Case No. VSO-0046, 25 DOE ¶ 82,787 (H.O. Klurfeld Jan. 30, 1996)

For full history of this case, and links to other cases, click here.

* 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: July 6, 1995

Case Number: VSO-0046

This opinion concerns the eligibility of XXXXX (hereinafter referred to as the individual) for continued "Q" access authorization. The regulations governing an individual's eligibility are set forth at 10 C.F.R. Part 710, Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material. In this opinion, I will consider whether, based on the record before me, the individual's access authorization should be restored. For the reasons stated below, I am of the opinion that the individual's access authorization should not be restored.

I. Procedural Background

The individual works at the XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX outside of XXXXXXXXXXXXXXXX. During the course of Personnel Security Interviews (hereinafter referred to as PSI), two people identified the individual as a person with whom they had smoked marijuana during the mid-1980s. As a result of those disclosures, DOE/XXXXX conducted recorded interviews pursuant to 10 C.F.R. § 710.10(a) with the individual on May 18 and 19, 1994. In those interviews, the individual denied smoking marijuana during the mid-1980s and could not offer an explanation why two people would identify him as having done so. In addition, the individual admitted in his second interview that something he said during the first interview was not truthful. After the interviews, DOE/XXXXX decided that information creating doubt as to the individual's eligibility for access authorization remained unresolved. DOE/XXXXX therefore requested the authority to conduct an administrative review proceeding from the Director of the Office of Safeguards and Security.

The administrative review proceeding began with the issuance of a Notification Letter dated June 1, 1995. See 10 C.F.R. § 710.21. That letter informed the individual that information in the possession of the DOE created a substantial doubt concerning his continuing eligibility for a "Q" access authorization. In accordance with 10 C.F.R. § 710.21, the Notification Letter included a statement of that derogatory information. The Notification Letter also informed the individual that he was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his eligibility for access authorization. On June 19, 1995, the individual requested a hearing. DOE/XXXXX forwarded the individual's request to the DOE's Office of Hearings and Appeals. On July 17, 1995, I was appointed the Hearing Officer in this matter.

In accordance with 10 C.F.R. § 710.25(e) & (g), the hearing was convened at the XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX on XXXXXXXXXXXXXXXXX. The DOE called three witnesses to testify: a DOE personnel security specialist and the two people who had stated in PSIs that they had smoked marijuana with the individual during the mid-1980s. The individual called six witnesses: his wife, the owner of the house at which the individual's bachelor party was held, and four character witnesses. After the hearing, it came to my attention that certain documents generated by DOE/XXXXX might bear on my considerations in this matter. I sent copies of those documents to the individual and DOE Counsel and asked them to comment on them by January 8, 1996. At that time, the record in this case was closed.

II. Statement of Derogatory Information

As indicated above, the Notification Letter issued to the individual on June 1, 1995, disclosed the following derogatory information that created a substantial doubt regarding the individual's continued eligibility for "Q" access authorization:

(1) During a PSI on May 17, 1994, a source stated that he had smoked marijuana on a weekly basis with the individual during an 18-month period in the early to mid 1980s;

(2) During a PSI on May 18, 1994, another source stated that he had smoked marijuana four to six times with the individual during the mid 1980s;

(3) During PSIs on May 18 and 19, 1994, the individual denied ever smoking marijuana; and

(4) During his PSI on May 18, 1994, the individual denied that he attended a bachelor party in his honor. Yet at a PSI on May 19th, he admitted that he did in fact attend a bachelor party.

According to the Notification Letter, this information fell within one regulatory criterion, subsection (f) of 10 C.F.R. § 710.8. Criterion (f) involves, in part, deliberately misrepresenting, falsifying, or omitting significant information during a personnel security interview or in oral statements made in response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access authorization.

III. Findings

It is clear the information on which DOE/XXXXX relied raised a legitimate security concern which justified the suspension of the individual's access authorization. As stated before, two individuals during separate, sworn PSIs stated that they had smoked marijuana with the individual during the mid-1980s. In an interview on May 17, 1994, one witness said that he did not want to volunteer names, but if the interviewer asked about specific people he would honestly comment about those people. Transcript of Personnel Security Interview on May 17, 1994, at 5-6. He stated that he had a fear of reprisal from the people that he named. Id. at 9. When asked about the individual, the witness stated that he smoked marijuana on a weekly basis with the individual beginning in 1983. This activity extended over an eighteen-month period. Id. at 15. The witness also stated that he does not believe that the individual has smoked marijuana for a number of years. Id. at 22.

The other witness was interviewed a day later on May 18th. At first he stated that he had smoked marijuana a couple of times in 1983 or 1984, but did not smoke marijuana with anyone who worked at the XXXXX Site. Transcript of Personnel Security Interview on May 18, 1994, at 15-16. When pressed by the interviewer, he disclosed that he had smoked marijuana a few times with two people who worked at the Site, including the individual. This activity was in 1986 or 1987. Id. at 21. The witness also participated in two follow-up interviews in which he could have recanted his allegations, but did not. He reiterated his previous testimony that he had smoked marijuana with the individual on a few occasions in 1986 or 1987, and agreed to testify about the matter. Transcript of Personnel Security Interview on July 7, 1994; Transcript of Personnel Security Interview on February 7, 1995.

In a PSI, the individual denied smoking marijuana at any time. Transcript of Personnel Security Interview on May 18, 1994, at 7-8 (hereinafter cited as Exhibit 16); Transcript of Personnel Security Interview on May 19, 1994, at 5 (hereinafter cited as Exhibit 11). At the same time, the individual was less than forthcoming about the bachelor party he attended. During his interview on May 18th, the individual was asked whether he had a bachelor party prior to his marriage. He said that he did not. Exhibit 16 at 28-29. In another interview the next day, the individual was informed that people told DOE/XXXXX that they attended the individual's bachelor party. Exhibit 11 at 7. At that point, the individual acknowledged having a bachelor party, but stated that he didn't stay long. Exhibit 11 at 7. When asked why he was not truthful about it the day before, he stated that he did not want his wife to find out that there were two dancers at the party. Exhibit 11 at 9. After reading transcripts of those interviews, it is clear that DOE/XXXXX had concerns that the individual deliberately falsified or omitted significant information during his interviews.

At the hearing, the two witnesses who said they had smoked marijuana with the individual during the 1980s refused to answer any questions other than to identify themselves. Each of the witnesses claimed his right not to respond to questions under the fifth amendment to the United States Constitution. In addition, one of the witnesses asked to make a statement for the record. That witness stated:

I've reviewed the tapes and transcripts of the alleged interview, and based on a number of factors, my review of those tapes and transcripts – based on my perceptions currently, the facts of that are misrepresented. Not through an intentional misleading by myself.

I feel like I was under coercion. I feel like I was being led by the interviewers. I feel like – based on my perception of the facts and the representations, those are misinterpreted in the transcript. They are misstated and I have no reason to believe that an individual should be adjudicated based on that transcript or those tapes.

Transcript of Hearing on September 14, 1995, at 24-25 (hereinafter cited as Hearing Tr.). When I asked the witness why I should believe his statement, he would not answer my question. Id. at 25. I did not find his statement convincing while at the hearing, and upon reflection I do not find it convincing now.

The individual's wife also testified at the hearing. As I noted above, the individual was not truthful when first asked about whether he attended a bachelor party in his honor. When he disclosed the next day that he did in fact attend a bachelor party, he stated that he was not honest the day before because he did not want his wife to know that he had attended the party because there were two dancers there. At the hearing, his wife testified that she knew that the individual would attend a bachelor party a few days before the event. Hearing Tr. at 48. She also testified that she had made clear to her husband that her objection was not to his attendance at a bachelor party, but rather to the presence of any women. Hearing Tr. at 53. She further testified that she knew that women had attended the bachelor party within a year of its occurrence. Hearing Tr. at 54. However, it is unclear how she learned this information, and whether the individual knew she knew.

The person at whose house the bachelor party was given also testified at the hearing. He testified that he had never known the individual to smoke marijuana. Hearing Tr. at 59. He also testified that no one smoked marijuana at the bachelor party. Hearing Tr. at 57. However, he hesitated when answering that question. Hearing Tr. at 60-61. When I asked him why he had hesitated, the witness responded that two facts make him think that attendees smoked marijuana outside of his house:

The Hearing Officer: So people may have disappeared from time to time?

[Witness:] That's correct.

The Hearing Officer: Okay.

[Witness:] There were a lot of strange things that happened – stuff outside the house that next day. You know, things happening outside and around the house which leads me to believe, you know, why would you have any business being out there.

Hearing Tr. at 61. Based on my observations of the witness at the hearing, I believe that he was being truthful about this matter: although he did not see anyone smoking marijuana at the bachelor party, he observed people going outside from time to time during the night and found physical evidence outside his house the next morning to suggest that guests at the bachelor party smoked marijuana in the yard outside the house.

The hearing also included testimony from four other witnesses who appeared in support of the individual. All four witnesses testified that they had never known the individual to smoke marijuana. Hearing Tr. at 67, 77, 83 and 87. Two of them testified that they attended the individual's bachelor party and did not see the individual or anyone else use marijuana at the individual's bachelor party. Hearing Tr. at 83-84, 88 and 89. While I believe these witnesses were being truthful, this favorable testimony is not very reliable. Two of these witnesses testified that they believed that DOE's witnesses had never used marijuana, Hearing Tr. at 70 and 79, although that fact is uncontroverted. Furthermore, as noted previously, the person at whose house the bachelor party was given gave convincing evidence that marijuana had indeed been smoked that night.

Finally, after the scheduled witnesses had testified, I asked the individual whether he wanted to testify at the hearing. Hearing Tr. at 90. He said that he did not. Id.

The DOE/XXXXX relied on 10 C.F.R. § 710.8(f) as the basis for suspending the individual's "Q" access authorization. As I noted above, criterion (f) involves, in part, deliberately misrepresenting, falsifying, or omitting significant information during a personnel security interview or in oral statements made in response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access authorization. After considering the evidence presented at the hearing, the demeanor of the witnesses, and the documentary record, I find that the individual has not been truthful about incidents in his past in response to questions asked at personnel security interviews. The statements of two witnesses, independently given to DOE/XXXXX, certainly created a security concern. Once that occurs, it is incumbent on the individual to resolve those concerns. This is not a criminal matter, where the government would have the burden of proving the defendant guilty beyond a reasonable doubt. Rather, the administrative review process is a proceeding where the individual may present evidence to show that "the grant or restoration of access authorization to the individual would not endanger the common defense and security and would be clearly consistent with the national interest." 10 CFR § 710.27(a). In a case such as this, the credibility of the people involved is of paramount importance. The best way for the security concerns to have been resolved by me would have been for the individual to testify at the hearing and to subject himself to cross examination. The individual chose not to do that.

Based on the forgoing discussion, I find that the individual deliberately misrepresented, falsified, or omitted significant information during his Personnel Security Interview on matters that are relevant to a determination regarding his eligibility for DOE access authorization.

IV. Conclusion

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

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

I have found that there is significant derogatory information in the possession of DOE/XXXXX that provided a sufficient basis for invoking the criterion in 10 C.F.R. § 710.8(f). As pointed out by the Personnel Security Specialist in her testimony at the hearing, the security program is based on trust. Hearing Tr. at 15. If an employee lies to the DOE, that trust is violated. As the Personnel Security Specialist testified, the individual's previous drug use is not the concern in this case. Hearing Tr. at 16. In the present case, the individual's lack of truthfulness is a serious breach of his relationship of trust with the DOE.

The regulations governing this matter state that the Hearing Officer will render an opinion favorable to the individual if he or she "is of the opinion that it will not endanger the common defense and security and will be clearly consistent with the national interest to grant or continue access authorization." 10 C.F.R. § 710.27(d). In view of the criteria set forth in 10 C.F.R. § 710.8, the factors set forth in 10 C.F.R. § 710.7(c), and the record before me, I am unable to find that restoring the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, it is my opinion that the individual's access authorization should not be restored.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of this Hearing Officer's Opinion within 30 calendar days of receipt of the opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585-0107, 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 20874-1290

Roger Klurfeld

Hearing Officer

Office of Hearings and Appeals