Case No. VSO-0083, 25 DOE ¶ 82,807 (H.O. Augustyn June 10, 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 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:February 2, 1996

Case Number: VSO-0083

This Opinion concerns the eligibility of XXXXX (hereinafter referred to as "the individual") to retain a level "Q" access authorization<1> under the regulations set forth at 10 C.F.R. Part 710, entitled "Criteria for Access to Classified Matter or Special Nuclear Material." As discussed below, after carefully considering the record before me in light of the relevant regulations, it is my opinion that the individual's access authorization should not be restored.

I. Background

The individual, a XXXXX-year-old XXXXX, has been employed since May 1994 by XXXXX, a subcontractor that provides XXXXX services to the Department of Energy's XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. On October 25, 1994, the individual completed a Questionnaire for Sensitive Positions (QSP) in which he responded negatively to the question regarding whether he had used any illegal drugs in the last five years. Almost one year later, on XXXXX, the individual was arrested on numerous charges, including the possession of suspected drug paraphernalia. During a Personnel Security Interview (PSI) conducted on November 1, 1995 for the purpose of obtaining information surrounding the XXXXX arrest, the individual admitted he had used marijuana in 1982, 1983, 1993, 1994 and 1995. After the PSI, the DOE suspended the individual's security clearance and obtained authority from the Director of the Office of Safeguards and Security to initiate this administrative review proceeding.

The administrative review proceeding began on December 26, 1995, when the Department of Energy's XXXXX Operations Office (DOE/XXXXX) issued a Notification Letter to the individual advising that the DOE possessed information which created a substantial doubt concerning his continued eligibility for an access authorization. See Letter from XXXXX, Assistant Manager for Management and Administration, DOE/XXXXX, to the individual (December 26, 1995).

The Notification Letter specifically identified the derogatory information at issue and informed the individual of his right under the regulations to (1) file a written response to the derogatory information, and (2) request a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his continued eligibility for access authorization.

On January 16, 1996, the individual filed with the DOE/XXXXX a response to the allegations contained in the Notification Letter, together with a request for a hearing concerning this matter. The 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 February 2, 1996. The OHA Director appointed me as Hearing Officer in this case on February 7, 1996. I convened a hearing in this matter in XXXXX, on XXXXXXXXXXXXXX, and received a transcript of the hearing on XXXXXXXXXXX. See 10 C.F.R. § 710.25 (e),(g).

At the XXXXX hearing, the individual represented himself and testified on his own behalf. In addition, the individual called the following three witnesses to testify on his behalf: XXXXX with XXXXX, a psychologist who works for the XXXXXXXXXXXXXXXXXXXXXXXX, a DOE contractor at XXXX; and XXXXX, a co-worker who has worked in various capacities for XXXX or its contractors for the last 48 years. The DOE/XXXXX presented the testimony of one witness, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, a DOE Personnel Security Specialist.

II. Derogatory Information At Issue

The information included in the Notification Letter falls within the ambit of three regulatory criteria, subsections (f), (k) and (l) of 10 C.F.R. § 710.8. Criterion F concerns, in relevant part, information which reveals that a person "[d]eliberately misrepresented, falsified, or omitted significant information from a . . . Questionnaire for Sensitive Positions . . . 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 . . . ." 10 C.F.R. § 710.8(f). According to the Notification Letter, on October 25, 1994, the individual responded "no" to the question on the QSP which asks if he had used illegal drugs in the last five years. During a PSI conducted on November 1, 1995, however, the individual admitted he had used marijuana during the previous five years and had intentionally omitted listing any illegal drug use, fearing that his security clearance would not be granted.

In addition, the Notification Letter cites Criterion K as a source of concern to the DOE. Criterion K involves, in part, the possession, use or experimentation 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. The Notification Letter recounts that during the November 1, 1995 PSI, the individual admitted using marijuana in 1982, 1983, 1993, 1994, 1995.

Finally, the DOE invoked Criterion L as one of the bases for suspending the individual's security clearance. Criterion L covers information tending to show that the individual has "[e]ngaged in unusual conduct or is subject to 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 him to act contrary to the best interests of the national security." 10 C.F.R. § 710.8(l). The principal basis for the DOE's concern in this regard is that during the November 1, 1995 PSI, the individual admitted that he was arrested on XXXXX, on charges of speeding, evading a law officer, reckless driving, and possession of suspected drug paraphernalia.

III. Findings of Fact

The relevant facts in this case are uncontested. The individual affirmed in his hearing testimony that he had used marijuana approximately twice yearly in 1982, 1983, 1993, 1994 and 1995. See Transcript of XXXXX Hearing (hereinafter cited as "Hearing Tr.") at 19-25; Transcript of Personnel Security Interview conducted on November 1, 1995 (hereinafter cited as "PSI Tr.") at 14-21. He also admitted at the hearing that he attended a comprehensive security briefing on March 8, 1995 at which the DOE's policy against the use of illegal substances was reiterated. Hearing Tr. at 26-27. According to the individual, he continued to use illegal drugs after that comprehensive security briefing. Id.

The individual further admitted at the hearing that he lied when he responded negatively to the question on the QSP concerning whether he had used any illegal drugs during the previous five years. Id. at 14, 15, 17, 33, 102. He also acknowledged that prior to his completing the QSP, the DOE advised him that a positive response to the question regarding the use of illegal drugs would not automatically disqualify him from obtaining a "Q" clearance. Id. at 15, 18.

Finally, the individual conceded that he was arrested on XXXXX for speeding, evading a law officer, reckless driving, and possession of suspected drug paraphernalia. See PSI Tr. at 7-13; Hearing Tr. at 30, 102. He related that on the evening of XXXXX, he was returning home on his motorcycle from a party where he had smoked marijuana. PSI Tr. at 6. He stated that he had borrowed a friend's jacket that evening for the ride home. Id. En route home, he saw some flashing lights in the his rearview mirror and decided to accelerate his speed to "outrun" the police. Id. He was unsuccessful in this regard and was arrested. Id. The individual claims that during the frisk upon arrest, the police officer did not find the drug paraphernalia in the jacket he was wearing. Hearing Tr. 24. According to the individual, he knew the drug paraphernalia was in the jacket and so advised the arresting officer. Id. The individual maintained, however, that the drug paraphernalia belonged to the person who lent him the jacket. Id.

According to the record in the case, the day after the individual's arrest, he promptly reported his arrest to the DOE Security Office and then wrote to the local newspaper requesting that it not print his name and address in connection with his arrest. The individual explained in his letter to the newspaper as follows: "I would like to try and maintain as much of my character as possible without having the community of XXXXX persecute, finger point and gossip about me as a ?bad seed.'" See Letter from the individual to the XXXXX (XXXXX). At various times during the hearing, the individual articulated his concern that his parents and the members of the XXXXX community not learn of his problems with the law or drugs. Hearing Tr. at 18, 30-31, 65-69.

IV. 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 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. 10 C.F.R. §§ 710.7(c), 710.27(a). It is the totality of these facts and circumstances that guided me in evaluating whether the individual's access authorization should be restored.

A. The Individual's Drug Use

The individual's admission that he used marijuana occasionally over the last fourteen years, standing alone, constitutes a sufficient basis for the invocation of Criterion K. The security concerns associated with the use of illegal drugs were summarized by the Personnel Security Specialist at the hearing. According to XXXXXXXXXXXXXXXXXXXXXXX, the DOE is concerned whether the individual can be trusted to respect laws and regulations, including those governing the security of classified information and facilities, in view of his willful disregard for the law prohibiting the use of illegal drugs. Id. at 50-51. Moreover, XXXXXXXXXXXXXXXXXXXXXXX expressed the DOE's additional concern regarding the individual's judgment in using illegal drugs subsequent to his attendance at a comprehensive security briefing at which the DOE's policy against the use of drugs was enunciated. Id.

To mitigate the security concerns raised by his past drug use, the individual maintained at the hearing that he will not use drugs in the future and advised he has taken three steps to achieve this objective. Id. at 103, 23. First, he is avoiding all contact with his friend who supplied him with the marijuana. Id. at 23. Second, he has separated himself from persons who use drugs. Third, he has sought psychological counseling, testing, and evaluation to determine "what kind of a person" he is. Id. In addition, he presented the testimony of Dr. XXXXX who reported that neither of the two tests he administered to the individual, the Second Edition of the Minnesota Multiphasic Personality Inventory (MMPI-II) or the Substance Abuse Subtle Screening Inventory (SASSI), <2> revealed the existence of any drug issues. Id. at 75. It is Dr. XXXXX's opinion that the individual is neither a substance abuser nor substance dependent. Id. at 80. In addition, XXXXX testified that the individual is a good employee and that he had no knowledge of drug use by the individual. Id. at 42-43. Similarly, XXXXX, a co-worker, related that the individual is a conscientious, hard-working employee who has never shown signs of drug impairment on the job. Id. at 97.

An examination of the totality of the circumstances surrounding the individual's marijuana use persuades me that the DOE's security concerns arising from the drug use at issue have not been mitigated. While Dr. XXXXX may be correct that the individual does not have a substance abuse or dependence problem, I find that even occasional use of marijuana poses a serious security concern in this case. This is not a case of a single, isolated indiscretion that occurred several years ago. Rather, there are six instances of drug use since 1993 by a mature adult. Moreover, when the individual smoked marijuana in 1995, he did so knowing the DOE's policy of abstinence from the use of illegal drugs.

I commend the individual's efforts to separate himself from the friend who supplied him with marijuana on several occasions and from those who use illegal drugs. These efforts, combined with the individual's verbal assurance to abstain from drugs in the future, suggest he might be successful in achieving his objective. However, there simply has not been sufficient time since the individual's last use of marijuana to indicate that he will refrain in the future from the use of illegal drugs. Moreover, I am not willing to accept the individual's assurance that he will not be involved with drugs again in view of the record in this case regarding his past lack of candor with the DOE.

B. The Individual's Falsification

As noted above, the individual confessed during a PSI to deliberately falsifying a response on a QSP regarding his prior drug use. See PSI Tr. at 14-21. This deliberate falsification of significant information properly comes within the ambit of Criterion F and raises a substantial question as to the individual's honesty, reliability and judgment.

The individual has offered different explanations for his falsification. When he filed his written Response to the Notification Letter, he responded to the falsification charge in the following manner:

I recall stating that, "I may have taken a 'hit' from a joint once during the years of 1993 and 1994, but I do not recall." This period covers 730 days. In the period of 5 years, or 1825 days, I do not recall specifically smoking marijuana, therefore I answered, 'no' on the QSP.

DOE Exhibit 2. At the hearing, the individual testified that he knew he was falsifying his response to the question about prior drug use on the QSP when he completed and signed that document. Hearing Tr. at 14, 15, 17, 33, 102. In light of this admission at the hearing, the DOE Counsel questioned the individual about his seemingly contradictory statement in the Notification Letter Response regarding the falsification issue. Id. at 15-16. In response, the individual explained that he "was trying to pad his side" when he stated that he had no recollection of smoking marijuana in his Response to the Notification Letter. Id. at 15-19. He attributed the misstatement in the Notification Letter Response to his apprehension and his belief that he was an "extremely infrequent former pot-smoker." Id. at 18. He subsequently explained that his true motives for lying on the QSP were two: fear that he would be denied an access authorization and concern that XXXX employees with access to his QSP might "classif[y] him as a certain type of a person" based on the information he divulged on that document. Id.

To mitigate the falsification allegation, the individual presented the testimony of XXXXX, Ph.D., a psychologist with 40 years experience. Dr. XXXXX noted that the MMPI-II is very sensitive to people who lie or who are defensive, and is commonly used by industrial organizations instead of lie detector tests. Hearing Tr. at 76 Id. Dr. XXXXX related that the validity scales used to interpret the results of the MMPI indicated that the individual was telling the truth on the MMPI. Id. Dr. XXXXX also stated at the hearing that "lying is . . . characteristic of almost every human being at some point in their life, and with some degree of frequency." Id. at 81. He added that he is not inclined to believe that a person who lies once or twice will lie again in the future, or is unreliable, or has impaired judgment. Id. at 84. Finally, Dr. XXXXX opined that he would be more concerned with the falsification at issue if the individual had been age 35, rather than age 27 when he made the false statement. Id. at 82. Under questioning, Dr. XXXXX explained that a person's character matures through adolescence and into early adulthood, implying that a person at age 27 is still in the early adulthood stage. Id. at 84-85.

Two other witnesses, XXXXX and XXXXX, attested to the individual's honesty at the hearing and expressed surprise that he had falsified information. Id. at 42, 97. They both indicated that the individual was a good employee. Id. at 43, 93. In addition, the individual expressed contrition for his falsification, explaining that his actions in this regard were totally out of character for him. Id. at 102.

In considering whether I could dismiss the individual's falsification on his QSP as an isolated incident, I was most troubled by the individual's subsequent misrepresentation on his Response to the Notification Letter that he had no recollection of using drugs at the time he completed his QSP. The individual's explanation that he was just "trying to pad his side" suggests to me that the individual might be less than truthful in the future in order to conceal or minimize questionable conduct.

Regarding Dr. XXXXX's position that lying is not uncommon in the general population, I simply cannot excuse the individual's falsification on this basis. If a person lies to the DOE, he loses credibility and ultimately the trust that he will comply with the regulations protecting our national security. In this case, the individual lied concerning his past drug use and then executed a government form certifying to the accuracy of the information contained on that form. He falsified the information on the QSP, knowing that disclosure of past drug use would not automatically disqualify him from obtaining his access authorization and knowing that a willful false statement on the QSP is punishable by fine or imprisonment or both. I am troubled not only by the individual's poor judgment in electing to falsify the QSP but his willingness to falsify despite knowing the adverse consequences that could follow from that action.

As for Dr. XXXXX's suggestion that this 27-year-old might not have been mature enough to grasp the implications of his falsification, I disagree. The individual is college educated and has held a number of responsible employment positions. Hearing Tr. at 10-11. In my opinion, the individual's age and maturity at the time of his falsification supports rather than mitigates the DOE/XXXXX's security concerns attendant the individual's falsification.

Finally, I find that the individual's expression of remorse and contrition for this falsification and his character witnesses' testament to his honesty simply do not overcome the legitimate security concerns associated with the individual's deliberate falsification of significant information on his QSP and his subsequent misrepresentation in his Response to the Notification Letter.

Based on all the foregoing considerations, I find that there is not sufficient evidence to mitigate the DOE/XXXXX's legitimate concern arising from the individual's falsification on his QSP.

C. The Individual's Arrest

The facts surrounding the individual's arrest suggest that the DOE/XXXXX properly relied on Criterion L to support its suspension of the individual's "Q" clearance. The individual's behavior on the night of XXXXX, i.e. , his speeding, his attempt to evade the police and his knowing possession of drug paraphernalia calls into question the individual's trustworthiness and reliability. These actions demonstrate his willingness to disobey the law and cause me to believe that he would not willingly abide by security regulations or safeguard classified information or facilities. Moreover, the individual's actions subsequent to his arrest, i.e., writing to the newspaper requesting that his identity not be released, raises question about possible coercion or blackmail.

It is the individual's position that any concern arising from this arrest should be mitigated because it was an isolated incident. In this regard, the individual testified that he had never been arrested before the October 1995 incident. The individual also offered the testimony and written report of Dr. XXXXX as mitigating evidence on the issue of his behavior leading to the arrest. Based on the individual's account of the October 1995 incident that triggered the individual's arrest, Dr. XXXXX opined that ". . . the episode involving the XXXXX Police Department's apprehension of the subject represents impetuosity at the worst and perhaps some impaired judgment attributable to situational anxiety." Memorandum for Dr. XXXXX to XXXXX (March 27, 1996). At the hearing, Dr. XXXXX noted that the individual was "terribly embarrassed and terribly anxious and terribly ashamed" of having been arrested. Hearing Tr. at 87. Curiously, the doctor acknowledged at the hearing that he had no knowledge that the individual had requested the local newspaper to refrain from publishing his arrest in the newspaper, or that the individual had elected not to tell his parents of the arrest. Id. In fact, after Dr. XXXXX learned of these additional facts, he opined that vulnerability to blackmail is a valid concern for DOE to have under these circumstances. Id. at 87. He added that his clinical advice to the individual would be to tell his parents to allay any concern regarding the individual's susceptibility to blackmail. Id.

With regard to the issue of possible coercion, the individual assured me that if he were confronted with a situation where someone threatened to reveal information to his parents in exchange for classified information, he would inform his parents of his problems. He also stated at the hearing that he intends to inform his parents of his arrest in June 1996 when he expects to obtain a "Conditional Discharge" from the court which has jurisdiction over the matters at issue here.

In evaluating whether the individual mitigated the security concern associated with the XXXXX arrest, I found the following factors favorable to the individual: (1) the arrest in question was the individual's first, suggesting the incident might be considered an isolated incident; (2) the individual abided by security regulations in promptly reporting his arrest to the DOE security the next day; (3) the individual sought psychological counseling on his own to determine if there was something in his psychological make-up that caused him to act in the manner he did on the evening of XXXXX. Weighed against these positive factors were the following negative ones: (1) the incident in question is relatively recent; (2) the individual was a mature adult at the time of the behavior in question; (3) just prior to his questionable conduct and resulting arrest, the individual had smoked marijuana; (4) the individual has not disclosed his problems with the law to his parents and was so concerned about preserving his reputation in the community that he requested the local newspaper not to print his name in connection with the XXXXX arrest.

In addition, I considered Dr. XXXXX's view that the individual's behavior in trying to elude the police on the night of XXXXX can be attributed to "impetuosity at worst and some impaired judgment attributable to situational anxiety." While I agree that the individual exhibited impaired judgment in the instance under examination, I will not overlook this incident as a transitory episode of impetuosity. The individual was a mature adult at the time he elected to "outrun" the police. Based on the record, there is a risk that the individual might exhibit that same impaired judgment in a work environment were he placed in an anxious or trying situation. Accordingly, I conclude that the events surrounding the individual's arrest constitute unusual conduct which manifests the individual's lack of judgment and reliability.

I would be more impressed with the individual's trustworthiness and reliability if he had convinced me that he viewed his inappropriate conduct as his primary problem, instead of the extent of damage to his reputation in the community. Since the record is replete with references to the individual's concern about his reputation, I feel there is a risk that the individual might be susceptible to coercion. I base my impression on the following facts: (1) immediately after his arrest, the individual requested in writing that the local newspaper refrain from publishing his name to preserve his character; (2) the individual revealed at the PSI and again at the hearing that he has deliberately concealed his problems with the law and drugs from his parents; (3) the individual failed to disclose to Dr. XXXXX, the psychologist whose assistance he sought for testing, counseling, and evaluation, that he had concealed, or attempted to conceal, his arrest from his parents and the XXXXX community; and (4) the individual revealed at the hearing that one of the real motivations for his lying on the QSP was that he feared embarrassment if XXXX personnel read the derogatory information on his QSP. While the individual tried to assure me at the hearing that he would not be susceptible to coercion or blackmail, he did not convince me that he would not allow his desire to protect his reputation in the community to overwhelm his expressed willingness to conform his future actions to the requirements of national security. See Personnel Security Hearing (VSO-0001), 24 DOE ¶ 82,751 (1994), aff'd, (OSS March 7, 1995).

Based on the totality of the evidence, I conclude that the individual has failed to present sufficient evidence to mitigate the security concerns arising from his XXXXX arrest.

V. Conclusion

As explained in this Opinion, I find that the DOE/XXXXX properly invoked 10 C.F.R. §§ 710.8(f), (k), and (l) in suspending the individual's access authorization. I further find that the arguments advanced by the individual in his defense do not mitigate the security concerns accompanying those three criteria. In view of these 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, in my opinion, the individual's "Q" access authorization should not be restored.

Either 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. 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 which it wishes to contest 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). Submissions must be served on the Office of Security Affairs at the following address:

Director

Office of Safeguards and Security, NN-51

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD. 20874

Ann S. Augustyn

Hearing Officer

Office of Hearings and Appeals

Date:

<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 from time to time in this Opinion as access authorization, security clearance, or "Q" clearance.

<2>/ According to Dr. XXXXX, the SASSI is a screening device used to detect alcohol and drug use. When used in connection with the MMPI, the SASSI helps predict whether a person has an alcohol or drug problem. Hearing Tr. at 74.