Case No. VSO-0148, 26 DOE ¶ 82,796 (H.O. Klurfeld Oct. 10, 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.

October 10, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer’s Opinion

Name of Case: Personnel Security Hearing

Date of Filing: March 24, 1997

Case Number: VSO-0148

This opinion concerns the eligibility of XXXXX (hereinafter referred to as the individual) for continued access authorization. The regulations governing an individual’s eligibility are set forth at 10 C.F.R. Part 710, Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material. In this opinion, I will consider whether, based on the record be fore me, the individual’s access authorization should be restored. For the reasons stated below, I am of the opinion that the individual’s access authorization should be restored.

The individual works for a contractor at one of the Department of Energy’s sites and holds an access authorization granted by DOE. During the course of an investigation, it came to DOE’s attention that the individual had been charged with trespassing. As a result, DOE security personnel interviewed the individual. At the interview, which was held approximately one week before the individual was scheduled to appear in court, the individual discussed the events that formed the basis for the charge of trespassing. The interview did not resolve the matters which called into question the individual’s continuing eligibility for access authorization, and thereafter DOE personnel requested from the Director of the Office of Safeguards and Security the authority to conduct an administrative review proceeding.

The administrative review proceeding began with the issuance of a Notification Letter. See 10 C.F.R. § 710.21. That letter informed the individual that information in the possession of the DOE created a substantial doubt concerning his continuing eligibility for an access authorization. In accordance with 10 C.F.R. § 710.21, the Notification Letter specified one area of derogatory information described in 10 C.F.R. § 710.8. The Notification Letter also informed the individual that he was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his eligibility for access authorization. The individual requested a hearing, which request was forwarded

to the Office of Hearings and Appeals. I was appointed the Hearing Officer in this matter. I convened a hearing at the DOE field site where the individual works. Three witnesses testified at the hearing: the individual and two coworkers who testified as character witnesses. The transcript of that hearing is hereinafter cited in this opinion as Tr.

The derogatory information cited in the Notification Letter falls within subsection L of 10 C.F.R. § 710.8. Criterion L covers information that shows that the individual has engaged in unusual conduct or is subject to circumstances which tend to show that he is not honest, reliable, or trustworthy, or which furnishes reason to believe that he may be subject to pressure, coercion, exploitation, or duress which may cause him to act contrary to the best interests of the national security. 10 C.F.R. § 710.8(l). To support this position, the Notification Letter describes three bases. First, the Notification Letter states that the individual was charged with trespassing in XXXXX, alleges that the individual told two different stories to the police about the incident, and alleges that he told a third story about the incident during his Personnel Security Interview (hereinafter referred to as PSI). Second, the Notification Letter alleges that the individual provided conflicting information regarding his relationship with the neighbor whose house he entered without permission. At different times, the individual characterized his relationship as “not very close,” “friendly,” and “knew them well enough to know that they were moving.” Notification Letter dated XXXXX, at Attachment 1. Finally, the Notification Letter alleges that the individual stated during his PSI that he did not go any further than the patio of his neighbor’s house, while the police report of the incident indicates that one child stated that the individual was standing in the doorway of her room. The Notification Letter also states that the individual told the police that he was aware that it was her room.Id.

As an initial matter, at the hearing the attorney for the individual pointed out a number of errors contained in the Notification Letter. Tr. at 15-18. With respect to the second basis cited above, the attorney pointed out that in his view the statements made by the individual are not mutually exclusive and that there is no conflict among them. The Notification Letter stated that the individual provided conflicting information regarding his relationship with his neighbor. However, upon inspection it is evident that this information is not conflicting. One can easily describe a relationship as friendly at the same time as being not very close. And as the individual’s attorney pointed out, “it’s certainly not unusual for one neighbor to know when another’s moving, even though they’re not the best of friends, or they’re just normal neighbors, as anybody would be.” Tr. at 15. After reviewing the record, I must agree that the individual’s statements about his relationship with his neighbors do not support a finding that he provided inconsistent statements to the DOE or that the individual is not honest or trustworthy.

With respect to the third basis cited in the Notification Letter, the attorney pointed out that the individual did not state in his PSI that he had gone no further than the patio of his neighbor’s house. On the contrary, the individual stated during his PSI that he entered his neighbor’s house, PSI at 18 and 20, and restricted his movement in the house to the first room he entered. PSI at 21, 26, and 29. Furthermore, the attorney pointed out that the police report did not indicate that the individual was standing in the doorway of a child’s room. Rather, the police report states that the wife reported to the police officer that one child said that someone (not necessarily the individual) was standing in her room. The police report also states that both daughters told the police officer that someone was standing in the doorway of the daughters’ room. Finally, the wife’s written statement indicates that one daughter told her that her father was standing in the doorway to her room. Under these circumstances, I find that the third basis cited in the Notification Letter is not true and does not support a finding that the individual’s conduct indicates that he is not honest or trustworthy.

Despite the fact that two of the bases cited in the Notification Letter are not supported by the facts in the record and therefore do not form a proper basis for finding that the individual is not honest and trustworthy, there remain the essential elements of the first basis cited as a security concern: the individual was charged with trespassing and told differing stories about the events surrounding his activity. The remainder of this opinion will address the evidence in the record concerning the trespass, and concerning the individual’s subsequent statements about the surrounding events.

I will start my analysis with the police report of the trespassing incident. It was submitted in this proceeding by the DOE Counsel as Exhibit 7. The report was written by the police officer who responded to a call that a man had just chased his neighbor out of his house. It was written the day after the incident. The report is a narrative and relays the officer’s conversations with three of the members of the family who lived in the house that the individual had entered while everyone was asleep. The report describes conversations with the wife and with two daughters who were six and nine years old at the time. It does not report a conversation with the husband, although the husband was on the scene and, according to the wife and the individual, played a role in the events. The report also relays the conversation the officer had with the individual the night of the incident. Finally, attached to the report are two written statements, one by the wife and one by the individual.

The police report of the incident raises a number of questions that are not answered in the record of this proceeding and call into question the accuracy of the report. The report in part recounts the events that the wife told the police officer. It states that the wife stated that she was asleep when she heard a noise in her house. She then heard her dog growling and got up. She then heard someone running through the house. The police report continues that after hearing someone running through the house, the wife went to the living room, saw the sliding glass doors open, and walked outside into the backyard. There, she saw the individual jumping over the fence, with her dog in pursuit. The police report continues that the wife went back into the house, woke her husband, and told her what she had seen. One of her daughters came out of her room and stated that someone had been in her room. The wife and husband then went outside and observed the individual hiding behind a car. At that point, the report says that the wife recalled that the individual stood up and came toward her.

The wife’s statement, written apparently that same night, recounts a much different series of events. In her statement, she says that she awoke when she heard her dog growling. She states that she then went down the hallway to check on her daughters, and that one of them was awake. The wife then asked her daughter why the dog was growling. The wife reports that the daughter said that her father had been standing in her doorway and that the dog growled at him. The wife states that she “knew it wasn’t [her] husband.” She then heard noise in the backyard, so she woke her husband. The wife then states that she went into the garage and opened the door to the backyard: there was no one in the backyard. The wife, together with her husband, then went to the front of their house, saw someone running, and yelled after him. The husband and wife continued to walk toward their neighbor’s house. At this point, the wife states that the individual walked out from behind a neighbor’s car.

These are obviously much different renditions of the events during the night in question. In her statement, the wife makes no mention of a noise in the house other than her dog’s growling, and does not report hearing someone running through the house. Upon awakening, the wife reports in her statement that she went down the hallway to check her daughters. The police report, however, states that she said she went into the living room, saw that the sliding glass doors to the patio were opened, went outside, and saw the individual jumping over the fence. The wife’s statement does not mention going into the living room. Indeed, her statement says she went into the garage to get into the backyard. Her statement also reports seeing no one in the backyard. Her statement indicates that the first time she saw someone was after she and her husband were in front of their house. The large number of serious discrepancies between the police report and the wife’s written statement lead me to question whether the police report accurately reflects what the wife, and others, told the police officer who wrote it.

At the hearing, the individual testified about the events of that night. His testimony was consistent with the events he recounted in his PSI. He testified that he knew his neighbors were moving and thought that they were spending the night in their new house. He testified that he went to his neighbor’s back yard between three and four o’clock in the morning because he wanted to swim in the pool in their backyard. Tr. at 33. He stated that he stepped into the pool and noticed that the sliding glass door to their house was open. Tr. at 35. He then went into the house through the open door. Id. The individual then stated that he took five steps into the room, which was the living room of the house. Id. According to the individual, he did not go any further into the house because at that time his neighbor’s “pit bull dog came around the corner and licked his chops a couple of times, and came after me.” Tr. at 36. The individual reports that he then ran out the door and tried to jump back over the five-foot-high fence between his neighbor’s and his house. Id. He claims that when he tried to jump over the fence he fell and landed on a tree stump on which his neighbor had chopped wood. He then testified that he hesitated because he had the wind knocked out of him. Since the fence ended at the sidewalk, the individual then ran toward the street and around the end of the fence toward his own house.

It is not possible on the basis of this record to reconcile these stories. If the pit bull dog had been defending his house and running after the individual, it would appear that the individual would have been caught by the dog when he failed to jump over the fence and had the wind knocked out of him when he fell on a tree stump, unless the individual closed the sliding glass door on exiting the house. This last event is not reported by anyone, including the individual. Although the police report states that the wife reported that the door to the patio was open and that she went through it to get to the backyard, the wife’s statement contradicts this report. In her statement, she reported that she went into her backyard through a door in the garage, not through the sliding glass door. The wife’s statement does not discuss the whereabouts of the family’s pit bull dog at this time.

The 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). After carefully considering the record in view of the standards set forth in 10 C.F.R. Part 710, I find that some of the derogatory information presented by DOE in this case is accurate. The individual did in fact trespass in XXXXX. He pled guilty to that charge. He was sentenced to perform 80 hours of community service and serve probation. According to a document submitted at the hearing, the individual has completed the punishment decreed by the court. Part of that punishment was probation, which has now been terminated, indicating no further criminal violations by the individual. XXXXX Order of the XXXXX Court XXXXX. The individual has also admitted that during the night in question he gave a number of differing reasons for why he had trespassed. One of these stories -- that he went into the house looking for marijuana -- the individual admits was designed to pressure his neighbor into not reporting the incident to authorities if he did in fact possess marijuana in the house. This is also disturbing. However, since the night of the incident, the individual has told a consistent story to DOE personnel security during his PSI and at the hearing.

I also find that, contrary to statements in the Notification Letter, the individual did not provide conflicting information about his relationship with his neighbors. Furthermore, I find that the individual did not state during his PSI that he went no further than the patio of his neighbor’s house. The individual clearly maintained during the PSI that he entered the house but restricted his movement to the living room, the first room that he entered through a sliding glass door. PSI at 18, 19, 20, 21, 26, 29. Accordingly, the second and third bases cited in the Notification Letter are not supported by the record.

The DOE regulations require that I consider the following factors in rendering this opinion: the nature, extent, and seriousness of the individual’s conduct; the circumstances surrounding his conduct, including knowledgeable participation; the frequency and recency of his 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 events in this case are troubling. For a person that holds an access authorization, trespassing is a very serious matter. Whether it is done out of curiosity or to retrieve something lost, going where someone is not authorized to be raises valid security concerns. The event occurred when the individual was 45 years old and did not occur “in his youth.” On the other hand, there is no evidence in the record to suggest that he has ever been arrested or charged with a crime before, and the individual testified that he has never been in trouble with the law before this event. The trespass occurred more than XX months ago, and the individual has completed probation and has not been charged with any other offense. The individual has also testified that it was a very foolish thing to do and has shown remorse for his actions. After hearing the individual testify and reviewing the record in this case, I find that the likelihood that he will do this again is remote, because he realizes the serious consequences that can occur from such whimsical behavior.

A good test of the individual’s honesty, reliability and trustworthiness is the individual’s willingness to discuss events in a candid way with DOE personnel security specialists. Personnel Security Hearing, 25 DOE ¶ 82,778, Case No. VSO-0037 (1995), affirmed (OSA 1996). In that opinion, the Hearing Officer held that statements to the police at the time of arrest are irrelevant to the question of the individual's trustworthiness. The Hearing Officer reasoned that the individual there was, at the time of arrest, not involved in a security investigation. Rather, she was a private citizen who was exercising her constitutional rights; she had no obligation to respond to the police officer’s questions. Id. Similarly, when the individual in this case spoke with the police after the trespassing incident, he was not under arrest and was under no obligation to respond to the officer’s questions. After carefully reviewing the transcript of the PSI and watching the individual testify at the hearing, it is my opinion that the individual in this case has been honest in this proceeding about the events that occurred that night in XXXXX.

In view of the criteria set forth in 10 C.F.R. § 710.8 and the record before me, I 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, 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 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

Roger Klurfeld

Hearing Officer

Office of Hearings and Appeals

Date: October 10, 1997