Case No. VSO-0320, 27 DOE ¶ 82,836 (H.O. Woods February 29, 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 29, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: November 30, 1999

Case Number: VSO-0320

This Opinion concerns the eligibility of XXXXXXXX (hereinafter "the Individual") for continued access authorization. The regulations governing the Individual's eligibility are set forth at 10 C.F.R. Part 710, "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." This Opinion will consider whether, based on the testimony and other evidence presented in this proceeding, the Individual's suspended access authorization should be restored. For the reasons detailed below, it is my opinion that the Individual's access authorization should not be restored.

I. BACKGROUND

In a letter of September 16, 1999, the Manager of a Department of Energy (DOE) Operations Office informed the Individual that his access authorization was suspended pending resolution of substantial doubts concerning the Individual's honesty, reliability and trustworthiness. On October 25, 1999, the Manager issued a Notification Letter to the Individual, stating that the DOE was in possession of derogatory information that created a substantial doubt concerning his continued eligibility for his access authorization.

Specifically, the Notification Letter cites two areas of security concerns. First, the Notification Letter states that the Individual may have "deliberately misrepresented, falsified, or omitted significant information" from an Operations Office Arrest Report received on January 8, 1999, from a DOE personnel security interview conducted on March 22, 1999 (the PSI), and from an Office of Personnel Management interview conducted on June 3, 1999. Such actions constitute a security concern under 10 C.F.R. § 710.8(f) [Criterion (f)]. Criterion (f) concerns information that an Individual has deliberately misrepresented, falsified, or omitted significant information from a security questionnaire, a qualifications statement, or from a personnel security interview.

Second, the notification letter cites certain information as indicating that the Individual engaged in conduct falling within the regulatory provision set forth at 10 C.F.R. § 710.8(l) [Criterion (l)]. Criterion (l) concerns information that an individual engaged in unusual conduct or is subject to any 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. The Notification Letter summarizes this information concerning the Individual as follows:

You were observed in Wal-Mart opening a [videocassette recorder (VCR)] box and placing a pink security return label from a pack of shower curtains that you had in your pocket on the VCR box, walking through an empty register, and exiting Wal- Mart. When you were confronted by Wal-Mart security outside the store, you ran. You were convicted of Petit Larceny in February 1999.

Notification Letter at 2.

The DOE also informed the Individual that he was entitled to a hearing before a Hearing Officer in order to respond to the information contained in the Notification Letter. On November 8, 1999, the Individual requested a hearing. The Individual's request for a hearing was forwarded by the DOE to the Office of Hearings and Appeals (OHA). On December 1, 1999, I was appointed the Hearing Officer. In accordance with 10 C.F.R. § 710.25(e) and (g), I convened a hearing in this matter (the Hearing).

At the Hearing, the Individual testified on his own behalf. He also presented the testimony of five witnesses who were his co-workers at the DOE contractor facility where the individual was employed. These individuals presented general testimony concerning the Individual’s character. They had no direct knowledge of and were unaware of the specific Criterion (f) and Criterion (l) concerns raised in the Notification Letter. The DOE Counsel presented the testimony of the DOE security specialist who had conducted the 1999 PSI (the Security Specialist) and the testimony of a loss prevention officer for Wal-Mart (the Loss Prevention Officer), who testified regarding his knowledge of the incident that occurred on December 16, 1998 involving the Individual.

II. THE REGULATORY STANDARD APPLIED IN THIS OPINION

The Hearing Officer's role in this proceeding is to evaluate the information presented by the DOE 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).

The standard in this proceeding places the burden of proof on the Individual. It is important to bear in mind that a DOE administrative review proceeding under this Part is not a criminal matter in which the government has the burden of proving a defendant guilty beyond a reasonable doubt. It is designed to protect national security interests. The 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 individual must 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). Personnel Security Review (Case No. VSA-0087), 26 DOE ¶ 83,001 (1996); Personnel Security Hearing (Case No. VSO-0061), 25 DOE ¶ 82,791 (1996), aff'd, Personnel Security Review (VSA-0061), 25 DOE ¶ 83,015 (1996). The individual therefore is afforded a full opportunity to present evidence supporting his eligibility for an access authorization. The regulations at Part 710 are drafted so as to permit the introduction of a very broad range of evidence at personnel security hearings. Even appropriate hearsay evidence may be admitted. 10 C.F.R. § 710.26(h). Thus, by regulation and through our own case law, an individual is afforded the utmost latitude in the presentation of evidence to mitigate security concerns.

This is not an easy evidentiary burden for the individual to sustain. The regulatory standard implies that there is a presumption against granting or restoring a security clearance. See Department 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). Accordingly, the individual in these cases must present testimony and/or other evidence which, taken together, is sufficient to persuade the Hearing Officer that restoring access authorization is clearly consistent with the national interest. Personnel Security Hearing (Case No. VSO-0002), 24 DOE ¶ 82,752 (1995); Personnel Security Hearing (Case No. VSO- 0038), 25 DOE ¶ 82,769 (1995) (individual failed to meet his burden of coming forward with evidence to show that he was rehabilitated and reformed from alcohol dependence).

Accordingly, in rendering my opinion in this case, I must consider whether the Individual has presented mitigating factors which resolve the DOE's security concerns. 10 C.F.R. §710.7(c); §710.27(a). Among the factors I am to consider in rendering this Opinion concerning the Individual's eligibility for access authorization are the following: the nature, extent, and seriousness of his conduct; the circumstances surrounding the conduct, including knowledgeable participation; the frequency and recency of the conduct; his 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. 10 C.F.R. § 710.7(c).

III. CRITERION (l) CONCERNS

A. THE FACTUAL RECORD IN THIS PROCEEDING

The essential facts concerning the December 16, 1998 incident at the Wal-Mart store are disputed. The Individual consistently has provided DOE Security with an account of his actions in which he maintains that he never intended to illegally remove a videocassette recorder (VCR) from the store. In a “Report of Charge or Arrest” that he submitted to the DOE following the incident, the Individual stated that he had been charged with “possession of merchandise from Wal-mart that had not been paid for” and offered the following account of this incident.

I was at Wal-Mart looking for a video game for my son that he wanted Santa to bring him. At this time someone that I recognized came up to speak to me. We talked for a second. Then I told him what I was doing. They didn’t have the game I was looking for so I told him I was going over to Sam’s Dept. Store to look for it, which is next door to Wal-Mart. He asked if he could ride with me over there. But he had to use the restroom first and asked if I could hold his merchandise [the VCR in question] while he used the restroom. He told me he would meet me outside on the sidewalk. I said OK. When I went outside to wait on him, a store employee came [up to me] and asked me if I had a receipt, which I didn’t because [the VCR] wasn’t mine. [The person who handed the Individual the VCR] never showed up again. This is how I was charged with this. I later found out that this is one of the oldest tricks in the book. And that the same tactic has been used all over [the Individual’s home town] over the Holidays in other stores. . . .

“Report of Charge or Arrest” identified as “DOE Exhibit No. 1". On March 10, 1999, the Individual submitted a second “Report of Charge or Arrest” to the DOE in which he indicated that he had appeared in Court concerning this incident, that the Court had fined him $300 and an additional $50 in court costs, and that the Court had made the following disposition: “charges pending for (3 years) reduced to petty larceny.” See DOE Exhibit No. 2. According to counsel for DOE Security, the court records indicate that he was found guilty of petty larceny and given a jail sentence of ninety days, which was suspended for three years. Hearing Tr. at 14.

At his March 22, 1999 PSI, the Individual was questioned concerning this incident. He was able to provide very little information concerning the person who allegedly handed him the VCR.

Q: His name?

A: His last name is Braxton. I don’t know his first name.

Q: Where does he live?

A: He lives around this area.

Q: Where do you know him from?

A: I’ve just known him from being in [the Individual’s home town] for years. I don’t know. I don’t know if I went to school with him, or what. But I know him. Just know him by his face, and being around.

PSI Transcript at 9. The Individual also indicated that he believed that he and Mr. Braxton played basketball together a couple of times. Id. at 27. The Individual told the interviewer that Mr. Braxton stated that he “was going to return [the VCR], but the return line is too long.” Id. at 11. According to the Individual, he then asked the Individual if he could hold on to the VCR while he went to the restroom and the Individual agreed to do so. The Individual then stated that “I proceeded to look around [the store] a few more minutes. And then I told him I’d meet him on the sidewalk.” Id. Outside of the Wal-Mart, the Individual stated that he was approached by a store employee who asked him if he had a receipt for the VCR. When he answered no, the employee asked him to go back into the store. The Individual then stated that he “panicked,” and proceeded to put down the VCR and run away.

Q: Did you run?

A: Yeah.

Q: Did [the store employee] shout? Ordering you to stop?

A: He said “Hey,” for a second. Or something. He said something. Yeah.

Q: What did he say? Tell me specifically what he said?

A: I can’t remember. I was ... He just said, “Hey.” Or, he might have said stop. I’m not sure exactly what he said.

Q: And you ran?

A: And I ran. Yes.

Q: Where did you run to?

A: I ran to the other side of the store. The street on the other side of the store. I ran there. And I stayed there for a while.

Id. at 14. The Individual then stated that he saw a police officer driving up the street, and voluntarily approached him in order to explain his situation. “I came to [the policeman] voluntarily, and hopped in his car. He didn’t have to put handcuffs on me. He didn’t arrest me or anything.” Id. The Individual stated that he then returned to the store with the police officer. Id. at 28.

In the course of investigating this incident, DOE Security obtained the incident report filled out by this police officer of December 16, 1998. The report reads as follows:

Complainant [the Wal-Mart Loss Prevention Officer] states suspect was pushing basket in store with VCR. Took VCR from basket and walked out of store. Complainant stopped suspect outside front door. Suspect began to walk back into store with Complainant. Suspect set VCR down and ran from scene southbound and was not apprehended. Suspect is not known to Complainant. Suspect was located on [street name] and name obtained for store prosecution and warrant will be obtained by Complainant.

DOE Security Exhibit No. 4. The report places the value of the VCR at $160. Id.

At the Part 708 hearing in this matter, counsel for DOE Security presented the testimony of the Wal-Mart Loss Prevention Officer (the LP Officer). In certain crucial respects, the account presented by the LP Officer differed substantially from the account of the incident that the Individual provided to DOE Security. The LP Officer testified that he first saw the Individual at the Wal-Mart in the “main action aisle in electronics.” Hearing Tr. at 19. He stated that he then observed the following:

I observed [the Individual] pushing an empty shopping cart. He stopped off at electronics where he selected a VCR from the green steel rack, and placed it in the shopping cart. He then went down towards hardware where he entered the hardware aisle. He retrieved a package from [his] inside jacket. Later, it was found to be a package of shower hooks.

He took a pink sticker off of it and placed it on the VCR box. He then tore open the VCR box. He picked the VCR box up, had it under his left arm, and proceeded to the front of the store where he exited without paying for it.

Id. The LP Officer testified that these pink stickers are issued to Wal-Mart customers who bring purchased items back into the store, so that the customers can carry the items back to the Wal-Mart courtesy desk for a refund. Id. at 25. The LP Officer also testified that he did not see the Individual with any other person at any time after he first observed the Individual wheeling an empty shopping cart up the main aisle of the store. Id. at 21. He described his confrontation with the Individual outside the store as follows:

I stepped in front of him and spoke to him. His reply was that he had a return, sir. He said, “I have a return, sir.” And he started backing up. He said that three times. He then laid the VCR into a shopping cart that was there at the front sidewalk and started to run.

Id. The LP Officer stated that he chased the Individual in the direction of the neighboring Sam’s Club.

He went along the side of Sam’s Club, down an embankment. And there are some woods; there’s a street and then some woods. He went across into the woods behind Sam’s.

Id. at 24. The LP Officer stated that he chased the Individual into the woods for approximately fifty feet, when the LP Officer stepped on a rock and twisted his ankle. He stated that he then returned to the store and was in the process of filing an incident report with a police officer when they received a call that the subject had come out of the woods. The LP Officer stated that he and the police officer then rode over to the area, spotted the Individual, and that the police officer then spoke to the Individual.

[The police officer] just had a conversation with him outside the car. [The Individual] I.D.’d himself, told him that he was running because he was scared because his friend had handed him the VCR. He went outside to wait on him, I approached [the Individual], he just got scared and ran.

Id. at 27. The LP Officer confirmed the Individual’s account that he then got into the police car and returned to the Wal- Mart. Id. at 28.

At the Hearing, the Individual continued to maintain that his acquaintance Mr. Braxton handed him an open box containing a VCR and asked him to hold onto it. Id. at 122. The Individual testified that he then placed the VCR in an empty shopping cart that happened to be nearby. Id. at 127. He stated that he did not pay attention to whether there was a pink return slip on the box. Id. at 122. He acknowledged taking the VCR to another aisle of the store before attempting to exit the Wal-Mart, stating that he “was trying to kill a few minutes in the store waiting on [Mr. Braxton] to come on.” Id. at 105.

B. ANALYSIS

There is a security concern associated with an employee who has engaged in conduct that has resulted in his being charged with petty larceny. We have determined in previous cases that “the demonstrated willingness of an individual . . . to decide unilaterally which rules are worth following and which are not can present a risk to the common defense and security, despite the individual’s best intentions.” Personnel Security Hearing, Case No. VSO-0075, 25 DOE ¶ 82,799 (1996), aff’d in Personnel Security Review, Case No. VSA-0075, 26 DOE ¶ 83,005 (1996). In addition, a finding that a person has difficulty with following rules leads to the conclusion that his judgment, reliability, and trustworthiness are not adequate to the requirements of holding access authorization. Personnel Security Hearing, 27 DOE ¶ 82,768 (1998); Personnel Security Hearing, Case No. VSO-0073, 25 DOE ¶ 82,794 (1996). The Individual's being charged with petty larceny thus convinces me that a security concern exists. The Individual must present mitigating evidence and testimony sufficient to resolve this concern, or his DOE access authorization cannot be restored.

After reviewing the record, I find that the Individual has not mitigated the security concern raised by his conviction for petty larceny at the Wal-Mart. From the time that he first spoke to the police officer on the day of the incident, the Individual has consistently maintained that his removal of Wal-Mart property (the VCR) from the store premises was unintentional. He states that he thought that the VCR was the property of an acquaintance, and that he carried the VCR out of the store for the purpose of meeting this acquaintance. Even if this version of events was uncontroverted by any opposing evidence, it would not be possible for me to conclude that these uncorroborated assertions are sufficient to mitigate his criminal conviction.

The law concerning the applicable evidentiary standard in this case is unequivocal. In personnel security cases in which an individual who has committed an illegal act seeks to overcome the security concern with an explanation that the illegal act was unintentional, we expect the individual to provide corroboration of his version of the events that led to the illegal act. This standard has been applied in numerous Part 710 proceedings involving the alleged use of illegal drugs by individuals with access authorization. See, 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). Clearly, this standard is applicable to other illegal acts such as petty larceny. The individual’s 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.

In the present case, the individual was well aware of the necessity of providing appropriate corroboration for his assertion that his removal of the VCR from the Wal-Mart was inadvertent. In a December 15, 1999 telephone conversation with the Individual and in a confirmatory letter, I pointed out that I would be unlikely to recommend that the individual’s access authorization be restored if he did not provide appropriate corroboration of his version of the Wal- Mart incident.

As I indicated to [the Individual] in our December 15 telephone conversation, it is very important that he identify and locate any witnesses who can testify in support of his positions. Although [the Individual] will have the opportunity to challenge the factual assertions presented by [the DOE Counsel] and his witnesses, it is necessary for him to present the testimony of witnesses at this hearing who can corroborate his description of the circumstances relating to the December 1998 incident at the Wal-Mart store. For corroborative purposes, it is crucial for him to present the testimony of individuals (preferably two or more) who were with him at that time or immediately afterward and who can confirm his version of events. Such testimony is crucial to support his assertions regarding this incident. If individuals are reluctant to testify, they can be required by subpoena to appear and testify at the January 11 hearing.

Letter of December 16, 1999. Again, at the December 29, 1999 conference call in this matter, I emphasized that it was vital for him to corroborate his explanation of the incident. However, despite my repeated advice, the Individual did not bring forward any witnesses to provide corroboration of his version of this incident at the hearing.

In addition to the complete lack of corroborative testimony, in this instance the DOE counsel has provided the eyewitness testimony of the Wal-Mart LP Officer. The testimony of the LP Officer, which I found to be credible in all respects, contradicts essential portions of the Individual’s explanation. As discussed above, the LP Officer testified that he observed the Individual wheel an empty shopping cart into the Wal-Mart electronics department, remove a Wal-Mart VCR from the shelf on which it was stacked, and place it in the cart. The LP Officer further testified that he observed the Individual wheel the cart to another aisle of the store, where he observed the Individual open the VCR box and place a pink Wal-Mart return sticker on the VCR, which the Individual removed from a package that he was carrying inside his jacket. None of these observations by the LP Officer is consistent with the Individual’s assertions that he received the VCR from an acquaintance and believed it to be the property of that acquaintance. The testimony of the LP Officer clearly supports the charge of petty larceny that was brought against the Individual.

In addition, both the LP Officer and the Individual have testified that when the LP Officer attempted to stop the Individual outside of the Wal-Mart, the Individual fled from the LP Officer into a wet and muddy wooded area. Hearing Tr. at 24, 128. In my opinion, the Individual’s decision to run from the LP Officer rather than remain and attempt to resolve the matter, strongly indicates that the Individual was aware that he had been caught in the act of committing a crime.

Finally, the Individual has attempted to mitigate the Criterion (l) security concerns through the testimony of five co-workers. Each had worked closely with the individual and considered himself to be a friend of the individual. Each witness testified that he believes the individual was reliable and a good worker. Each praised the individual for his dedication to raising his children. I am confident that their testimony is accurate.

However, each of the five witnesses indicated that he was unaware of the security concerns raised in this proceeding. None was aware that the individual had been convicted for petty larceny or had any knowledge, direct or indirect, of the events that resulted in that conviction. Therefore I find that they did not provide any meaningful views on whether the security concerns raised by that conviction were accurate. Nor do I believe that the general character testimony provided mitigates the severity of the DOE security concerns.

Accordingly, when I consider the Individual’s unsupported account of how he came to be wrongly convicted of petty larceny, an account that is in several key respects contradicted by eyewitness testimony, I am unable to find that the Individual has mitigated the § 710.8(l) concern associated with his petty larceny conviction.

IV. CRITERION (f) CONCERNS

As noted above, the Notification Letter states that the Individual may have "deliberately misrepresented, falsified, or omitted significant information" from an Operations Office Arrest Report received on January 8, 1999, from a DOE personnel security interview conducted on March 22, 1999 (the PSI), and from an Office of Personnel Management interview conducted on June 3, 1999.

The Individual has failed to mitigate these concerns. As discussed above, I was not convinced at the hearing that the Individual believed the truth of his testimony, and he has failed to provide corroborating information that would support his explanation concerning the December 16, 1998 Wal-Mart incident. Therefore, I find that he has failed to establish that he has not deliberately misrepresented the facts concerning the Wal-Mart incident. The inaccuracies at issue concern a significant legal matter (i.e., a court judgment of petty larceny). Given the nature and extent of the possible inaccuracies in the Individual’s explanation of this incident, it is difficult to conclude that any such inaccuracies were not deliberate. See, e.g., Personnel Security Hearing, Case No. VSO-0041, 25 DOE ¶ 82,775 at 85,672 (1995) (number of inaccuracies indicates pattern of misrepresentation). Accordingly, I conclude that the Individual has not resolved the security concerns under Criterion (f).

V. CONCLUSION

I conclude that the Individual has not mitigated the security concerns identified by the DOE office under 10 C.F.R. § 710.8(f) and (l). In view of the record before me, I am not persuaded that granting the Individual access authorization "will not endanger the common defense and security and will be clearly consistent with the national interest." Accordingly, I find that the Individual's access authorization should not be restored.

The regulations set forth at 10 C.F.R. Section 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 within 20 days of receipt of the statement.

Kent S. Woods

Hearing Officer

Office of Hearings and Appeals

Date: February 29, 2000