Case No. VSO-0074, 25 DOE ¶ 82,796 (H.O. Dugan Mar. 22, 1996)

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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.

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Case Name: Personnel Security Hearing

Date of Filing: December 5, 1995

Case Number: VSO-0074

This opinion concerns the eligibility of XXXXX ("the individual") for continued "L" access authorization under the regulations set forth at 10 C.F.R. Part 710, "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material."<1>The individual's access authorization was suspended by the XXXXX Operations Office of the Department of Energy (DOE/XXXXX). In this Opinion, I will consider whether, based on the record before me, the individual's access authorization should be restored.

I. Background

The individual is a XXXXX-year-old employee of XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, a DOE contractor at the XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. He has been employed at that facility since 1966 and has held an "L" access authorization for most of that time. On June 7, 1995, the individual was subjected to a random drug test. The results of that test were positive for cocaine. Pursuant to 10 C.F.R. § 710.9(a), DOE/XXXXX conducted a recorded Personnel Security Interview (PSI) with the individual on August 17, 1995. Since information creating doubt as to the individual's eligibility for continued access authorization remained unresolved after that interview, DOE/XXXXX requested from the Director of the Office of Safeguards and Security the authority to conduct an administrative review proceeding.

The administrative review proceeding began with the issuance of a Notification Letter dated November 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 eligibility for an "L" access authorization. The Notification Letter included a statement of that derogatory information and stated that the individual was entitled to a hearing before a Hearing Officer in order to resolve the substantial

doubt regarding his eligibility for access authorization. The individual requested a hearing without filing a separate written response to the allegations specified in the Notification Letter. DOE/XXXXX forwarded the individual's request for a hearing to the DOE's Office of Hearings and Appeals. On December 13, 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 in XXXXXXXXXXXXXXXXXXXX on XXXXXXXXXXXXXXXX. At the hearing, the following witnesses were called to testify: (i) the individual, (ii) his immediate supervisor, (iii) his department manager, and (iv) Dr. XXXXXXXXXXXXXXXn, a clinical psychologist employed by XXXXXXXXXXXXXXX. DOE Counsel submitted seven exhibits, and the individual submitted seven exhibits.<2>

II. Notification Letter

As indicated above, the Notification Letter issued to the individual included a statement of the derogatory information in the possession of the DOE that created a substantial doubt regarding the individual's eligibility for continued "L" access authorization. DOE/XXXXX's findings and basis for them are:

A. The individual has trafficked 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, except as prescribed or administered by a physician licensed to dispense drugs in the practice of medicine, or as otherwise authorized by law. Enclosure 1 of Notification Letter at 1; see 10 C.F.R. § 710.8(k). The basis for this statement is the individual's admission in the August 17, 1995 PSI that on June 3 and June 5, 1995, he smoked cocaine.

B. The individual has engaged in unusual conduct or is subject to circumstances which tend to show that he is not honest, reliable, or trustworthy; or which furnishes reason to believe that he may be subject to pressure, coercion, exploitation, or duress which may cause him to act contrary to the best interests of the national security. Enclosure 1 of Notification Letter at 1; see 10 C.F.R. § 710.8(l). The bases for this statement were (i) the individual had used cocaine despite his knowledge that it was illegal and despite his prior statements to the DOE that drug use was contrary to his lifestyle and that he had no intention of ever using drugs; and (ii) the individual, when confronted with the positive results of the drug test, initially denied having used cocaine, and did not admit his drug use until two months later.

III. Findings of Fact and 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). 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 the conduct, including knowledgeable participation; the frequency and recency of the 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; and the likelihood of continuation or recurrence. See 10 C.F.R. §§ 710.7(c), 710.27(a).

The facts in this case are not disputed. The individual has admitted that on Saturday, June 3, 1995, while on a bus trip to XXXXX to play bingo, he smoked cocaine with three individuals he had not previously met, and that on the following Monday, June 5, 1995, he again smoked cocaine with one of those individuals at a bingo hall in XXXXX. PSI at 5-8; Hearing Tr. at 18-26. On Wednesday, June 7, 1995, he was given a random drug test by his employer, and the results of that test were positive for cocaine. When confronted with the results of the test, the individual denied having used cocaine and claimed that the positive test result may have been caused by medications he was taking. After his medications were tested and he was told that they could not have caused the positive test result, he finally admitted, on August 15, 1995, to having used cocaine. PSI at 13-14. It is also clear from the record that the individual knew that the use of cocaine was illegal and that it could constitute a basis for revoking his clearance. PSI at 10-11; Hearing Tr. at 24-25, 34.

These incidents raise serious concerns for the DOE because the use of illegal drugs demonstrates not only poor judgment but a deliberate disregard for the law, and raises a question whether the individual can be trusted to respect other laws and regulations, including those governing the security of classified information and facilities. The use of illegal drugs also raises the possiblity that the individual may be susceptible to coercion or blackmail because of his desire to conceal his illegal behavior. Further, even if an individual is only an occasional user, when the individual is under the influence of drugs, he may be more susceptible to pressure, coercion, or exploitation. Personnel Security Hearing (Case No. VSO-0013), 25 DOE ¶82,752 at 85,512 (1995); Personnel Security Hearing (Case No. VSO-0035), 25 DOE ¶82,767 at 85,614 (1995). Moreover, the security program is based on trust and when an employee with access authorization uses illegal drugs, and lies about that behavior, he has violated that trust. Personnel Security Hearing (Case No. VSO-0019), 25 DOE ¶82,759 at 85,565 (1995); Personnel Security Hearing (Case No. VSO-0028), 25 DOE ¶82,762 at 85,587 (1995).

In his testimony at the hearing, the individual attempted to mitigate these concerns by affirming his opposition to the use of drugs and maintaining that his smoking cocaine in June was an isolated incident and a terrible mistake for which he is now very sorry. Hearing Tr. at 12, 34, 87-89. He testified that he is not a drug abuser and except for the two times on June 3 and June 5, he has never used illegal drugs. Hearing Tr. at 13, 21, 26. He further stated that he has a strong commitment to his family, his church, and his community and is ashamed that he has let them down. Hearing Tr. at 12, 15, 21. He acknowledged that he acted irresponsibly and stated his strong intention never to use drugs again. Hearing Tr. at 26, 31-32, 37.

The individual's immediate supervisor and his department manager both testified that the individual is a good employee, that they had no knowledge of drug use by the individual, and that, in view of the individual's strong commitment to his family and church, they were very surprised to learn of his use of illegal drugs in June 1995. Hearing Tr. at 45-52 and 56-60. In addition, five of the individual's co-workers (including the two supervisors who testified) have written letters on his behalf in which they state that he has been a trustworthy and conscientious employee and a devoted husband and father. Exhibits A - E. The individual also called as a witness, Dr. XXXXXXXXXXXXXXX, the clinical psychologist to whom he was referred by his employer after he admitted to using cocaine. Dr. XXXXXXXX, an employee of XXXXXXXXXXXXXXX, testified that, in his opinion, the individual does not have a history of drug use and that this is a case of isolated, experimental usage. Hearing Tr. at 69. He stated his belief that the individual is normally a reliable person who made an unfortunate mistake in June 1995, when he failed to consider the serious consequences of using cocaine. Hearing Tr. at 74-76, 80-81, 85. He also testified that, in his opinion, the individual would have been a good candidate for the Substance Abuse Rehabilitation Program Option (SARPO) at XXXXXXXXX, if he had come forward and admitted his cocaine use before the random drug test. Hearing Tr. at 84-85.<3> Dr. XXXXXXXXn based this view on his meetings with the individual and on a letter from a substance abuse counselor to whom he had referred the individual. In that letter (Exhibit F), the counselor states that "I do not see [the individual] as having a substance abuse problem at the present time. It appears to me that [the individual's] use of drugs was experimental and I would not characterize this as a recurrent problem."

The DOE does not claim, nor is there evidence in the record, that the individual has ever used illegal drugs on any other occasion than the two times in June 1995. I therefore have no reason to believe that he has a history of illegal drug use prior to June 1995. Furthermore, during the hearing, the individual appeared to be genuinely remorseful for his actions.

Nevertheless, his use of cocaine on June 3 and June 5, even if isolated experimental incidents, constitutes significant, derogatory information as defined in Section 710.8(k) and raises serious concerns regarding his judgment and trustworthiness. I do not believe the individual has sufficiently mitigated these concerns. While Dr. XXXXXXXX may be correct that the individual does not have a recurring substance abuse problem, even occasional usage poses a serious security concern because it demonstrates a tendency to pick and choose which laws to obey and increases the individual's susceptibility to pressure. Moreover, it is important to note that this is not a case of a single, isolated indiscretion which occurred several years ago. Instead, it involves two very recent incidents of illegal drug use by a mature adult who was fully aware of the policy of abstinence from the use of illegal drugs. After his initial decision to smoke cocaine on the bus, the individual chose to smoke it again two days later. Although the individual, in his testimony, made several inconsistent statements about the extent to which he thought about the prohibited nature of what he was doing while on the bus trip, it is clear that he knew it was illegal and could adversely affect his security clearance. Hearing Tr. at 23-25, 34-36. The fact that he chose to repeat this illegal behavior after having had time to consider the seriousness of what he had done and the effects it might have on his clearance, is very troubling. Also, the individual has acknowledged that, if he had not been subjected to a drug test later that same week, he might have used cocaine again. PSI at 6, 17 and Hearing Tr. at 23-24, 37. At best, his behavior demonstrates very poor judgment and a failure to consider the seriousness of his actions; at worst, it reflects a deliberate disregard for the law and the DOE security program.

Furthermore, his testimony at the hearing is not the first time he has stated to DOE his intention not to use illegal drugs. When specifically questioned about drug use in a PSI held in 1982, he affirmed his objection to the use of drugs, stated that it was against his family and life-style, and said there was no prospect of his using illegal drugs in the future. Ex. 7 at 23. His recent behavior contradicting those statements makes it more difficult now to believe him regarding his past abstinence and his intention never to use drugs again. His use of cocaine despite his prior statements to the DOE is certainly a reason to question his trustworthiness and constitutes derogatory information within the meaning of 10 C.F.R. §710.8(l).

Moreover, the individual's failure to tell the truth when confronted with the positive results of the drug test constitutes a separate basis for questioning his honesty and trustworthiness and is one of the most troubling aspects of this case. When explicitly asked on June 14, 1995 whether he had used cocaine, he lied. Hearing Tr. at 29; PSI at 14-15. Instead of telling the truth, the individual claimed that the positive test results might have been caused by medications he was taking. In the PSI and at the hearing, he explained his failure to be truthful as a case of "denial," a desire not to believe that his usage of cocaine on June 3 and June 5 caused the positive result. Hearing Tr. at 29; PSI at 13. However, Dr. XXXXXXXX pointed out, when he was asked his opinion about the individual's failure to be honest when confronted with the postive test results, "I think that is really totally poor judgment. That is not so much denial as it is, as he says, seeing his life going down the tubes and you try to wiggle out." Hearing Tr. at 81. I agree. In fact, the individual admitted during the hearing that he had not really believed his medications caused the positive test result and that his failure to tell the truth was based on a fear of losing his job. Hearing Tr. at 28-29, 38.

In my opinion, the individual's explanations do not sufficiently mitigate the DOE's concern regarding his trustworthiness. As mentioned earlier, the security program is based on a relationship of trust between the DOE and those individuals to whom it grants access authorization. The DOE must be able to implicitly trust employees to whom it grants clearances to respect the law and be honest and truthful. The individual's failure to admit his drug use, especially after being confronted with the results of the drug test, violated that trust and creates serious doubts as to his honesty and trustworthiness. Personnel Security Hearing (Case No. VSO-0035), 25 DOE ¶ 82,767 at 85,615-16 (1995). I therefore conclude that the DOE properly relied upon 10 C.F.R. § 710.8(l) in suspending the individual's security clearance.

IV. Conclusion

In the above analysis, I have found that there is significant derogatory information in the possession of DOE/XXXXX which raises serious concerns under 10 C.F.R. §710.8(k) and (l) regarding the individual's eligibility for continued access authorization. I have also found that the individual has failed to mitigate these security concerns. I am therefore 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.

Either the Office of Security Affairs or the individual may file a request for review of the Hearing Officer's Opinion within 30 calendar days of receipt of the Opinion. 10 C.F.R. § 710.28(a). 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. The party seeking review of the Opinion must file a statement identifying the issues on which he or she wishes the OHA Director to focus. This statement must be filed within 15 calendar days after the party files the request for review. The party seeking review must serve a copy of the 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).

Richard W. Dugan

Hearing Officer

Office of Hearings and Appeals

<1>1/ An 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.

<2>2/ The exhibits, where not cited by name, are cited herein as Ex., and the transcript of the hearing is cited as Hearing Tr. The recorded transcript of the August 17, 1995 PSI (Exhibit 7) is cited as PSI.

<3>/ Dr. XXXXXXXX testified that generally employees at XXXXXXXXX are not offered the opportunity of entering SARPO if they do not report their use of illegal drugs before testing positive on a random drug test. Hearing Tr. at 70-71.