Case No. VSO-0264, 27 DOE ¶ 82,817 (H.O. MacPherson September 7, 1999)

Case No. VSO-0264, 27 DOE ¶ 82,817 (H.O. MacPherson September 7, 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.

September, 7, 1999

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: February 26, 1999

Case Number: VSO-0264

This Opinion concerns the eligibility of xxxxxxxxxxxxxxxxxxxxx (hereinafter referred to as the respondent) 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."(1) As discussed below, after carefully considering the evidence in light of the relevant regulations, it is my opinion that the respondent's access authorization should be restored.

I. Background

This administrative review proceeding was commenced by the issuance on December 23, 1998, of a Notification Letter to the respondent.(2) In that letter, the respondent was

informed that DOE possessed information that created a substantial doubt concerning his eligibility for an access authorization. The alleged derogatory information is a plea of nolo contendere that the respondent entered to a misdemeanor charge of annoying or molesting a child. 10 C.F.R. § 710.8(l).(3)

The respondent requested a hearing to resolve the issue of his eligibility for an access authorization, and the request was forwarded to the Office of Hearings and Appeals on February 26, 1999. I was appointed the Hearing Officer in this case. Six witnesses testified at the hearing on behalf of the respondent: the respondent, the respondent's supervisor, and four coworkers. He also submitted copies of recent performance appraisals and character references from three additional persons. Following the hearing, the respondent submitted a report from a clinical psychologist, a report indicating that he has been attending group therapy as directed by the court, and a newspaper article reporting that the police officer who investigated his case had been fired.

II. The Relevant Evidence

The evidence against the respondent consists of excerpts from the police investigation and the respondent's plea of nolo contendere to a misdemeanor charge.(4) He was fined $100, sentenced to 150 days confinement, which was served through house arrest whereby he could leave home to go to work. He was also placed on probation for five years, required to register as a sex offender, and required to attend group counseling.

The police investigation was initiated when the respondent's then wife filed a complaint alleging that he had molested her daughter (his stepdaughter). The record does not specify the age of the girl, but it appears that she was about seven or eight at the time of police investigation. According to the police report, a comment by her daughter made the respondent's wife suspicious that something inappropriate was going on between her daughter and the respondent. The wife stated that the respondent became nervous when she questioned her daughter about the statement in his presence. He denied any wrongdoing. The wife stated that the next day it took her two hours to get her child to talk about what happened. According to the police report, the wife stated that her daughter told her that while she was sitting on his lap, he moved back and forth in a grinding motion and she felt his penis against her back. Both the respondent and the daughter were fully dressed during this incident. The daughter said that there had been similar incidents in the past. See Crime Rept. 71103004.

The daughter was also interviewed. She stated that the respondent did "weird" things with her about nine times over two years. She reported that he had moved in a "weird" manner while she was sitting on his lap, and she felt something hot behind her back. She further stated that the respondent had not asked her not to tell anyone about these activities. See Crime Rept. 71103004/4.

The police also interviewed the respondent. According to the police report, the respondent stated that he got an erection while playing with his stepdaughter on his lap. He moved his penis against her body while both were fully clothed. He admitted to a similar incident the year before. According to the report, he told the police officer that these incidents just happened while horseplaying with his stepdaughter and that he did not plan them. The report also indicated that the respondent admitted that he knew what he did was wrong. See Crime Rept. 71103004/2.

At the hearing, the respondent disputed portions of the police report, including the report of the interview with him. He stated that on two occasions he developed an erection while he was horseplaying with his stepdaughter on his lap. He stated that he was fully clothed during these incidents and at no time did he intentionally rub he penis against his stepdaughter. Transcript at 62; see also Psychologist's Report at 2.

Following the hearing, the respondent was evaluated by a clinical psychologist. The psychologist found that he found no indication of pedophilic orientation or imminent risk of recidivism. He also noted that the respondent had reported to him that he had told his wife about the first time in which he developed an erection while playing with his stepdaughter. The respondent also submitted a report indicating that he has attended all of the weekly group therapy sessions required as a condition of his probation. In addition, the respondent's character witnesses testified that he is reliable and of good character. They also indicated that they knew, in general terms, about his misdemeanor conviction.

III. Standard of Review

DOE regulations provide that my opinion is to be based on a comprehensive, common- sense judgment, after considering all relevant information, as to whether continuing the respondent's access authorization would endanger the common defense and security and whether it would be clearly consistent with the national interest. 10 C.F.R. § 710.7(a). The factors I must consider are set out in § 710.7(c):

the nature, extent, and seriousness of the conduct; the circumstances surrounding his conduct, to include knowledgeable participation; the frequency and recency of his conduct; the age and maturity at the time of the conduct; the voluntariness of his participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for his conduct; the potential for pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and material factors.

A DOE administrative proceeding under 10 C.F.R. Part 710 is not a criminal proceeding, where the burden is on the government to prove the individual guilty beyond a reasonable doubt. See Personnel Security Hearing, Case No. VSO-0078, 25 DOE ¶ 82,202 (1996). 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). See Personnel Security Hearing, Case No. VSO-0013, 24 DOE ¶ 82,752 at 85,511 (1995) and cases cited therein. This standard implies that if there is doubt, the decision should be against granting or restoring a security clearance. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990).

IV. Analysis

A. The Criminal Conviction

The facts of this case clearly give rise to a security concern. The respondent pleaded nolo contendere to a serious criminal charge, and accepted a record of conviction and punishment for the crime. In support of his eligibility for an access authorization, he maintains that he was in fact innocent of the crime.

A plea of guilty or nolo contendere to a crime raises a valid security concern. When such plea is entered, there is presumption that the individual is guilty of the crime charged. This presumption is rebuttable, however. In the present case the respondent testified that he accepted the plea to a misdemeanor because he did not wish to risk being convicted of a felony which could have led to a lengthy term of imprisonment. He further stated that his attorney had advised him that it is very difficult for anyone who is charged with molesting a child in his county to win an acquittal. Transcript at 68-70. We have in prior cases recognized that it may be reasonable for even an innocent person to accept a plea agreement to avoid the cost of litigating a case and the possible risk of being found guilty of a more serious crime. See Personnel Security Hearing, Case No. VSO-0141, 26 DOE ¶ 82,785 at 85,745-46 (1997); Personnel Security Hearing, Case No. VSO-0138, 26 DOE ¶ 82,786 at 85,750-51 (1997). Moreover, a plea of nolo contendere, unlike a plea of guilty, does not imply an admission of guilt.

The misdemeanor only requires that someone either "molest or annoy" a child. State Penal Code § 647.6. At the hearing, it was explained that this does not require extremely serious misconduct for a conviction. Transcript at 14-15. Under these circumstances, I am not convinced that the respondent would not have been convicted of this misdemeanor. He has admitted to continuing to play with his stepdaughter while having an erection. It is my opinion that this could be considered "annoying a child" and might have been sufficient to justify conviction. The respondent has therefore not demonstrated that he would not have been convicted of the offense.

B. Scope of the Respondent's Questionable Conduct

As noted above, the respondent has admitted to two instances of questionable conduct. DOE Counsel, however, has submitted a portion of the record of the police investigation. Some of the documents from the investigation suggest that the respondent might have engaged in additional inappropriate actions or have been guilty of more serious misconduct than he has admitted. There is nothing in the record to indicate that he was charged with conduct other than what he has admitted, and the Notification Letter also does not specifically charge him with the conduct alleged in the police documents. However, to evaluate whether the respondent should receive an access authorization, I believe it is appropriate to examine to the degree possible the scope of the respondent's conduct.

While allegations of this nature are obviously too grave to be taken lightly, I must take into account the credibility of the allegation in weighing the seriousness of the security concern. See Personnel Security Hearing, Case No. VSO-0141, 26 DOE ¶ 82,785 at 85,747 (1997). Other than the respondent's plea and his testimony at the hearing, the only evidence against him consists of partial records of the police investigation. These investigative reports are double-hearsay. Portions of the respondent's testimony are also hearsay. DOE regulations provide that "Formal rules of evidence shall not apply . . . . [H]earsay evidence may in the discretion of the Hearing Officer and for good cause shown be admitted without strict adherence to technical rules of admissibility and shall be accorded such weight as the circumstances warrant." 10 C.F.R. § 210.26(h). Accordingly, I must consider the credibility of the police reports.

While there is no reason to believe that the girl was biased against the respondent, that is not true with respect to the wife. The allegations are based largely upon what his wife claimed her daughter had told her. At the time of the incident, the respondent's wife wanted a divorce. Transcript at 51-53. The divorce was very acrimonious. The respondent testified that his wife said that she would drop the charges if he paid her more money in the divorce. Transcript at 53. He also claims that she told his aunt that all she wanted was the money. Transcript at 53. See Personnel Security Hearing, Case No. VSO-0138, 26 DOE ¶ 82,786 at 85,752 (1997) (evidence that money was sought from a respondent indicated that a rape allegation was probably fabricated). The respondent explained that his wife took everything. She took "anything that was not bolted down . . . except for the shell of the house. And she cleaned out all the credit cards too, all the cash that could be taken from them." Transcript at 71. I find the respondent's testimony about the animosity between him and his former wife credible. Under these circumstances, I find that there is a strong potential for bias on the part of the respondent's former wife. This potential bias raises grave doubts as to the value of her statements that were not subject to cross examination.

In addition, the police officer who conducted the investigation and who wrote most of the reports at issue in this case was himself fired for lying in a deposition. See Letter from respondent's counsel enclosing article from the local newspaper. This alone would not necessarily mean that he conducted the investigation of the respondent's case improperly. However, there is significant evidence that the statements of the respondent and witnesses were not recorded accurately in the police reports. The respondent testified that the police report did not accurately reflect his statement. Transcript at 60-65. Moreover, it is clear that the words of child were inaccurately recorded. For example, in recording the wife's statement, the police report states that "Victim said [the respondent] then repeatedly shifts his waist back and forth in a grinding motion." See Crime Rept. 71103004. A young child would be highly unlikely to use the word "grinding" in this context. Consequently, I infer that either the wife or the police reporter substituted a more inflammatory word for that of the child. This casts some doubt on the accuracy of the police reports.

This case rests upon statements by a young child. Children can often be reliable witnesses. However, they are also easily influenced and manipulated, particularly by a parent. Moreover, they may lack the maturity and understanding to relate their story accurately. To determine whether a young child is a reliable witness, I believe it appropriate to consider whether (i) the story is credible, (ii) the child told the same story consistently, and (iii) the child clearly explained what happened.

There is nothing incredible or fantastic about the stepdaughter's story. Events could have happened as she related them. However, I am concerned that she appears to have been somewhat inconsistent in her story. As related by her mother, the girl stated that her clothes were not removed at any time, while the statement elicited by the police indicates that the respondent raised her nightgown. Compare Crime Rept. 71103004 with Supplemental Crime Rept. 71103004/4. In addition, the respondent's attorney explained that the stepdaughter told several inconsistent stories during a pretrial hearing. Transcript at 75.

Even assuming that the police reports recorded the stepdaughter's statements accurately, it is not clear what happened. The child stated that the respondent did something "weird" to her on nine occasions. But, what she meant by "weird" is never defined. She has used it in one place in reference to the respondent's manner of moving up and down while she sat on his lap and in another place when referring to his resting his hand on her leg. See Crime Rept. 71103004/4. Either of these actions could have been entirely innocent or could have involved serious misconduct. By using the same word, "weird," to refer to different types of conduct, it is not possible to determine how often any particular conduct occurred or whether the actions referred to were innocuous or involved serious misconduct.

The factors listed above cause me to have serious reservations about the credibility of the allegations as set forth in the police reports.

Furthermore, from his demeanor and conduct at the hearing, I believe the respondent is honest and reliable. His contention that his conduct with respect to his stepdaughter was entirely innocent is forthright and believable. It is corroborated in part by the fact that he never asked his stepdaughter not to tell about their activities and by his telling his wife about the first instance in which he developed an erection while playing with his stepdaughter. Had be believed himself guilty of misconduct, he would likely have sought to conceal it.

While the record is in many respects conflicting and ambiguous, I make the following findings of fact.

The respondent was in the habit of playing with his stepdaughter while she was sitting on his lap. In doing so, he would on occasion bounce her up and down. There is no credible evidence that this play was intended for sexual gratification.

The stepdaughter may have perceived some of the respondent's actions while playing with her, even if innocent, as "weird." The characterization in the police report of the respondent's movements as "grinding" or "hip thrusting" is not necessarily inconsistent with an innocent purpose for the movements.

On two occasions, the respondent developed erections while playing with his stepdaughter as described above. There is no credible evidence that this was other than an involuntary reaction that he did not intend.

The respondent continued to play with his stepdaughter after he developed the erections, but he never intended to rub his penis against her and neither he nor his daughter were unclothed.

The stepdaughter may, nonetheless, have felt his erection on her back.

It is my opinion that the respondent demonstrated remarkably poor judgment on two occasions in continuing to play with his daughter after he developed erections. He should have immediately removed her from his lap. This poor judgment does raise a security concern. Nonetheless, I find that this security concern has been resolved in favor of the respondent. These isolated incidents occurred two and three years ago. There is no credible evidence whatsoever that they were part of a pattern. The character witnesses indicated that he exercises sound judgment and is reliable. Moreover, I am persuaded by the report of the clinical psychologist who examined the respondent. He reported that:

It is the opinion of this examiner that [the respondent] is free of any significant clinical levels of psychopathology that would jeopardize his cognitive functioning, emotional stability, executive behavioral skills, judgment of decision making. While he was engaged in a bitter divorce which caused him considerable emotional distress, this has been resolved. There are no current significant psychosocial stressors that could cause psychiatric decompensation. As to the molestation allegations and misdemeanor charge against him, I see no indication of pedophilic orientation or imminent risk of recidivism.

Psychologist's Report at 6 (June 17, 1999). The respondent is also attending group therapy sessions as directed by the court. Based upon the psychologist's finding of no pedophilic orientation and no imminent risk of recidivism, and upon the testimony of his character witnesses who indicated that he exercises sound judgment, I find that it is unlikely that the conduct that led to his plea of nolo contendere will reoccur. Under these circumstances, I find that the respondent has mitigated the concerns raised by his plea.

V. Conclusion

For the reasons set forth above, I conclude that with respect to the allegation under 10 C.F.R. § 710.8(l), that the respondent has demonstrated that restoring his access authorization would not endanger the common defense and would be clearly consistent with the national interest. Accordingly, it is my opinion that the respondent's access authorization should be restored.

Bryan F. MacPherson

Hearing Officer

Office of Hearings and Appeals

Date: September 7, 1999

(1)Part 710 governs the resolution of questions concerning the eligibility of individuals for access to classified matter or special nuclear material. This access authorization is commonly referred to as a security clearance.

(2)DOE regulations provide an opportunity for hearing and review in cases where an individual's eligibility for access authorization cannot be favorably resolved by interview or other action. When the Director, Office of Safeguards and Security, has authorized an administrative review proceeding, a Notification Letter is sent to the respondent. This letter sets forth the information which creates a substantial doubt regarding the eligibility of the respondent for access authorization, and states that the respondent may file a request for a hearing in writing. 10 C.F.R. § 710.21(a), (b)(2), (b)(4).

(3)Part 710 lists twelve broad categories of derogatory information which might create questions as to an individual's eligibility for access authorization. 10 C.F.R. § 710.8(a)-(l). These categories constitute the criteria which the DOE uses to review determinations regarding access authorization. Only Criterion L is at issue in this case. It applies where the individual has:

Engaged in unusual conduct or is subject to 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 him to act contrary to the best interests of the national security.

(4)The police reports also contain allegations involving two other children (a brother and sister) in his former wife's child care center. See Crime Rept. 71103004/5, /10. However, he was never charged with a crime involving the other children. Transcript at 56. Since the Notification Letter in this proceeding cites only the respondent's plea of nolo contendere to a charge involving his stepdaughter, these other allegations were not charged in the Notification Letter. Nonetheless, the respondent explained at the hearing that the allegations concerning the boy were a case of mistaken identity. According to the respondent and his attorney, a juvenile in the neighborhood was found to have molested the boy. Transcript at 54-56, 76-79. The police inquiry into allegations involving the boy's sister appears to have been terminated when the girl told the police that she could not remember what her mother told her to say. See Crime Rept. 71103004/10 at 2.