Case No. VSO-0247, 27 DOE ¶ 82,800 (H.O. Tedrow April 21, 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.

April 21, 1999

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

HEARING OFFICER'S OPINION

Name of Case: Personnel Security Hearing

Date of Filing: November 3, 1998

Case Number: VSO-0247

This Opinion concerns the eligibility of XXXXXXXXXXXXX ("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.” This access authorization was suspended by a "Notification Letter" which was issued to the Individual by the Department of Energy (DOE) on XXXXXXXXX. DOE Exhibit 1. This Opinion considers whether, based on the evidence and testimony in this proceeding, the Individual's access authorization should be restored.

I. THE NOTIFICATION LETTER

The XXXXXXXXXXXX, Notification Letter suspended the Individual's "Access to Classified Matter of Special Nuclear Materials" based upon findings made pursuant to the criteria set forth in 10 C.F.R. § 710.8(f) and (l)(Criteria (f) and (l) respectively).(1)

In summary, the letter describes numerous unpaid debts of the Individual and related collection actions and the Individual's failure to enumerate these debts and related collection actions in "a Personnel Security Questionnaire, a questionnaire for Sensitive Positions, a personnel qualifications statement, and/or a personnel security interview." Id. The XXXXXXX Letter also states that the Individual "failed to report the (bad) check charges at the time of their occurrence." Id. These are the bases for suspension of the Individual's access authorization.

II. FACTUAL BACKGROUND

The record in this proceeding is extensive and uncontested. See Hearing Transcript (Tr.) at 62. Among the earliest documents in the record is a "Questionnaire for Sensitive Positions," dated and signed by the Individual on XXXXXXXXXXX. DOE Exhibit 23. The Questionnaire reads in part:

I read and understood the instructions explaining

the purpose of this form and the Federal Government's

authority for asking the question. I read each question

asked of me and understood each question. I understand

that if I did not tell the truth on this form or did

not list all relevant or material facts or events, the

Federal Government may. . . deny or revoke my (personal

security) clearance. . . .

DOE Exhibit 23. The Questionnaire also asks "[h]ave you ever been arrested, charged, or convicted of any other type of offense? Leave out traffic fines of less than $100." DOE Exhibit 23.9 (part 2, line 23e). To this question the individual answered "no." However, an FBI report dated XXXXXXXXXXX, stated that the Individual had been “arrested"(2) by the XXXXXXXXX County Sheriff's Office on XXXXXXXXXX for two counts of a fraudulent check charge. DOE Exhibit 22. DOE asserts that by omitting this incident from the XXXXXXXXXXXX Questionnaire for Sensitive Positions a security concern is raised under the provisions of 10 C.F.R. § 710.8(f).

On XXXXXXXXXX, DOE conducted a personnel security interview with the individual. DOE Exhibit 19. The bulk of the interview concerns the Individual's arrest record referred to in DOE Exhibit 22 and related unpaid debts incurred by the Individual. The interviewer cautioned the Individual as to the importance of reporting any arrests to the DOE within 5 days of the arrests. DOE Exhibit 19 at 40-41. There is also considerable discussion about the Individual's financial affairs, and the interviewer specifically explains the importance of a person's financial situation as they relate to DOE security concerns:

Someone may see that you're having problems making your

house payment, they may offer you money in exchange

for information.

DOE Exhibit 19 at 35. A further detailed examination of the record is not necessary. There is material setting forth a continuing pattern of unpaid debts, including 11 instances in which the individual was "arrested" for unpaid debts and other instances in which debts were referred for collection by the holders in due course. DOE Exhibits 6.4, 6.6, 17.2, 17.3, 18.6, 18.8; see Tr. at 32-37. The record also reflects that the individual did not properly report or declare these matters to DOE. Specifically, on three separate occasions, the individual did not fully or correctly complete a Personnel Security Questionnaire, a Questionnaire for Sensitive Positions and a personnel qualifications statement with respect to personal indebtedness. See Tr. at 56-57. In addition, the individual failed to report the "arrests" to DOE within 5 days as required. Tr. at 36-38.

During the period encompassed by the record, the individual repeatedly assured DOE that steps would be taken to satisfy the debts, and that the pattern of irresponsible conduct surrounding the indebtedness would cease. In addition, in an attempt to meet DOE concerns, the Individual was referred to a debt counselor by her employer in XXXX, but never met with that person. See DOE Exhibit 9; Tr. at 74. At the same time, the security interview transcripts and credit check materials throughout the lengthy period with the record up to the Notification Letter show no alteration in the individual's conduct.

III. HEARING

No substantial new material or considerations were provided by DOE during the hearing. DOE presented and underscored the matters set forth in the record, including the presentation of two witnesses who were knowledgeable concerning the Individual's job performance and duties. See Tr. at 6-16. The testimony confirmed that the Individual handled and had access to nuclear material, as well as periodic access to classified data. See Tr. at. 10. The witnesses also testified that the individual was a valuable, capable employee whose job performance was excellent. Tr. at 11, 15.

The very limited presentation of the Individual did not expand the record in any material way. No explanation or mitigation was offered for any of the actions underlying the Notification Letter. When the Notification Letter was issued, the individual apparently ceased writing checks -- a principal source of the indebtedness difficulty -- and apparently has not made any "bad" debts since that time.(3) At the same time, according to the Individual, the indebtedness outlined in the most recent credit report has not changed for the better, and there was no testimony concerning any steps taken to reduce the indebtedness or to obtain the type of counseling assistance previously suggested by DOE and the Individual's contractor-employer. See Tr. at 46, 74. Ceasing to write checks in this case is a step toward financial responsibility, but alone is insufficient evidence of a sustained, new pattern of financial responsibility sufficient to demonstrate that a recurrence of the past pattern is unlikely. See, e.g., Personnel Security Hearing (Case No. VSO-0108), 26 DOE ¶ 82,764 at 85,599 (1996). The Individual apparently intended to call as a witness a friend but that person was unable to appear the day of the hearing. The opportunity to have the potential witness testify by affidavit was extended to the Individual, and the record was left open for an extended period for this purpose. However, no such testimony was offered.

Concerning possible causes for the indebtedness involved in the proceeding, the Individual did not cite any substantial mitigating factors -- such as sudden, extraordinary or extended illness or extraordinary unanticipated expenses -- which might produce overwhelming financial obligations. Indeed, the record would not support such a claim. The Individual did state during the hearing that a spouse played an unspecified role in the debt difficulties, as did a personal loss, and the unspecified cost of a child's education. However, each of these factors is also mentioned in the security interviews over the course of the record, so that any special significance they might have been accorded has dissipated over time. Finally, even a full, satisfactory justification of the cause of the indebtedness would not eliminate the Individual's failure to correctly respond to the DOE security forms, interviews and to promptly report and/or disclose the matters to DOE.

IV. CONCLUSION

The record in this case, including the transcript of the hearing, supports the existence of the risk factors cited in the Notification Letter and the suspension of the Individual's security access authorization.(4) Over the course of nearly a decade the individual has incurred debts that were not promptly paid, failed to report these matters to DOE, and on three separate occasions failed to fully and correctly complete the Personnel Security Questionnaire, the Questionnaire for Sensitive Positions and personnel qualifications statements. This pattern of behavior has continued through a series of three interviews and questionnaires and despite repeated advice and caution by DOE. I therefore conclude that the DOE had a sufficient basis for invoking Criteria (f) an (l) in the present circumstance and that the Individual has not resolved the DOE’s security concerns. Accordingly, I cannot conclude that a grant of access authorization “will not endanger the common defense and security and will be clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). For that reason, I cannot recommend that the Individual be granted 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 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.

Richard T. Tedrow

Hearing Officer

Office of Hearings and Appeals

Date: April 21, 1999

(1)Criterion (f) concerns information indicating that an individual “[d]eliberately misrepresented, falsified, or omitted significant information from a Personnel Security Questionnaire, a Questionnaire for Sensitive Positions, a personnel qualifications statement, a personnel security interview, written or oral statements made in response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access authorization, or proceeding conducted pursuant to § 710.20 through § 710.31.” 10 C.F.R. § 710.8(f). Criterion (l) concerns information indicating that an individual has “engaged in 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. Such conduct or circumstances include, but are not limited to, criminal behavior, a pattern of financial irresponsibility, or violation of any commitment or promise upon which DOE previously relied to favorably resolve an issue of access authorization eligibility.” 10 C.F.R. § 710.8(l).

(2)During the hearing, a DOE counsel stated that under applicable state law, once a warrant has been issued to a person and served in connection with an unpaid debt, a person is considered “arrested.” Tr. at 42. This is the sense in which the term “arrested” is used in the Notification Letter and the record.

(3)According to the individual, she is no longer using her checkbook. Tr. at 63.

(4)During the hearing, DOE withdrew its allegation that the individual failed to disclose that she had delinquent finances in a Questionnaire for Sensitive Position dated XXXXXXXXXX. Tr. at 59.