Case No. VSO-0126, 26 DOE ¶ 82,776 (H.O. Fine May 1, 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.

May 1, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case:Personnel Security Hearing

Date of Filing:November 22, 1997

Case Number: VSO-0126

This Opinion concerns the eligibility of XXXXX (the individual) to hold an access authorization(1) 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." On June 21, 1996, the individual's access authorization was suspended pursuant to the provisions of Part 710. In this Opinion, I am considering whether, based on the record before me, the individual's access authorization should be restored. As indicated below, I am of the opinion that the individual's access authorization should not be restored.

I. BACKGROUND

The individual is a DOE contractor employee who is required to hold an access authorization as a condition of employment. Because the individual's vocational responsibilities involve access to special nuclear materials he is subject to the Personnel Security Assurance Program (PSAP). Under the PSAP program, the individual must undergo regular drug screening. In addition, the individual's employer (hereinafter referred to as "the Contractor)" subjects all of its employees to a random drug screening program. On February 2, 1996, the individual underwent such a random drug screening. After analysis of a urine sample provided by the individual on that date, an independent laboratory found that the individual's urine contained 783 ng/ml of Benzoylecgonine, a metabolite of cocaine.

As a result of these events, a DOE Personnel Security Specialist conducted a Personnel Security Interview (PSI) with the individual in which he was given an opportunity to explain the positive test for cocaine. During the PSI, the individual repeatedly and emphatically contended that he has never used cocaine. Transcript of April 26, 1996 Personnel Security Interview (DOE Exhibit 5) at 6, 8, 9, 10, 13, 17, 18, 20, 21, 28, 37, and 38.

This interview did not resolve the security concerns raised by the individual's positive test for cocaine. In fact, the individual's repeated contentions that had never used cocaine raised the possibility that he was intentionally providing false information to DOE security officials during this interview. (2) His access authorization was therefore suspended and an administrative review proceeding was initiated. See 10 C.F.R. § 710.9.

The administrative review process was commenced by the issuance of a letter notifying the individual that information possessed by the DOE created a substantial doubt concerning his continued eligibility for access authorization (Notification Letter). The Notification Letter specified three areas of derogatory information described in 10 C.F.R. § 710.8. First, the Notification Letter presented allegations under Criterion K that the individual used cocaine. (3) Notification Letter at 3. Second, under Criterion F, the Notification Letter alleged that the individual intentionally provided false information during the April 26, 1996 PSI. Id. (4) Third, the Notification Letter charged under Criterion L (10 C.F.R. § 710.8(l)) that the individual (1) "engaged 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 the individual to act contrary to the best interests of the national security," and (2) violated the terms of his DOE Drug Certification. The individual filed a request for a hearing in which he denied the allegations of cocaine use and ascribed the positive test for cocaine to "foul play somewhere along the chain of custody line or a major mix-up in sampling results." Request for Hearing. This request was forwarded to the Office of Hearings and Appeals (OHA) and I was appointed as Hearing Officer.

At the hearing, the DOE presented a total of six witnesses: the DOE Personnel Security Specialist who had conducted the April 26, 1996 PSI, a former supervisor of the individual, the Medical Service Operator (MSO) who had supervised the individual's provision of the February 2, 1996 urine specimen, the Contractor's substance abuse coordinator, and two expert witnesses. The individual testified on his own behalf and called a total of eight other witnesses, including four of his present and past supervisors, three of his friends and his spouse. The record of this proceeding was closed when OHA received a copy of the transcript of the hearing. See Transcript of Hearing, Case No. VSO- 0126 (hereinafter cited as "Tr.").

II. STANDARD OF REVIEW

The Hearing Officer's role in this proceeding is to evaluate the evidence presented by the agency and the individual, and to render an opinion based on that evidence. See 10 C.F.R. § 710.27(a). The regulations state that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all the relevant information, favorable or unfavorable, as to whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.7(a). Among the factors I have considered in rendering this Opinion concerning the individual's eligibility for access authorization are the following: the nature, extent, and seriousness of his conduct; the circumstances surrounding the conduct, including knowledgeable participation; the frequency and recency of the conduct; his age and maturity at the time of the conduct; the voluntariness of his participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for his conduct, the potential for pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and material factors. See 10 C.F.R. §§ 710.7(c), 710.27(a). The discussion below reflects my application of these factors to the testimony and exhibits presented by both sides in this case.

The regulations state that 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 Department of the 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 the present case, I have reached the opinion that the individual has not met his burden of proving that restoring his clearance is clearly in the national interest.

III. ANALYSIS AND FINDINGS OF FACT

At the heart of this matter is DOE's contention that the individual used cocaine at some time prior to the morning of February 2, 1996. If this contention is valid, then the individual has "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. . . cocaine, . . . etc.) except as prescribed or administered by a physician licensed to dispense drugs in the practice of medicine, or as otherwise authorized by law." 10 C.F.R. § 710.8(k). Moreover, if the individual had used cocaine, then he also "deliberately misrepresented, falsified, or omitted significant information from . . . a personnel security interview, [or] 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). If the individual has used cocaine and lied in the course of a PSI, then he has "engaged 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 the individual to act contrary to the best interests of the national security," and violated his DOE Drug Certification. 10 C.F.R. § 710.8(l).

DOE's contention that the individual used cocaine has two bases: (1) the individual's participation in an outpatient drug program, and (2) the individual's provision of a urine specimen that tested positive for the cocaine metabolite Benzoylecgonine.

As an initial matter, I find that, under the circumstances present in the instant case, the individual's participation in an outpatient drug program does not establish that he used illegal drugs. The individual testified at the hearing that after he tested positive for cocaine use, he was given an ultimatum by his employer to either participate in the drug treatment program or resign. (Tr. at 424- 25, 450). There is no evidence in the record to the contrary. Under such circumstances, one could expect that even a wrongly accused person might attend the drug treatment program.

I turn next to the DOE's contention that on February 2, 1996, the individual provided a urine specimen to his employer that contained Benzoylecgonine, a substance known to result only from the human body's metabolism of cocaine. When considering the validity of a positive drug test, a number of issues must be considered. Those issues are 1) whether the specimen was actually provided by the individual in question, (2) whether the methodology used to test the specimen was sufficiently reliable, and (3) whether the positive test result could be caused by factors other than illegal drug use. I will consider each of these issues in turn.

1) Whether the Specimen Found to Contain Evidence of Illegal Drug Use was Actually Provided by the Individual

This issue concerns the integrity of the chain of custody of the urine specimen provided by the individual at the request of his employer on February 2, 1996. At the hearing, DOE produced testimony explaining in detail the elaborate process utilized in order to ensure the integrity of the chain of custody of the urine specimen. The chain of custody essentially has two phases. The first phase involves the acquisition of the sample, its placement in a sample container, the securing of that container and its transfer to a courier. The second phase involves the sample after it arrived at the testing laboratory.

i. The First Phase

At the hearing, DOE called both the MSO who actually supervised the collection of the February 2, 1996 urine specimen and that MSO's supervisor, the Contractor's substance abuse coordinator. The MSO and her supervisor explained that the urine specimen was obtained by having the individual choose both a sample cup and specimen bottle. Both the sample cup and specimen bottle came sealed in plastic bags. (Tr. at 247). The individual was then instructed to remove the plastic wrapping from the sample cup and to urinate into it. (Tr. at 190-91). Next, the specimen bottle was removed from its plastic wrap by the individual. (Tr. at 194). The individual then removed the safety seal from the specimen bottle. (Tr. at 194, 253). A portion of the urine in the sample cup was then poured into the specimen bottle, which was then closed and sealed by placing a coded identification label across its top and cap. (Tr. at 194-97). Next, the sealed specimen was placed in a self-sealing plastic bag. (Tr. at 198, 258). As a further precaution, the individual was then asked to verify that the code number on the bottle seal matched the bar code number on the chain of custody form. (Tr. at 198, 256). The sealed bag was wrapped in the chain of custody form which in turn was secured with a rubber band and then placed in a locking case. (Tr. at 206, 260, 263). The locking case was transported to a secured area, where its the contents were transferred to a cardboard shipping container. (Tr. at 264). A detailed manifest of the shipping box was prepared. The shipping box was then sealed with perma-seal tape. (Tr. at 227). The perma-sealed shipping container was then transferred to a courier, who in turn transferred the container to the drug testing laboratory.

This portion of the chain of custody was throughly documented. For example, the chain of custody form contains the individual's dated signature verifying that "the specimen accompanying [the] form is my own . . . I further state that the specimen was properly labeled and sealed in my presence prior to forwarding for laboratory analysis." DOE Exhibit 8 at 5 (emphasis supplied); (Tr. at 199, 257). Moreover, during his April 26, 1996 PSI the individual stated that any tampering with the specimen would have to have occurred at some time subsequent to its sealing because he had witnessed its collection and sealing. Transcript of April 26, 1996 PSI at 6-7.

The MSO who had collected the individual's February 2, 1996 urine specimen testified at the hearing that she had actually completed a portion of the chain of custody form prior to administering the specimen collection. (Tr. at 260). While that deviance from established policy is cause for concern, the same MSO indicated that the collection of the specimen had actually conformed to all applicable standards. (Tr. at 286, 288-290). I therefore find that the urine specimen provided by the individual on February 2, 1996, was properly collected, labeled and sealed when it was delivered to the courier later that day.

ii. The Second Phase

DOE also supplied evidence of the chain of custody's integrity at the time of the specimen's arrival at the testing laboratory, during the testing process and in permanent storage thereafter. Specifically, DOE called two expert witnesses to explain the process used to ensure the integrity of the chain of custody at the testing laboratory.

One of the expert witnesses called by DOE was the director of the drug testing laboratory at which the individual's urine sample was tested (hereinafter referred to as "the director)." The director testified that urine samples arrive at this laboratory in individually sealed and wrapped specimen bottles that are in turn contained in sealed cardboard boxes. (Tr. at 86). The director explained that these cardboard boxes are immediately transferred to a secure processing area upon receipt from the Federal Express courier. (Tr. at 87). Then the perma-sealed package is inspected in order to ensure that it was not tampered with during the transfer of the specimens. (Tr. at 87-88). Next each specimen bottle is inspected in order to ensure its integrity. (Tr. at 88). The director noted that the individual's specimens chain of custody documentation showed that both his specimen bottle and the sealed bag surrounding it were examined and found to be intact at the time the specimen was received at the laboratory. (Tr. at 88, 89). The director testified that after the specimens were received and inspected, they were placed in secured temporary storage. (Tr. at 89). Then an aliquot tube was prepared and labeled with a unique number and bar code corresponding to the sample bottle. (Tr. at 94). When it was time for the specimen to be tested, it was retrieved from temporary storage and at that point, its seal was broken. (Tr. at 128). A portion of the specimen was then poured into the aliquot tube. (Tr. at 128, 147). The specimen bottle was then immediately recapped and preserved. (Tr. at 130, 148). The portion of the specimen contained in the aliquot tube was then subjected to the immunoassay screening test to determine if it contained any evidence of illegal drug use. After the immunoassay test was conducted, the first aliquot was destroyed.

If an aliquot contains evidence of an illegal drug then a second test is conducted using an even more accurate methodology. In such cases, the specimen bottle is retrieved from storage and a new aliquot is poured. (Tr. at 127). That aliquot is then tested using the highly accurate gas chromatomagraphy/mass spectrography (GC/MS) methodology. (Tr. at 127). Accordingly, if, for some reason, the positive test screen was caused by a portion of the original specimen being poured into the wrong aliquot tube or by the aliquot tube becoming contaminated with the urine of another individual, the second test should be negative since it would be from a completely different aliquot.

The director's testimony established that the chain of custody at the laboratory was appropriately documented. (Tr. at 85). First, the director noted that the chain of custody documentation indicated that the seal of the individual's specimen bottle was intact when received by the laboratory. (Tr. at 88, 89). The documentation shows that the specimen was then placed in temporary storage. (Tr. at 90); DOE Exhibit 3 at page 16. The documentation further indicated that the specimen was retrieved from storage for testing on February 5th (the date when the seal was broken, when the first aliquot was poured and when the first test, the immunoassay, was performed). (Tr. at 95, 96). The documentation further shows that, after the first aliquoting and testing, the specimen bottle was placed in temporary storage screening locker number 1. DOE Exhibit 3 at page 16. The documentation also shows that the specimen bottle was retrieved in order to pour a second aliquot. Id. After the second aliquot was poured and the GS/MS test was completed, the chain of custody form indicates that the specimen bottle was placed in permanent storage. (Tr. at 109); DOE Exhibit 3 at page 16.

DOE also called the president of a consulting service that assists government agencies and private companies in the monitoring of drug testing programs (hereinafter referred to as "the drug testing expert") to testify about the quality of the Contractor's drug testing program. (5) The drug testing expert testified that the laboratory at which the individual's sample was tested was federally certified. (Tr. at 23, 29). Moreover, the drug testing expert testified that it was a particularly high caliber laboratory. (Tr. at 29, 30). Most importantly, the drug testing expert testified that he had reviewed the documentation of the chain of custody at the laboratory and found that it was intact and well documented. (Tr. at 68-69).

After careful consideration of the record, which includes the testimony discussed above, I find that DOE has shown that more likely than not, the urine specimen attributed to the individual was indeed provided by the individual.

(2) Whether the Methodology Used to Test the Specimen Was Reliable

Two methodologies were used to determine whether the urine specimen contained evidence of illegal drug use. First, an initial screening test was conducted using an immunoassay to screen for a variety of substances that would indicate the possibility of illegal drug use. Once the initial screening process indicated a positive result, then a second aliquot was poured and a second confirmatory test was conducted using the more accurate and expensive gas chromotomography/mass spectrometry method (GC/MS). As the drug testing expert stated at the hearing, the GC/MS method is: "universally used as the confirmation method around the world . . ." (Tr. at 35). The drug testing expert further opined that the GC/MS methodology is 99.9999 percent accurate. (Tr. at 74). The laboratory director testified that the GC/MS methodology is 100 percent accurate. (Tr. at 103). Considering that two separate tests were conducted and in view of the widely recognized accuracy and reliability of the GC/MS methodology, I find that the tests constitute strong evidence that the urine sample provided by the individual on February 5, 1996 contained Benzoylecgonine.

(3) Whether the Presence of Benzoylecgonine Could Have Been Caused by Factors Other Than Illegal Drug Use

At the hearing, the individual raised a number of issues concerning the drug testing. First the individual suggested that the wrong sample was tested or that his sample was somehow contaminated. However, the individual offered no credible evidence in support of these contentions. On the other hand, the DOE provided ample evidence, which we have discussed in detail above, to the contrary. The individual in turn suggested that his ingestion of some other substance might have caused a false positive test result. However, both the consultant and the laboratory director testified that there are no substances other than cocaine that produce a positive test for Benzoylecgonine upon ingestion. (Tr. at 64-65, 137). The drug testing expert also ruled out the possibility of passive inhalation or ingestion. (Tr. at 5).

The individual and DOE stipulated that the individual has been the subject of a number of random drug tests since February 6, 1996 and that each of these tests were negative. This evidence however is of questionable relevance since it does not inform us whether the individual used cocaine in the period just prior to February 2, 1996. Accordingly, it does not rebut the result of the February 2, 1996 drug test.

Since the individual's positive drug test shows that more likely than not, the individual used cocaine prior to the date on which he provided the urine specimen, it follows that the individual has failed to resolve the serious security concerns raised by the DOE under criterion K.

Moreover, because of the individual's repeated claims that he has never used cocaine, I find that the security concerns raised by DOE under criterion F are also unresolved. Simply put, if an individual who has tested positive for cocaine use repeatedly and emphatically states that he has never used cocaine to a DOE personnel security officer, one must conclude that either the individual is intentionally providing false information to DOE security officials or the test was flawed. Since the evidence in the record indicates that more likely than not that the positive test result is accurate, I must conclude that it is more likely than not that the individual was not truthful in his claims that he has never used cocaine. The individual's repeated and intentional provision of false information to a DOE security officer raises serious doubts about the individual's trustworthiness and suitability for a DOE access authorization. Accordingly, I find that the individual has failed to resolve the security concerns raised by the DOE under Criterion F.

Both the individual's drug use and intentional provision of false information raise serious security concerns under Criterion L. An addition concern is raised by the fact that the individual had signed a DOE Drug Certification to resolve the DOE's concerns regarding his previous drug involvement. Under these circumstances, the individual's decision to use drugs again constitutes "a serious breach of his relationship of trust with the DOE," Personnel Security Hearing, Case No. VSO-0028, 25 DOE ¶ 82,762 at 85,587 (1995), and "raises significant doubt as to his honesty, reliability, and trustworthiness within the meaning of 10 C.F.R.§ 710.8(l)." Personnel Security Hearing, Case No. VSO-0019, 25 DOE ¶ 82,759 at 85,564 (1995).

The individual called eight character witnesses, each of whom testified as to the individual's good character, honesty and trustworthiness. Each of the eight character witnesses also testified that they did not know of any reason to believe that the individual had ever used illegal drugs and that they would be surprised to find that the individual had used cocaine. The testimony of these witnesses, however, does not suffice to rebut the strong evidence of cocaine use provided by the drug test. It would have been possible for the individual to have consumed cocaine without any of these witnesses' knowledge. Moreover, since I have concluded that the individual most likely used cocaine, the evidence of good character provided by these witnesses is strongly rebutted by the obvious implication that the individual lied under oath when he claimed that he had never used cocaine.

IV. CONCLUSION

My conclusions that the individual had (1) used cocaine sometime prior to February 2, 1996, (2) lied under oath, and (3) violated his DOE drug certification are based solely upon the positive drug test discussed above. The evidence presented by the DOE has convinced me that the drug testing program in which the individual participated is a highly accurate and reliable program. The procedures used to ensure that the correct samples were tested and that the correct reports were generated are well thought out and include numerous precautions to avoid errors and ensure accuracy and reliability. Moreover, the laboratory procedures and testing methodology have been shown to be highly accurate and reliable.

Human error can never be completely removed from any program. Therefore, a slight possibility exists that the individual's positive drug test result was not valid. If so, this process has inflicted a grave injustice upon the individual. However, this possibility is slight and has to be weighed against the much more likely possibility that the individual has (1) used cocaine, (2) lied under oath, and (3) violated his DOE Drug Certification.

For the reasons set forth above, I find that because of the individual's positive drug test, the DOE has properly invoked 10 C.F.R. §710.8(k). Moreover, I find that because the conduct of the individual and his violation of the DOE Drug Certification raise serious questions regarding his honesty, reliability, and trustworthiness, the DOE properly invoked 10 C.F.R. § 710.8(l) in questioning the individual's eligibility for access authorization. I am also of the opinion that the DOE was justified in invoking 10 C.F.R. § 710.8(f) based on the individual's false statements during his April 26, 1996 PSI,. Accordingly, 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, and it is my opinion 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 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 20874-1290

Steven L. Fine

Hearing Officer

Office of Hearings and Appeals

Date: May 1, 1997

(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 variously in this Opinion as access authorization or security clearance.

(2)Moreover, since the individual had previously signed a DOE Drug Certification, the positive drug test raised the possibility that the individual had violated his Drug Certification.

(3)Criterion K applies to information indicating that 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, 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." 10 C.F.R. § 710.8(k).

(4)Criterion F applies to information indicating that the individual 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, or proceedings conducted pursuant to § 710.20 through § 710.31." 10 C.F.R. § 710.8(f).

(5)The drug testing expert had a Ph.D. in medicinal chemistry from a highly regarded university and extensive experience in investigating the chemistry of drugs. (Tr. at 18-19). This experience included participation on the committee that developed the Federal Government's drug testing laboratory certification program, and service as an inspector for the federal drug testing laboratory program. (Tr. at 21). The drug testing expert testified that he had monitored the individual's employer's drug testing program since 1986. (Tr. at 18).