Case No. VSO-0197 (H.O. Gray June 18, 1998), 27 DOE¶82,768

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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.

June 18, 1998

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: March 17, 1998

Case Number: VSO-0197

This Opinion addresses the eligibility of XXXXXXXXXXXXXXX (the Individual) for access authorization. The regulations governing the Individual’s eligibility are found at 10 C.F.R., Part 710. Pursuant to these regulations, the Individual requested a hearing to resolve concerns that raise a substantial doubt about his eligibility for access authorization. 10 C.F.R. § 710.21(3)(ii). As explained below, it is my opinion that the Individual has not resolved the concerns, and that his access authorization should therefore not be restored.

The Individual formerly held access authorization at a facility of the Department of Energy (the DOE). Approximately a year and a half before the hearing, the Individual was convicted of unlawfully intercepting communications. I will hereafter refer to the crime of which he was convicted as wiretapping. Subsequently, the personnel security office for the Individual’s facility referred him to a consulting psychiatrist for a psychiatric evaluation. After examining the Individual and consulting his personnel records, the psychiatrist concluded that the Individual suffers from narcissistic personality disorder, and that the disorder causes a significant defect in the Individual’s judgment and reliability.

The manager of the facility issued a Notification Letter to the Individual, informing him that his access authorization was suspended due to derogatory information that created substantial

doubt about his continued eligibility.(1) The Notification Letter identified two categories of derogatory information that pertained to the Individual. The first category concerns the Individual’s conviction for wiretapping. The Notification Letter identified the conviction as derogatory information under the provisions of 10 C.F.R. § 710.8(l) (Criterion L), which provides that derogatory information includes information that an individual "has engaged in any unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable, or trustworthy... [including, but not] limited to, criminal behavior."

The second category concerns the results of a psychiatric examination of the Individual, in which the Individual was diagnosed as having narcissistic personality disorder with impairment of judgment and reliability. The Notification Letter identified the diagnosis as derogatory information under the provisions of 10 C.F.R. § 710.8(h) (Criterion H), which provides that derogatory information includes information that an individual has "an illness or mental condition of a nature which, in the opinion of a board-certified psychiatrist... causes, or may cause, a significant defect in judgment or reliability."

The Individual requested this hearing to attempt to resolve the doubts about his eligibility arising from the security concerns identified in the Notification Letter.(2) At the hearing, the DOE presented the testimony of the psychiatrist and a personnel security specialist. The Individual testified on his own behalf, and presented the testimony of eight coworkers.

ANALYSIS

A DOE administrative review proceeding under 10 C.F.R. Part 710 is designed to protect national security interests. It is not a criminal proceeding, where the burden is on the DOE to prove beyond a reasonable doubt that the Individual is ineligible for access authorization. Thus, once the DOE has made a showing of derogatory information raising security concerns, the burden is on the Individual to demonstrate that granting him 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).

There is a strong presumption against the granting or restoring of a security clearance. Department of Navy v. Egan, 484 U.S. 518, 531 (1988) ("clearly consistent with the national interest" standard for the granting of security clearances indicates "that security determinations should err, if they must, on the side of denials"); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance). Consequently, it is necessary and appropriate to place the burden of persuasion on the individual to resolve questions about his eligibility for access authorization.

The Individual strenuously denies that he committed the act of wiretapping for which he was convicted, and insists that he does not have narcissistic personality disorder. I will discuss the two security concerns separately.

Criminal Conviction - Criterion L

The following account of the Individual’s conviction is taken from a summary of the trial prepared by the appellate court during their review of the case. The Individual, who was married, was having an affair with another woman, whom I will refer to as his girlfriend. The girlfriend testified at trial that the Individual told her he taped her telephone calls. According to the girlfriend, the Individual repeated information to her that he could have obtained only from telephone conversations she had with other persons. The girlfriend also testified at trial that the Individual played a taped telephone conversation she had with another man, who the Individual suspected was having an affair with his girlfriend. This other man, the Individual’s rival for the girlfriend’s affections, also testified at trial that the Individual admitted to him he was taping the girlfriend’s calls. He also testified that the Individual had played a tape of the rival’s conversation with the girlfriend. A telephone company technician testified at trial that he inspected the telephone interface box on the girlfriend’s home. The technician stated that he found a redundant wire in the box that the Individual had installed, which could be used to record telephone calls.(3) He did not find any recording equipment, and no tapes or recording equipment were produced at trial.(4)

Based on the testimony described above, the Individual was convicted in a state court of wiretapping. He was sentenced to twelve months in jail, but the sentence was suspended. The Individual appealed his conviction to the state appellate court, but the appeal was denied.(5)

At the hearing, the Individual denied that he intercepted his girlfriend’s telephone conversations, and claimed that he should not have been convicted for wiretapping. He stated that "I was falsely accused or convicted and wasn’t ... guilty of [wiretapping]... After being convicted, I was shocked... I think some things that got me convicted was some statements in this ... transcript of ... the court proceedings."(6) He admitted to calling the girlfriend and telling her he had tapes of her telephone conversations, but claimed that this was a bluff to force her to admit her involvement with the rival.(7)

The Individual then read into the record excerpts from the testimony of his girlfriend and his rival at the trial. He claimed that they both testified falsely about the nature of their relationship with him and with each other. He expressed the opinion that they minimized the extent of their relationship with each other and with him to protect their reputations in their community. He also claimed that the rival lied when he testified in court that he had never met the Individual in person, when, according to the Individual, they had met in court when they both filed charges of telephone harassment against each other.(8)

The Individual tried to discredit the testimony of the telephone technician by challenging his expertise. He read the technician’s testimony at the trial in which the technician acknowledging that he had difficulty finding the telephone interface box at the girlfriend’s home. He also insinuated that the technician was acquainted with the rival, because he measured the distance between the technician’s and rival’s homes at three tenths of a mile. He provided no other evidence of a relationship between the technician and the rival.(9) Neither the girlfriend, the rival, nor the telephone technician were present at the hearing.

The Individual’s testimony about his criminal conviction falls far short of resolving the security concerns raised by it. In the first place, the Individual faces an extremely heavy burden in attempting to show that he did not commit the acts of wiretapping. He had the opportunity to defend himself in court, to cross-examine the witnesses, and to challenge evidence presented by the prosecution. Nevertheless, the court found beyond a reasonable doubt that the Individual unlawfully intercepted the girlfriend’s telephone calls, and an appellate court upheld the finding. Given the very limited evidence presented by the Individual, I see no basis to question the court’s conclusions. The Individual’s attempt to show that his girlfriend and his rival testified falsely about their relationships does not begin to address the question of his own conduct. In addition, the Individual failed to produce any evidence to extenuate his conduct. I find therefore that he has not resolved the security concerns under Criterion L raised by his criminal conduct.

Narcissistic Personality Disorder - Criterion H

The psychiatrist diagnosed the Individual with narcissistic personality disorder after reviewing the Individual’s personnel files and conducting a one to one and a half hour evaluation session with the Individual.(10) The psychiatrist defined narcissistic personality disorder as "a sense of grandiosity; a sense of being above being questioned; a sense that [one has] been wronged by various others, whether it be authorities or peers or spouses; a sense that [one is] not recognized for [his] true abilities."(11) This definition, the psychiatrist stated, is based on the description of narcissistic personality disorder in the Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (DSM-IV). The psychiatrist explained that DSM-IV lists nine criteria for diagnosing narcissistic personality disorder. Five of the criteria must be present in an individual to support a diagnosis of narcissistic personality disorder. Of the nine criteria, the psychiatrist found six present in the Individual, listed below.

Criterion one: has a grandiose sense of self- importance; for example, exaggerates achievements and talents, expects to be recognized as superior without commensurate achievements.

Criterion four: requires excessive admiration.

Criterion five: has a sense of entitlement; for example, unreasonable expectations of especially favorable treatment or automatic compliance with his ... expectations.

Criterion six: is interpersonally exploitative; takes advantage of others to achieve his ... own ends...

Criterion seven: lacks empathy; is unwilling to recognize or identify with the feelings and needs of others.

And criterion nine: shows arrogant, haughty behaviors or attitudes.(12)

The psychiatrist cited events from the Individual’s files that justified a finding for each of the above criteria. He concluded that:

the presence of [narcissistic] personality disorder causes a significant defect in [the Individual’s] judgment and reliability, to the point that [the Individual] may honestly believe that he is telling "the truth," and has little understanding or empathy as to why other people may question him as to his stated reporting of events. In other words, he believes he is telling the truth, but becomes quite tense and irritable when discrepancies are pointed out, or other persons or authorities present a different interpretation of events. I suspect that he generally wishes to follow the wishes and mandates of the United States Government, but his exaggerated sense of self- importance renders his judgment and reliability to be extremely questionable.(13)

At the hearing, the psychiatrist further explained how the Individual’s narcissism affected his judgment and reliability. He acknowledged that not everyone with a narcissistic personality disorder has a significant defect in judgment or reliability.(14) In the case of the Individual, however, the psychiatrist found that the narcissism leads to "a very diminished ability to examine his own behavior. When confronted about his behavior, his responses have consistently been to show why the other person’s information is wrong, not ever to consider why they might be saying what they’re saying. The narcissism points to ?my perception of my behavior is right, and no one else’s view about me carries weight’... [Such persons] play by their own rules... The rules established by others can be very difficult to live with."(15) The psychiatrist cited a series of incidents reflecting poor judgment and reliability by the Individual, including the Individual’s use of wiretapping as a response to problems with his girlfriend; his inconsistent answers in personnel security interviews to questions about how he obtained private information about the girlfriend; and his attitude that it was acceptable both to deceive his wife about the affair with the girlfriend and deceive the girlfriend by bluffing about the wiretap in order to achieve his own desires.(16)

At the hearing, the Individual contended that the psychiatrist’s diagnosis was wrong. He stated that, as for the narcissistic personality disorder, "I don’t believe I have this problem; I really don’t... I believe [the psychiatrist] read reports along with my interview and made his diagnosis. He did not diagnose me... I believe he was prejudged [sic] for the simple fact that when I first arrived... the question was asked to me why do you believe you were sent for this consultation. And I told him that people had lied against me about things... that I did not do. And he has referred back to me that they said you are lying. So that tells me that he’s had prior knowledge of what has happened or what was said."(17)

The Individual did not offer any expert testimony to rebut the findings of the psychiatrist, nor did he present a reasoned argument as to why the diagnosis of narcissistic personality disorder was wrong. The Individual produced a letter from the Employee Assistance Program at the facility, stating that approximately one year before the hearing, "DOE requested a decision re [our] determination of [the Individual] as a possible security risk. At that time, based on available information, it was determined that in our opinion [the Individual] did not represent a security risk."(18) This letter does not say whether the Employee Assistance counselors conducted a psychological examination of the Individual, nor does it discuss on what basis the counselors determined that the Individual did not represent a "security risk." Consequently, the letter does not adequately address the security concerns raised by the psychiatrist’s diagnosis.

The Individual conceded that one of the criteria for the disorder, interpersonal exploitativeness, did apply to him, but denied that any of the others did.(19) In addition to his claim that the psychiatrist was prejudiced against him because he had read his personnel file, he implied that he was not truly narcissistic, but appeared that way because of the injustice he felt at being falsely convicted of a felony.(20)

Neither of the Individual’s arguments has merit. The psychiatrist testified that a person who felt a great sense of injustice could exhibit some traits of the narcissistic personality. He felt sure, however, that this was not the case with regard to the Individual. He stated that his diagnosis was based in part on material besides the clinical interview, such as the report of an investigation conducted by the Office of Personnel Management. According to the psychiatrist, there were numerous examples of the Individual’s sense of entitlement. The psychiatrist testified that, in a person who did not suffer from narcissistic personality disorder, the feelings of entitlement would not be as pervasive as they are in the Individual.(21) As for the Individual’s argument that the psychiatrist’s use of his personnel file was invalid, the psychiatrist answered that including the file in his evaluation was standard psychiatric procedure. He explained that "the psychiatric ... evaluation of an individual very often includes collaborative evaluation. Even if [the Individual] were to come by himself and say ... ?I’ve got some questions ... there’s this dispute between [the Individual and the girlfriend],’ I would like to talk to [the girlfriend] to get additional information." (22)

The remaining argument against the psychiatrist’s diagnosis is the Individual’s assertion that he does not suffer from narcissistic personality disorder. The Individual brought eight coworkers to the hearing, all of whom testified that they had not seen the Individual display narcissistic personality disorder. The psychiatrist pointed out, however, that one of the aspects of narcissistic personality disorder is that someone with this condition can be superficially very pleasing and agreeable.(23) Thus, the testimony of the Individual’s friends is inadequate to refute the psychiatrist’s diagnosis. I find therefore that the Individual has not resolved the security concerns under Criterion H raised by the diagnosis of his mental condition.

CONCLUSION

As discussed above, the burden is on the Individual to demonstrate that granting him access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. In this case, the Individual failed to present any evidence that addressed the questions about his eligibility. Much of his presentation revealed anger toward the witnesses who testified at his trial for wiretapping, and toward the psychiatrist. He appeared to be sincerely indignant about what he considered to be an unjust criminal conviction and psychiatric diagnosis. He never provided, however, a satisfactory response to the security concerns raised in the Notification Letter. At the conclusion of the hearing, the Individual’s claims that he did not commit wiretapping and does not have narcissistic personality disorder remained uncorroborated assertions.

The Individual’s record shows two unresolved items of derogatory information - a relatively recent felony conviction for a crime committed while the Individual was a mature adult, and a mental condition for which the Individual has received no treatment. Both the wiretapping conviction and the psychiatric diagnosis support the psychiatrist’s characterization of the Individual as a person who does not play by the rules. I conclude that the Individual lacks the judgment, reliability, and trustworthiness required of persons who hold access authorization, and that he cannot be relied upon to follow security rules and regulations.

In view of the criteria set forth in 10 C.F.R. Part 710, and the testimony and documents in the record, I believe that the derogatory information presented in this case casts substantial doubt as to whether restoring the Individual’s access authorization would not endanger the common defense and would be clearly consistent with the national interest. The substantial doubt has not been resolved by the administrative review process. It is therefore my opinion that the Individual’s access authorization should not be restored.

Warren M. Gray

Hearing Officer

Office of Hearings and Appeals

Date: June 18, 1998

(1) DOE Exhibit 5, Notification Letter.

(2) DOE Exhibit 1, Individual’s Request for Hearing.

(3) The Individual admitted that he installed an adapter on the girlfriend’s telephone line. Tr. 178

(4) DOE Exhibit 6, a summary of the Individual’s trial produced by the appellate court reviewing the conviction.

(5) DOE Exhibit 6.

(6) Transcript of Hearing (Tr.) 194-5.

(7) Tr. 142.

(8) Tr. 194-226.

(9) Tr. 242-45.

(10) Tr. 108-9.

(11) Tr. 113.

(12) Tr. 113-4.

(13) Department Exhibit 4, Report of Consulting Psychiatrist, 2.

(14) Tr. 119.

(15) Tr. 163.

(16) Tr. 117.

(17) Tr. 11.

(18) Individual’s Exhibit 1, Letter from Employee Assistance Program.

(19) Tr. 132; 139-40.

(20) Tr. 145-6; 167.

(21) Tr. 146-7.

(22) Tr. 126-7.

(23) Tr. 122.