Case No. VSO-0339, 28 DOE ¶ 82,752 (H.O. Mann July 10, 2000)

Case No. VSO-0339, 28 DOE ¶ 82,752 (H.O. Mann July 10, 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.

July 10, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: February 28, 2000

Case Number: VSO-0339

This Opinion concerns the eligibility of XXXXX (hereinafter referred to as "the individual") to hold an access authorization (also called a security clearance). The individual's access authorization was suspended under the Department of Energy (DOE) regulations set forth at 10 CFR Part 710, Subpart A, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." As explained below, I recommend against restoring the individual’s access authorization.

Background

The individual is employed by a contractor at a DOE facility and held an access authorization before it was suspended. The local DOE security office issued a Notification Letter to the individual on January 20, 2000. The Notification Letter alleges under 10 CFR § 710.8(f) that the individual “has deliberately misrepresented, falsified, or omitted significant information from a Personnel Security Questionnaire, a Questionnaire for Sensitive Positions (QSP), a personnel qualifications statement, a Personnel Security Interview (PSI), written or oral statements made in response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access authorization....” The Notification Letter also alleges under 10 CFR § 710.8(k) that the individual has “... possessed, used, or experimented with” marijuana. Finally, the Notification Letter alleges under 10 CFR § 710.8(l) 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.”

The Notification letter lists several instances, starting with a 1975 PSQ and most recently during a 1999 PSI, when the individual allegedly gave false, misleading or incomplete statements about his 1971 guilty plea to a marijuana possession charge, and about his marijuana use. According to the Notification Letter, the individual’s statements are contradicted by information about the 1971 marijuana possession charge and his marijuana use obtained in a 1979 PSI, and investigations conducted by the Office of Personnel Management (OPM) in 1979, 1998 and 1999. Also included as a “falsification” charge is the allegation that the individual signed an affidavit in 1979 in which he agreed not to use marijuana while employed in any position requiring a security clearance, and that he violated this agreement. The charge in the Notification Letter that the individual engaged in “unusual conduct” is also based on the same allegations that the individual deliberately submitted false or misleading information about the 1971 marijuana possession charge and his marijuana use.

Because of these security concerns, the case was referred for administrative review. The individual filed a request for a hearing on the concerns in the Notification Letter. DOE transmitted the individual's hearing request to the Office of Hearings and Appeals (OHA), the OHA Director appointed me as Hearing Officer in this case.

At the hearing that I convened, the DOE Counsel called three witnesses: a DOE personnel security specialist, the individual’s former spouse, and the individual’s longtime friend. The individual testified on his own behalf, and called seven other witnesses, including five of his current or former co-workers at the DOE facility, his brother, and his current spouse. The DOE and the individual each submitted 23 written exhibits.(1)

Standard of Review

The applicable DOE regulations state that "[t]he 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." 10 CFR § 710.7(a). In resolving questions about the individual’s eligibility for access authorization, I must consider the relevant factors and circumstances connected with the individual’s conduct. These factors are set out in § 710.7(c):

the nature, extent, and seriousness of the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the voluntariness of participation; the age and maturity of the individual at the time of the conduct; 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; and the likelihood of continuation or recurrence.

A DOE administrative review proceeding under 10 CFR Part 710 is authorized when the existence of derogatory information leaves unresolved questions about an individual’s eligibility for access authorization. A hearing is “for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization.” 10 CFR § 710.21(b)(6). Once DOE has presented derogatory information affecting an individual’s eligibility for access authorization, the individual must come forward with evidence to convince the DOE that restoring his or her access authorization “would not endanger the common defense and security and would be clearly consistent with the national interest." 10 CFR § 710.7(a). See Personnel Security Hearing (Case No. VSO-0013), 24 DOE ¶ 82,752 at 85,511 (1995) and cases cited therein. For the reasons discussed below, I am convinced that this individual's access authorization should not be restored.

Findings of Fact

The individual does not dispute the principal facts alleged in the Notification Letter. Instead, he challenges the position taken by the local DOE security office that certain concerns in the Notification Letter should now be reopened, rather than considered as having been resolved long ago. For the reasons explained below, I agree with the individual that he has presented information sufficient to resolve two of these concerns, current marijuana use (Criterion K), and violation of his promise in the 1979 affidavit not to use drugs while holding a clearance (Criterion F). However, I also find that the individual has failed to mitigate the concerns under Criteria F and L that he repeatedly gave false, misleading or incomplete information to DOE security about his guilty plea to a 1971 marijuana possession charge, and about his then-current marijuana use in the 1970s. It is for these reasons that I do not recommend restoration of the individual’s clearance.

The individual disputes the notion that there is a currently unresolved concern that he falsified or omitted information about his guilty plea to the 1971 marijuana possession charge. For unknown reasons, this charge never came up in 1975 when he first applied for a clearance. Following the 1975 PSI, which resolved concerns about other issues, the local security office granted the individual a clearance.

In 1979, the individual needed his clearance level upgraded. The local security office ordered a new background investigation. In the 1979 PSI, the individual was asked about the 1971 marijuana possession charge. He told the interviewers that he tried marijuana a few times, but that he had not used it or any other controlled substances since 1969, and that he did not associate with persons who did. 1979 PSI Transcript (Tr.), DOE Exhibit 9 at 5; see also U.S. Civil Service Commission Report of Investigation, DOE Exhibit 8 at 3; . The individual said that he pled guilty to the 1971 marijuana charge and paid a $35 fine because he was on probation at the time, he was drunk, and he did not want to contest it. The individual claimed he did not report it initially because he did not believe he had been arrested for, or found guilty of, marijuana possession. 1979 PSI Tr. at 6-7. At the hearing, the individual insisted that he was never arrested for marijuana possession, but charged with it in a citation after being arrested for illegal consumption of alcohol, and a marijuana “roach” was found in the car he was riding in. He maintained he was arrested for drinking under age, and that he thought the judge said the marijuana possession charge was being dropped for lack of evidence. Hearing Tr. at 169-171. The original court records were destroyed in 1975, so the underlying facts about the marijuana possession charge are no longer available for verification. Hearing Tr. at 157; 172. In 1979, after the individual acknowledged the 1971 marijuana possession charge when it was explained to him that he should have been reported it on the security form, he signed an affidavit stating that he would not use marijuana or other controlled substances at any time while employed in a position requiring a DOE access authorization (DOE Exhibit 10). Then the matter was considered resolved by the local security office, and the individual’s clearance upgrade was approved.(2)

The individual never reported the 1971 marijuana charge on any of the subsequent DOE security forms he submitted in 1983, 1987, 1993 and 1998. In addition, he answered “no” to questions asking whether he used drugs, or experienced problems on or off the job from the use of drugs, on the DOE security forms he submitted in 1983, 1987, 1993 and 1998. At the hearing, the individual testified that he believed all concerns about his prior marijuana involvement were resolved when he signed the drug certification affidavit in 1979, including his obligation to report the 1971 possession charge on subsequent DOE security forms. According to the individual, “I was told that–that all prior drug use prior to that was forgotten and forgiven and I was starting with a new clean slate. So on all the boxes I checked no assuming that I had a clean slate.” Hearing Tr. at 173.

During the most recent investigation of the individual in 1999, new information surfaced from two sources about his occasional marijuana use many years earlier. One source, the individual’s longtime friend, indicated the individual used marijuana “until about 1970 or 1971.” The second source, the individual’s former spouse, told the OPM investigator he used marijuana infrequently “until the late 1970s or early 1980s.” Notification Letter at 3. At the hearing, the individual’s former spouse admitted that she could not be sure about the last time he had smoked marijuana with her–whether it was the late ?70s or early ?80s. Nor could she remember whether the individual had ever smoked marijuana after 1979. Hearing Tr. at 77-80.

The 1999 reinvestigation also indicated that in 1991, someone reported smelling marijuana in the area of the DOE facility where the individual worked. The Notification Letter characterized this as “an instance where [the individual was] allegedly involved with use of marijuana at work in 1991,” that raised questions about the individual’s more current involvement with drugs. Notification Letter at ¶ II.3. However, at the hearing, the DOE personnel security specialist conceded that this report was not substantiated. Hearing Tr. at 23. In addition, several witnesses who worked with the individual in 1991 testified that they looked into the matter at the time, and concluded that it was unsubstantiated. Hearing Tr. at 93 (“I didn’t document it in any way because we looked at it and we had no substantiating evidence at all. It was what we considered hearsay, complete.”); 108 (“There’s never been anything derogatory about [the individual] that has come through our office, nor have I ever heard of anything.”); and 118 (“The word came back to me they were going to check into it. I never heard another word on it.”). The person who reported the alleged incident was not even certain that what he smelled was marijuana: “I am not testifying that it was marijuana or wasn’t.” Hearing Tr. at 131. Because the facts surrounding the alleged “workplace smoke” incident were unsubstantiated, the individual’s supervisors never told him about it in 1991. The individual claims that if he had known about the rumored incident, he would have taken a drug test to prove his innocence. Hearing Tr. at 177. The individual denied ever using drugs after 1979, and pointed out that all the drug tests he has taken since then have been negative. Finally, the individual testified that although he was in the facility on the night in question, he was off making rounds and not in the area when the smell was reported. Hearing Tr. at 188.

In 1999, the local DOE security office conducted a PSI, during which the interviewer asked the individual about his prior use of marijuana. 1999 PSI Tr. at 5. The individual denied he had ever used the drug. Id. at 6. He recalled discussing the 1971 marijuana possession charge with DOE security interviewers 20 years ago, and being told that it should have been on his record. Id. at 5. But the individual still denied he had ever admitted using marijuana in the past, even after the DOE interviewer read him the transcript of the 1979 PSI where he made that admission. Id. at 7-8. At the hearing, the individual admitted that he “screwed up” and claimed that he forgot all about what he said about prior drug use during the 1979 interview. Hearing Tr. at 179. In addition, the individual conceded that he should have reported the 1971 marijuana possession charge, that it was not “forgiven” when he signed the affidavit in 1979, and that “it’s come back to haunt me.” Hearing Tr. at 186. The individual also admitted he had lied to the DOE interviewers in the 1979 PSI when he failed to tell them he smoked marijuana “after 1969 or ?70 or’71” with his former spouse and others. Hearing Tr. at 195-197. The individual admitted that he lied to the DOE interviewer in the 1999 PSI, but he insisted he had never smoked marijuana after signing the affidavit in 1979. Hearing Tr. at 189-190; 199. The individual’s brother also admitted knowing that the individual had smoked marijuana with his former spouse in the 1970s, and knowing the individual concealed this information from the DOE. Hearing Tr. at 141; 144. But his brother testified that he did not think the individual had ever used marijuana after signing the affidavit in 1979. The brother thought that the promise not to use illegal drugs was important to the individual because getting a higher clearance level enabled the individual to get a much better job, which “was a chance for him to take a step up in life.” Hearing Tr. at 142-144.

Analysis

1. Marijuana concerns under Criterion K

I will begin by addressing the concern under 10 CFR § 710.8(k) that the individual used marijuana. The local DOE security office reexamines the entire personnel security file each time an individual is reinvestigated. Hearing Tr. at 64. In view of the new evidence that came to light in 1999 about the individual’s marijuana use in the 1970s, security was correct to include this concern in the Notification Letter. The implication in the Notification Letter was that since the individual had lied about his drug use in the past, there is a concern about his current use of marijuana. The burden is on the individual to come forward with evidence to resolve a valid security concern. However, after considering the overall record, and evaluating the testimony of the witnesses at the hearing, I find that the individual has presented evidence sufficient to persuade me that he has not used marijuana since 1979, and there is no credible evidence to the contrary. The individual has therefore shown that his marijuana use ended a long, long time ago, and given the long period he has mitigated the concern under Criterion K.

The individual’s former spouse provided evidence that he used marijuana after 1971. Because of the passage of time, she could not remember the precise date when he last smoked it with her, but at the most recent, it was about 20 years ago. Hearing Tr. at 77-80. There is also testimony from the individual and his brother that the individual never smoked marijuana after signing the affidavit in 1979, which was memorable because it marked a watershed improvement in the individual’s job status. The individual has never had a positive drug test in the 21 years since signing the affidavit. At the hearing the DOE security specialist conceded that there was no substantiation for the 1991 workplace smoke incident referenced in the Notification Letter, and this was corroborated by several other witnesses. The individual’s current spouse, who has been with him since 1993, corroborated the testimony of the individual and his brother that he had reformed his behavior. She testified that when she was introduced to the individual, her “concern was he did not drink or use drugs, because I had both of those things in my previous marriage...and I specifically did not want to go through those problems again...I was very adamant about not meeting him if this was going to be an issue if he used drugs or alcohol and I was assured he did not.” Hearing Tr. at 134. The evidence is convincing that the individual has not used marijuana for the last 20 years, and I find he has mitigated the concern under Criterion K about his use of the drug. I therefore conclude that the marijuana concern under Criterion K is resolved in favor of the individual.

2. Falsification concerns under Criterion F

The same evidence on which I relied to resolve the marijuana concern under Criterion K in the individual’s favor works against him with respect to the concerns under Criterion F. Once the DOE received new evidence in 1999 about the extent of the individual’s marijuana use in the 1970s, the credibility of his prior statements in security forms and PSIs was called into question. DOE security was correct in raising a concern under Criterion F based on the individual’s consistent failure to list the 1971 marijuana possession charge on the six DOE security forms he completed in 1975, 1979, 1983, 1987, 1993 and 1998. The Criterion F concern also encompasses the individual’s related failure to answer “yes” to the questions on the five most recent forms asking whether he had used illegal drugs or been in trouble for using illegal drugs, his false statements to DOE during the 1979 and 1999 PSIs about the extent of his marijuana use in the 1970s, and his alleged violation of the promise in the 1979 affidavit not to use illegal drugs while holding a DOE access authorization.

At the hearing, the individual gave two excuses for failing to list his guilty plea to the 1971 marijuana possession charge or answer “yes” to the drug use questions on any of the forms: (1) he was never arrested for marijuana possession, but charged with a citation after being arrested for underage drinking, and (2) he thought all was forgiven after he admitted to the 1971 charge during the 1979 PSI and was offered the chance to sign the DOE drug certification affidavit.

Neither of these reasons is convincing. Even if the individual had the impression before the 1979 PSI that he was not obliged to report a citation, it should have been clear to him after the interview that he needed to report his guilty plea to the marijuana possession charge on future DOE security forms. In responding to a DOE security question seeking information about involvement with illegal drugs, no reasonable person would think there is a significant difference between an arrest for marijuana possession and a guilty plea to a citation charging the individual with marijuana possession, or that a guilty plea to possession does not constitute getting into trouble because of drugs. Nor is the individual’s subsequent omission of the 1971 marijuana possession charge from his 1983, 1987, 1993 and 1998 security forms excused by the fact that DOE knew about the charge after 1979. In view of the individual’s admitted lack of candor about the extent of his marijuana use in the 1970s, his claim that he believed he had a clean slate after the 1979 drug certification affidavit is not credible. Even after the actual events faded with the passage of time, the individual never admitted the truth about his drug use in the 1970s to DOE, either on the security forms he completed in the ensuing years, or during the PSI conducted in 1999. As the individual conceded at the hearing, the marijuana possession charge never went away, and it came back to haunt him. Hearing Tr. at 186. For these reasons, I find that the individual has failed to mitigate the concerns under Criterion F that he gave false, misleading or incomplete information to DOE about the his guilty plea to the 1971 marijuana possession charge and the extent of his drug use in the 1970s.

While it does not affect my ultimate recommendation in this case, I reach a different conclusion with respect to the concern under Criterion F that the individual violated his promise in the 1979 affidavit not to use illegal drugs while holding a job that required a clearance. As noted above, the individual has met his burden of showing that he did not use illegal drugs after signing the affidavit, and there is no credible evidence to the contrary. His former spouse testified that the individual’s marijuana use ended around that year, but she cannot remember anything more specific because of the passage of time. Hearing Tr. at 77-80. The individual and his brother both testified that he took the promise not to use drugs seriously, and never violated it because his new job was such an important step up for the individual. Thus, the weight of the evidence is that the individual quit using marijuana for good when he signed the affidavit in 1979, and I cannot find that he violated his promise not to use drugs. For these reasons, I find the individual has mitigated the concern under Criterion F that he violated the 1979 drug certification affidavit.

The violation of a DOE drug certification is the type of security concern that usually falls within the purview of Criterion L, rather than Criterion F. Even if I were to find that the individual was unable to keep his promise not to use illegal drugs, if the evidence showed that he believed it to be true when he made the promise, a later violation would not mean the promise was untrue at the outset.(3) Thus, there would be no basis for finding “falsification” under Criterion F. Instead, it would tend to show that the individual was not reliable, and would constitute a “violation of any commitment or promise upon which DOE previously relief to favorably resolve an issue of access authorization eligibility,” as literally stated in the last clause of 10 CFR § 708.8(l).

3. Trustworthiness concerns under Criterion L

Based on the evidence discussed above that the individual concealed information from the DOE on security forms and PSIs, I find that he has failed to mitigate the concerns under Criterion L. The information the individual failed to disclose was relevant to his eligibility for a clearance, and his conduct tends to show that he is not honest, reliable or trustworthy. Before the present administrative review proceeding, the individual’s concealment of information about his past involvement with illegal drugs could also have furnished reason to believe that he may be subject to coercion that would cause him to act contrary to the best interests of the national security. However, since the information is now out in the open, the latter concern has been resolved.

Gauging the individual’s conduct under the standards set forth in 10 CFR § 710.7(c), I find that it was serious in nature because it could have made the individual vulnerable to coercion. As noted above, however, that is no longer a concern. Since it involved six security forms and two PSIs and spanned a period of 24 years from 1975 through 1999, I find the individual’s conduct was not an isolated event, but part of a pattern of untrustworthy behavior. In addition, I find that his participation was knowledgeable and voluntary, and the conduct continued when he was a mature adult.

The DOE security program is based on trust, and once an individual has breached that trust, a serious question arises as to whether that individual can be trusted to comply with the security regulations. Personnel Security Hearing (Case No. VSO-0013), 25 DOE ¶ 82,752 at 85,515 (1995), affirmed (OSA, May 22, 1995). At this point in time, less than a year after the individual last breached that trust when he lied to DOE security about his past marijuana use, and I am not convinced that the individual has reformed his behavior. Thus, I am unable at this time to determine if or when the individual can be trusted again with a DOE access authorization.

Conclusion

Based on the entire record in this proceeding, I find that the individual has resolved the security concerns raised under 10 CFR § 710.8(k), but failed to resolve all of the security concerns raised under 10 CFR § 710.8(f) and (l). I conclude that the individual has mitigated the concern that he used marijuana because the evidence indicates that the individual has reformed and his last use occurred approximately 21 years ago. For the same reason, I find that the individual has resolved the concern that he violated his promise in a 1979 affidavit not to use illegal drugs while holding a clearance. However, I also find that he has not mitigated the concerns that he gave false or misleading information to DOE security that was relevant to his eligibility for access authorization as late as 1999, and that he thereby engaged in conduct which tends to show that he is not honest, reliable or trustworthy. Finally, I find that the individual has resolved the concern 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.

For the reasons explained in this Opinion, I find that the individual has not shown that restoring his access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, I recommend that the individual's access authorization not be restored.

The regulations set forth at 10 CFR § 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 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 CFR § 710.28(b). The address to which submissions must be sent for purposes of serving them on the Office of Security Affairs is as follows:

Director

Office of Safeguards and Security, SO-21

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874

Thomas O. Mann

Hearing Officer

Office of Hearings and Appeals

Date: July 10, 2000

(1) The hearing transcript refers to the Notification Letter as “DOE Exhibit 24.”

(2) The written promise not to use illegal drugs while holding a job requiring a DOE access authorization is commonly called a “DOE drug certification” in OHA personnel security opinions.

(3) The result would be different if the evidence showed the individual did not believe his promise not to use drugs was true when he made it. See Personnel Security Hearing (Case No. VSO- 0289), 27 DOE ¶ 82,823 (November 18, 1999), affirmed (OHA February 17, 2000), affirmed (OSA May 18, 2000).