Case No. VSO-0313, 27 DOE ¶ 82,835 (H.O. Fine February 25, 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 25, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: November 2, 1999

Case Number: VSO-0313

This Opinion concerns the eligibility of XXXXXXXX (hereinafter referred to as "the Individual") to retain a level “Q” 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.” The Department of Energy's Albuquerque Operations Office (DOE) suspended the Individual's access authorization under the provisions of Part 710. This Opinion considers whether, on the basis of the evidence and testimony in this proceeding, the Individual's access authorization should be restored. For the reasons stated below, it is my opinion that the Individual's access authorization should be restored.

I. BACKGROUND

The events leading to the present proceeding began when the Individual underwent a routine re- investigation of his eligibility to maintain a DOE Access Authorization. During this re-investigation, the Individual admitted he had recently used marijuana on one occasion. Because the Individual had previously signed a DOE Drug Certification promising to refrain from the illegal use of drugs, his access authorization was suspended and an administrative review proceeding was initiated. See 10 C.F.R. § 710.9. The DOE then issued a letter notifying the Individual that information the DOE possessed created a substantial doubt concerning his continued eligibility for access authorization (the Notification Letter). The Notification Letter specifies one area of derogatory information described in 10 C.F.R. § 710.8(l). Specifically, the Notification Letter charges 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.” 10 C.F.R. § 710.8(l). The Individual filed a request for a hearing. This request was forwarded to the Office of Hearings and Appeals (OHA) and I was appointed as Hearing Officer.

At the hearing, the DOE presented two witnesses: the DOE Personnel Security Specialist and the Individual's supervisor. The Individual called 7 witnesses and testified on his own behalf. The record of this proceeding was closed on January 25, 2000, when OHA received a copy of the transcript of the hearing. See Transcript of Hearing, Case No. VSO-0313 (hereinafter cited as “Tr.”).

II. STANDARD OF REVIEW

The Hearing Officer's role in this proceeding is to evaluate the evidence presented by the agency and the Individual, and to render an opinion based on that evidence. See 10 C.F.R. § 710.27(a). The regulations state that the access authorization decision “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.” 10 C.F.R. § 710.7(a). I have considered the following factors in rendering this Opinion: the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, including knowledgeable participation; the frequency and recency of the conduct; the Individual's age and maturity at the time of the conduct; the voluntariness of the Individual's 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 continuation or recurrence; and other relevant and material factors. See 10 C.F.R. § § 710.7(c), 710.27(a). The discussion below reflects my application of these factors to the testimony and exhibits presented by both sides in this case.

When reliable information reasonably tends to establish the validity and significance of substantially derogatory information or facts about an individual, a question is created as to the individual's eligibility for an access authorization. 10 C.F.R. § 710.9(a). The individual must then resolve that question by convincing 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). In the present case, the Individual has convinced me that restoring his security clearance would not endanger the common defense and would be clearly in the national interest.

III. FINDINGS OF LAW AND FACT

The Individual candidly admitted a history of illegal drug use prior to his employment with a DOE contractor. According to the Individual, his drug use began while he was attending college and continued during graduate school. When the Individual initially applied for his DOE access authorization, he informed DOE security officials of his prior experience with illegal drugs. The Individual eventually signed a DOE Drug Certification providing written assurance that he would refrain from using or becoming involved in any way with illegal drugs while holding a DOE access authorization and was then granted a DOE Access Authorization. The Individual was eventually required to undergo a routine re-investigation of his eligibility to maintain a DOE Access Authorization. During this reinvestigation, the Individual was asked if he had used any illegal drugs during the past 7 years. The Individual answered in the affirmative. Specifically, the Individual indicted that he had smoked marijuana on one occasion in September 1997.

Illegal drug use raises serious security concerns because it may reflect an inability to safeguard classified information and special nuclear material. Involvement with illegal drugs exhibits an unacceptable and disturbing disregard for laws prohibiting their use. Such disregard for the law raises concerns that the Individual may similarly disregard other laws, including those which protect classified information and special nuclear materials. See Personnel Security Hearing, Case No. VSO-0116, 26 DOE ¶ 82,765 at 85,602 (1997) (citing Personnel Security Hearing, Case No. VSO-0013, 25 DOE ¶ 82,752 at 85,512 (1995)). It is important to note that avoiding illegal drug use is itself a requirement of both the DOE's safety and security regulations. Moreover, the use of illegal drugs (and the disrespect for law and authority that such use suggests) exhibits a lapse in judgment and maturity. Finally, we note that involvement with illegal drugs may render the user susceptible to blackmail or coercion.

Standing alone, a single incidence of marijuana use would not lead me to recommend against restoration of the Individual's access authorization. However, the DOE’s security concerns under Criterion L are based largely upon the Individual's use of marijuana despite his promise, contained in his 1994 Drug Certification, that he would not use illegal drugs. Consequently, I find that DOE properly invoked Criterion L in suspending the Individual's clearance. The Individual's failure to honor his Drug Certification, and his violation of DOE's and his employer's drug policies, raise important security concerns. The DOE security program is based on trust. If an employee breaks a written promise to the DOE, that trust is violated. It was precisely because of the Individual's prior illegal drug use that he was asked in 1994 to sign a Drug Certification, promising that he would never again use illegal drugs while employed in a position requiring an access authorization. He clearly violated this promise when he used marijuana in 1997. He therefore risked his career and access authorization, violated DOE safety and security regulations, and put himself, his fellow employees and the national security at risk.

Violation of the DOE Drug Certification presents serious security concerns. Personnel Security Hearing, Case No. VSO-0208, 27 DOE ¶ 82, 774 at 85,655 (1998). Not only does it bring into question the Individual’s judgment and trustworthiness, but it raises concerns about the possibility of future drug use. However, in the present case, I find that the Individual has presented sufficient evidence to resolve the serious concerns about his judgment, honesty and potential for future drug use.

My impression of the Individual, formed at the hearing, is that he is an extremely intelligent, competent, enthusiastic and dedicated worker. It is clear that he recognizes the seriousness and the significance of his actions and is sincerely committed to avoiding future drug use. Moreover, the Individual obviously regrets, and fully appreciates the significance of, his violation of the DOE Drug Certification. Most importantly, I am convinced that the Individual is a particularly honest and responsible person and that his violation of a DOE Drug Certification was an isolated occurrence that is highly unlikely to recur.

As an initial matter, I note that the record contains a great deal of evidence indicating that the Individual’s use of marijuana in 1997 was both an isolated occurrence and out of character for the Individual. Two mental health professionals testified that they were convinced that the Individual’s use was an isolated occurrence. The first of these professionals to testify was a physician specializing in addiction medicine (the addiction specialist). The addiction specialist testified that he had evaluated the Individual for substance use, abuse and addiction. Tr. at 55. This evaluation consisted of a general medical history, including his personal history, surgical history, family history, social history, and substance use history. Id. The addiction specialist conducted a medical examination of the Individual and administered two screening tools to the Individual, the Drug Abuse Screening Test (DAST) and the Alcohol Use Identification Test (AUIT). Tr. at 55-56. The addiction specialist referred the Individual for a further screening test, the Substance Abuse Subtle Screening Inventory (SASSI). Tr. at 56. The addiction specialist also subjected the Individual to periodic random drug tests. Id. None of the tests indicated that the Individual had any problem with drugs or alcohol. Tr. at 56-58. Moreover, the addiction specialist testified that, in his professional opinion, the Individual did not have any problems with drugs or alcohol. The addiction specialist further testified that "with regards to medical probability, [the Individual] will not use substances in the future that are illegal and not prescribed." Tr. at 64.

The addiction specialist also testified that he was of the opinion that the Individual was honest and forthright with him. Tr. at 59-60. This opinion was based upon the SASSI results and the addiction specialist’s clinical impressions of the Individual. The addiction specialist testified that the SASSI has the ability to detect whether its subjects are being truthful in their responses to the test questions. Tr. at 57. The Individual's SASSI Report indicted that he responded without significant defensiveness or minimization. Tr. at 58.

The other mental health professional who testified at the hearing was a certified clinical mental health counselor with the Individual’s Employee Assistance Program (the EAP counselor). The EAP counselor was of similar mind to the addiction specialist. The EAP counselor testified that he had been counseling the Individual on a continuing basis. During this time, the EAP counselor referred the Individual to a clinical psychologist who administered two tests to the Individual including the Minnesota Multi-phasic Personality Inventory (the MMPI). According to the EAP counselor, this testing indicated that the Individual "was honest, straightforward, that he didn't try to make himself look overly virtuous or, you know, terribly bad, that he was pretty direct and straightforward in answering it." Tr. at 125. The EAP counselor also indicated that his impression of the Individual, who had attended 10 counseling sessions with him, was of integrity and dependability. Tr. at 131. Moreover, both the test results and the clinical impression of the EAP counselor indicated that the Individual does not use or abuse illegal drugs. Finally, the EAP counselor testified that he would have no concerns if the Individual were to maintain a security clearance. Tr. at 136.

I am also impressed by the judgment exercised by the Individual in facing up to the consequences of his breach of his drug certification. His testimony indicated that right after he smoked marijuana he began to feel remorse. Instead of actively concealing his behavior, however, he admitted his marijuana use to DOE Security officials during his 1999 re-investigation. The Individual did not minimize or rationalize his illegal drug use. Instead, he recognized that he had made a serious error and is willing to be held accountable for it. The Individual’s willingness to admit his errors is consistent with the manner in which the Individual usually conducts himself. Tr. at 43. In addition, his supervisor testified that the Individual exercises good judgment. Tr. at 46-47.

I am convinced that the Individual is particularly honest and trustworthy. The best example of the Individual's trustworthiness was his honesty during the re-investigation when the Individual candidly admitted that he had used marijuana, even though he knew that it was unlikely that DOE would detect this illegal drug use without his admission. Moreover, both mental health professionals testified that they were firmly convinced that the Individual was particularly honest and candid. Every witness, including those called by the DOE, characterized the Individual as straightforward, open and/or honest. Tr. at 34, 36, 43, 47, 125, 131, 146, 156, 161, 171, 177, and 183-84. Several witnesses testified that the Individual was particularly dependable and responsible. Tr. at 149, 156, 171.

Finally, I am firmly convinced that the Individual’s drug use is highly unlikely to recur. As discussed above, both mental health professionals who testified at the Individual’s hearing reached this conclusion. Moreover, four character witnesses, each of whom knew the Individual well, testified that illegal drug use is not part of the Individual’s lifestyle. Tr. at 143, 159, 170.

In considering the serious security concerns raised by the Individual’s violation of his DOE drug certification, I must take into account that his self-reporting of his illegal drug use was an act of moral courage and integrity. If it were not for his candor, it is highly unlikely that DOE Security officials would have ever become aware of his transgression. Yet, the Individual admitted his use rather than lie to the DOE.

Although the security concerns raised by a violation of a DOE drug certification are particularly serious in nature, I find that they have been satisfactorily resolved by the evidence in the record of this proceeding. I am not alone in this impression. At the conclusion of the Individual’s hearing, the DOE Counsel stated:

I’ve been doing these cases for about 15 years, and I take security extremely seriously, and, quite frankly, the concerns that the Department of Energy has raised against [the Individual] are, I believe, one of the harder ones to overcome, but I have been impressed with the way he’s presented his case and his credibility and, quite frankly, I believe a favorable recommendation in this case might be appropriate.

Tr. at 187.

IV. CONCLUSION

For the reasons set forth above, I conclude that the Individual has presented evidence that warrants restoration of his access authorization. Since the Individual has resolved the DOE’s allegations under Criteria L, I conclude that the Individual has demonstrated that restoring his security clearance would not endanger the common defense and would be clearly consistent with the national interest. Therefore, it is my opinion that the Individual's access authorization should 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 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 with 20 days of receipt of the statement.

Steven L. Fine

Hearing Officer

Office of Hearings and Appeals

Date: February 25, 2000