Case No. VSO-0304, 27 DOE ¶ 82,834 (H.O. Goldstein February 14, 2000)

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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.

February 14, 2000

DECISION AND ORDER

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Case Name: Personnel Security Hearing

Date of Filing: October 7, 1999

Case Number: VSO-0304

A Department of Energy Operations Office (the DOE office) suspended the access authorization of xxx xxx xxx (hereinafter referred to as "the individual") 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 explained below, I find on the basis of the evidence and testimony presented in this proceeding, that the individual’s access authorization should not be restored.

I. Background

On August 26, 1999, the DOE office issued a Notification Letter informing the individual that his access authorization had been suspended because information in the possession of the DOE created substantial doubt concerning his eligibility. In that Notification Letter, the DOE office stated that this information falls within the purview of two of the criteria set forth in 10 C.F.R. § 710.8, subsections 710.8(k) and (l) (Criteria K and L).

Criterion K involves information indicating that the individual trafficked in, sold, transferred, possessed, used or experimented with a drug listed in the schedule of Controlled Substances established pursuant to Section 202 of the Controlled Substances Act of 1970. See 10 C.F.R. § 710.8(k). Specifically, the DOE office invoked Criterion K because the individual tested positive for marijuana during a urine drug test and was admittedly aware of the DOE policy regarding noninvolvement with illegal drugs.

Second, Criterion L is invoked when DOE has information that an individual has "[e]ngaged 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 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." In this regard, the Notification Letter stated that the individual had used marijuana despite having signed a Drug Certification in 1982 promising not to use illegal drugs while holding a DOE clearance.

In a letter forwarded to the DOE Office of Hearings and Appeals (OHA), the individual requested a hearing in this matter. 10 C.F.R. § 710.21(b). At the hearing, the DOE counsel called one witness, the DOE security specialist. The individual testified on his own behalf and called six other witnesses: his wife, his supervisor, a good friend/colleague, a union representative, an Employee Assistance Program counselor and a vice president of a DOE contractor who had observed the individual’s work.(2)

II. Hearing

The individual testified that, at the time he used marijuana, he believed he was smoking a regular cigar, not using illegal drugs. Tr. at 19-20, 23. He explained that on a night when his wife was away, an old friend from college, whom he had not seen since 1980, stopped by. See Tr. at 39. He and the old friend went to a bar. At the bar, two men, whom he did not recognize and whose names he did not know, borrowed a few cigars. Eventually, one of the men said that he had more cigars out in his truck. The individual thought he heard one of the men describe the cigars as Baccarats. PSI Tr. at 21. The individual went with the two men outside to get the cigar. One of the men pulled out a cigar that the individual asserts was wrapped in cellophane and that man unwrapped it. Tr. at 28-29. The individual thought the cigar was in the same kind of sleeve as Baccarat cigars. Tr. at 38. The individual then lit it up outside and had about two to six puffs. PSI Tr. at 22. Then the owner of the cigar asked for a “hit.” This made the individual suspicious that the cigar might contain illegal drugs, although he did not believe the cigar smelled abnormal and did not feel any effect of marijuana. Tr. at 26, 29.(3) He asked the person why he would want a hit and the person replied that the cigar was a “blunt.” PSI Tr. at 21. The individual had seen a news story about people packing cigars with marijuana about six months prior to this incident. Tr. at 30-31.(4)However, he did not suspect this cigar since it was wrapped in cellophane.

Because the individual thought this incident was strange, he did not want to spend any more time with the two men. He immediately went back inside, told his old friend that he wished to leave, and they then went to the individual’s home. He did not tell this old friend of this incident with the cigar. Tr. at 47-48. When called for his drug test, he thought that perhaps the result would be negative, so he did not say anything at that time about his suspicions. He did not provide this explanation to the DOE office until the PSI that was scheduled after he tested positive. At that time, he told his wife about this incident. Tr. at 51-52.

At the hearing, the individual stated that he had never before or since used any illegal drug while holding a security clearance.(5) Nor does he associate with anyone who uses illegal drugs. Tr. at 46. He also noted that his high grade point average in his recent college classes are not consistent with someone who uses drugs regularly. Tr. at 20.

In an effort to prove that this was an (unknowing) one-time use that is not likely to recur, the individual presented the testimony of an Employee Assistance Program counselor (EAP counselor). Tr. at 69. The individual met the counselor when he was referred to the EAP after the positive drug test. The EAP counselor testified that based on his evaluation of the individual, he did not believe the individual to be a chronic marijuana user. Tr. at 70-71, 76; see also Indiv. Ex. 1 (letter from Medical Director of EAP concurring in this assessment). The EAP counselor thought it was an isolated incident because the individual had been in a trusted position at the DOE site a long time, had no previous drug problems, did not have absenteeism problems, was not using drugs at the time of the interview and his job performance levels were high or superior. Tr. at 71. The EAP counselor also felt the individual appeared forthright and honest. Tr. at 78. However, the EAP counselor opined that despite these positive characteristics, the individual could still be an occasional or recreational user. Tr. at 76. The EAP counselor also testified that the individual had been told that he could volunteer to be drug tested after the positive result, but that the individual had failed to come in for any such voluntary drug tests. Tr. at 74-75. The EAP counselor explained further that the vast majority of clearance holders who test positive for illegal drugs claim that it was an unknowing, one-time use and that he is usually suspicious of such claims. Tr. at 76-78. He found the individual’s story strange for a number of reasons, including that the individual, if he had not used marijuana in many years as he claims, should have felt an effect from the marijuana and that he should have smelled the scent of marijuana. Tr. at 79, 84. However, the EAP counselor noted that he was not familiar with the “blunt” method of delivery of the drug. Tr. at 71, 76-77, 79. Thus, the overall testimony of the EAP counselor did not support the individual’s claim that this was a one-time, unintentional use.

To further try to support the contention that he had only used marijuana on one occasion while holding a clearance, the individual brought forward four witnesses including his wife, friend/colleague, his supervisor and a vice president of a DOE contractor who had observed the individual’s work. His wife confirmed that the individual has not used drugs knowingly while holding a clearance. Tr. at 50. She described her husband as very honest, noting that the individual had been very concerned about disclosing all problems with their used car that they were trying to sell. Tr. at 53. She also thought that her husband would have informed her about the incident even if he would not have tested positive. Tr. at 56. However, the individual later testified that he would not have told his wife about the events of that night if he had not tested positive. Tr. at 146. (6)

The individual’s supervisor and close friend/colleague both testified that to the best of their knowledge, the individual did not use drugs. See Tr. at 127. The supervisor said that he was familiar with the signs of drug use and the individual did not display them. Tr. at 61-62. The supervisor testified that outside of work, he only socialized with the individual two times, but the individual saw his close friend/co-worker about once per month outside of work. Tr. at 63. They both described him as trustworthy and honest, and that he takes his security responsibilities seriously. Tr. at 60, 63, 129-130. His supervisor noted that the individual had once volunteered a mistake on his time card which would have resulted in the individual being paid additional money. Tr. at 65. The individual has known his friend the last three or four years and the supervisor for about nine years. Tr. at 61, 123.

In contrast, the vice president did not appear to know the individual well. He observed the individual’s crew of eight employees about once per month and did not know the individual’s name until two months prior to the hearing. Tr. at 107. However, he primarily testified about his own experience making security clearance adjudications as a high-level military officer. He said that he did not feel that the individual’s job performance was consistent with recommending a denial for the individual’s security clearance. Tr. at 90. The vice president noted that the individual was very reliable, but he seemed to mostly be describing the work habits of the individual’s crew. However, the vice president also testified that he believed any intentional drug use would be sufficient grounds to deny a clearance, and in a case where the facts of the drug use cannot be verified, he thought it would be difficult to recommend granting a clearance. Tr. at 111, 120.(7)

The individual did not enter any drug counseling program because the EAP did not think he needed to do so. Indiv. Ex. 1. Nevertheless, the individual stated that he did not intend to go back to the bar where he had smoked the marijuana. Further, he had quit smoking cigars and said that he would try to be more generally aware of his surroundings, in order to avoid the circumstances that led to this incident. Tr. at 34.

III. Analysis

The Hearing Officer’s role in this proceeding is to evaluate the information presented by the DOE office and the individual, and to render an opinion based on that evidence. The decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all the 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. See 10 C.F.R.§ 710.7(a).

A DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal case, in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. In this type of case, we use a different standard, one 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). The burden is on the individual to come forward at the hearing with evidence to convince the DOE that restoring his 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).

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). Consequently, it is necessary and appropriate to place the burden of persuasion on the individual in cases involving national security issues. Personnel Security Hearing (Case No. VSO-0002), 24 DOE ¶ 82,752 at 85,511 (1995).

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. 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 a 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).

I agree with the EAP counselor that the individual’s version of the events leading to the positive drug test is not persuasive. According to the individual’s testimony, he was taken to the bar by an old friend that he had not seen in twenty years and whom he is now unable to locate. Then, he was given a free marijuana cigar from two people whom he did not know, and whom he is now also unable to locate. He states that he lit up the cigar outside and stayed with two men whom he had not talked with much that evening, rather than going back inside to his out-of-town old friend. Tr. at 39. He also says he did not smell any marijuana and did not feel any effect. It appears that he was alarmed enough by the incident when it occurred, that he told his old friend that he wished to leave the bar immediately. Yet, he says that he did not tell his wife (until he tested positive) or his old friend about this very strange occurrence, by which he thought he might have unknowingly used illegal drugs. I further note that in the PSI, the individual at first described the cigar as an “ol’ ragged cigar” but then immediately backed off that account and described it as looking “perfect” and untampered with. PSI Tr. at 37. When I asked him at the hearing why he had initially described it as looking ragged, his response was the following: “I don’t know. I guess, it’s just what I said at the moment. I don’t know, just use of words I guess. I don’t know.” Tr. at 30. Ultimately, I am totally unconvinced by an account that is supported by references to an old friend who has disappeared, and two unknown cigar smokers. The individual’s account is inherently unbelievable and wholly uncorroborated.

With respect to corroboration, the law applicable to this case is unequivocal. In personnel security cases in which an individual who has had a positive drug test seeks to overcome the security concern with an explanation that the drug use was unintentional, we expect the individual to provide corroboration of his version of the events that led to the positive drug test. E.g., Personnel Security Review (Case No. VSA-0087), 26 DOE ¶ 83,001 (1996); Personnel Security Hearing (Case No. VSO-0094), 26 DOE ¶ 82,753 (1996); Personnel Security Hearing (Case No. VSO-0163), 26 DOE ¶ 82,799 (1996). The individual’s own say-so as to allegations that minimize the security concern cannot form a sufficient basis for restoration of a security clearance. Personnel Security Review (Case No. VSA-0087), 26 DOE at 86,508.

I also do not believe that the individual made sufficient reasonable attempts to corroborate his story. In the present case, the individual was well aware of the necessity of providing appropriate corroboration for his assertion that his use of the marijuana was inadvertent. At the Personnel Security Interview six months prior to the hearing, it was suggested that he try to find his old college friend. PSI Tr. at 30. At the same time, the EAP recommended that the individual have himself voluntarily drug tested. Individual’s Exhibit 1 at 2. From the outset in this proceeding, I impressed upon the individual the importance of bringing forth witnesses who would be able to lend support to his allegations, most importantly, the two strangers at the bar, or at least a bartender who either might have seen them together or could perhaps identify the two strangers. I also strongly recommended finding his old friend, and when the individual asked me whether he should get voluntary drug tests, I answered that any evidence corroborating his asserted non-drug use would be helpful. See Records of Telephone Conversations between the individual and the Hearing Officer (October 15 and November 30, 1999); Record of Prehearing Telephone Conference (December 6, 1999). Yet, the individual testified that he did not think that the voluntary drug testing would make any difference. See Tr. at 34, 40-41, 146-48. The individual also appears to have made little effort to find the strangers at the bar. The individual went to the bar but did not ask any bar employee whether the two men were known at the bar, as I had suggested to him Tr. at 24, 31-32. He did not see the two men there, so he left. He said that he tried to find his old college friend, but the friend had been moving to a new location when he stopped to see the individual so he did not know where he could find him. Tr. at 36-37, 39. Accordingly, the hearing was held without any of these important corroborating witnesses.

I find that the unavailability of key witnesses leaves a significant deficiency in the record. In addition, the individual’s admitted lack of diligence in providing corroboration undermines his credibility as to his version of the circumstances surrounding his marijuana use. See Tr. at 152. Based on the foregoing, I find that the individual has failed to substantiate his claim that his use of marijuana was unknowing. This leaves open the very real possibility that the individual’s drug use was not only intentional, but more than once, or even regular.(8) Thus, I am unable to find that the individual has mitigated the Criteria K and L concerns associated with his positive drug test for marijuana.(9) I am therefore unable to find that restoring the individual’s access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, I cannot recommend that his access authorization be restored.

IV. Conclusion

As explained in this Opinion, I find that DOE properly invoked 10 C.F.R. §§ 710.8(k) and (l) in denying access authorization to the individual. It is my opinion that, within the meaning of those provisions, the individual has: (1) used an illegal substance and (2) engaged in unusual conduct which tends to show that he is not honest, reliable, or trustworthy or which furnishes reason to believe that he may be subject to pressure, coercion or exploitation. The individual has failed to present adequate evidence of mitigation to alleviate the security concerns of DOE. In view of these criteria and the record before me, I cannot find that restoring access authorization to the individual would not endanger the common defense and security and would be consistent with the national interest. Accordingly, I find that 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

Dawn L. Goldstein

Hearing Officer

Office of Hearings and Appeals

Date: February 14, 2000

(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.

(2)The transcript taken at the hearing shall be hereinafter cited as "Tr." The personnel security interview that was conducted soon after the individual tested positive for illegal drugs shall be cited as “PSI Tr.” Various documents that were submitted by the DOE Counsel and the individual during this proceeding constitute exhibits and shall be cited respectively as "DOE Ex." and “Indiv. Ex.”

(3)He testified that he was familiar with the smell of marijuana, since he had smoked it before he held a clearance. Tr. at 26.

(4)The individual also had a union steward testify that he had seen a television news story about using cigars to hold marijuana. Tr. at 138-139.

(5)He had used marijuana prior to holding a clearance, prompting the signing of the 1982 drug certification.

(6)She also testified that there is no way to get in touch with the individual’s college friend and that they had not seen him in a long time. Tr. at 57-58.

(7)The vice president also testified that since he was unable to recognize marijuana smoke recently at a rock concert, he thought it was plausible that the individual would not have recognized that smell while smoking the cigar. Tr. at 110. He based this opinion on his memory of a 1983 drug education class, where he smelled marijuana in order to be able to recognize it later. See Tr. at 110.

(8)I do not believe that either the individual’s good grades, or his previous negative drug tests, usually one or two per year, preclude the possibility of him being a regular marijuana user. See Tr. at 33-34.

(9)Because he has not shown his marijuana use was unknowing, he has also not shown that he did not violate the drug certification he signed in 1982.