Case No. VSO-0232, 27 DOE ¶ 82,788 (H.O. Gray January 8, 1999)
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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.
January 8, 1999
DEPARTMENT OF ENERGY
OFFICE OF HEARINGS AND APPEALS
Hearing Officer's Opinion
Name of Case: Personnel Security Hearing
Date of Filing: September 14, 1998
Case Number: VSO-0232
This Opinion addresses the eligibility of XXXXXXXXX (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 a concern that raises 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 resolved the concern, and that his access authorization should therefore be restored.
The Individual held access authorization at a facility of the Department of Energy (the DOE). Approximately six months before the hearing, the Individual was given a drug test at his work place. He tested positive for marijuana. A security specialist for the DOE then conducted a Personnel Security Interview (PSI) with the Individual to attempt to resolve security concerns raised by the positive drug test.
When the PSI failed to resolve the security concern, the manager of the facility issued a Notification Letter to the Individual. In the Notification Letter, the manager informed the Individual that his access authorization was suspended because the positive drug test created substantial doubt about his continued
eligibility.(1) The Notification Letter identified the positive drug test as derogatory information under the provisions of 10 C.F.R. § 710.8(k) (Criterion K). Criterion K provides that derogatory information includes information that an individual "trafficked in, sold, transferred, possessed, used, or experimented with a drug ... such as marijuana ... except as prescribed or administered by a licensed physician ... or as otherwise authorized by law."
The Individual requested this hearing to attempt to resolve the doubts about his eligibility for access authorization.(2) At the hearing, the DOE presented the testimony of a personnel security specialist. In addition to testifying on his own behalf, the Individual presented the testimony of his wife, his brother, a licensed clinical social worker who served as his substance abuse counselor, three longtime friends, two supervisors, and two persons who were present when he smoked the marijuana.
BACKGROUND
At the hearing, the Individual admitted that he used marijuana just before the positive drug test. He also stated that he first used marijuana on two occasions approximately twenty-five years ago, when he was in college.(3) Except for his marijuana use just before the recent drug test, the Individual denies that he used marijuana since his time in college.(4)
Approximately six months before the hearing, the Individual and his family visited his cousin and her husband at a resort. They all enjoyed a day of boating and water sports with others present at the resort, including two friends of his cousin, and two friends of those friends. In the evening, the Individual's wife and children returned to his cousin's home, where they were staying. The remaining members of the group, including the Individual, gathered on a dock. Two friends of the cousin's friends were in the group.(5) These friends of the cousin's friends began passing around a marijuana cigarette. The Individual took three or four puffs from the marijuana cigarette before returning to his cousin's home.
The Individual returned to work three days after smoking the marijuana cigarette. He did not report his use of marijuana to the local security office. Two days after his return to work, he was given the drug test that indicated his use of marijuana.
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, placing the burden of persuasion on the individual to resolve questions about his eligibility for access authorization is necessary and appropriate.
The regulations provide a list of factors to consider in resolving questions about an Individual's eligibility for access authorization. 10 C.F.R. § 710.7(c). I will analyze the testimony presented at the hearing in light of four factors relevant in this case: the frequency of the conduct in question; the circumstances surrounding the conduct; the likelihood of recurrence; and other relevant and material factors, which in this case is the credibility of the Individual and the witnesses.
The Frequency of the Individual's Use of Marijuana
Throughout the administrative review process, the Individual has maintained that the only time he has used marijuana since he left college was in the incident at the resort described above. His account of this incident was corroborated by witnesses at the hearing, who also supported his assertion that it was an isolated use of marijuana.
The Individual's cousin testified that she has known him since childhood and sees him at gatherings at the resort an average of twelve times a year. The incident in which the Individual used the marijuana was the only gathering at the resort at which she observed illegal drugs being used.(6) She had previously never observed the Individual using marijuana or other illegal drugs, or in a situation where illegal drugs were being used by others.(7) The cousin's husband also testified that he had never seen the Individual use marijuana or other illegal drugs, except during the incident admitted by the Individual.(8)
In addition, the Individual's wife testified that she had never seen him smoke marijuana.(9) Three friends of the Individual also testified that they had never known him to use marijuana or other illegal drugs.(10) Although these friends have known the Individual for varying lengths of time, they have known him collectively from his childhood to the present. All of them have been, at times, frequent social companions of the Individual.
One friend knew the Individual while they were students at the same college. He testified that he observed the Individual smoking marijuana while they were in college two or three times. (11) He noted that the Individual did not seem to enjoy the marijuana.(12) Other than these two or three instances, this friend had never known the Individual to have used marijuana or any other illegal drug.(13)
The Individual's younger brother testified that he had only once heard of the Individual using any illegal drugs. (14) That one instance occurred when the brother was in high school and the Individual was in college. The brother testified that he was then experimenting with marijuana. When the Individual found out, he told his brother that he had tried marijuana twice, that it was "no good," and that he should "get off it."(15)
In addition, the Individual submitted copies of medical records maintained at the facility, with annotations showing that he was given random drug screens approximately twenty-six months, sixty months, and eighty-nine months before the hearing.(16) These were apparently negative for all tested drugs.(17) Nothing in the Individual's security file suggested that he had ever had a positive drug screen before the one that initiated this administrative review.
As we have stated before, a one-time drug use, followed closely by a random drug test, while not inconceivable, is an inherently unlikely coincidence. Personnel Security Hearing, (Case No. VSO- 0189), 27 DOE ¶ 82,765 (1998); 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). In this case, however, I believe the Individual has established that his use of marijuana recorded by the random drug test represents the single, isolated use since his college days. He has produced seven witnesses - his wife, his brother, his cousin, and four friends - who can account for a large portion of the Individual's free time. They have testified convincingly that, barring the one incident, the Individual has not used marijuana or other illegal drugs for the past twenty-five years. I found each of these witnesses to be credible.
Circumstances of the Individual's use of marijuana
The Individual testified that, while he was standing on a dock one evening, some friends of his cousin's friends brought out some marijuana and started passing it around.(18) He maintains that he did not actively seek to use marijuana, but rather that "it was just passed to me."(19) When the marijuana came to the Individual, he described himself as "caught up in the activity. It was all of a sudden, it was there and appeared to me and other people participated and I made a decision to ... try it, and it was a wrong decision."(20) He considers his decision to try the marijuana "a silly mistake, a weak moment. I was just ... going along with the crowd ... everybody was passing [the marijuana] around ... for some reason I said, 'Oh, I'll try it.'"(21)
The Individual's cousin, who was present when the Individual accepted the marijuana, corroborated the Individual's account of the event. She recounted that a group had gathered on the dock and "the next thing you know, someone's passing around a marijuana joint ... it just happened and people [were] just passing it around and taking a smoke or two off of it, and that was about the extent of it. Then we went home."(22) The cousin's husband, who was also present when the marijuana was passed around described the situation similarly, testifying that "there were a bunch of friends of ours and friends of theirs came over to a dock party and we all got together and started partying... [The Individual] had just one puff or maybe two [from the marijuana cigarette]."(23)
I find that the testimony of the Individual's cousin and her husband are consistent with the Individual's description of the marijuana incident. Overall, the testimony of family members must be carefully scrutinized because of a natural bias in favor of a relative. In this case, however, based on my assessment of their credibility and demeanor, I believe the testimony of the Individual's cousin and her husband is trustworthy. Moreover, as the witnesses were permitted to be present in the hearing room only when they were testifying, the Individual's cousin and her husband could not have conformed their statements to the testimony presented by the Individual or other witnesses in the hearing room. Accordingly, I believe that the Individual's cousin and her husband did not simply repeat the Individual's story, but provided a truthful account of the marijuana incident.
While any use of an illegal drug by a person with access authorization is a serious matter, the circumstances of the Individual's use indicate that the use of marijuana was not premeditated and was limited to a few puffs of the marijuana cigarette. He simply accepted a marijuana cigarette and took a few puffs without thinking. Consequently, I believe that the Individual's use of marijuana was an isolated, spontaneous act.
Likelihood of recurrence
The Individual stated that he "was wrong and made a stupid mistake by trying the marijuana."(24) He asserts that he has "totally rehabilitated [himself from] any desire to try marijuana again."(25)
Because of the positive drug test, the Individual's employer required him to see a substance abuse counselor. The counselor is a licensed clinical social worker with experience in dealing with substance abuse. At the time of the hearing, the Individual had seen the counselor six times. The counselor noted that the Individual did not present any symptoms or signs of drug use.(26)
The counselor testified that she thought the Individual's marijuana use was a one-time incident, and an impulsive act.(27) Her assessment of the Individual's use was that "he didn't think it through and he was with ... family and with friends and ... he just made a big mistake."(28)
The counselor found impulsivity and lack of knowledge about drugs as the motives for his acceptance of the marijuana cigarette.(29) She found no indication of problems with impulsivity other than this one incident.(30) In addition, she observed no indications of personality traits or disorders in the Individual that would suggest a general impairment of judgment.(31) In addition, she found no problems that the Individual was having with his wife or family that could contribute to a recurrence of drug use.(32)
The counselor explained that she and the Individual had worked on a relapse prevention plan, focusing on drug education and on what to do in a group setting where drugs are being used.(33) She noted that the Individual did not understand a lot about drugs when he began his sessions with her.(34) However, she described how the Individual had gone on his own initiative to the library to obtain information about marijuana and other drugs, and she commented that she did not usually see such initiative from her clients.(35)
The counselor believes that the Individual has demonstrated a commitment to avoid any drug use in the future.(36) She notes that there are no indications that the Individual is now using marijuana or other illegal drugs, or that he is having problems in other areas of his life.(37) She testified that she does not think the Individual would use drugs if he were placed today in a group setting similar to the one in which he smoked the marijuana.(38)
I found the counselor's testimony to be persuasive. She was familiar with the details of the Individual's history and treatment, and seems to have done a thorough analysis of the Individual's use of marijuana. I concur with her evaluation that the Individual's use of marijuana represents nothing more than a momentary lack of judgment based on impulsiveness and a lack of understanding about the seriousness of marijuana use. I also find persuasive her assessment that the Individual has no underlying personality traits that would suggest an inclination to substance abuse. In addition, I find persuasive the counselor's description of how the Individual has worked diligently to educate himself on the dangers of drug use and on techniques of coping with peer pressure to use drugs. The Individual's efforts lend credence to his stated intention to avoid using drugs. I therefore find trustworthy the Individual's assurance that he will not use marijuana in the future.
Credibility of the Individual and witnesses
In assessing the Individual's honesty, the counselor observed that he "didn't seem to be hiding anything. He wanted to be ... above board and to be honest about everything, and I ... sensed that was really true."(39) Similarly, the personnel security specialist described the Individual as "very cooperative during the [personnel security] interview" and felt that he had been honest with her.(40) It is also my impression that the Individual was open and honest in his testimony at the hearing. In addition, I felt that his witnesses were open and honest in their testimony. I thus found the Individual's assertions about the circumstances and extent of his drug use to be credible.
CONCLUSION
The two critical issues in this case are the extent of the Individual's use of marijuana, and the credibility of his promise not to use it again.
The Individual claimed that his use of marijuana was an isolated event. The testimony of seven credible witnesses, who were well acquainted with the Individual's social life, corroborated this claim. In addition, the Individual brought forward eyewitnesses to his use of marijuana, who corroborated his assertion that his involvement was limited to passively accepting an unexpected marijuana cigarette handed to him, and taking a few puffs.
I believe that the Individual's use of marijuana represents a serious lapse of judgement that is inconsistent with the qualifications for persons who hold access authorization. However, in light of the credible and corroborated testimony about the Individual's avoidance of drugs before this incident, and the counselor's assessment of the Individual's personality, I believe that the lapse of judgment was uncharacteristic. Furthermore, I believe that the Individual's use of marijuana was an impulsive action that he is unlikely to repeat. Based on the testimony showing that the marijuana use was an isolated event, and that the Individual has worked diligently in his counseling program to avoid future marijuana use, I believe that his assurance that he will not use marijuana is trustworthy.
Therefore, in view of the criteria set forth in 10 C.F.R. Part 710, the substantial doubt about the Individual's eligibility for access authorization has been resolved by the administrative review process. It is therefore my opinion that the Individual’s access authorization should be restored.
Warren M. Gray
Hearing Officer
Office of Hearings and Appeals
Date: January 8m, 1999
(1) Notification Letter.
(2) Individual’s Request for Hearing.
(3) Individual's Request for Hearing; PSI, 14-16; Counselor’s Notes, 9. The Individual's testimony at the hearing about his drug use is consistent with his statements to the personnel security specialist and to his drug counselor.
(4) Personnel Security Interview (PSI), 11-13.
(5) Individual's Request for Hearing; PSI, 15, 17, 19; Counselor's Notes, 9.
(6) Tr. 26.
(7) Tr. 18, 22.
(8) Tr. 102-105.
(9) Tr. 28.
(10) Tr. 66; 70; 83; 84; 85; 100.
(11) Tr. 74.
(12) Tr. 76.
(13) Tr. 75, 80.
(14) Tr. 87-88; 90.
(15) Tr. 87.
(16) Individual's Exhibit 1.
(17) According to the policy of the facility, the full records of drug screens are destroyed after three years. The Individual was also given a random drug screen approximately two months before the hearing. This test was negative for all tested drugs.
(18) Tr. 9.
(19) PSI 17.
(20) Tr. 11.
(21) PSI 19.
(22) Tr. 19.
(23) Tr. 103-04.
(24) Tr. 5.
(25) Tr. 6.
(26) Tr. 33.
(27) Tr. 34.
(28) Tr. 39.
(29) Tr. 44, 59.
(30) Tr. 52-53.
(31) Tr. 54.
(32) Tr. 34.
(33) Tr. 58-9.
(34) Tr. 44.
(35) Tr. 33.
(36) Tr. 33.
(37) Tr. 50.
(38) Tr. 59-60.
(39) Tr. 43.
(40) Tr. 122-23.