Case No. VSO-0125, 26 DOE ¶ 82,774 (H.O. Mann, April 4, 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 XXXXXXX's.

April 4, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: November 20, 1996

Case Number: VSO-0125

This Opinion concerns the continued eligibility of XXXXXXXXXX (hereinafter referred to as "the individual") to hold a level "Q" access authorization under the regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." The individual's access authorization was suspended by the Department of Energy (DOE). As explained below, I recommend against restoring the individual's access authorization.

Statement of the Case

The security concerns in this case stem from the following events, which I will refer to as the "license plate incident." The individual is employed by a contractor at a DOE facility. On the evening of May 2, 1995, a junior officer on the internal police force at this facility did a routine security check of the license plates on a Honda automobile that had been left after hours on a parking lot inside the gate. After calling the appropriate state agency, he learned that the plates on the Honda had been issued to a Chevrolet. Although the facility police did not know it yet, the Chevrolet plates belonged to the individual. The facility police removed the plates from the Honda, and placed a note on the car saying "contact security before moving this vehicle." They asked an officer on overnight duty to watch the car. At about 2:00 a.m. in the early morning of May 3, 1995, the overnight officer left his post to respond to an alarm, and when he returned 30 minutes later, the car was gone. Later on May 3, 1995, the individual reported his Chevrolet plates as "lost or stolen" to the municipal police in a nearby community, telling them he had removed the plates when he washed the car on April 30, 1995 and did not know where the plates were.

The facility police soon traced the Chevrolet plates to the individual, and learned that he was employed on site. They also discovered another anomaly with the Chevrolet plates found on the Honda: the year tags came from a third vehicle, which was also registered to the individual. On May 5, 1995, a few days after the license plate incident, a senior facility police officer asked the individual to come to their office for an interview. In this interview, the individual told the facility police that he had been given the Honda by a former tenant who owed him rent, and parked it on the DOE lot because he had no place at home to store it. The individual told the facility police that he removed the Honda's plates which were expired, and replaced them with his Chevrolet plates so that people would not complain that the Honda had expired registration.

The policy at this DOE facility is to refer all probable violations of law that take place on site to the civilian authorities. Since the improper display of a license plate could be a misdemeanor under state law, the facility police referred the individual's case to the local prosecutor's office. The prosecutor's office reduced the charge against the individual to a traffic offense. In the fall of 1995, after a "trial by declaration" which considered the individual's written defense to the charge, he was found guilty of unlawful display of registration, and fined $XXX. He requested a "trial de novo" and the opportunity to appear in person before the traffic court.

On January 9, 1996, the individual appeared in person for his trial before the local traffic court. The same senior facility police officer who had interviewed the individual on the DOE facility also observed this trial. The officer reported that the individual testified in court that he had not placed his Chevrolet license plates on the Honda parked on the DOE lot, but that his former tenant must have done it. The individual also stated that he did not know his plates were on the vehicle in question, and indicated that he had made a police report because he thought that his plates had been lost or stolen. Once again, the court found the individual guilty, and ordered him to pay the fine.

After leaving court that day, the senior facility police officer obtained a copy of the police report to which the individual had referred. On January 10, 1996, this officer wrote a memo to the local DOE security office in which he pointed out that the individual had given three inconsistent stories about the license plate incident on three different occasions, e.g., in the May 3, 1995 "lost or stolen plates" police report, in the May 5, 1995 interview with the facility police, and in the January 9, 1996 trial in traffic court.

On February 1, 1996, the individual wrote a letter to the traffic court to protest the imposition of the fine and to enclose a purported copy of the "lost or stolen plates" report he had made to the municipal police. In this letter, the individual asserted that he had reported his Chevrolet plates lost or stolen on April 3, 1995--a month earlier than the date on which they actually had been confiscated by the facility police.

Based on the memo from the senior facility police officer, the local DOE security office undertook an investigation of the individual's conduct following the initial license plate incident. Among other things, the investigation found that the police report which the individual had sent to the traffic court had been altered in several respects: (1) the report number was different; (2) the appearance of shaded boxes on the report was different; and (3) the dates were different, in order to make it seem that the plates had been reported as "lost or stolen" one month earlier than the date when the report was actually filed by the individual. On March 15, 1996, the DOE conducted a Personnel Security Interview (PSI) with the individual, to give him a chance to explain the apparent inconsistencies in his various statements about the license plate incident, and his apparent submission of falsified evidence to the local authorities. The PSI failed to resolve the security concerns raised by the individual's behavior, and the case was referred for administrative review.

The DOE issued a Notification Letter to the individual. Based on his submission of an apparently false "lost or stolen plates" report to the local police, his several inconsistent statements about the license plate incident, and his submission of an altered copy of that same "lost or stolen plates" police report to the traffic court, the Notification Letter charged that the individual had engaged in conduct subject to the criteria set forth in 10 C.F.R. § 710.8 (f) and (l). Criterion F concerns information that a person has:

[d]eliberately misrepresented, falsified, or omitted significant information from a Personnel Security Questionnaire, a Questionnaire for Sensitive Positions, a personnel qualifications statement, 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). In pertinent part, Criterion L describes information that a person has:

[e]ngaged in any unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable, or trustworthy....

10 C.F.R. § 710.8(l).

The individual filed a request for a hearing on the charges that led to suspension of his "Q" clearance. DOE transmitted the individual's hearing request to the Office of Hearings and Appeals (OHA), the OHA Director appointed me as Hearing Officer in this case, and I convened a hearing.

At the hearing, the individual declined to testify on his own behalf, but his attorney called one facility police officer to testify as a fact witness, and six co-workers to testify either as character witnesses, or about his importance to the DOE program. The individual submitted two written exhibits. DOE presented three witnesses at the hearing: two facility police officers, and a DOE personnel security specialist. The first DOE police witness was the junior officer who had discovered the improper license plates. The second DOE police witness was the senior officer who interviewed the individual after the license incident, later observed his trial, and reported the individual's inconsistent statements to the DOE security office. The DOE Counsel submitted 16 written exhibits.

At the conclusion of the hearing, the individual's attorney and the DOE Counsel requested that they be given 21 days after receiving the transcript in which to submit a written brief in lieu of oral argument, and I granted this request. The individual's attorney submitted a post-hearing brief on March 19, 1997, and the DOE Counsel submitted a post-hearing statement on March 21, 1997, after which I closed the record.

Standard of Review

The applicable DOE 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). In resolving questions about the individual's eligibility for access authorization, I must consider the relevant factors and circumstances connected with the individual's conduct. These factors are set out in § 710.7(c):

the nature, extent, and seriousness of the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the voluntariness of participation; the age and maturity of the individual at the time of the conduct; 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; and the likelihood of continuation or recurrence.

A DOE administrative review proceeding under 10 C.F.R. Part 710 is authorized when the existence of derogatory information leaves unresolved questions about an individual's eligibility for access authorization. It is not a criminal proceeding, where the burden is on the government to prove the individual guilty beyond a reasonable doubt. 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. § 710.7(a). See Personnel Security Hearing, Case No. VSO-0013, 24 DOE ¶ 82,752 at 85,511 (1995) and cases cited therein. The individual has failed to meet this burden. Moreover, the regulations state that "[p]ossible impact of the loss of the individual's access authorization upon the DOE program shall not be considered by the Hearing Officer." 10 C.F.R. § 710.27(b). One element of the individual's defense conflicts with this admonition in § 710.27(b). For the reasons discussed below, I recommend that his access authorization be revoked.

Findings of Fact and Analysis

The individual declined to testify at the hearing, and he presented no direct factual witnesses who might have been able to contravene the bases for the charges specified in the Notification Letter. Instead, his attorney attempted to impeach the credibility of the DOE witnesses through cross- examination. The individual's attorney asserted that a "common sense judgment" will show that "the value of [the individual's] work, his history, and his tradition of credibility throughout his work [at the DOE facility] overbalances discrepancies, difficulties, and other things that . . . have occurred up to this date." Hearing Transcript (hereinafter cited as "Tr.") at 12.

Criterion F

I find that there is ample evidence in the record to support the charges under Criterion F in the Notification Letter that the individual filed false evidence with the municipal police and the traffic court, that he made inconsistent statements about the license plate incident on several different occasions, and that some of these statements were false, including statements the individual made during a PSI on March 15, 1996. First, in the "lost or stolen plates" report the individual filed with the municipal police on May 3, 1995, the morning after the license plate incident, he stated that he had removed both Chevrolet license plates when he washed his car on April 30, 1995. This statement is false since it was the facility police who had removed the Chevrolet plates from the Honda on May 2, 1995. Tr. at 12-40. Second, the individual stated during the facility police interview two days later on May 5, 1995, that he removed the Honda's plates and substituted his Chevrolet plates so that people would not complain that the Honda had expired registration. Tr. 130-140; DOE Exhibit 8, "Report of Investigation." If this statement is true, it confirms that the "lost or stolen plates" report is false. Third, in traffic court on January 9, 1996, the individual stated that his former tenant must have put the Chevrolet plates on the Honda, and that the individual did not know that his plates had been put on the Honda. DOE Exhibit 8, "Court Appearance by [the individual]." This statement is contradicted by the individual's statements in both the "lost or stolen plates" report and the facility police interview. Fourth, in a February 1, 1996 letter to the traffic court after his trial, the individual submitted an obviously altered copy of the "lost or stolen plates" report, and argued that he had filed that report a month before the license plate incident. DOE Exhibit 7. In view of the several obvious differences between the purported copy of the "lost or stolen plates" report the individual sent to the court, and the actual report, I would characterize the copy sent to the court as a crude and unconvincing fake. See Tr. at 125-127. I find the submission of this bogus copy of the "lost or stolen plates" report to the court on the individual's behalf to be very troubling. Fifth, in his March 15, 1996 PSI, the individual denied that he had submitted an altered copy of the "lost or stolen plates" report to the traffic court. PSI Tr. at 44-46. Taken together, these conflicting and inconsistent statements, and the submission of falsified evidence to the court, show a disturbing pattern of dishonest behavior on the part of the individual in the aftermath of the license plate incident.

Mitigating Evidence Submitted on Behalf of the Individual

Since the individual declined to take the stand and testify under oath in his own behalf, he has not provided any explanation for his actions following the license plate incident. Indeed, it would have been hard for the individual to advance his own cause by testifying himself, since he had already told several inconsistent and conflicting stories about the license plate incident by the time his access authorization was suspended. No matter what he could have said in the hearing before me, the individual would have had to contradict some of his own previous statements, and admit that he had lied and submitted false information to law enforcement agencies on several prior occasions. Under these circumstances, I could conclude from his silence that the individual has admitted the factual bases for the charges in the Notification Letter. See Personnel Security Hearing, Case No. VSO- 0060, 25 DOE ¶ 82,788 (1996); Personnel Security Hearing, Case No. VSO-0020, 25 DOE ¶ 82,793 (1996) (negative inference drawn from individual's failure to testify in DOE security clearance review hearing). Nevertheless, I will consider the individual's contention that his access authorization should be restored because the favorable evidence, discussed below, outweighs the uncontroverted evidence against him.

In the individual's post-hearing brief, his attorney argues that DOE has failed to prove that the individual was responsible for filing a false police report with the traffic court. He points to the individual's statements in the March 15, 1996 PSI that the individual sent his wife to pick up the report from the police department, and did not read it himself before she delivered it to the court. PSI Tr. at 44-46. In this connection, the brief emphasizes that DOE never interviewed the individual's wife about these events. Post-Hearing Brief at 3. The brief stresses that no further evidence was submitted by DOE other than a copy of the report, and argues that the local authorities apparently declined to prosecute the individual for filing a false document because "they saw no reason to pursue the issue." Id.

DOE's submission of the genuine report, the fake report, and the individual's February 1, 1996 letter to the traffic court (all three documents are attachments to DOE Exhibit 7), is sufficient to convince me that the individual was responsible for filing the false police report with the court. As noted above, this is not a criminal case in which the DOE has the burden of proving the individual guilty beyond a reasonable doubt. Rather, the individual bears the burden of proving that the restoration of his security clearance "would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.7(a). Since the individual specifically referred to the altered dates on the bogus report in his February 1, 1996 letter to the court, it is clear that he knew information he would otherwise have no reason to know, and I can only conclude that he was responsible for submitting the fake. See DOE Exhibit 7. It makes no difference whether the individual's wife was the one who actually delivered the counterfeit document. A number of prior OHA opinions have discussed the nature of the burden on an individual who has been charged with submitting false documents. See Personnel Security Hearing, Case No. VSO-0001, 24 DOE ¶ 82,751 (1994) (false insurance claims and mortgage documents); Personnel Security Hearing, Case No. VS0-0075, 25 DOE ¶ 82,799 (1996) (false military records); and Personnel Security Hearing, Case No. VSO-0078, 25 DOE ¶ 82,802 (1996) (forged DOE credential). These cases hold that the individual bears a heavy burden of coming forward with exculpatory evidence where a reasonable person would conclude from the circumstances of the case that the individual was responsible for submitting the false document. In the present case, I find that the individual has failed to come forward with any evidence to show that someone else, who was not acting on his behalf, could have been responsible for submitting the falsified report to the traffic court.

The individual's post-hearing brief also attacks the conduct and credibility of the senior DOE facility police officer, who interviewed the individual on May 5, 1995, later observed his trial on January 9, 1996, and wrote the memo that led the DOE security office to investigate the individual's actions following the license plate incident. The individual's post-hearing brief focuses first on the conduct of the May 5, 1995 interview. In the hearing, the officer testified that some time--possibly as much as 25 minutes--elapsed after the individual's arrival before he gave the individual a written waiver of his Miranda rights to sign. Tr. at 158, 159. The officer explained that before he warned the individual of his rights, he

advised [the individual] how I came to have the case, what the issue was. That basically there seemed to be a license plate on a car that [the junior facility police officer] had identified, that he had left a note on the car. That [the junior facility police officer] removed the licence plate, and the license plate did not match the car, and the year sticker on the license plate did not match either the license plate or the vehicle it was on.

Tr. at 160-161. When asked by the individual's attorney whether the individual said anything before being read his rights, the officer stated

You know, I don't remember a response from him....I do remember telling him, before he said anything, that I wanted to read him his rights before he made any kind of statement. I did read him his rights, and he signed it.

Id. Based on this testimony, I find that the individual was given sufficient notice that any statement he might make could be used against him, and that there is no evidence that the individual was tricked by the facility police into making any statements that were not voluntary. Moreover, this is not a criminal proceeding, and the technical legal aspects of the warning the individual received in that interview are not relevant in the context of making a common-sense judgment on his eligibility for a security clearance. Thus, I conclude that even if there was some minor procedural flaw in the conduct of the May 5, 1995 interview, the individual was not harmed as a result.

With respect to the credibility of this senior facility police officer, I find his testimony at the hearing to have been candid and believable. The individual's post-hearing brief primarily attacks the senior officer for his ignorance of the actual regulations and policies governing parking on site. In his testimony at the hearing, this officer explained that traffic enforcement issues, including parking, were not within his area of responsibility, and conceded that he knew little about them. Tr. at 169-170. This officer's admitted ignorance of the parking regulations does not undermine his credibility with respect to the relevant issues in this case, which concern the individual's conduct after the license plate incident. The factual bases for this officer's decision to bring the individual's inconsistent statements to the attention of the local DOE security office remain unchallenged.

I turn next to the character witnesses who testified in the individual's favor. At the outset, I find that their testimony, which covered matters such as the individual's academic credentials, his deportment in the office, and his positive personality traits, is not entitled to much weight, since none of the character witnesses knew about the license plate incident or the individual's subsequent actions which are described above.

The primary evidence of mitigating circumstances submitted in the hearing consisted of testimony from co-workers about the individual's importance to the work at his facility. As noted above, the Hearing Officer is not supposed to consider the "possible impact of the loss of the individual's access authorization upon the DOE program." See 10 C.F.R. § 710.27(b). I did pay careful attention to this testimony at the hearing, however, and I conclude that it is certainly insufficient to resolve the security concerns about the individual's honesty, reliability and trustworthiness, discussed in connection with Criterion L below. There was testimony about his professional competence, but there was no indication that the individual, who had only worked at the facility for a short time, had unique academic qualifications that could not be replaced, or that his work was critical to DOE's mission. Although the evidence indicated that the individual was well qualified in his field, and that he had demonstrated honesty, integrity and cooperation in his work, the most that any of his peers could say about his importance to the program is that he would be missed. Tr. at 258, 266.

Thus, there is no mitigating evidence in this record that would overcome the serious security concerns under Criterion F based on the individual's false statements to law enforcement officials and to DOE during his PSI, and his submission of falsified evidence to the municipal police and the traffic court. In considering the factors enumerated in 10 C.F. R. § 710.7(c), I note that the individual was a mature adult at the time of the license plate incident and the series of disturbing events that ensued, and there is no evidence which would lead me to conclude that his actions were not voluntary and deliberate. Finally, I note that there is no evidence that the individual admitted any wrongdoing or showed any contrition for his actions. Thus, I conclude that there is no evidence of rehabilitation or reformation that would weigh in favor of the individual.

Criterion L

The charges under Criterion L are based on the same facts that are discussed above in the "Statement of the Case," and in connection with Criterion F. In the context of this case, Criterion L requires me to consider whether the individual's actions following the license plate incident tend to show that he is not honest, reliable or trustworthy. In view of the individual's elaborate pattern of falsification and dishonesty discussed in detail above, and his failure to produce any mitigating evidence, I find that he has engaged in conduct which tends to show that he is not honest, reliable or trustworthy.

Conclusion

Based on the foregoing discussion, I find that the individual did submit falsified evidence to the traffic court, and I further find that he made false statements to law enforcement personnel and to DOE in the PSI. False statements by an individual in the course of an official inquiry on a matter that is relevant to a determination of eligibility for DOE access authorization raise serious issues of honesty and trustworthiness. The DOE security program is based on trust, and if a security clearance holder lies to the DOE that trust is violated. Personnel Security Hearing, Case No. VSO-0060, 25 DOE ¶ 82,788 (1996). I therefore conclude that the individual has failed to resolve the security concerns raised under Criterion F, 10 C.F.R. § 710.8(f). For the same reasons, I find that he has failed to resolve the security concerns raised under Criterion L, 10 C.F.R. § 710.8(l). If this individual would lie to law enforcement personnel, lie to the DOE in a PSI, and falsify evidence that he submitted to the traffic court, I believe that he cannot be trusted to safeguard classified matter or special nuclear material.

For the reasons explained in this Opinion, I find that the individual has failed to show that restoring his access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, I recommend that the individual's "Q" access authorization 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 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 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 to which 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

Thomas O. Mann

Hearing Officer

Office of Hearings and Appeals

Date: April 4, 1997