Case No. VSO-0209, 27 DOE ¶ 82,778 (H.O. Klurfeld October 29, 1998)

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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 29, 1998

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: June 2, 1998

Case Number: VSO-0209

This Opinion concerns the eligibility of XXXXX (hereinafter referred to as "the Individual") to retain an access authorization 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.” The Department of Energy (DOE) suspended the Individual's access authorization under the provisions of Part 710. This Opinion considers whether, based on the evidence and testimony in this proceeding, the Individual's access authorization should be restored. For the reasons stated below, it is my opinion that the Individual's access authorization should not be restored.

I. BACKGROUND

The events leading to the present proceeding began when the Individual’s employer administered a random drug-screening test to the Individual. Because the Individual tested positive for marijuana use, a Personnel Security Interview (PSI) was conducted with the Individual on February 4, 1998. During the PSI the Individual admitted he had recently used marijuana on one occasion. DOE Exhibit 1 at 6 (hereinafter cited as “PSI Tr.”). Because the PSI failed to resolve the security concerns raised by the Individual's marijuana use, his access authorization was suspended and an administrative review proceeding was initiated. See 10 C.F.R. § 710.9. The DOE then issued a letter notifying the Individual that information the DOE possessed created a substantial doubt concerning his continued eligibility for access authorization (the Notification Letter). The Notification Letter specifies two areas of derogatory information described in 10 C.F.R. § 710.8. First, the Notification Letter alleges that the Individual has trafficked in, sold, transferred, possessed, or experimented with an illicit drug. 10 C.F.R. § 710.8(k) (Criterion K). Second, the Notification Letter charges 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) (Criterion L). In response to the Notification Letter, the Individual filed a request for a hearing. That request was forwarded to the Office of Hearings and Appeals (OHA), and I was appointed the Hearing Officer in this matter.

At the hearing, the DOE presented two witnesses: a DOE Personnel Security Specialist and a counselor employed in the Employee Assistance Program at the facility where the individual works. The Individual testified on his own behalf.

When there is reliable information of a substantially derogatory nature, a question is created as to the individual's eligibility for access authorization. 10 C.F.R. § 710.9(a). The individual must then resolve all questions that have arisen by convincing 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). In the present case, the Individual has not convinced me that restoring his security clearance is clearly in the national interest.

II. FINDINGS OF LAW AND FACT

A. Criterion K

Criterion K covers information about the use of illegal drugs such as marijuana. Involvement with illegal drugs exhibits an unacceptable and disturbing disregard for state and federal laws prohibiting their use. Such disregard for the law raises concerns that the Individual may similarly disregard other laws, including those that protect classified information and special nuclear materials. See Personnel Security Hearing, Case No. VSO-0116, 26 DOE ¶ 82,765 at 85,602 (1997) (citing Personnel Security Hearing, Case No. VSO-0013, 25 DOE ¶ 82,752 at 85,512 (1995)). It is important to note that avoiding illegal drug use is itself a requirement of the DOE's safety and security regulations. Moreover, the use of illegal drugs exhibits a lapse in judgment and maturity. Finally, involvement with illegal drugs may render the user susceptible to blackmail or coercion.

In this case, there is reliable, derogatory information that creates a substantial doubt concerning the Individual's continued eligibility for access authorization. The Individual tested positive for the use of marijuana. The Individual candidly admits the marijuana use that is the basis for the positive drug screen results. Under these circumstances, I need consider only whether the Individual has made a showing of mitigating facts and circumstances sufficient to overcome the DOE's security concerns arising from his use of marijuana. Personnel Security Hearing, Case No. VSO-0102, 26 DOE ¶ 82,763 at 85,587 (1996) (citing Personnel Security Hearing, Case No. VSO-0051, 25 DOE ¶ 82,784 (1995)); Personnel Security Hearing, Case No. VSO-0019, 25 DOE ¶ 82,759 (1995).

In the present case, the Individual has attempted to mitigate his use of marijuana by relating the events surrounding his acquisition and usage of that illegal substance. At the hearing, the Individual testified that approximately five months before the drug test was administered, he went to an art gallery downtown where marijuana joints were being passed out. He was alone at the time and knew no one in the gallery. He took one marijuana cigarette, kept it in his house for approximately five months, and smoked one-half of it sometime before the administration of the drug test. Transcript of Hearing, Case No. VSO-0209, at 14 (hereinafter cited as “Hearing Tr.”). He was alone when he smoked the marijuana and told no one about it. The individual claims that he smoked the marijuana out of curiosity. Hearing Tr. at 14. He has further testified that he regrets smoking marijuana and does not intend to use it ever again. Hearing Tr. at 27. Finally, he testified that he was aware of DOE’s policy toward the use of illegal drugs, but that his curiosity overcame any misgivings he may have had.

The testimony of the Employee Assistance Program counselor supported the individual’s claims. The counselor testified that he is convinced that the Individual’s marijuana use was a one-time event. Hearing Tr. at 43. Based on his experience, the counselor testified that the Individual does not appear to be “gaming.” Hearing Tr. at 49. In explaining this comment, the counselor said he “met a lot of people and [he] was fairly able to tell the ones that really were serious about getting help for whatever the substance abuse and those that were just kind of conning themselves and hoping we would buy into it. So I didn’t feel [the Individual] fit that profile.” Hearing Tr. at 56-57.

The Individual’s testimony at the hearing raised an issue in my mind whether he was being truthful about the events surrounding his use of marijuana. At the hearing, the Individual was able to tell me the precise date on which he started work at the DOE facility. Hearing Tr. at 32. He was also able to tell me the precise date he stopped drinking alcohol. Id. These events occurred a significant time ago. However, he was very hazy about the circumstances surrounding his alleged one-time use of marijuana. The Individual testified that he did not recall the exact date he obtained the marijuana, but that it must have been five months before, in January or February of the year. Hearing Tr. at 16. He also could not recall any details about the art gallery in which he allegedly obtained the marijuana, except for the fact of its general location. He also could not recall the date on which he smoked the marijuana, but that it must have been a couple of weeks before the administration of the drug-screening test. Hearing Tr. at 19.

The Individual’s responses during his PSI were similar to his hearing testimony, but not identical. During the PSI, the Individual stated that he had used marijuana once about two weeks before the administration of the drug screening test. PSI Tr. at 33. He said that he was given a joint about three months earlier, PSI Tr. at 34, although he characterized the time period as five months at the hearing. Hearing Tr. at 16. The remainder of his interview appears to be consistent with his testimony at the hearing.

At the hearing, I expressed my concern about the lack of specificity of the Individual’s memory surrounding his use of marijuana. Hearing Tr. at 32-33. The individual reiterated that he did not recall the date of the one time in his life that he visited an art gallery. Hearing Tr. at 32. And he also did not recall the date on which he smoked marijuana, despite the fact that it was allegedly the only time in his life that he smoked marijuana and the act of smoking was reinforced by the administration of a drug screening test shortly afterwards.

Under these circumstances, I find that the Individual has not resolved the security questions raised by his marijuana use. The lack of specificity contained in his recollection of marijuana use is troubling to me. If the Individual’s account of obtaining and smoking marijuana were accurate, he is logically unable to call any witnesses who might corroborate his testimony, since he did not know anyone at the art gallery where he allegedly obtained the marijuana, he did not tell anyone about it, and he smoked the marijuana alone at his house. Compare Personnel Security Hearing, Case No. VSO-0192, 27 DOE ¶ 82,766, affirmed, OSA (1998). Given the state of the record, I am unable to conclude that the Individual has made a sufficient showing of mitigating facts and circumstances sufficient to overcome DOE’s security concerns.

B. Criterion L

Criterion L refers to information that an individual 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.” 10 C.F.R. § 710.8(l).

The DOE’s security concerns under Criterion L are based largely upon the Individual's use of marijuana despite his knowledge that DOE policy prohibits the use of illegal drugs. Consequently, I find that DOE properly invoked Criterion L in suspending the Individual's clearance. The Individual's statement that his curiosity was strong enough to overcome any reservations he may have had as a result of DOE policy, security briefings, and criminal statutes raises important security concerns.

The Individual has not resolved the security questions raised by his conscious disregard of DOE's and his employer's drug policies. I therefore cannot find that the Individual has resolved the Criterion L security questions raised in the Notification Letter.

III. CONCLUSION

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). I have considered the following factors in rendering this Opinion: the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, including knowledgeable participation; the frequency and recency of the conduct; the Individual's age and maturity at the time of the conduct; the voluntariness of the Individual's participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct, the potential for pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and material factors. See 10 C.F.R. § 710.7(c), § 710.27(a).

For the reasons set forth above, I conclude that the Individual has not shown that he warrants restoration of his access authorization. The DOE has a sufficient basis for invoking Criteria K and L in the present circumstances. Since the Individual has not resolved the DOE’s allegations under Criteria K and L, I conclude that the Individual has not demonstrated that restoring his security clearance would not endanger the common defense and would be clearly consistent with the national interest. Therefore, it is my opinion that the Individual's access authorization should not be restored at this time.

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 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., SW, Washington, D.C. 20585-0107, 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.

Roger Klurfeld

Hearing Officer

Office of Hearings and Appeals

Date: October 29, 1998