Case No. VSO-0048, 25 DOE ¶ 82,776 (H.O. Gray Oct. 27, 1995)

Case No. VSO-0048, 25 DOE ¶ 82,776 (H.O. Gray Oct. 27, 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: July 18, 1995

Case Number: VSO-0048

Respondent XXXXX requested a hearing on the continuation of his access authorization. The Respondent works for a contractor at the XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, a component of the Department of Energy (DOE). After a security review revealed derogatory information about the Respondent, the manager of XXXXX suspended his access authorization.

The hearing was held before the undersigned Hearing Officer on XXXXXXXXXXXXXXXXX. After considering the evidence in view of the relevant regulations, it is my opinion that the Respondent's access authorization should not be continued.

BACKGROUND

The Respondent's eligibility for access authorization is governed by regulations found at 10 C.F.R. Part 710. The regulations set forth specific types of derogatory information that create a question as to an individual's eligibility for access authorization. In this case, the DOE charged that the Respondent had "engaged in unusual conduct or [is] subject to circumstances which tend to show that [he] is not honest, reliable, or trustworthy, including conduct or circumstances involving a pattern of financial irresponsibility within the meaning of paragraph (l), Section 710.8, of 10 C.F.R. Part 710, Subpart A."<1>

At the hearing, the DOE presented the testimony of a security specialist, and the Respondent testified on his own behalf. The Respondent did not dispute the facts underlying the DOE's allegation. He explained that he was "not questioning the authenticity of the information" that formed the basis of the DOE's allegations, but he was "questioning the sufficiency" of the facts for revoking his access authorization.<2>

FINDINGS OF FACT

The Respondent is a XXXXX-year old XXXXXXXXXX who has worked at XXXX for more than twenty years.<3> His gross salary in 1994 was approximately $41,000.<4> He is unmarried and lives at home with his parents.<5>

At various times since 1970, when his father experienced periods of unemployment, the Respondent has helped support his parents and fourteen brothers and sisters.<6> He estimates that, from 1970 to the present, he gave between $60,000 and $70,000 to his parents, brothers, and sisters.<7> He has neither requested nor received repayment for these gifts.<8>

In 1981, the Respondent took out a mortgage of $24,000 to purchase the home of his late grandmother. He said he planned to convert the house to a rental property. He could not afford repair costs, however, and he never rented the property to a tenant.<9>

The mortgage payments apparently strained the Respondent's financial resources to the breaking point. As early as December 1982, he fell delinquent on his monthly mortgage payments. Over the course of the next ten years, he was unable to bring his mortgage account up to date or establish a pattern of regular payments, and the lender foreclosed the mortgage in December 1992.<10> In 1994, the city condemned the house and razed it, assessing the Respondent $4,000 to cover the costs of razing.<11>

Besides defaulting on his mortgage, the Respondent has neglected his federal, state, and local taxes. He failed to file a federal tax return for the tax years 1989 through 1993; failed to file XXXXXXXXXXX state income tax returns for the tax years 1989 through 1994; failed to pay county property taxes for the tax years 1991 through 1993; failed to pay city wage taxes for the tax years 1989 through 1994; and failed to pay school district property taxes for the tax years 1991 through 1994.<12>

The Respondent has no lack of excuses for failing to comply with the tax laws. He claimed, for example, that he prepared his tax returns, but that his father or brother secretly failed to mail them to cause trouble for him.<13> He also claimed that he stopped paying property taxes because the property he purchased was not what he expected, and he wanted to return it to the seller.<14> Despite these claims, he has apparently never discussed his suspicions about the tax returns with his father, nor did he take any steps to cancel the purchase of the house of the house, or to sell it.<15> The Respondent maintained that he does not owe state or federal taxes beyond what was withheld from his paycheck, but acknowledged that he is required by law not only to pay taxes, but to file a tax return as well.<16>

A security specialist interviewed the Respondent in September 1994, February 1995. The Respondent told the specialist that he would pay his back taxes at each interview.<17> He said the Internal Revenue Service did not respond to his requests to arrange for filing his overdue returns. He acknowledged, however, that he received a letter from the Internal Revenue Service, but did not bother reading it.<18> At the time of the hearing he had still not filed the missing tax returns or paid the delinquent taxes.<19>

ANALYSIS

As an initial matter, the Respondent claimed that the regulations governing the criteria for access authorization are unconstitutionally vague.<20> I find no basis for this claim. The wording of the regulation is clear enough that a person of ordinary intelligence can understand it. The Respondent has not identified any section of the regulation that contains vague language. Moreover, he has admitted to "irresponsibility" in his financial affairs, so he clearly understands the term "financial irresponsibility."<21> He has also acknowledged that he understands the relationship between financial irresponsibility and security concerns.<22> I conclude, therefore, that the Respondent's claim that the regulations are unconstitutionally vague is without merit.

For his defense to the DOE's allegation of financial irresponsibility, the Respondent admitted that "there has been irresponsibility" in his financial affairs, but attributes it to "misplaced generosity" or "just being a kind person."<23> I do not see the relevance of the Respondent's purported motives. It is the Respondent's actions that I must consider, and the implications of those actions for the risk that he will compromise classified material. See Personnel Security Hearing, VSO-0001, 24 DOE ¶ 82,751 at 85,507 (1995) (an individual's conviction for fraud not mitigated by her motive of helping her mother). I find that his actions are marked by a clear pattern of irresponsibility. Whatever his motives may be, his irresponsibility establishes that he poses an unacceptably high security risk.

I conclude therefore that the Respondent has not mitigated his admitted pattern of financial irresponsibility by showing his generosity and kindness. Furthermore, I conclude that the Respondent's excuses for failing to pay his mortgage and taxes and file tax returns are inadequate. In reaching these conclusions, I consider it significant that the Respondent's financial problems are not isolated incidents, but repeated acts of irresponsibility and continual failure to take corrective action. Consequently, I find that the Respondent's habitual irresponsibility with his own finances raises a serious doubt about his ability to responsibly handle classified material and follow security regulations.

CONCLUSION

In view of the criteria set forth in 10 C.F.R. Part 710, and the reasons stated above, I find that continuing the Respondent's access authorization would endanger the common defense and security and would not be clearly consistent with the national interest. It is therefore my opinion that the Respondent's access authorization should not be continued.

Warren Gray

Hearing Officer

Office of Hearings and Appeals

<1>Notification Letter to the Respondent from XXXXX, manager of XXXXX, dated June 23, 1995.

<2>Transcript of Hearing (Tr.) at 14.

<3>Tr. at 61-62.

<4>Tr. at 117.

<5>Tr. at 66; 83.

<6>Tr. at 65-66.

<7>Tr. at 126. He has also lent or given money to coworkers. Tr. at 87; 101.

<8>Tr. at 127; 146.

<9>Tr. at 77-79.

<10>Notification Letter at 2.

<11>Tr. at 75-76.

<12>Notification Letter at 1-2.

<13>Tr. at 122-124.

<14>Tr. at 132-33.

<15>The Respondent did talk to attorney about the house, but took no other steps to cancel the purchase. Tr. at 112; 140.

<16>Exhibit 2 at 4; Tr. at 7.

<17>Exhibit 1 at 11, 23-25; 29-30; Exhibit 2 at 4-7.

<18>Exhibit 3 at 4-5.

<19>Tr. at 102; 109-112; 139-42.

<20>The vagueness doctrine is the legal principle that penal statutes that do not fairly inform a person of what are commanded or prohibited is unconstitutional. The Respondent did not attempt to show that the vagueness doctrine applies to the access authorization regulations, which I do not find to be penal statutes. For the definition of the vagueness doctrine, see United States v. Harriss, 347 U.S. 612, 617 (1954); Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972). For the definition of a penal statue, see Huntington v. Attrill, 146 U.S. 657 (1892).

<21>Tr. at 14; 150.

<22>Exhibit 1 at 30-31; Exhibit 2 at 33-34;.

<23>Tr. at 150.