Case No. VSO-0216, 27 DOE ¶ 82,781 (H.O. Brown November 16, 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.

November 16, 1998

DECISION AND ORDER

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Case Name: Personnel Security Hearing

Date of Filing: June 30, 1998

Case Number: VSO-0216

This Opinion concerns the eligibility of XXXXXXXXXX (hereinafter referred to as "the individual") to hold 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."(1) A Department of Energy Operations Office (DOE) suspended the individual's access authorization under the provisions of Part 710. This Opinion considers whether, on the basis of the evidence and testimony presented in this proceeding, the individual's access authorization should be restored. As set forth in this Opinion, I have determined that the individual's security clearance should not be restored.

I. Background

The provisions of 10 C.F.R. Part 710 govern the eligibility of individuals who are employed by or are applicants for employment with DOE contractors, agents, DOE access permittees, and other persons designated by the Secretary of Energy for access to classified matter or special nuclear material. Part 710 generally provides that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all 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).

In this instance, the DOE granted the individual an access authorization as a condition of his employment with a DOE contractor. However, on June 12, 1998, DOE initiated formal administrative review proceedings by the issuance of a Notification Letter informing the individual that his access authorization would be suspended pending the resolution of certain derogatory information that created substantial doubt concerning his continued eligibility. The specific derogatory information received by DOE in support of its determination is described in Enclosure (2) accompanying the Notification Letter.

In Enclosure 2 of the Notification Letter, the DOE states that the derogatory information regarding the individual falls within the purview of the disqualifying criteria set forth in 10 C.F.R. § 710.8, specifically section 710.8(k), finding that the individual "[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, amphetamines, 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." The basis for this finding is that pursuant to a random drug screening performed by his employer, a urine specimen provided by the individual on February 5, 1998, was determined to be positive for the presence of cocaine metabolite with results exceeding 300 ng/ml.

In a letter received by the DOE Office of Hearings and Appeals (OHA) on June 30, 1998, the individual exercised his right under Part 710 to request a hearing in this matter. 10 C.F.R. § 710.21(b). On July 1, 1998, I was appointed as Hearing Officer in this case. After conferring with the individual and the appointed DOE Counsel, 10 C.F.R. § 710.24, I set a hearing date. At the hearing, the DOE Counsel called as witnesses: (1) the individual; (2) a DOE Personnel Security Specialist; (3) a Human Resources Specialist employed by the contractor; (4) the contractor official (Drug Testing Official) responsible for administering the individual’s random drug test; and (5) the drug toxicology expert (Drug Toxicology Expert) who supervised the forensic laboratory testing of the individual’s urine sample. The individual elected to call as witnesses: (1) his wife; (2) two supervisory co-workers (Co-Workers); and (3) his Employee Assistance Program counselor (EAP Counselor). The transcript taken at the hearing will be hereinafter cited as "Tr.". Various documents that were submitted by the DOE Counsel and the individual during this proceeding constitute exhibits to the hearing transcript and will be cited as "Exh.".

II. Analysis

A DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal matter, in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. See Personnel Security Hearing, Case No. VSO-0078, 25 DOE ¶ 82,802 (1996). In this type of case, we are dealing with a different standard designed to protect national security interests. 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 Dep't 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).

I have thoroughly considered the record of this proceeding, including the submissions of the parties, the evidence presented and the testimony of the witnesses at the hearing convened in this matter. In resolving the question of the individual's eligibility for access authorization, I have been guided by the applicable factors prescribed in 10 C.F.R. § 710.7(c): the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the voluntariness of the 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 continuance or recurrence; and other relevant and material factors. After due deliberation, it is my opinion that the individual's access authorization should not be restored since I am unable to conclude that such restoration would not endanger the common defense and security or would be clearly consistent with the national interest. 10 C.F.R. § 710.27(a). The specific findings that I make in support of this determination are discussed below.

A. Findings

The individual is XXX years old and is employed by the DOE contractor as a foreman, having begun employment with a predecessor DOE contractor in 1975 in an entry level position. As a condition of his employment, the individual is subject to random drug testing under the Personnel Security Assurance Program (PSAP) instituted by the DOE contractor in 1991. The determination by DOE to suspend the individual’s security clearance was based upon its finding that the individual had tested positive for cocaine metabolite in a random drug test conducted by the DOE contractor on February 5, 1998. The individual had tested negative for the presence of any illegal drug in six previous random drug tests conducted since 1991. Exh. 12; Tr. at 65.

Since being informed of the positive drug test result, the individual has maintained that he has never knowingly and willfully used cocaine or any other illegal substance. Tr. at 34. However, during a Personnel Security Interview (PSI) conducted with the individual on April 16, 1998, he stated that on the evening of Sunday, February 1, 1998, four days prior to the date of his positive drug test, February 5, 1998, he was present at a gathering of friends at which cocaine was being used. Exh. 7 (Transcript of PSI) at 24-25. Notwithstanding, the individual asserts that he only drank several beers at the gathering and did not knowingly consume cocaine although it was offered to him two or three times. Exh. 7 at 26, 48; Tr. at 36. The individual has no explanation for the positive drug test result other than that one of the friends must have put cocaine in his beer when he left his beer unattended to use the bathroom. Exh. 7 at 51; Tr. at 35. According to the individual, he did not feel anything unusual at the gathering or later upon returning home to signal that he unknowingly ingested cocaine. Tr. at 37.

Despite the individual’s insistence that he never intentionally used cocaine, the individual was required to undergo drug treatment and counseling under his employer’s drug rehabilitation program, which is mandatory when an employee receives a positive drug test result. Exh. 13. This program includes 90 days of attendance at Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) sessions, coupled with counseling sessions with the contractor’s Employee Assistance Program (EAP) Counselor once every two weeks for the first 90 days, adjusted as need thereafter. The individual has been cooperative and fulfilled all aspects of the contractor’s drug treatment program. Tr. at 47, 72.

B. Illegal Drug Use

As stated by the Personnel Security Specialist during the hearing, illegal drug use, in this case cocaine, raises a security concern for the DOE, for it reflects a deliberate disregard for state and federal laws prohibiting such use. Tr. at 56-57. "The drug user puts his own judgment above the requirements of the laws, by picking and choosing which laws he will obey or not obey. It is the further concern of the DOE that the drug abuser might also pick and choose which DOE security regulations he will obey or not obey with respect to protection of classified information." Personnel Security Hearing, Case No. VSO-0013, 25 DOE ¶ 82,752 at 85,512 (1995). In addition, a person who uses cocaine or other illegal drug may possibly open himself to blackmail or other forms of coercion, because he may want to conceal his use. Tr. at 56. It has also been noted that "any drug usage while the individual possesses a [security] clearance and is aware of the DOE's policy of absolute abstention demonstrates poor judgment." Personnel Security Hearing, Case No. VSO-0023, 25 DOE ¶ 82,761 at 85,579 (1995).

Thus, in cases where there is evidence of a positive drug test, an affected individual must provide convincing evidence mitigating the security concerns related to the illegal drug use. 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 ¶ 82,579 (1995). “It is therefore the obligation of the individual to offer an explanation for the positive drug test that mitigates the DOE’s security concerns and to establish the truthfulness of the explanation.” Personnel Security Review, 26 DOE ¶ 83,001 at 86,506 (1996); see also Personnel Security Hearing, 27 DOE ¶ 82,766 at 85,597 (1998). For the reasons below, I have determined that the individual has failed to carry this burden in this case. More specifically, the individual has failed to convince me that he did not knowingly use cocaine as he claims.

I initially find that the drug testing procedures were properly adhered to in rendering the positive result with respect to the urine sample taken from the individual on February 5, 1998. The individual does not specifically challenge the accuracy of the drug test. Moreover, the likelihood of a false test result logically diminishes under these circumstances where the individual concedes he was present at a gathering at which cocaine was being used just four days preceding the drug test. Nonetheless, in view of the individual’s insistence that he never knowingly used cocaine, I solicited testimony at the hearing concerning the drug test procedures as well as the accuracy of the drug test result. The contractor Drug Testing Official described the urine sampling and labeling procedures, and the chain of custody of each sample taken before being sent to the laboratory for testing. Tr. at 86-93; Exh. 14 (PSAP Drug Test Collection Procedures). The Drug Testing Official further explained that in the case of the individual who is covered by Department of Transportation (DOT) regulations as a licensed commercial vehicle operator, the urine sample was split for corroborative testing in the event of a positive result. Tr. at 90-91. The Drug Testing Official concluded that based upon his review of the required chain of custody form checklist, all procedures were properly followed with respect to the taking, labeling and transmittal of the individual’s urine sample. Tr. at 97, 106.

The Drug Toxicology Expert then rendered substantial detailed testimony regarding the actual forensic laboratory testing of the individual’s sample. The Drug Toxicology Expert stated that after ensuring adherence with all labeling and chain of custody requirements, a portion of the sample was first screened for the presence of any illicit substance using a drug immunoassay test. Tr. at 116-17; Exh. 9 (Laboratory Litigation Support Document). After a positive result was yielded by this initial screening test, the sample was then specifically tested for the presence of cocaine metabolite using the highly precise and sophisticated gas chromatograph/mass spectrometry (GC/MS) test. Tr. at 123-24. The testing equipment was thoroughly checked and calibrated prior to testing the individual’s urine sample. Tr. at 120-23. Finally, as a safeguard to ensure the accuracy of the test result, the individual’s split sample was then sent to another independent laboratory which also tested the individual’s urine sample as positive for the presence of cocaine metabolite. Tr. at 103-04, 132.

Based upon the foregoing, I find that the individual’s sample was properly handled and accurately tested for the presence of cocaine. Consequently, I find that DOE properly invoked 10 C.F.R. § 710.8(k) in suspending the individual’s access authorization. I now turn to the evidence presented in the record that leads me to conclude that the individual has not been truthful in explaining the positive drug test result.

First, the individual has offered somewhat differing accounts of the circumstances under which cocaine was used and offered to him at the gathering of friends. According to the individual, this gathering took place at a roadside area nearby a river within a few miles of his home, where community acquaintances, including the individual, sometimes pull up in their cars to socialize. The individual states that he was offered cocaine over the course of the evening while he was there drinking beer for a few hours. At the hearing, however, the individual testified that he did not actually observe the cocaine being ingested, stating: “They would go over to the truck and do it over there.” Tr. at 43.(2) This assertion is at odds with the depiction relayed by the individual during his PSI:

Q: Okay. Did you see the cocaine?

A: Uh, yes I did.

Q: Okay. What did it look like? Can you describe it for me?

A: Uh, its a white powder - -

. . .

Q: And how is it that they were ingesting it?

A: They were snorting it.

Exh. 7 at 24-25.

The individual also omitted vital information in revealing the events which transpired at the roadside gathering to his EAP Counselor. In a letter to DOE security dated April 30, 1998, the EAP Counselor stated concerning the individual: “When confronted with his test results and the confirmation, he remains steadfast that he has never used. He acknowledges being with friends and drinking but to his knowledge there were no drugs being openly used.” Exh. 3 at 1. At the hearing, I questioned the EAP Counselor regarding this statement. The EAP Counselor affirmed that based upon the information the individual had given him, the individual was unaware of any drugs being used at the roadside gathering: “I did not hear him telling me that he was aware of other people openly using drugs.” Tr. at 188. It is difficult to attribute to mere oversight the individual’s withholding of information, arguably critical to the EAP Counselor’s assessment, that not only was the individual aware of cocaine being used at the gathering but he was in fact offered the drug.

Perhaps more telling, the test results themselves also cast some doubt upon the individual’s story. The individual maintains that one of the friends must have slipped cocaine into his beer, although he does not recall his beer tasting different and he felt no effect either during the gathering or upon returning home. Tr. at 37. The Drug Toxicology Expert testified, however, that this is highly unlikely in view of the drug test reading rendered by the GC/MS test of a little over 1000 ng/ml of cocaine metabolite present in the individual’s urine sample, well above the 300 ng/ml cutoff for a positive result. The Drug Toxicology Expert testified that in order to render this test result in a sample taken on Thursday after ingesting cocaine on Sunday, the individual would had to have ingested “a significant amount” of cocaine on Sunday, based upon the typical rate of metabolism and excretion from the body after ingestion. Tr. at 134-35. More pertinent, the Drug Toxicology Expert testified on the basis of his substantial experience in the field that the cocaine dose “would be beyond the amount that a person could ingest without knowing it.” Tr. at 135. The Drug Toxicology Expert further testified that the effect of this amount of cocaine would not have been masked by the individual’s use of alcohol on that night. In this regard, he stated that while intoxication may have impaired the ability to taste the cocaine which also has a numbing effect upon the taste buds, the alcohol would not overcome the bodily sensation and increased heart rate induced by the amount of cocaine required to produce the high level result on a drug test taken four days later. Tr. at 136.(3)

Finally, the individual has failed to produce a witness to corroborate his version of the events which transpired at the roadside gathering. During the prehearing conference calls conducted in this proceeding, this Hearing Officer and the DOE Counsel encouraged the individual to produce as a witness at least one of the persons present at the gathering to lend credence to the individual’s account that he did not accept cocaine when it was offered to him.(4) Tr. at 40, 42; Memorandum of Telephone Conversation, Case No. VSO-0216, August 19, 1998. Yet the individual has repeatedly declined to call any of the friends that were present. Such testimony may have proved to be of great weight under these circumstance where other factors cast doubt upon the credibility of the individual’s story. See, e.g., Personnel Security Hearing, Case No. VSO-0116, 26 DOE ¶ 82,765 (1997) (clearance restored where individual corroborates story of one-time marijuana use through testimony of friend present at party); Personnel Security Hearing, Case No. VSO-0102, 26 DOE ¶ 82,763 (1996) (clearance denied where individual refuses to call witness to corroborate story of isolated marijuana use on fishing trip).

Indeed, the individual’s interactions with these friends also gives me pause for concern. Although under the individual’s explanation for the positive drug test, one or more of these friends surreptitously placed cocaine in his beer causing him to ingest the drug against his will, and thereby put his security clearance and his job in jeopardy. Yet, the individual has never confronted them with this matter. The individual states that he has seen these friends since that time and has spoken to them, but he has never inquired about the events on the night of the roadside gathering. Tr. at 48; Exh. 7 at 53.(5) Moreover, as pointed out by the Personnel Security Specialist, the fact that the individual would choose to remain at a gathering where cocaine was being used, and offered to him several times over the course of the evening, reflects poor judgment and itself raises a security concern in DOE’s view. Tr. at 57-58. The individual claims that he was unaware that there existed a possibility that he could be arrested simply by being in a place where illegal drugs were being dispensed. Tr. at 36.

For these reasons, I conclude that the individual has failed to establish the truthfulness of his explanation for the presence of cocaine metabolite in his urine sample. I now examine whether the individual has presented other mitigating factors sufficient to overcome the legitimate security concerns of DOE incident to the individual’s positive drug test.

C. Mitigating Factors

Setting aside the issue of whether the individual intentionally consumed cocaine, I am persuaded that the individual’s cocaine use was an isolated occurrence. As noted above, the record shows that the individual tested negative for the presence of any illegal drug in six random drug tests conducted since 1991, prior to receiving the positive result in the drug test conducted on February 5, 1998. Exh. 12; Tr. at 65. Other factors further lead to me conclude that the individual’s drug use was at most experimental.

First, the individual has an excellent work record and the respect of his superiors as a man who is honest, reliable and trustworthy. Both of the supervisory Co-Workers stated that they were very surprised when they were informed that the individual had received a positive drug test. Tr. at 155, 161. The Human Resources Specialist who testified on behalf of the contractor similarly described the individual as a valuable employee, noting that individual had worked himself up from an entry level position to foreman. Tr. at 63. The individual’s employee records show that during that time the individual has received ten letters of commendation, with no disciplinary actions in his file. Tr. at 64; Exh. 12.

There is also consistent testimony in the record that the individual is a good family man with a stable home environment and lifestyle. The individual’s wife testified that she has never known the individual to use drugs in their 24 years of marriage, that the individual is a devoted husband and father, and that the individual has also assumed responsibility for caring for his invalid mother. Tr. at 21-26. One of the Co- Workers, who has known the individual for 26 years, also described the individual as a devoted family man. Tr. at 160-61, 164. The individual is also known to be active in his church and other community organizations. Tr. at 64.

Finally, the EAP Counselor was strong in his opinion based upon his knowledge of the individual after many sessions that the individual does not have a drug problem. Tr. at 185. According to the EAP Counselor, the individual does not fit the profile of a drug user, citing the individual’s active family involvement. Tr. at 184. The EAP Counselor believes that the individual is being candid when he states that he has never knowingly used illegal drugs. According to the EAP Counselor: “I’ve not detected anything that would cause me to believe that he was being dishonest with me.” Tr. at 184.(6) The EAP Counselor further stated that the individual has been cooperative in fulfilling all aspects of the required treatment program, although he believes in the case of the individual the program was not actually required in terms of reformation or rehabilitation. Tr. at 188-89. The EAP Counselor intends to complete his sessions with the individual merely to fulfill DOT requirements so the individual can return to work. Tr. at 185.

All of this information is highly favorable in support of restoring the individual’s access authorization. Nonetheless, I cannot find that the individual has overcome the security concerns of DOE stemming from his positive drug test while I am yet unsatisfied that the individual has provided a truthful explanation for the high level presence of cocaine metabolite in his urine sample. As we previously have noted, a one-time only drug use followed in close proximity by a random drug test, while not inconceivable, is inherently unlikely. Personnel Security Hearing, Case No. VSO-0085, 26 DOE ¶ 82,751 at 85,507 (1996); Personnel Security Hearing, Case No. VSO-0094, 26 DOE ¶ 82,753 at 85,515 (1996). Thus, in any case, an individual’s explanation warrants careful scrutiny because the existence of a positive drug test raises the possibility that the individual has used drugs at other times. Personnel Security Hearing, Case No. VSO-0116, 26 DOE ¶ 82,765 (1997). In this case, I find that the individual’s explanation fails to withstand reasonable scrutiny. Consequently, I am unable to find at this time that the individual is reformed with regard to his use of cocaine, and coercion or blackmail at the hands of those who may have knowledge of the individual’s cocaine use remains a distinct possibility. The individual’s failure to provide a plausible explanation for the positive drug test leaves the DOE’s security concerns essentially unabated.

III. Conclusion

As explained in this Opinion, I find that DOE properly invoked 10 C.F.R. § 710.8(k) in suspending the individual's access authorization. It is my opinion that the individual "[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, amphetamines, 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). Moreover, I find that the individual has failed to sufficiently mitigate the security concerns of DOE relating to his positive drug test result. I therefore cannot find that restoring the individual's access authorization at this time would not endanger the common defense and security and would be consistent with the national interest. Accordingly, I find 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 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 where 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

Fred L. Brown

Hearing Officer

Office of Hearings and Appeals

Date: November 16, 1998

(1) 1/ An access authorization is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will referred to variously in this Opinion as an access authorization or security clearance.

(2)To clarify, I inquired about this and other instances in which the individual stated that he was offered but did not accept cocaine:

Q:And in those circumstances and in this circumstance, you did not actually observe it-

A:Right.

Q:- - being used?

A:Right.

Tr. at 45.

(3)Indeed, the Drug Toxicology Expert noted that many cocaine users consume alcohol in conjunction with their cocaine use. Tr. at 136. In the case of the individual who claims that he has never used cocaine before, the effect would be even more apparent given the likely amount of cocaine he ingested, which the Drug Toxicology Expert described as “more than just a recreational dose.” Id.

(4)This would not necessitate calling a person who partook of the cocaine since, according to the individual during his PSI, “not everybody was sharing it” of the “about five guys that were there.” Exh. 7 at 26.

(5)Indeed, after all that has happened, the individual has not disowned associating with these friends. At the hearing, I asked the individual about his intentions regarding the people he associated with on that night. The individual responded: “Well, my intention is maybe I could sit down and talk to them and have a nice conversation with them - - but that’s the intent . . . as soon as something else starts to happen, I guarantee I’ll just pick up myself and leave.” Tr. at 168-69.

(6)The EAP Counselor discounts the information revealed to him during at the hearing, discussed above, that the individual had failed to inform him that drugs were openly used and offered to the individual at the roadside gathering. Exh. 3. Interestingly, as part of the individual’s treatment program, the individual was referred to a licensed clinical psychologist who reported that the individual had no psychological disorders, but: “[The individual] is somewhat vague in response to historical questions. I was not able to determine whether the vagueness resulted from memory difficulties or evasion.” Exh. 15 at 1. The EAP Counselor maintains, however, that the individual is not evasive but it is his “manner of interacting” that “may have led to some of the misunderstandings that we had early in the case.” Tr. at 191-92.