Case No. VSO-0238, 27 DOE ¶ 82,796 (H.O. Tao March 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.

March 8, 1999

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer’s Opinion

Case Name: Personnel Security Hearing

Date of Filing:October 1, 1998

Case Number: VSO-0238

This Opinion concerns the eligibility of XXXXXXXXXXXX (hereinafter "the individual") to retain his 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)

I. Background

The individual is an employee of a Department of Energy (DOE) contractor. As a condition of his employment, the DOE and the contractor require that the individual maintain a security clearance. Following a DOE Office of Inspector General (OIG) investigation into allegations that the individual submitted fraudulent travel vouchers while formerly employed with another DOE contractor, the local DOE Security office (DOE Security) conducted a Personnel Security Interview (PSI) with the individual. DOE Security determined that derogatory information existed that created questions regarding the individual’s continued eligibility for access authorization. Accordingly, a DOE official suspended the individual’s access authorization.

On August 31, 1998, the DOE official informed the individual of the suspension of his access authorization in a letter that set forth in detail DOE Security’s concerns. I will hereinafter refer to this as the Notification Letter. In accordance with 10 C.F.R. § 710.21, the Notification Letter included a statement of derogatory information. Specifically, the Letter included information described in 10 C.F.R. § 710.8(l). The Notification Letter also informed the individual that he was entitled to a hearing before a Hearing Officer to resolve the substantial doubt regarding his continued eligibility for access authorization.

The individual responded to the Notification Letter by requesting a hearing. A DOE official forwarded the individual’s request to the Office of Hearings and Appeals (OHA). Upon receiving the individual’s request, the Director of the OHA appointed me the Hearing Officer in this matter. Since issues arising out of settlement negotiations between the individual and his former employer potentially affected the individual's case before the OHA, the Director of the OHA allowed an extension of the hearing date beyond the regulatory deadline to provide additional time for the parties to complete the settlement. In accordance with 10 C.F.R. § 710.25(f), I conducted a prehearing telephone conference with the parties and convened the hearing eight days later. DOE Security called the following witnesses at the hearing: a security specialist and one of the individual’s supervisors. The security specialist testified regarding DOE Security’s concerns regarding the individual. The individual’s supervisor testified regarding the individual’s job duties, performance and reliability. The individual testified and presented the following four additional witnesses at the hearing: three coworkers and a former supervisor. All these witnesses testified regarding the individual’s job duties and reliability.

II. Statement of Derogatory Information

As indicated above, the Notification Letter issued to the individual included a statement of derogatory information in the possession of the DOE that created a substantial doubt as to the individual’s continued eligibility to hold a security clearance. On the basis of that derogatory information, the DOE Official believes 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." See 10 C.F.R. § 710.8(l) (Criterion L). Specifically, the Notification Letter states the following: (1) the individual submitted 23 fraudulent travel vouchers and received at least $8,868.35 to which he was not entitled; (2) the individual stole a government- owned laptop computer valued at $2,500; (3) the individual received $481.00 as a reimbursement for the unused portion of his monthly utility deposit to which he was not entitled; (4) during the PSI, the individual admitted that he owed his former employer at least $3,000 for payments he received from submitting incorrect travel vouchers and claiming mileage for use of his personal vehicle; (5) the individual made no attempt to make restitution for the money he owed his former employer; and (6) the individual did not return a laptop computer at his former employer's request, but waited until OIG agents recovered it from him.

The Notification Letter based most of its allegations on an OIG audit report alleging that the individual violated several of his former employer's travel rules. See DOE Exhibit 7. The report includes the following allegations: (1) since the individual's management did not place the individual on an "off-site assignment" status, he was in violation of company policy; (2) the individual received excessive reimbursements for meals, incidental expenses and mileage expenses; (3) the individual provided a false explanation regarding his work location to receive a higher reimbursement amount; (4) the individual filed duplicate claims for expenses; (5) the individual claimed business expenses on non-business days and vacation days; (6) the individual overestimated his mileage expenses; and (7) the individual did not follow company policy concerning the signing of travel expense reports. Id. Prior to the hearing, the parties stipulated that the OIG's audit report, detailing the travel voucher violations, would be accepted into the record as the report the OIG completed on May 12, 1998. However, the individual disputes several of the findings in the OIG report. Both parties also stipulated that neither party would call witnesses at the hearing to testify on disputed issues in the OIG report. Hearing Transcript at 16-17 (hereinafter referred to as Tr.)

III. Analysis

The criteria for determining eligibility for security clearances set forth at Part 710 dictate that a Hearing Officer must undertake a careful review of all of the relevant facts and circumstances and make a “common-sense judgment . . . after consideration of all the relevant information.” 10 C.F.R. § 710.7(a). I must consider all information, favorable or unfavorable, that has a bearing on the question of whether restoring the individual’s security clearance would compromise national security concerns. Id. Specifically, the regulations compel me to consider the nature, extent, and seriousness of the individual’s conduct; the circumstances surrounding his conduct; the frequency and recency of the conduct; the age and maturity of the individual at the time of the conduct; the voluntariness of participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct; the individual’s potential for being susceptible to pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence of the conduct; and any other relevant and material factors. 10 C.F.R. § 710.7(c). Although it is impossible to predict with absolute certainty an individual’s future behavior, as the Hearing Officer, I am directed to make a predictive assessment. Finally, I note that it is incumbent upon the individual to demonstrate 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. § 710.7(a). After careful consideration of these factors and all the evidence in the record in this proceeding, I find that the individual has not made this showing. Thus, I must recommend that the DOE not restore the individual’s clearance.

The individual stated at the hearing that, while employed by another DOE contractor several years ago, he submitted incorrect travel vouchers over many months. Tr. 108. The individual contends that he made mistakes with complex travel rules, but that these were not intentional mistakes. Id. at 106, 108. He states that until the day his former employer audited him, no one ever told him he filled out his travel vouchers incorrectly. Id. at 104. Furthermore, the individual acknowledged at the hearing that he did not return a laptop computer for several years from the date of his resignation, when OIG agents recovered it from him. Tr. at 164-166.

As a consequence of submitting incorrect travel vouchers, the individual's former employer forced him to resign from his job and withheld the individual's final paycheck. Tr. at 116, 161; DOE Exhibit 7 at p.2. The individual states that, before his employer forced him to resign, he had sent a letter to his employer disputing the $9,368.35 his employer alleged that he owed them for overpayments related to his incorrect travel vouchers. Tr. at 143; DOE Exhibit 7.(2) In this letter, the individual contended that he owed his former employer only $3,000 to $3,500 rather than $9,368.35. Id. Following the individual's resignation, the individual did not make restitution for these overpayments until two days before the hearing, more than five years from the date of his resignation.

At the hearing, the individual entered a signed "Settlement and Release Agreement" into the record. Individual's Exhibit 1D. This agreement resolved the monetary disagreement the individual had with his former employer. Specifically, the individual agreed to pay his former employer $6,500 to release him from a lawsuit his former employer had filed against him. Id. The individual contends that since he and his former employer have resolved their monetary dispute, he has sufficiently demonstrated that he is honest, reliable and trustworthy pursuant to Criterion L. Tr. at 159. Also at the hearing, several of the individual's coworkers and a supervisor stated that they believe the individual is honest or trustworthy. Tr. at 28, 79, 86, 92, and 125.

As an initial matter, I will consider the Notification Letter allegation that the individual intended to deceive his former employer and benefit from the incorrect travel vouchers. Several facts shed light on this issue. First, the individual has readily and consistently acknowledged that he made mistakes in filling out his travel vouchers. Tr. at 106, 108. Second, several of the witnesses testified that the individual's former employer did not provide any training in how to fill out travel vouchers. Tr. at 94, 103, 126. Finally, the individual's former supervisor testified that the individual's former employer's travel rules were complex. Tr. at 133. While I remain somewhat suspicious of the individual's motives concerning his numerous incorrectly filled out travel vouchers, I believe that the individual may have repeated many of the same mistakes in filling out his travel vouchers. Furthermore, since the individual's former employer's complex travel system likely also contributed to the individual's misunderstanding of the travel rules, I believe that the individual probably acted in good faith when he filled out his travel vouchers. (3)

However, while I give the individual the benefit of the doubt regarding his intent in filling out the travel vouchers, I believe the individual acted negligently. Several examples demonstrate the individual's negligence. First, the individual has admitted that he made mistakes such as claiming mileage expenses for reimbursement from two locations during the same period of time. Tr. at 108. Second, the individual stated that when he was unavailable, he allowed his secretary to sign his name to the travel vouchers. DOE Exhibit 7.(4) Finally, the OIG report indicates that the individual stated that he did not always scrutinize his expense reports before signing and submitting them. Id. All of these examples underscore the individual's irresponsible behavior that resulted in his accumulating thousands of dollars in overpayments from his former employer.

As stated above, the individual contends that since he and his former employer have resolved their monetary dispute, he has sufficiently demonstrated that he is honest, reliable and trustworthy pursuant to Criterion L. Simply because the individual has finally resolved his longstanding dispute with his former employer has not eliminated my concerns regarding Criterion L. The individual's act of restitution two days before the hearing does not change important facts concerning the individual's behavior that occurred over several years. These facts demonstrate that the individual did not return the overpayments until he was forced to do so.

The individual states that he signed the settlement agreement because it finally brought closure to the issue. Tr. at 163-164. However, I do not believe that closure was ever possible, until recently, because the individual did not attempt to resolve the dispute following his resignation, despite having ample opportunities over the years to do so. This dispute was resolved only after the individual's former employer sued the individual and brought this matter to the attention of the OIG. The individual's only prior attempt to resolve this dispute occurred before his resignation when he wrote a letter to his former employer contesting the amount his former employer claimed he owed. Even if I believe that the individual made honest mistakes in filling out his travel vouchers, I find that the individual's inaction over several years regarding his acknowledged debt shows that the individual was irresponsible and that he only pursued the settlement agreement because his current employment was being threatened.

Furthermore, the individual's procrastination in returning the laptop computer also demonstrates that the individual is unreliable. The individual acknowledged that his former employer requested that he return the laptop computer via collect freight charges, but that he returned it more than two years later only after OIG agents came knocking on his door. Tr. at 165; DOE Exhibit 7. While procrastination in itself is not "unusual conduct" pursuant to Criterion L, I find that the individual's delay in returning the laptop computer and in resolving his debts serve to highlight the individual's indifference and disregard for a financial obligation over several years.

The individual acknowledged that he was angry at his former employer because of the way they forced him to resign. Tr. at 166. However, I do not believe that these feelings excuse the individual from failing to pay back thousands of dollars that he acknowledged he owed, and returning the laptop computer in a timely fashion. Accordingly, I find that the individual's negligent behavior in filling out his travel vouchers, irresponsibility concerning an acknowledged and significant financial obligation, and two year delay in returning a valuable item not belonging to him collectively demonstrate that the individual is not honest, reliable or trustworthy pursuant to Criterion L.

IV. Conclusion

Based on the record in this proceeding, I conclude that allowing the individual to retain access authorization would endanger the common defense and security and would not be clearly consistent with the national interest. I find that the individual has not sufficiently mitigated the concerns regarding his honesty, reliability and trustworthiness. Accordingly, I recommend that DOE Security not restore the individual’s access authorization.

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 the Hearing Officer’s Opinion within 30 calendar days of receipt of the Opinion. A party must file this request with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585-0107, and serve 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. The party seeking review must file this statement within 15 calendar days after it files its request for review. The party seeking review must also 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).

Leonard M. Tao

Hearing Officer

Office of Hearings and Appeals

Date: March 8, 1999

(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. I will refer to such authorization variously in this Opinion as access authorization or as a security clearance.

(2) The 1998 OIG audit report, upon which the Notification Letter based several of its allegations, alleged a different total amount the individual owed in overpayments than the overpayment amount the individual's former employer alleged.

(3)At the hearing, a DOE Security specialist testified that if DOE Security had evidence that the individual's mistakes in filling out his travel vouchers were unintentional, then DOE Security would "probably not" have suspended his clearance. Tr. at 67. However, the DOE Security Specialist also testified that both the length of time the individual took to make restitution and the large number of incorrect travel vouchers the individual submitted reflect negatively on the individual's honesty, reliability, and trustworthiness. Tr. at 68.

(4) The individual stated that he has no independent recollection of comments attributed to him in the OIG report, but he believes the statements attributed to him in the OIG report are correct. Tr. at 149-152