Case No. VSO-0141, 26 DOE ¶ 82,785 (H.O. Goering July 16, 1997)

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 XXXXXXX's.

July 16, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: March 7, 1997

Case Number: VSO-0141

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 January 17, 1997, the individual's access authorization was suspended by the Manager of a Department of Energy Operations Office (DOE) pursuant to the provisions of Part 710. Based on the record before me, I am of the opinion that the individual's access authorization should be restored.

I. Background

The individual is currently employed by a DOE contractor. On April 7, 1995, the individual reported to the DOE that his former foster child had made allegations that the individual molested him. On April 19, 1995, and October 10, 1996, the DOE conducted Personnel Security Interviews (PSIs) with the individual. The DOE ultimately determined that derogatory information concerning the individual created a substantial doubt about his eligibility for an access authorization, and that the doubt could not be resolved favorably to the individual. Accordingly, on January 17, 1997, the DOE suspended the individual's access authorization, and proceeded to obtain authority from the Director of the Office of Safeguards and Security to initiate an administrative review proceeding.

After the Manager of a DOE Operations Office has authorized the suspension of an individual's access authorization, and has obtained the authority to conduct an administrative review proceeding, the individual is notified of the basis for the suspension and provided "the option to have the substantial doubt regarding eligibility for access authorization resolved in one of two ways: (i) By the Manager, without a hearing, on the basis of the existing information in the case; (ii) By personal appearance before a Hearing Officer (a ?hearing')." 10 C.F.R. §§ 710.10(b),(d), 710.21(a), (b)(3). "[I]f a hearing is requested, the individual [has] the right to appear personally before a Hearing Officer; to present evidence in his own behalf, through witnesses, or by documents, or both; and, . . . to be present during the entire hearing . . . ." 10 C.F.R. § 710.21(b)(7). The 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).

On February 21, 1997, the DOE commenced the administrative review proceeding by issuing a Notification Letter to the individual. The Notification Letter specifically identified the derogatory information at issue and explained how that information came within the purview of two criteria set forth in 10 C.F.R. § 710.8. On April 15, 1997, the DOE issued an amended Notification Letter to the individual that contained the same factual allegations as the original Notification Letter, but cited only one of the criteria of 10 C.F.R. § 710.8, criterion (l), which is discussed in Section II below.(2)

The individual requested a hearing concerning this matter on February 28, 1997. The DOE transmitted the individual's hearing request to the Director of the Office of Hearings and Appeals (OHA), who received it on March 7, 1997. The OHA Director appointed me as Hearing Officer in this case on March 10, 1997. I subsequently convened a hearing in this matter, at which the individual, unrepresented by counsel, was the only witness. See Transcript of Personnel Security Hearing [hereinafter Hearing Tr.].

Once a hearing has been held, and the record closed, I am required by the regulations to "carefully consider the record in view of the standards set forth" in the regulations and "render an initial opinion as to whether the grant or restoration of access authorization to the individual would not endanger the common defense and security." 10 C.F.R. § 710.27(a). In reaching my findings, I am to "consider the demeanor of the witnesses who have testified at the hearing, the probability or likelihood of the truth of their testimony, their credibility, and the authenticity and accuracy of documentary evidence, or lack of evidence on any material points in issue." 10 C.F.R. § 710.27(b).

This case involves an allegation of child molestation. A judicious Hearing Officer must approach such a case with a certain degree of caution, bearing in mind that each case that arises is unique. Just as I must recognize that there is no such thing as a truly stereotypical case, neither can I allow my analysis and judgment to be clouded by pernicious stereotypes, most of which are rooted in ignorance and prejudice. Instead, my opinion must be based on the facts in the record.

In the present case, I have carefully considered the evidence in the record. I have considered the evidence that raises a concern about the individual's eligibility to hold a DOE access authorization. I have also considered the evidence that mitigates that concern. And, I conclude, based on the evidence before me and for the reasons explained below, that the security concern has been resolved.

II. Analysis

A. The Basis for the DOE's Security Concern

As noted above, the Notification Letter, as amended, included a specific description of information in the possession of the DOE that the agency regards as derogatory and that, in the opinion of the DOE, creates a substantial doubt as to the individual's eligibility to hold a security clearance. According to the Notification Letter, the information fell within the ambit of subsection (l) of 10 C.F.R. § 710.8. Criterion (l) concerns 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; 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. Such conduct or circumstances include, but are not limited to, criminal behavior, a pattern of financial irresponsibility, or violation of any commitment or promise upon which DOE previously relied to favorably resolve an issue of access authorization eligibility.

10 C.F.R. § 710.8(l).

In the present case, the concern that the individual has engaged in unusual conduct stems from an allegation that he molested a foster child who lived with him during the period November 1989 to August 1990. The allegation was made by the child in November 1994. DOE Exhibit 14. The individual has continuously denied that the alleged events took place.

There are no statements in the record by witnesses that corroborate the child's allegations, nor does the record reveal any physical evidence of the alleged molestation.(3) Indeed, there is evidence in the record that is damaging to the child's credibility generally. There is evidence that the child had problems related to dishonest behavior prior to and during his placement as a foster child with the individual. There is also evidence that the child engaged in crimes of dishonesty after the time of his placement, and leading up to the time of his allegation against the individual in 1994.

In his testimony at the hearing, the individual stated that, during his placement, the child

stole a lot of things. He stole, as I mentioned before, my coin set and my tools and sold them all for gum or a Nintendo game. Stole the neighbor's mail, broke into his best friend's house and stole his savings. He was sitting on top of the money when I asked him if he did it. It was hidden under the couch. He lied when I was questioning him. He lied all the way to the end when I presented him with the money. . . . Also at a subsequent foster parents' house, he stole his foster parents' boat and drove it to destruction, ended up in a lock-down facility. I don't have a lot of history about [the child]. But in the court testimony, there was a package of an inch-thick about his criminal activities since getting older and into drugs, auto theft, and things of that nature.

Hearing Tr. at 28.

Certainly, I am hesitant to accept uncritically these characterizations of the former foster child. Under the circumstances, the individual obviously has every reason to impugn the child's credibility. However, there is evidence, independent of the individual's testimony at the hearing, that corroborates the individual's characterization of the child's behavior.

First, the record contains the statement of a friend of the individual who knew the individual well during the time of the foster child's placement, and spent a significant amount of time with the child. Her statement was taken by an investigator from the U.S. Office of Personnel Management (OPM), whose notes were submitted prior to the hearing by the DOE Counsel. The following is an excerpt from those notes.

[She] recalled that the child had a history as a troubled youngster, prior to the time that he was placed with [the individual]. . . .

. . . He caused a number of problems during the time that he resided with [the individual]. He stole mail from a young girl who resided in the lower flat, which [she] found in his room. He also urinated on the girl, while he was standing on an upstairs porch. He stole money from his friend's paper route collections, and caused several problems at school, where he was an average to below average 6th grader.

The child was a very hyperactive youth, who would often talk back to adults. [The individual] punished him by grounding him and placing restrictions on his activities. [The individual] lectured him about his behavior, and tried to be a good role model. [She] does not recall any instances of corporal punishment. [She] theorized that the child caused problems because he wanted to be accepted by [the individual], no matter what he did.

DOE Exhibit 14.

Regarding the child's alleged criminal record, I asked the individual at the hearing about the evidence he had to support this assertion. The individual responded that "as part of my defense, I believe [the child]'s criminal history both juvenile and after the age of 18 were made available to us. I believe my lawyer has a copy of those." Id.

Prior to adjourning the hearing, I proposed that the individual submit to me "any records that your attorney may happen to have that you mentioned in terms of criminal behavior of [the child]." The DOE Counsel responded that he would "stipulate whatever [the child]'s problems were and the evidence of his credibility." Id. at 41. The purpose of this stipulation was to obviate the need for the individual to submit additional evidence to support his characterizations of the child's behavior as it reflected on the child's credibility.

A stipulation is a "[v]oluntary agreement . . . concerning disposition of some relevant point so as to obviate need for proof or to narrow the range of litigable issues." Black's Law Dictionary 1269 (5th ed. 1979). The Part 710 regulations authorize the DOE Counsel to, among other things, "reach stipulations with respect to testimony and contents of documents and other physical evidence. Such stipulations shall be binding upon the individual and the DOE Counsel for the purposes of this subpart." 10 C.F.R. § 710.24(b). Because the DOE stipulated to the truth of the individual's characterization of his former foster child, I will not require the individual to submit further proof to support that characterization, in particular the criminal record of the child.

Another fact reflecting on the credibility of the allegation is that the child did not raise this allegation until over four years after the events allegedly took place. The child apparently told the police that "he never said anything in the past because he was afraid." DOE Exhibit 14. However, the child's explanation that he remained silent out of fear does not account for the fact that he did not report the allegation to authorities after leaving the custody of the individual, even three years after the individual had left the state in which he resided and moved to his current residence. Furthermore, the child's stated motive for not reporting the alleged events is not supported by the report of the OPM investigator's interview with the individual's friend.

During the time that [the child] resided with [the individual] he appeared to genuinely appreciate [the individual], who attempted to rear him in a moralistic setting. [The individual's friend] regularly attended religious services with [the individual] and the child. She also frequently went out to activities with both of them.

The child took this decision very hard. [The individual's friend] was also with [the child] the last few days he was under [the individual's] care, and saw the anguish that he suffered.

DOE Exhibit 14.

Finally, the outcome of criminal and civil proceedings stemming from the allegation causes me to question its credibility. Based on the child's allegation, the individual was charged with two felony counts of Criminal Sexual Conduct.(4) However, at the time the criminal case was ready to go to trial, the individual was offered a plea agreement. Instead of being charged with the two felony counts, each carrying a penalty of 15 years in prison, the individual was charged with, and pled no contest to, a misdemeanor charge of Assault and Battery. As part of the plea bargain, he was then sentenced to six months unsupervised probation and fined $300, with the charge to be later expunged from his record. Based on the fact that the State in this case allowed an accused child molester to avoid serving any time in jail and even to avoid supervised probation, and the fact that his record was to be expunged, a reasonable person can infer that the prosecutors had substantially less faith in the strength of their case than when the charges were originally brought.

There was some concern expressed by a Security representative at the October 1996 PSI that the individual was somehow admitting guilt to the far more serious charges of Criminal Sexual Conduct by pleading no contest to a misdemeanor charge of Assault and Battery. For example, the Security Representative asked the individual, "If you were innocent why would you have plead [sic] to anything" and "if there was no evidence how could it have come back any other way?" DOE Exhibit 14 at 7, 8. He further asserted that if the individual "were innocent there was no possibility of going to jail." Id. at 9. At the hearing, the individual explained at length his reasons for accepting the plea offer.

One, advisement of my attorney. At the base of the severity of the original felonious charges compared to the single reduced misdemeanor charge, my lawyer strongly advised me to accept. He said that in his opinion, despite my innocence, given what [the prosecuting] attorney was offering; it would be foolish to go to full trial. . . .

. . . .

Reason two, possibility of a guilty verdict. Some might assert that if I was truly innocent, and I am, then there was no jeopardy. In a perfect world, that might be the case. However, that seems like a naive belief. Is it so difficult to believe that a possibility existed for a guilty verdict to be returned when there was not evidence of guilt? It is not difficult to believe if you read the newspapers or watch T.V. People win the most absurd preposterous cases everyday. . . .

Reason three, seriousness of the original charge. Each count of criminal sexual conduct is a felony carrying up to 15 years. That is a possibility of 30 years in jail. Granted since I was innocent that would probably, most likely, not happen. However, there is always that possibility. Should I have taken the risk with a wife to support and two children to raise? Should I insist on vindication and clearing my name at the risk of putting my family into jeopardy? That's a difficult decision to make.

Reason four, costs. I'd already paid ten thousand dollars with my entire life savings. And if we continued with the trial, there was the possibility that I could incur additional costs. . . .

Reason five, misdemeanor would not impact the security clearance. I did not think that a misdemeanor was something that would interfere with my security clearance.

Hearing Tr. at 13-15. I found this testimony by the individual entirely credible and the reasons he provided very persuasive. I will not, therefore, interpret his actions as an admission that he was guilty of the more serious crimes with which he was charged.

In addition to not being found guilty of Criminal Sexual Conduct, the individual was not held liable as the result of a civil complaint filed by the child against, among others, the individual and the social service agency that supervised the boy's foster care. According to the testimony of the individual at the hearing and a subsequent telephone conference held with the parties and the attorney who represented the individual in both the criminal and civil proceedings, certain of the defendants in that case, not including the individual, agreed to a settlement with the plaintiff. Hearing Tr. at 31-32; Memorandum of telephone conference (July 11, 1997). The claim was subsequently dismissed as to all defendants, including the individual. Id. The individual has submitted for the record a copy of the order dismissing the case. While the outcome of these two court proceedings cannot negate the security concern in this case,(5) they do constitute information that reflects on the strength, or lack thereof, of the evidence supporting the allegation.

All of the factors listed above cause me to have reservations about the credibility of the allegation. While an allegation of this nature is obviously too grave to be taken lightly, I must take into account the credibility of the allegation in weighing the seriousness of the security concern.(6) With this in mind, I turn to the evidence in the record that mitigates the concern raised by the allegation.

B. Evidence Mitigating the Security Concern

To be weighed against the concern raised by the alleged conduct of the individual, I note the following evidence. First, the individual has by all accounts been cooperative with both the criminal authorities and the DOE at every juncture since he was made aware of the allegations against him, while continually denying that the alleged events occurred. The detective responsible for investigating the criminal case stated that the individual had been "very cooperative" and the record indicates that the individual promptly reported information to the DOE at every step of the criminal proceeding. DOE Exhibits 4, 6, 8-14. Indeed, according to the DOE Counsel, the individual was the primary source for the information set forth by the DOE in its Notification Letter. Hearing Tr. at 37-38.

In further mitigation of the security concern, the only information revealed by the notes from the OPM's investigation of the individual in March and April of 1996, apart from that already disclosed by the individual, are the favorable comments of those interviewed by the investigator.(7) These statements, submitted into the record by the DOE Counsel, include

These statements corroborate the testimony of the individual at the hearing that he is a happily married, devoted father of two children and that there have been no other incidents that would cast doubts upon the individual's character or activities. Furthermore, the individual explained that he has

fostered three other boys besides [the one making the allegations]. Three other teenage boys. None of them ever brought up any false allegations like this. I also fostered a set of twin crack- addicted baby girls. I've had hundreds of students, I would say, close to a thousand students that I've taken on many trips. There have been both sexes, all ages. And out of all the students I've ever been with and all the youngsters, nobody's ever raised any issue like this.

Hearing Tr. at 26.(8) This testimony is further corroborated by the statement of the individual's friend, as reported by the OPM investigator, that as "a karate instructor, he had many youngsters as students. On several occasions he took the youngsters to tournaments some distance away from [the city where he was living at the time.] There was never any indication of any problems in his relations with these youngsters." DOE Exhibit 14.

Finally, I had the opportunity to observe the individual's testimony at the hearing in this matter. The individual's demeanor during his testimony betrayed no hint of dishonesty or evasiveness. While recognizing the importance of the demeanor of an individual's testimony, as gauged by the Hearing Officer, the OHA Director has properly noted in his review of prior opinions that the "testimony of an individual describing events that tend to minimize the seriousness of a security concern, given his or her self-interest, must generally be accompanied by other supporting evidence. The individual's mere say-so regarding facts that minimize the security concern typically cannot form a sufficient basis for restoration of a security clearance." Personnel Security Review, Case No. VSA-0088, 26 DOE ¶ 83,003 (1996). In the present case, as noted above, there is other supporting evidence in the form of the statement of a person who knew the individual well when he was the foster parent to his accuser and the statements of several other individuals who have known him in the time since.

III. Conclusion

There is no magic formula a Hearing Officer can use to determine if there is enough favorable evidence in the record to resolve the security concern raised in a given case. While a rigid rule would make it easy to decide even the most difficult cases, a thoughtless, mechanical application of any such rule would not take into account the unique facts and circumstances that present themselves in each case. One variable factor that cannot be ignored is the strength or weakness of the evidence underlying a security concern. For example, when faced with the positive results of a drug test, a heavy burden has been placed on individuals to present evidence to support their assertions that their drug use was limited or that the drug was accidentally ingested. Personnel Security Review, Case No. VSA-0102, 26 DOE ¶ 83,008 (1997); Personnel Security Review, Case No. VSA-0088, 26 DOE ¶ 83,003 (1996); Personnel Security Review, Case No. VSA-0087, 26 DOE ¶ 83,001 (1996). There is a vast difference, however, between the presumed reliability of a drug test and the dubious credibility of the lone allegation which constitutes the only negative information in the record regarding the individual in this case.(9)

In the present case, I conclude that the security concern raised by the allegation against the individual has been more than adequately resolved. First, there is evidence in the record in several forms, as detailed in Section II.A, that calls into serious question the credibility of the allegation and the accuser. Second, there are statements in the record which bolster the credibility of the individual, which was further confirmed by the individual's history of forthright dealings with the DOE and my observation of his hearing testimony. Finally, the concern raised by the allegation is mitigated by the fact that, although the individual has fostered six children and taught hundreds of others, the government's investigation of the individual revealed, apart from the allegation the individual had already voluntarily disclosed, only favorable information. Accordingly, based upon all of the evidence in the record favorable and unfavorable to the individual, I conclude that the concern raise by the allegation against the individual, the credibility of which is seriously undermined by the evidence in the record, is more than sufficiently mitigated by facts in the record which are favorable to the individual. Therefore, after due deliberation, it is my opinion that the individual's access authorization should be restored, because 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 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 J. Goering

Staff Attorney

Office of Hearings and Appeals

Date: July 16, 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)The first Notification Letter stated that the information also came within the scope of criterion (f), which pertains to falsification. However, the Director of the Office of Safeguards and Security stated that he "was not authorizing paragraph (f) as the charges listed are repetitious of those under paragraph (l) and are not appropriate to the (f) criterion." Memorandum from Director, Office of Safeguards and Security, to the Manager of the Operations Office (February 7, 1997) (bolding in original).

(3)The report of a U.S. Office of Personnel Management investigator of his interview with the police detective who was responsible for the case made no mention of any evidence other than the statement of the alleged victim. DOE Exhibit 14.

(4)I would have to employ a kind of circular "logic" to find that the mere fact that the individual was charged with Criminal Sexual Conduct is, by itself, proof that the individual is, in fact, guilty of that act.

(5)Cf. Department of Defense Personnel Security Program Regulation, 32 C.F.R. Part 154 app. ("In evaluating an arrest record, information that indicates that the individual was acquitted, that the charges were dropped or the subject of a ?stet' or ?nolle prosequi', that the record was expunged, or that the cause was dismissed due to error not going to the merits, does not negate the security significance of the underlying conduct. Personnel security determinations are to be made on the basis of all available information concerning a person's conduct and actions rather than the legal outcome of a criminal proceeding.")

(6)At the hearing in this case, I asked the DOE counsel whether it is "the DOE's position that the allegations that were leveled against [the individual] are, in fact, true?" Hearing Tr. at 36. The DOE Counsel responded that he thought "basically the proof is inadequate." Id. He further explained that he believed "that DOE's position in this case is simply that there is no way that the Department in the earlier stages could resolve this dispute, short of a criminal trial. It's my understanding [that] why this case is proceeding is to resolve that concern." Id. at 37.

(7)The lack of negative information about the individual in the notes of the OPM investigation may explain why those notes were not among the exhibits prepared by the Operations Office's Security personnel for submission at the hearing in the present case. The notes were instead submitted as a separate exhibit by DOE Counsel in fulfilment of his obligation under the regulations to "bring[] out a full and true disclosure of all facts, both favorable and unfavorable, having a bearing on the issues before the Hearing Officer." 10 C.F.R. § 710.26(d).

(8)The notion that an individual, then unmarried, who worked with troubled youths fits the "profile" of a child molester is a good example of the kind of stereotype that I will not allow to influence my opinion in this case. The fact that the individual was also a foster parent to two twin baby girls addicted to crack cocaine belies such a misguided assumption.

(9)In one of the cases where there was a positive drug test, the Hearing Officer drew a negative inference from the fact that the individual's wife did not testify on his behalf. Personnel Security Review, Case No. VSA-0102, 26 DOE ¶ 83,008 (1997) (Hearing Officer found implausible individual's explanation that his wife was not available due to a scheduling conflict with their child's preschool). In the present case, the individual did not call others to testify on his behalf at the hearing. I will not, however, draw a negative inference from the individual's failure to call witnesses in this case. First, there is the noted distinction in the present case regarding the weakness of the evidence supporting the allegation. Second, the record contained the OPM investigator's notes of statements, the authenticity and accuracy of which are not in dispute, of ten persons to whom the investigator spoke. Third, the individual's wife, being foreign-born, has a limited knowledge of English and did not know the individual at the time of the alleged events. Fourth, those who knew the individual at that time, or would have been familiar with the facts of the case, were located over 500 miles away in the individual's former state of residence. Finally, in my view, the Part 710 regulations do not contemplate the imposition by a Hearing Officer of a blanket rule requiring the appearance of witnesses on behalf of the individual. See 10 C.F.R. § 710.21(b)(7) (affording the individual "the right to appear personally before a Hearing Officer; to present evidence in his own behalf, through witnesses, or by documents, or both") (emphasis added).