Case No. VSO-0116 (H.O. Brown Jan 16, 1997)

Case No. VSO-0116, 26 DOE ¶ 82,765 (H.O. Brown Jan 16, 1997)

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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.

January 16, 1997

DECISION AND ORDER

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Case Name: Personnel Security Hearing

Date of Filing: October 1, 1996

Case Number: VSO-0116

This Opinion concerns the eligibility of XXXXX (hereinafter referred to as "the individual") to hold an access authorization under the regulations set forth at 10 C.F.R. Part 710, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material."<1> A Department of Energy Operations Office (DOE) suspended the individual's access authorization under the provisions of Part 710. This Opinion considers whether, on the basis of the evidence and testimony presented in this proceeding, the individual's access authorization should be restored.

I. Background

The provisions of 10 C.F.R. Part 710 govern the eligibility of individuals who are

employed by or are applicants for employment with DOE contractors, agents, DOE access permittees, and other persons designated by the Secretary of Energy for access to classified matter or special nuclear material. Part 710 generally provides that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all 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).

In this instance, the DOE granted the individual an access authorization, a "Q" clearance, as a condition of her employment with a DOE contractor. However, on September 12, 1996, DOE issued a Notification Letter informing the individual that her access authorization had been suspended based upon information in the possession of the DOE that created substantial doubt concerning her continued eligibility. The specific information in support of the determination by the DOE is set forth in Enclosure 2 accompanying the Notification Letter, and is summarized below.

In Enclosure 2 of the Notification Letter, the DOE states that the derogatory information regarding the individual falls within the purview of the disqualifying criteria set forth in 10 C.F.R. § 710.8, specifically section 710.8(k), finding that the individual "[t]rafficked 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 (such as marijuana, cocaine, amphetamines, barbiturates, narcotics, etc.) except as prescribed or administered by a physician licensed to dispense drugs in the practice of medicine, or as otherwise authorized by law." The bases for this finding are as follows: (1) pursuant to a random drug screening performed by her employer, a urine specimen provided by the individual on July 9, 1996, was determined to be positive for the presence of marijuana; (2) a confirmation of the individual's positive drug test was performed and, on July 15, 1996, the individual signed an Acknowledgement of Positive Drug Screen; and (3) during a Personnel Security Interview (PSI) that was subsequently conducted on July 25, 1996, concerning this matter, the individual admitted that on the weekend prior to her submitting to the random drug screening, she knowingly smoked approximately one half of a marijuana cigarette at a social gathering.

In a letter forwarded to the DOE Office of Hearings and Appeals (OHA) on October 1, 1996, the individual exercised her right under Part 710 to request a hearing in this matter. 10 C.F.R. § 710.21(b). On November 8, 1996, I was appointed as Hearing Officer in this case. After conferring with the individual and the DOE Counsel appointed, 10 C.F.R § 710.24, I set a hearing date. At the hearing, the DOE Counsel called five witnesses: (1) the DOE Personnel Security Specialist who conducted the July 25, 1996 PSI with the individual; (2) the individual's supervisor; (3) the individual; (4) the company physician who administered the drug screening; and (5) the individual's drug treatment counselor. The individual elected to call four witnesses: (1) two close friends/associate coworkers (Associates #1 and #2, respectively); (2) her husband, and (3) a close friend. The transcript taken at the hearing shall be hereinafter cited as "Tr.". Various documents that were submitted by the DOE Counsel and the individual during this proceeding constitute exhibits to the hearing transcript and shall be cited as "Exh.".

II. Analysis

I have thoroughly considered the record of this proceeding, including the submissions of the parties, the evidence presented and the testimony of the witnesses at the hearing convened in this matter. In resolving the question of the individual's eligibility for access authorization, I have been guided by the applicable factors prescribed in 10 C.F.R. § 710.7(c): the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the voluntariness of the participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct; the potential for pressure, coercion, exploitation, or duress; the likelihood of continuance or recurrence; and other relevant and material factors. After due deliberation, it is my opinion that the individual's access authorization should be restored since I believe that such restoration would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. § 710.27(a). The specific findings that I make in support of this determination are discussed below.

A. Section 710.8(k), Illegal Drug Use

The facts and circumstances concerning the individual's illegal drug use, specifically marijuana, were relayed by the individual during her July 25, 1996 PSI and reiterated in greater detail at the hearing. According to the individual, the positive drug test resulted from her first and only use of marijuana, which occurred at a housewarming party that she attended on the Saturday before she was called for random drug screening on the following Tuesday. PSI at 13; Tr. at 35, 50. The individual explains that at the invitation of a close friend, she went to the housewarming party given at the home of the friend's coworker and also attended by several other of the friend's female coworkers, all of whom are employed at a local telephone company. Tr. at 26; PSI (Exh. 3A) at 10. The individual states that apart from her friend, she was vaguely acquainted with only a few of the approximately twelve women present at the party and did not know the rest. The individual states that during the evening, someone began to smoke and pass marijuana cigarettes and she, along with about half the women present, puffed the marijuana which circulated four to five times. Tr. at 26-28; 46. Though she is unsure, the individual believes that she consumed a total of approximately one half of a marijuana cigarette. PSI at 11; Tr. at 29.

As stated by the Personnel Security Specialist during the hearing, illegal drug use, in this case marijuana, raises a security concern for the DOE, for it reflects a deliberate disregard for state and federal laws prohibiting such use. Tr. at 20-21. "The drug user puts his own judgment above the requirements of the laws, by picking and choosing which laws he will obey or not obey. It is the further concern of the DOE that the drug abuser might also pick and choose which DOE security regulations he will obey or not obey with respect to protection of classified information." Personnel Security Hearing, Case No. VSO-0013, 25 DOE ¶ 82,752 at 85,512 (1995). In addition, a person who uses marijuana may possibly open herself to blackmail or other forms of coercion, because she may want to conceal her use. Tr. at 20. It has also been noted that "any drug usage while the individual possesses a `Q' clearance and is aware of the DOE's policy of absolute abstention demonstrates poor judgment." Personnel Security Hearing, Case No. VSO-0023, 25 DOE ¶ 82,761 at 85,579 (1995).

After considering the undisputed evidence of marijuana usage by the individual in the record of this case, I have concluded that DOE properly invoked 10 C.F.R. § 710.8(k) in suspending the individual's access authorization. This instance of illegal drug use is the only factor cited by DOE in this regard. Accordingly below, I will consider whether the individual has made a showing of mitigating facts and circumstances sufficient to overcome the DOE's legitimate security concerns arising from her use of marijuana.

B. Mitigating Circumstances

A DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal matter, in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. See Personnel Security Hearing, Case No. VSO-0078, 25 DOE ¶ 82,802 (1996). In this type of case, we are dealing with a different standard designed to protect national security interests. 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). Once the DOE has made a showing of derogatory information raising security concerns, 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 standard implies that there is a strong presumption against the granting or restoring of a security clearance. 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, Case No. VSO-0002, 24 DOE ¶ 82,752 at 85,511 (1995).

In cases where there is evidence of a positive drug test, an affected individual must provide convincing evidence mitigating the security concerns related to the illegal drug use. Personnel Security Hearing, Case No. VSO-0102, 26 DOE ¶ at 4 (November 14, 1996), citing Personnel Security Hearing, Case No. VSO-0051, 25 DOE ¶ 82,784 (1995); Personnel Security Hearing, Case No. VSO-0019, 25 DOE ¶ 82,579 (1995). "It is therefore the obligation of the individual to offer an explanation for the positive drug test that mitigates the DOE's security concerns and to establish the truthfulness of the explanation." Id. at 4-5, citing Personnel Security Review, 26 DOE ¶ 83,001 (1996). In the present case, I have reached the opinion that the individual has successfully carried her burden in this regard and, accordingly, her security clearance should be restored.

1. The Individual's Drug Use

The individual has remained adamant throughout this proceeding that her marijuana use was a one time occurrence that took place at a housewarming party a few days prior to the drug screening. According to the individual, this was the first and only time she has ever used an illegal drug, a mistake for which she now feels "embarrassed" and "stupid." Tr. at 50. However, the individual's explanation warrants careful scrutiny. The existence of a positive drug test raises the possibility of use at other times. Further, the scenario that the individual describes, that she was selected for random drug screening three days after her first and only use of marijuana, seems highly coincidental on its face. Notwithstanding, I am persuaded that the testimony and corroborative evidence presented in the record of this proceeding do establish the truthfulness of the individual's explanation that her marijuana use was an isolated occurrence.

First, regarding the individual's explanation, I find that the individual has established to my satisfaction her account of using marijuana under the circumstances of the housewarming party. The individual called as a witness the close friend who confirmed in her testimony that she invited the individual to the housewarming party given by the friend's coworker at the telephone company, and otherwise corroborated the circumstances and attendance of the party. Tr. at 139-42. The close friend stated that she did not actually see the individual smoke marijuana at the party<2>, but she was aware that marijuana was being smoked at the party due to the obvious odor of the drug present. Tr. at 146. In support of this testimony, the individual's husband testified that the individual had attended a housewarming party with her close friend and "a bunch of ladies" and after she was informed of her positive drug test, she revealed to him that she had smoked marijuana at that party. Tr. at 127-30. Moreover, the individual has been consistent with her explanation of the one time use under the circumstances of the housewarming party to the Personnel Security Specialist performing the PSI, to the drug counselor to whom she was referred by her employer and under cross examination at the hearing, where she appeared open, straightforward and credible.<3>

The record of this proceeding further convinces me that the individual's marijuana use was isolated. The employer's medical unit doctor testified that the individual has undergone random drug screening on three previous occasions since the individual's employer instituted these measures.<4> These drug tests occurred on September 25, 1990, on October 7, 1993, and most recently on February 29, 1996, approximately four months before the positive drug test on July 9, 1996. Tr. at 59; Exh. 7. All of these prior drug tests were negative for the presence of illegal drugs. Id. I also note that the individual is a 26-year employee with an exemplary work record, having worked her way up to the position she presently occupies. The Personnel Security Specialist in this proceeding who conducted the PSI performed a background investigation of the individual, and when asked whether she had found "anything contrary" to the individual's claim of a one time only use, she responded: "No, nothing." Tr. at 20.

I also find the testimony of the individual's supervisor, close friends and associates, all of whom know her well, to be powerful and persuasive. Each of these individuals was direct and candid in their assessment of the individual, and consistent in their surprise to learn that the individual had tested positive for marijuana since they found it to be totally out of character for her. Although she has worked for her present supervisor for about five years, her supervisor testified that he has known her for about 20 years as a coworker. Tr. at 16. He testified that this instance of marijuana use "certainly didn't fit her personality to do that kind of thing," since based upon his knowledge of her she is "extremely reliable" and has always demonstrated "[v]ery good judgment, with the exception of one Saturday night [when she smoked the marijuana]." Tr. at 15, 17.

The individual then called two close friend/associates (Associates #1 and #2) who also work for the same contractor employer and know the individual and her family well, socializing with the individual on a regular basis. Associate #1 has known the individual for 17 years and has known her present husband since high school; he sees her nearly every day at work, and often socializes with her and her husband at their home or his. Associate #1 testified that he found it "hard to believe" that the individual had tested positive for marijuana since "she is not the type." Tr. at 72-73. Associate #2 has worked with the individual for 19 years but has known the individual, her family, sisters and brothers, for many years prior to their working together at the facility, and also regularly socializes with the individual and her husband, usually on holidays. Tr. at 80-81. Associate #2 echoed his surprise to learn of her positive drug test since he knows her to be a wonderful mother in a close knit family, doing her best to create a positive image for her 20-year old son. Tr. at 82-84. Indeed, Associate #2 testified that he has heard the individual and her husband express strong anti-drug sentiments on different occasions. Tr. at 84-87. According to Associate #2, the individual "has never, ever given any indication that she would use drugs or that she would even be involved with anybody who used drugs." Tr. at 88. Both Associates #1 and #2 confirmed that they had never known the individual to be in any kind of trouble before, and their mutual surprise that she tried marijuana was accentuated by their observation that she in fact drinks very little. Tr. at 76-77, 82, 90.<5>

Finally, the testimony of the individual's counselor supports her assertion of an isolated marijuana use. Immediately following her positive drug test, the individual entered into her employer's Employee Assistance Program (EAP) administered by an outside agency, which is mandatory once an employee has tested positive for illegal drugs and has signed an Acknowledgement of Positive Drug Screen. Tr. at 59-60.<6> The counselor assigned to the individual, who has met with her seven times beginning in July 1996, acknowledged that the individual's explanation of a positive drug test after a one time use, with no prior drug involvement, is not the typical situation. Tr. at 95-96. Nonetheless, the counselor testified that on the basis of her sessions with the individual, diagnostic tools she utilizes as well as employer feedback, she has found nothing which would lead her to doubt the individual's recount of a one time only usage. Tr. at 95-96. According to the counselor, "[s]he just really has showed no indications to me in what she's reported to me other than this, you know, bad decision she made one time." Tr. at 95. I specifically inquired, "Has everything since you've been seeing [the individual], has that supported her characterization of her use?" The counselor responded, "As far as I'm aware of, yes." Tr. at 113.

Thus, the totality of the record presented leads me to the judgment that the individual's marijuana use that triggered the positive drug test result was an isolated occurrence. It is also telling that the DOE Counsel in this case shares my view. In his closing remarks, the DOE Counsel stated in describing the individual's drug use that "everything we've seen and heard does indicate it was an aberration." Tr. at 155. However, as further observed by the DOE Counsel, this finding standing alone does not absolve the DOE security concerns regarding the possibility of a recurrence. Accordingly, I now turn to the matter of whether the individual has demonstrated adequate reformation to alleviate the DOE's legitimate security concerns that the individual might return to marijuana use. As discussed in the succeeding section of this Opinion, I have determined that the individual has carried this burden.

2. Reformation

My finding that the individual's marijuana use was a singular and isolated occurrence is a critical determination. "The duration and frequency of an individual's marijuana use are factors crucial in ascertaining the degree of rehabilitation or reformation which must be demonstrated by an individual seeking to mitigate concerns arising from drug use. For example, concerns over drug use can be mitigated even in cases of recent drug use where the usage was an isolated incident or an event infrequent enough to warrant acceptance of the individual's assurance that he/she will not be involved with drugs while holding a DOE access authorization." Personnel Security Hearing, Case No. VSO-0102, 26 DOE ¶ at 6 (1996); see also "Adjudicative Guidelines for Determining Eligibility for Access to Classified Matter and Special Nuclear Material", DOE (April 1994) at 21. On the basis of this standard and the record before me, I find ample evidence in this case to accept the individual's assurance that she will not use marijuana again, in mitigation of the DOE's security concerns.

First, I found the individual's demeanor and the tone of her conviction very persuasive when she stated that she will never use or even allow herself to be tempted to use marijuana again. Tr. at 42-43, 48-49, 153-54. It is clear that she has been thoroughly humiliated by this experience brought on by what she describes as "a stupid mistake." Tr. at 154. The individual is somewhat at a loss to explain fully this gross error in judgment, but ventures that perhaps there was something uniquely disarming in the festive environment of an all-women party. Tr. at 33-34. Having faced the severity of her error, however, her attitude now appears to be genuinely repentant and as much as she appears to be authentic in her contrition, she is compelling in her sincerity. Furthermore, I list other factors below that lead me to believe her assertion of reformation from further drug use.

Second, according to the counselor, the individual has been open and cooperative, has kept all of her appointments and has had "a good attitude. . . . She loves her job, she loves her family, her husband is very supportive. . . ." Tr. at 95. The counselor indicated that in her sessions, she looks for "red flags" as indicators that a patient might be headed towards relapse. In the case of the individual, the counselor testified that "I wasn't able to come up with any." Tr. at 105. The counselor stated that she also gave the individual a diagnostic test related to relapse prevention, called "37 Warning Signals," which required the individual to choose 7 which might apply to her. Tr. at 107; Exh. 6. On the basis of this exercise, the counselor concluded concerning the prospect of further drug use, "As I have worked with her in the therapy sessions, I have not been able to pick up something significant enough that would send a signal." Tr. at 108.<7> While the counselor believes that the individual should complete her one year of counseling sessions dictated by company policy<8>, she gives the individual a "good prognosis" in remaining free from any further drug use. Tr. at 117.

Finally, I believe there are strong incentives and support systems that will serve to enforce the individual's resolve never to use marijuana again. First, the individual is well aware that if she ever tests positive again for marijuana, she will be terminated immediately. See note 6, supra; Tr. at 60-61, 63.<9> The individual has stated several times, in the letter requesting a hearing, to her counselor and during her testimony, that she loves her job and is proud of her performance and resulting advancement during her 26 years as an employee of the DOE contractor. Exh. 2; Tr. at 23-24, 95, 154. It was clear to me that the individual is very determined not to squander these accomplishments by repeating her unfortunate and uncharacteristic lapse in judgment with regard to drug use.

In addition, the individual states that her family and friends provide strong support for her firm intention to forever abstain from marijuana use. Tr. at 48-49. Testimony that I received at the hearing leads me to believe this assertion. Associates #1 and #2, as well as her close friend and her husband, all described the individual as a woman who is deeply committed to the welfare of her family and who generally associates only with a close knit group of friends who do not tolerate drugs within their lifestyle. I was particularly impressed with the testimony of her husband, who was direct and forthright in describing the individual, their family environment and the moral tone they try to set for their son. Tr. at 126, 129-30, 133-34. While he and the individual have been married for seven years, he has known her for 14 years and was drawn to the individual by her intelligence and strength of will that she exhibited in overcoming major difficulties in her life, in order to do what was best for her family. Tr. at 132. He admitted that he was surprised, upset, disappointed, and they argued when the individual informed him that she had tried marijuana at the housewarming party and received a positive drug test. Tr. at 127. However, he is now firmly supportive of her ("behind her 105 percent") and is confident the individual will never use marijuana again. Tr. at 134-35.

On the basis of the foregoing, and in view of the isolated nature of the individual's marijuana use, I find acceptable the individual's assurance that she will not use marijuana again. Accordingly, I conclude that the security concerns of the DOE arising from the individual's positive drug test have been sufficiently mitigated. It is therefore my opinion that the individual's access authorization should be restored.

III. Conclusion

As explained in this Opinion, I find that the DOE properly invoked 10 C.F.R. § 710.8(k) in suspending the individual's access authorization, since within the meaning of that provision, the individual has "[t]rafficked 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 (such as marijuana, cocaine, amphetamines, barbiturates, narcotics, etc.) except as prescribed or administered by a physician licensed to dispense drugs in the practice of medicine, or as otherwise authorized by law." However, on the basis of the record before me, I have determined that the individual has presented sufficient mitigating circumstances to overcome the legitimate concerns of DOE security, within an acceptable level of risk. I therefore 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 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 where 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

Fred L. Brown

Hearing Officer

Office of Hearings and Appeals

Date: January 16, 1997

<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. Such authorization will be referred to variously in this Opinion as an access authorization or security clearance. In the present case, the individual seeks the restoration of a level "Q" access authorization; however, that designation has no bearing upon the applicable standards governing eligibility to hold an access authorization.

<2>The individual had earlier testified that she believed that her friend had seen her smoking marijuana. Tr. at 46-47. However, her friend stated that she and the individual were separated at times during the party in different portions of the house, and she had not actually seen the individual smoke marijuana. Tr. at 143-44.

<3>The individual admits that initially, upon being informed of the positive drug test by her employer's medical unit doctor who administered the drug screen, she stated only that she had been in the presence of persons using marijuana because she "was scared." Tr. at 47. However, after being told by the doctor that a positive drug test would not result from this type of exposure, she admitted that she had smoked marijuana at the party and signed the Acknowledgement of Positive Drug Screen.

<4>The employer's medical unit doctor testified that under the employer drug testing policy, an employee will generally be called for random drug screening at least three times within a two-year period, but no more than twice within one year. Tr. at 56.

<5>Similarly, the close friend who invited the individual to the housewarming party stated her impression upon finding out that the individual had smoked marijuana at the party, "I was shocked because I don't think that's her." Tr. at 148. The close friend has known the individual since junior high school and is the godmother of the individual's son. Tr. at 136.

<6>The medical unit doctor explained, however, that only senior employees such as the individual, hired before August 1989, are given this option. More recent

employees who test positive for illegal drugs are terminated immediately. Tr. at 56-57. The doctor further clarified that if the individual tests positive again or otherwise fails to complete the treatment program, she will also be terminated immediately. Tr. at 61.

<7>The counselor's records reveal that, based upon her discussions with the individual, the only potential warning factors that the counselor could ascribe to the individual were the following: (1) sometimes holds back feelings; (2) has an unfulfilled desire (to go back to school); (3) sometimes experiences boredom and stress; (4) sometimes gets mad in traffic, and (5) sometimes is overly friendly and talks too much. Tr. at 108; Exh. 5. The counselor agreed that these were innocuous as indicators, since they are commonly present in normal persons and might apply to anyone. Tr. at 111.

<8>Upon being referred to the employer's EAP program, the individual's counselor formulated a treatment plan which entails the following:

Individual counseling for 1 (one) year;

No use of marijuana;

Random drug screens at the workplace;

Work on relapse prevention.

Exh. 5. Regarding the time period (item 1.), the counselor stated that it is "the policy of [the employer] that they stay in counseling for one year . . . ." Tr. at 108-09. The individual stated that she will fulfill all counseling requirements of the employer. However, in response to my inquiry, the individual indicated that she really does not feel a need for further counseling since she is confident in her intention never to use marijuana again. Tr. at 49-50.

<9>The employer's medical unit physician testified that the individual was in fact called for a random drug screening in September 1996, but the medical unit was unaware that the individual was on personal leave that day. Tr. at 62. The counselor testified that she has authority to order an immediate drug screening of the individual at any time if for any reason, e.g. the individual's appearance or response, the counselor believes the individual may have used drugs again. The counselor stated, however, that during their sessions the individual has been "very cooperative, very appropriate and so I have not had -- found it necessary to do that." Tr. at 101.