Case No. VSO-0090, 26 DOE ¶ 82,752 (H.O. Wieker July 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: April 9, 1996

Case Number: VSO-0090

This Opinion concerns the eligibility of XXXXX (hereinafter "the individual") for restoration of an access authorization. The regulations governing the 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." This opinion will consider whether, based on the testimony and other evidence presented in this proceeding, the individual's access authorization should be restored.

I. PROCEDURAL BACKGROUND

This administrative review proceeding was commenced by the issuance of a Notification Letter to the individual on March 1, 1996. That Notification Letter stated that information in the possession of the Department of Energy's XXXXX Office (DOE/SNR) created a substantial doubt concerning the individual's eligibility for an access authorization. The Notification Letter specified that the individual admitted using cocaine or crack cocaine on a weekly basis between January 1994 and December 26, 1995, when he was arrested for possession of a controlled substance. According to the Notification Letter, such possession and use of a controlled substance is a security concern pursuant to 10 C.F.R. § 710.8(k) (Criterion (K)).

The Notification Letter also found that the individual engaged in conduct showing that the individual is not honest, reliable, or trustworthy. This constitutes a security concern pursuant to 10 C.F.R. § 710.8(l) (Criterion(L)). The Notification Letter specified four circumstances or events giving rise to the concern.

1) The individual was arrested on December 26, 1995 for possession of a controlled substance. Specifically, crack cocaine was found in the individual's automobile.

2) The individual lied to the police in responding to questions during the investigation that led to his December 26 arrest.

3) The individual used illegal drugs, even though he was aware of the DOE's policy against using illegal drugs while holding an access authorization.

4) The individual is having financial problems as a result of the money he has spent purchasing the controlled substance.

On March 21, 1996, the individual, through his attorney, XXXXXXXXXXXXXXXXXXXXX, requested a hearing. The DOE/XXXXX forwarded the request to the Office of Hearings and Appeals (OHA). On April 12, 1996, I was appointed the Hearing Officer in this matter. In accordance with 10 C.F.R. § 710.25(e) and (g), the hearing was convened at the XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, on XXXXX. Two witnesses gave testimony at the hearing. The first was a DOE Security Specialist. The second was the individual.

II. FACTUAL BACKGROUND

The basic facts in this case are not in dispute. The individual was employed by XXXXXXXXXXXXXXXXXXXXX, a subsidiary of XXXXXXXXXXXXXXXX. XXXXXXXXXXXXXXXXX is a subcontractor of the XXXXX Office. The individual was employed by XXXXXXXXXXXXX and its predecessors for 28 years. His position in 1995 was XXXXXXXXXXXXXXXXXXXXXXX.

The individual admits that he used cocaine and/or crack cocaine on a weekly basis for two years prior to his arrest on December 26, 1995. He admits he was arrested and that he lied to the police during the questioning that took place at the time of his arrest. The individual further admits that he knew of the DOE policy against drug use. Finally, he admits that in January 1996 he had substantial debts as a result of his purchases of crack cocaine.

III. ANALYSIS

I find that the DOE/XXXXX has clearly established a basis for a security concern under Section 710. At the XXXXX hearing, the individual presented testimony which he believes mitigates the DOE security concerns. At the hearing, the individual testified about the reasons for his use of drugs and the steps he has taken toward rehabilitation. He also established that he cashed in his 401K retirement account and paid off his debts. Finally, the individual has provided copies of his job performance evaluations. He contends that the fact that he has been a productive and stable employee for 28 years should mitigate the DOE concerns regarding the possibility of future security breaches.

A. Standard of Review for Mitigation Testimony

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).

A DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal case, in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. In this type of case, we are dealing with a different standard which is designed to protect national security interests. Administrative review is authorized when the existence of derogatory information leaves unresolved questions about an individual's eligibility for access authorization.

A hearing is "for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization." 10 C.F.R. § 710.21(b)(6). The burden is on the individual to come forward at the hearing with evidence to convince the DOE that restoring his access authorization "would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.27(d). This indicates the individual has a significant burden in showing the restoring of a security clearance is appropriate. See Dep't of Navy v. Egan, 484 U.S. 518, 531 (1988)("clearly consistent with the national interest" standard for the granting of security clearances indicates "that security determinations should err, if they must, on the side of denials."); Dorfmont v. Brown, 913 F.2d. 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance). Consequently, it is necessary and appropriate to place the burden of persuasion on the individual in cases involving national security issues. Personnel Security Hearing, VSO-0002, 24 DOE ¶ 82,752 at 85,511 (1995). Strong corroborating testimony from those with an ongoing knowledge of a substance abuse rehabilitation program is essential to establish a factual basis for a finding of rehabilitation from substance abuse. The burden is on the individual to provide such comprehensive testimony. As the Hearing Officer, I discussed this burden with the individual, his counsel and the DOE counsel during the pre-hearing telephone conversation. 10 C.F.R. § 710.25(f).

B. Rehabilitation from use of Controlled Substance: Criterion K

The individual asserts he has been rehabilitated and there is no longer a security concern with respect to his drug usage. Specifically, he claims that he has successfully attended and completed a rehabilitation program run by XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.

As an initial matter, I find that there is insufficient objective, corroborating testimony to support the individual's assertions. The witness list provided by the individual on May 7, 1996, identified two witnesses: the individual and XXXXXXXXXXXXX, the individual's counselor from XXXXXXXXXXXXXXXXX, hereinafter the "XXXXXXXXXXXXXXXX Counselor."<1>At the hearing the individual indicated the XXXXXXXXXXXXXXXX Counselor would not testify because it was too expensive for the individual to pay for the XXXXXXXXXXXXXXXX Counselor's appearance. Therefore, the individual was the only witness that described his rehabilitation program. Without corroborating testimony, I am unable to accept all of the individual's testimony regarding the details of his progress in the rehabilitation program. I believe it is very difficult to be objective in evaluating one's own rehabilitation progress. Therefore, independent testimony is very important for an accurate assessment of the effectiveness of a rehabilitation program. I also believe that the individual has an incentive to minimize any warning signs of rehabilitation difficulties. I therefore find that the testimony provided is inadequate to support a finding in this case that the security concerns have been mitigated or that the individual has made substantial progress in the XXXXXXXXXXXXXXXX' rehabilitation program.

However, even if I were to accept the individual's testimony on this point, I could not reasonably conclude that he has demonstrated rehabilitation. In his testimony, the individual described the treatment program as a nine-week program. During that period, he had three group sessions each week that lasted approximately three hours each. He also had individual counseling once a week. The individual sessions lasted 60 minutes each. Absent convincing expert testimony for this individual, who has a two-year history of regular, substantial drug use, and virtually no period of abstinence, this program is clearly too limited to provide a reasonable basis for a finding of rehabilitation. See Personnel Security Hearing (Case No. VSO-0023), 25 DOE ¶ 82,761 (1996); aff'd Personnel Security Review (Case No. VSA-0023), 25 DOE ¶ ______ (November 14, 1995). See also, Personnel Security Review (Case No. VSA-0049), 25 DOE ¶ 83,011 (1996).

Furthermore, the individual testified that he used cocaine once during this so-called rehabilitation period.<2>His testimony indicates that he used cocaine on one occasion when a friend with whom the individual had previously shared cocaine visited his apartment. The individual testified that he did not invite the friend to visit him and the friend made a lot of noise when he arrived. The individual testified that he decided to use crack cocaine to quiet his friend (Transcript at Page 49) so that he would not disturb the neighbors. Apart from the illogical nature of such a decision, this casual decision by the individual to use cocaine during his rehabilitation program casts serious doubt on the effectiveness of that program and on the individual's claim of complete rehabilitation.

As follow up to the rehabilitation program, the individual testified that he has attended AA (Alcoholics Anonymous) meetings twice a week. He testified that he did not attend NA (Narcotics Anonymous) meetings because they were difficult for him to reach and he did not like the people that attended the NA meeting. Transcript at page 41. However, he indicated he had not attended any meeting in the two weeks prior to the hearing. Transcript at page 41. He testified that he had been unemployed since February 9, 1996 when he was laid off after losing his access authorization. Transcript at page 19. This suggests he would have had an ample opportunity to attend AA meetings. In response to the question of why he was not attending AA meetings he indicated that he was spending his time fishing and watching television, and that soon he would start looking for a new job. Transcript at page 42. His choice of passing his time in personal recreational activities rather than pursuing his rehabilitation program indicates a lack of commitment to that program.

When asked why he was not receiving additional rehabilitation counseling from Clinical Services, he indicated that he could not afford his portion of the fee. Transcript at page 30. The individual testified that only part of the fee is paid by his health insurance coverage. I find that this excuse is weak and conclude that the individual's refusal to take the steps generally required in a rehabilitation program demonstrates that he is not sufficiently serious about rehabilitation.

The only document that the individual submitted from his rehabilitation program was his two page discharge summary. The discharge summary is dated April 23, 1996 and signed by the XXXXXXXXXXXXXXXX Counselor and a second individual whose signature is not legible. I find that the "Condition at Discharge" entry sums up the individual's rehabilitation. That line indicates "prognosis guarded based on his continued active involvement in sub(sequent) support." I believe his lack of continued rehabilitation support, his failure to regularly attend AA meetings, and his relapse during his rehabilitation program shows that his prognosis is very poor, and casts substantial doubt on his claim that he has been rehabilitated.

C. Rehabilitation from Unusual Behavior: Criterion L

As stated above, the DOE/XXXXX has also found a security concern exists with respect to the individual's judgment and reliability. The individual's only testimony regarding rehabilitation in this area was a demonstration that he has withdrawn funds deposited in his 401K retirement plan and used the money to repay his debts. While this is certainly a reasonable step, it does not mitigate the other unusual behavior identified by the DOE/XXXXX. Specifically, the individual provided no testimony regarding the charge that he was arrested and that he lied to the police.

Moreover, at the hearing the individual lied about his use of cocaine during his rehabilitation program. He first testified that he had not used cocaine since his arrest on December 26, 1995. Transcript at pages 30 and 42. He also testified that the weekly drug tests administered by XXXXXXXXXXXXXXXX would show he has used no controlled substances during the nine weeks of his rehabilitation program. Transcript at page 44. However, after the hearing was closed and he had left the room, he returned and requested that I reopen the record. He then testified that he used cocaine in the incident described above involving the friend's visit. Transcript at page 48. This incident shows that he is still having difficulty being honest. The individual is therefore not reliable and trustworthy and has not show rehabilitation to mitigate security concerns with respect to Criterion L.

D. General Argument Regarding his Good Job Performance

The individual raises a general assertion that he has been a good employee for 28 years. He has submitted job performance evaluations from his supervisors which show an acceptable level of job performance. He suggests that since the DOE has never shown that he has breached security in 28 years of employment, the DOE should not have a concern that he would commit future security breaches. I reject the logic of this argument. The DOE is not required to establish that security has been compromised in order to properly deny access authorization. As stated above, once a security concern has been legitimately raised by the DOE, the individual involved must demonstrate that the concern has been mitigated. The DOE has clearly raised legitimate security concerns, and the individual has not mitigated these concerns.

Accordingly, even if I were to find that the individual's work record in the past was acceptable, I still could not conclude that restoring his access authorization would be appropriate. The holding of access authorization is a trust that requires a pattern of behavior in a person's life that indicates reliability and sound judgment. An individual's questionable behavior in his private life can certainly raise concerns that this poor judgment may invade other areas, such as those involving security matters. This individual has indisputably taken actions which show poor choices and bad decisions. These actions raise a serious question about his overall judgment and trustworthiness and lead me to find that he presents an elevated security risk. When there is an elevated security risk, an individual should not be granted an access authorization.

E. Conclusion

I therefore believe that the DOE/XXXXX properly invoked 10 C.F.R. § 710.8(k) and (l) in connection with the individual's access authorization. In view of the record before me, I am not persuaded 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, I find 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 the 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, 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 with 20 days of receipt of the statement.

Thomas L. Wieker

Hearing Officer

Office of Hearings and Appeals

Date:

<1>/ During the pre-hearing telephone conference, I made it clear that in order to make a convincing showing of rehabilitation the individual should consider bringing other witnesses that could speak about his rehabilitation.

<2>/ The XXXXXXXXXXXXXXXX' program required a weekly drug test. The individual indicated that all but one of those tests were negative. Transcript at page 48.