relevant factors and circumstances connected with the individual's conduct. These factors, which are set forth at 10 C.F.R. § 710.7(c), include "the nature, extent, and seriousness of the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the voluntariness of participation; the age and maturity of the individual at the time of the conduct; 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; and the likelihood of continuation or recurrence."

Having reviewed the evidence in light of these factors and circumstances, I find that the individual has satisfactorily mitigated the security concerns raised by this violation of DOE drug policy. As discussed below, I find that the individual's exposure to and use of marijuana was a solitary occurrence that came about without planning or forethought on his part. Other than this isolated incident, the individual has not exhibited behavior with regard to the use of illegal drugs that would suggest he is irresponsible or lacks good judgment. He has taken responsibility for his actions. Moreover, he has voluntarily completed an intensive rehabilitation program, and taken necessary but painful actions to substantially reduce the stress levels in his home environment. These actions reflect the ability and willingness of the individual to make a commitment to the DOE to refrain from the future use of illegal drugs and to eliminate risk factors that could lead to a violation of this commitment.

I accept the individual's assertion that he used marijuana only once. This assertion is supported by his testimony, his demeanor at the hearing, and by his record of successful participation in the PAP for several years. The PAP requires participating employees to undergo an annual security evaluation, to submit to medical and psychological examinations, and to random testing for the use of illegal drugs and alcohol abuse. At the hearing, the DOE introduced evidence of recent PAP drug tests indicating that the individual was randomly tested on the following dates: May 29, 1991; August 9, 1991; September 11, 1992; September 14, 1993; and September 13, 1994. All of the tests prior to September 13, 1994 were negative, indicating that the individual was not a regular user of marijuana during this period. DOE Exhibit 9. At the hearing, the individual stated that since the September 1994 episode, he has submitted to random drug tests six or seven times, and that these tests have all been negative for illegal drugs. DOE counsel did not contest this assertion. Transcript at 78.

At his 1994 PSI and at the hearing, the individual offered a clear, consistent and convincing recounting of the circumstances in which he used marijuana on September 10, 1994. His demeanor at the hearing was non-evasive and believable. At both the 1994 PSI and at the hearing, the individual maintained that he shared a single marijuana cigarette with his wife and the family friend who brought the marijuana to his home.

This girl had read that different people - - you know, that they used marijuana for glaucoma patients, and that some MS patients had experimented with it, and so she came over that day and said she had some and would she [the individual's wife] like to try it. . . . [i]t was just a small amount inside of a cellophane package. . . . She rolled it into a joint and they started smoking it. I was sitting there talking to them and they handed it to me and I smoked it.

Transcript at 59-60. At both the PSI and at the hearing, the individual admitted that his heavy consumption of alcohol in the course of the evening contributed to his decision to smoke marijuana. In view of the totality of the circumstances described above, I accept the individual's consistent account of his one-time use of marijuana.<3>

The individual also has made a convincing showing that his violation of the DOE's drug policy is unlikely to recur due to his intensive rehabilitation program and the actions he has taken to reduce the stressors in his home environment. As described above, the individual voluntarily enrolled in the DOE's EAP. Through the EAP, he underwent in-patient treatment for alcohol detoxification at XXXXXXXXXXXX followed by more than three months of out-patient treatment for alcohol and drug abuse, consisting of individual and group therapy sessions, and attendance at Alcoholics Anonymous meetings. The individual successfully completed the requirements of the EAP.<4>

In early 1995, the DOE/XXXXX security staff arranged for the individual to undergo a psychiatric evaluation regarding his use of alcohol and drugs by XXXXX, M.D., of the XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. In a March 7, 1995 interview, Dr. XXXXX obtained the individual's family and background history, his work and educational history, his past medical history, and a detailed history concerning his use of alcohol and drugs. Dr. XXXXX also conducted a Mental Status Evaluation of the individual based on his responses to questions, his affective state, and specific verbal tasks. In his report to the DOE/XXXXX, Dr. XXXXX found that

[the individual] shows evidence of rehabilitation and that the treatment he has had is adequate, although continued monitoring by interview contacts and continued random screening for drugs and alcohol is an important follow up.

Dr. XXXXX also concludes: "I do not feel that the individual has an illness or mental condition which causes or may cause a significant defect in judgment or reliability and that problems in that area would arise only if he started drinking or using drugs again." DOE Exhibit 5. Dr. XXXXX appears to refer here to a resumption of the heavy drinking that the individual engaged in prior to rehabilitation treatment.<5>

Finally, the individual has worked to resolve the horrendously stressful situation engendered by his wife's chronic illness. At the hearing the individual described the constant physical and emotional burden of caring for his wife over the course of her illness. He testified that in recent years, his wife's physical deterioration was such that she was confined to a motorized cart, and that he was responsible for all aspects of her care, including administering her medication injections. He reported that he was constantly worried about her safety.

. . . we were afraid that - - she'd fallen several times while we were there, and I was afraid that she was going to fall while no one was there and injure herself.

Transcript at 70-71. He also testified that his wife was often in a confused and highly emotional mental state, and inflicted substantial emotional abuse on him and on their teenage daughter. Transcript at 68-69. With the assistance of XXXXXXXXXXXXXX at XXXXXXXXXXXXXXXXXX, he has resolved this situation by finding appropriate nursing home care for his wife. The following written statement from Ms. XXXXXXXX was introduced by XXXXX at the hearing:

The several year period during which the . . . [individual's] family faced the placement issue, was enormously stressful with each family member demonstrating shattered coping skills. With time and counseling, I am pleased to report that this family has survived, and with newfound skills are living productive and stable lives.

September 19, 1995 Letter from XXXXXZXXXXXXXXX to Kent Woods, Hearing Officer (Individual Exhibit 1).

Considering the factors set forth at 10 C.F.R. § 710.7(c), I find that the individual's involvement with drugs was an unpremeditated, one-time occurrence, uncharacteristic of the individual's conduct as a whole. His stress and fatigue at the time of the occurrence, arising from his wife's physical, mental and emotional deterioration with Multiple Sclerosis and resulting in his excessive consumption of alcohol, was a significant factor in his conduct. His violation of the DOE's drug policy is unlikely to recur due to his intensive rehabilitation program and the actions he has taken to reduce the stressors in his home environment.

I cannot conclude that one mistake, arising under these circumstances, demonstrates that the individual is dishonest, irresponsible or lacks good judgment. I therefore find that he has successfully mitigated the DOE's security concerns with respect to his violation of DOE drug policy.

In the present case, however, more than a violation of the DOE drug policy is at issue. When the individual used marijuana on September 10, 1994, he also violated the terms of his 1979 DOE Drug Certification. The violation of such a commitment raises significant additional security concerns. At the Hearing, the security specialist explained that if the individual had not previously signed a drug certification, the DOE could conduct a "more lenient" evaluation of the mitigating factors present in this case, but that the presence of a drug certification demonstrated (i) that the individual "was already aware" that a drug violation would result in the suspension of his clearance, and (ii) that the individual was unable to uphold his personal commitment to the DOE not to use illegal drugs. Testimony of XXXXXXXXXXXXXX, DOE security specialist, Transcript at 32-33.

Accordingly, an individual's use of marijuana in violation of a DOE Drug Certification raises serious issues of honesty, reliability and trustworthiness above and beyond a violation of DOE's general anti-drug policy. The DOE 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. However, even in the case of a Drug Certification violation, I am required to identify and assess significant factors that may function to mitigate the security concerns raised by the violation. 10 C.F.R. § 710.7(a) and (c). As discussed above, I have found that the individual's drug use was a one-time occurrence, that the individual has demonstrated evidence of rehabilitation sufficient to minimize the risk of a recurrence, that the violation was not associated with any actual breach of security, and that the individual is willing to renew his commitment to the DOE and accept the full consequences of any future violation. Nevertheless, I believe that this combination of factors alone generally is insufficient to mitigate an individual's violation of a Drug Certification.

In the present case, however, other significant mitigating factors exist with regard the individual's violation of his Drug Certification. These factors are the circumstances under which the individual executed his 1979 Drug Certification and the passage of time of almost fifteen years between the individual's execution of his Drug Certification and his one-time use of marijuana in September 1994. These factors lead me to accept the individual's assertion that his violation of his Drug Certification was not a conscious, deliberate action on his part. At his 1994 PSI, the following exchange took place:

Security Specialist: Do you remember signing this Drug Certification in 1979?

Individual: No. I don't remember.

Security Specialist: Are you aware of DOE policy against the use of illegal drugs?

Individual: Yes.

PSI Transcript at 13. The circumstances under which the individual signed his Drug Certification support the reasonability of his assertion that after fifteen years he did not recall signing it. This Drug Certification was not offered as the result of a failed drug test, arrest or other traumatic event that would create a lifelong memory of the event. Rather, the individual's Drug Certification was offered to him at the time he became employed at the DOE, and was offered because he freely disclosed in a pre-employment interview that he had previously used marijuana. At that time, the individual undoubtedly filled out and signed many forms relating to his prospective employment with the DOE. Nor was this Drug Certification linked with any probationary monitoring program. He simply signed the Drug Certification, received his access authorization, and commenced his employment. Finally, there is no indication that the DOE ever reminded the individual in any way that he was signatory to a Drug Certification and bound by its terms.<6>

Under these circumstances, it is unreasonable for the DOE to find that the individual's action in violation of his 1979 Drug Certification involved either (i) a conscious decision to ignore a previous warning that future drug use would lead to the revocation of his clearance, or (ii) a conscious decision to violate a personal commitment made to the DOE to abstain from illegal drugs. Nor can the DOE reasonably expect the individual to have remembered the specific acknowledgments and commitments arising from his execution of the 1979 document. Accordingly, I find that individual's one-time violation of his Drug Certification amounts to a technical violation that does not raise the substantial doubts regarding the individual's honesty, reliability and trustworthiness that usually are associated with the violation of a DOE Drug Certification. The significant violation that occurred in this case was the individual's conscious violation of the DOE's anti-drug policy, not his violation of the 1979 Drug Certification. As discussed above, I find that the individual has presented information that successfully mitigates the security concerns raised by his one-time violation of the DOE's anti-drug policy.

In view of the criteria set forth in 10 C.F.R. Part 710, I 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. It is therefore my opinion that the individual's level "Q" access authorization should be restored.

The regulations governing this proceeding provide that either the DOE's Office of Security Affairs or the individual may file a request for review of this Opinion. 10 C.F.R. § 710.28(a). The request must be filed within thirty calendar days of receipt of this Opinion. Within fifteen calendar days of filing such a request, the requesting party must file a statement specifying the issues upon which it seeks review. The other party may file a response to the statement of issues. It must do so within twenty calendar days of receipt of the statement of issues.

All submissions must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Avenue, S.W., Washington, D.C. 20585. In addition, a party must send a copy of each of its submissions to the other party.

Kent S. Woods

Hearing Officer

Office of Hearings and Appeals

<1>The PAP was established by DOE Order 5610.11.

<2>As a participant in the PAP, the individual on an annual basis was required to sign a statement that he had been interviewed and briefed on the purpose and significance of the PAP and understood its intent and significance. Since the individual signed the PAP form on a yearly basis and participated in random drug tests under that program, he clearly was aware that employees in the PAP were required to abstain from illicit drug use. Thus, while the individual remained in the PAP, he was under an obligation to be drug-free.

<3>At the hearing, the individual stated that two significant inaccuracies are contained in interview notes made by EAP counselor XXXXXXXXXXXXX on September 21, 1994. DOE Exhibit 7.

The individual states that he told Ms. XXXXXXXX that he smoked a single marijuana cigarette on September 10, 1994 whereas Ms. XXXXXXXX recorded in her notes that he smoked three joints at that time. The individual also asserts that he told Ms. XXXXXXXX that he only has used marijuana once since 1979 whereas the counselor recorded the cryptic statement that he "had not used except on rare occasion since 1979 when he started work at XXXXXX." Transcript at 60-61 and 81-82 and DOE Exhibit 7. I accept the individual's assertions in this matter and find that Ms. XXXXXXXX's interview notes are not sufficient to raise a substantial doubt with respect to the individual's honesty. Moreover, as reflected by the hearing testimony of EAP Counselor XXXXXXXXX, the notes made by Ms. XXXXXXXX on the Client Assessment Form recorded Ms. XXXXXXXX's general assessment of the parameters of the individual's substance abuse problem, and did not necessarily record XXXXX statements with pinpoint accuracy. Transcript at 116-17.

<4>The individual's successful rehabilitation is supported by the testimony of two of the individual's supervisors. XXXXX, who last supervised the individual in 1993 prior to his participation in the EAP, reported that he personally smelled alcohol on the individual's breath on two or three occasions when he arrived for work in the morning. Mr. XXXXX further stated that the individual was a capable employee, but that he experienced problems "keeping him in his work station, keeping him on his toes" and "cleaning up his mess when he got through." Transcript at 131-32. In contrast, XXXXX the individual's supervisor since September 1994, reported that the individual learned his new job duties quickly and has performed them very well. He also reports that the individual is punctual, and has never been observed to be under the influence of alcohol in the workplace. Transcript at 119-20. Neither of the individual's supervisors reported observing any indications of illegal drug use by the individual. Transcript at 120 and 134.

<5>In his report, Dr. XXXXX appears to view the individual's excessive drinking as stress-related rather than as a symptom of alcoholism or alcohol dependence. He notes that the individual "admits using alcohol excessively at times . . . but states after finishing a treatment program at XXXXXXXXXXXX, he has had one alcoholic drink on only one or two occasions. If his history is correct, he is not using alcohol excessively at the present time. . . ." Dr. XXXXX does not find that the individual has a specific illness or mental condition with respect to alcohol, and does not appear to recommend that the individual maintain a total abstinence from alcohol as a condition for holding a "Q" clearance. DOE Exhibit 5.

<6>As noted above, the individual's participation in the PAP served to remind him on a regular basis of the DOE's general policy prohibiting the use of illegal drugs. However, there is no indication in the record of this proceeding that the PAP ever referred to his 1979 Drug Certification or required the individual to execute any other pledge or promise that he would not use illegal drugs.