Case No. VSO-0345, 28 DOE ¶ 82,753 (H.O. Wieker July 10, 2000)

Case No. VSO-0345, 28 DOE ¶ 82,753 (H.O. Wieker 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: May 28, 1999

Case Number: VSO-0345

This Opinion concerns the eligibility of xxxxxxxxxxxx(the individual) to hold an access authorization. The regulations governing eligibility for access authorization(1) 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.

I. BACKGROUND

This administrative review proceeding began with the issuance of a Notification Letter by a Department of Energy (DOE) Office, informing the individual that information in the possession of the DOE created substantial doubt pertaining to his eligibility for an access authorization in connection with his work. In accordance with 10 C.F.R. § 710.21, the Notification Letter included a detailed statement of the derogatory information. The Notification Letter informed the individual that he was entitled to a hearing before a hearing officer in order to respond to the information contained in that letter.(2)

The DOE concern involves information indicating that the individual introduced nitrite into the urine specimen he provided to the DOE for a routine drug screening. The DOE believes that the individual placed the nitrite in his urine specimen(3) to prevent the testing laboratory(4) from testing his urine specimen for the chemical residuals of marijuana use. The DOE believes placing nitrite in the urine specimen is an attempt by the individual to deceive the DOE drug testing program and therefore, is a security concern under 10 C.F.R. § 710.8(l) (hereinafter Criterion L).

The Notification Letter also refers to the individual’s April 1991 drug certification in which he submitted a written promise not to use marijuana in the future. Tr. at 183. The DOE contends that the individual broke this promise by using marijuana and that he tried to cover up his marijuana use by introducing nitrite into his urine specimen. Throughout this proceeding the individual has consistently denied that he used marijuana or that he placed nitrite in his urine specimen.

There were nineteen witnesses at the hearing. The DOE presented five witnesses to explain in detail the procedures for obtaining and testing urine specimens provided by employees subject to random drug testing. The purpose of these witnesses was to convince me that it is highly unlikely that the testing laboratory results were incorrect or that someone other than the individual could have placed the nitrite in the individual’s urine specimen. The DOE also presented a security specialist to explain the basis for the DOE’s security concern. Finally, the DOE called three of the individual’s supervisors who testified that the individual is a productive and reliable employee. The individual testified on his own behalf and presented nine witnesses to convince me that he did not use marijuana.

The DOE submitted 22 exhibits in this proceeding. Three of those exhibits were central to testimony provided at the Hearing. The first is Exhibit #11 which is a transcript of the individual’s April 9, 1991, Personal Security Interview (PSI). During that interview the individual indicated that he last used marijuana in 1984. PSI transcript at 12. The second is Exhibit #13 which is the individual’s Questionnaire for Sensitive Position (QSP) which he signed on April 20, 1990. The answer to question 24 indicates the individual last used marijuana in September 1988. The third is Exhibit #16 which is 64 pages of chain of custody documents from the drug testing laboratory.

II. ANALYSIS

A. DISCUSSION OF URINE SPECIMEN PROCEDURES

In this case, the DOE security concern relates to the nitrite found by the testing laboratory in the individual’s urine specimen. The DOE believes that the individual was the only person that could have placed nitrite in his urine specimen.

Once there is a positive drug test, there is a presumption in these proceedings that the test is correct and the burden is on the affected employee to establish that the test results are not a security concern. Personnel Security Hearing (VSO-0051), 25 DOE ¶ 82,784 at 85,736 (1995). The individual has raised three concerns with the DOE urine testing procedures that he believes should convince me that someone other than himself may have placed the nitrite in his urine specimen. In order to evaluate the contention that some unknown person may have placed nitrite in the individual’s urine specimen, I will summarize the detailed testimony of the five witnesses that described the DOE urine testing procedures and safeguards. These witnesses include three employees at the DOE site and two professionals familiar with the procedures of the testing laboratory.

The DOE produced the Medical Service Operator (hereinafter the “MSO”) who supervised the collection of the individual’s urine specimen on April 14, 1999, the Substance Abuse Technician, who was responsible for packing and shipping the specimen to the testing laboratory (hereinafter the “specimen shipping official”), and the Lead Technical Specialist, Substance Abuse Program, who supervised the day to day operation of all drug and alcohol testing at the facility (hereinafter the “drug testing manager”). Tr. at 114. The MSO and the drug testing manager explained the individual selected a urine collection kit from a group of collection kits maintained in the medical office that collected the urine specimen. Tr. at 94. Each of the urine collection kits is identical, each containing a specimen cup, a specimen bottle, a self sealing bag used for transporting the specimen bottle, a self sealing specimen bottle cap and various labeling material. After randomly selecting a urine collection kit, the individual was instructed to open the collection kit and remove the specimen cup. Both the MSO and the individual visually inspected the specimen cup to assure themselves that there was no substance in the cup. Tr. at 117. The individual then went into a lavatory to collect the urine specimen in the specimen cup. The individual was not monitored when he was urinating into the specimen cup. Tr. at 95. It is undisputed that the individual had an opportunity to place a foreign substance in his specimen cup during the period he was in the lavatory.

When the individual returned from the lavatory, he opened the specimen bottle and he and the MSO visual inspected the specimen bottle. Tr. at 109 and 117. The individual was then instructed to pour a portion of the urine in the specimen cup into the specimen bottle. He then closed the specimen bottle with a self sealing cap. A coded identification label was placed across the cap of the specimen bottle. Tr. at 118. The individual verified that the bar code number on the specimen bottle matched the bar code number on the chain of custody form. Tr. at 119. The individual remained in the testing area until his specimen bottle was secured in the locking box. Tr. at 100. At the end of the day the locking box was transported to a secured area in the shipping department.

The shipping room official testified that he transferred the contents of the locking box to a cardboard shipping container. He prepared a detailed manifest of the shipping box. He further testified that he sealed the shipping box with perma-seal tape. Tr. at 227. The perma-sealed shipping box was transferred to Federal Express at their regular 2:00 P.M. pickup time on April 15, 1999. Tr. at 113. Federal Express transported and delivered the box of urine specimens to the drug testing laboratory.

The DOE called two expert witnesses who testified by telephone. The first was Dr. Robert Willette, who is president of DUO Research. DUO Research has a contract with the DOE and is charged with the responsibility of inspecting the testing laboratory and reviewing the quality of its work. Dr. Willette’s testimony indicated that DUO Research has done two or three inspections of the testing laboratory for each of the last ten years. Tr. at 35. DUO Research sends 5,000 test specimens to the testing laboratory each year. Tr. at 34. The urine specimens contain a known amount of various drugs. The test results reported by the testing laboratory on these blind specimens are evaluated by DUO Research. Tr. at 33. Dr. Willette testified that the testing laboratory has not had a false positive result in more than ten years. Tr. at 34.

Dr. Willette also described the process used to ensure the integrity of each urine specimen. He indicated that he had reviewed the documents contained in DOE Exhibit # 16. That exhibit consists of four introductory pages and 63 pages of laboratory documents related to the individual’s urine specimen. He testified that the specimen was received and the initial tests were all conducted on the same day:

... there are several documents involved because you have its initial receipt into the laboratory and then from that, the external chain-of-custody form is transferred -- its custody then is transferred to an internal custody form. . . . All of those steps appear to be in order; the timing. I mean, this all occurred -- from the receipt up through the initial test all occurred on the same day; the day that it was received.

Tr. at 43. His testimony convinced me that the testing laboratory was well organized and highly professional.

The second expert witness called by DOE was Mr. Neal Fortner who is the vice-president of Laboratory Operations for the testing laboratory. Tr. at 74. Mr. Fortner described a number of the testing laboratory procedures. During his testimony he also reviewed the documents contained in DOE Exhibit #16. Tr. at 51. He testified that page 3 of that exhibit indicated the individual's specimen bottle and the sealed bag were examined and found to be intact at the time the specimen was received at the laboratory. Tr. at 53.

Mr. Fortner testified that the testing laboratory’s first test indicated the presence of a high level of nitrite in the individual’s urine specimen. Tr. at 83. The exact level of nitrite was not determinable by the first test because the percentage of nitrite in the specimen exceeded the test’s upper limit of effectiveness in determining the level of nitrite. Tr. at 85. The test was repeated on two samples of that specimen that were diluted by adding water. The first dilution was one part urine and three parts water; the second dilution was one part urine and ten parts water. The report of the one to three dilution indicated the nitrite level of the mixture still exceeded the limits of the test. The test results of the one to ten dilution indicated nitrite level of 8,990 milligrams per deciliter in the original urine specimen. Tr. at 82. The testimony of Mr. Fortner indicated the nitrite level was extremely high and is not consistent with normal human physiology. Tr. at 87. I found Mr. Fortner’s testimony to be detailed and to have demonstrated that he understood the laboratory procedures and had reviewed the laboratory records relating to the individual’s specimen. Both counsels and I asked a number of questions. At all times Mr. Fortner’s testimony was forthright and candid. His testimony convinced me that the testing laboratory tested the urine specimen conscientiously and in accordance with their normal procedures.

The individual raised three concerns regarding the procedures used in collecting and analyzing the urine specimen, which he believes raise the possibility that someone other than himself placed the nitrite in his urine specimen. The first relates to the possibility that someone else placed nitrite in his urine collection kit before he selected that kit. The individual randomly selected a urine collection kit from more than 20 identical kits stored in a drawer in a medical examining room. The individual indicates that the supply of urine collection kits was accessible to non medical personnel and therefore it may have been possible for a non medical person to tamper with the collection kit before he selected that kit. The testimony indicated that there is a small possibility that an outside person may have gained access to the collection kits while visiting the medical facility. However, the testimony clearly indicated that if a kit were torn or in any way damaged that kit was discarded. Tr. at 105. The testimony indicated that the individual and the MSO examined the specimen kit before it was opened and it had not been tampered with. The testimony also indicated that the individual and the MSO examined the specimen cup and specimen bottle before they were used and would have noticed if a foreign substance had been placed in either the specimen cup or the specimen bottle. Therefore, I do not believe there is any reason to believe the collection kit the individual randomly selected had been tampered with or contained any substance prior to his use.

The second concern of the individual related to a perceived irregularity in the freezer log entry for his urine specimen. The freezer log is kept by the testing laboratory to indicate the specific location within the freezer of each specimen stored in the freezer. The individual pointed out that the freezer log entry for his urine specimen was on a line added to the bottom of a log page. The normal procedure is to place a log entry on the next available preprinted line. The individual believes this irregularity might indicate that his specimen was mishandled.

The testimony of Mr. Fortner indicates that if a urine specimen tests positive for any of a number of drugs, the testing laboratory runs confirming tests. After all normal tests of the specimen have been completed, positive specimens are placed in a freezer for storage for one year. Tr. at 78. A log is prepared as specimens are placed in the freezer. The purpose of the log is to permit a specimen to be recovered if additional testing is requested. The freezer log entry for the individual’s specimen was made by adding a line in the blank area at the bottom of a log page. The individual believes that it is normal procedure to place a log entry on a preprinted line rather than in the blank space at the bottom of a page. Recovery of specimens from the freezer is easier if specimens sent from a particular facility on a particular day are grouped on the freezer log. Mr. Fortner testified that placing the log entry at the bottom of the page kept two entries concerning specimens sent by the DOE on April 15 next to each other on the log. He also testified that it is not inappropriate to group entries in order to keep related items together. Tr. at 78. Dr. Willette testified that he would have preferred to see the testing laboratory use a new page but that he did not consider it irregular to place the log entry at the bottom of the page. Tr. at 56. I do not believe the individual has shown that the entry method on the freezer log indicates any reason to be concerned that the individual’s specimen was improperly handled by the testing laboratory. This finding that the freezer log entry is not relevant to determining the accuracy of test results is strengthened by the fact that the specimen was logged into the freezer for storage after all of the testing that indicated nitrites in the specimen had been completed.(5)

The third concern raised by the individual related to employees of the testing lab and medical employees at the DOE facility. The individual obtained testimony that the testing laboratory had employees whose performance was not at an acceptable level and that these employees were transferred to other jobs. Tr. at 90. I do not believe such general testimony provides a basis to believe that there was any problem regarding the taking or testing of the individual’s urine specimen.

The individual has the burden to show not just that there was a theoretical possibility of an irregularity or error in the testing procedure but he must provide a reason to believe that it is likely that an error in the test results occurred. His suspicions of possible problems are far from meeting that standard. In fact, I am convinced that the individual’s urine specimen was properly taken, protected and tested. Accordingly, the individual has not satisfied his burden of raising a significant concern that the test was inaccurate or that the nitrite was placed in the urine specimen by someone other than himself.

B. DISCUSSION OF MITIGATING FACTORS

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 apply a different standard, which is 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 granting or 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).

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 security" standard for the granting of security clearances indicates "that security-clearance determinations should err, if they must, on the side of denials"); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990),(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).

In rendering my judgment in this case, I must consider whether there are factors present to mitigate the DOE's security concern. Among the factors that I am to consider are those set forth at 10 C.F.R. § 710.7(c). See also 10 C.F.R. § 710.27(a).

The first group of mitigating witnesses was brought forward by the DOE. The DOE called the individual’s first, second and third level supervisors. Each of these witnesses testified that the individual was a capable, conscience and valued employee. I found these witnesses to be sincere and candid. I was convinced by these witnesses that the individual is an excellent employee who is considered reliable and trustworthy by his fellow employees.

The individual brought forward the testimony of a physician employed by the contractor at the DOE facility. The physician testified that he supervised the individual’s participation in the contractor’s EAPRO program. The individual entered that program after nitrite was found in his urine specimen. The program required monthly random drug test for one year and quarterly tests for the second year. It also required the individual to select one of three treatment options. Tr. at 8. The individual selected the self-help treatment option. That treatment option required him to attend Alcoholic Anonymous for one year. The record does not indicate the number of times that the individual attended AA and whether his attendance was sufficient to be considered rehabilitation. Tr. at 187. However, the record is clear that the individual has completed the first twelve months of random drug tests and the results of each of the random drug tests was negative. I am persuaded that the individual has not used marijuana in the last year.

The next group of witnesses included the individual’s friends and co-workers. The individual presented these witnesses to convince me he has not used marijuana since 1984. The testimony of the friends and co-workers indicated that they had never seen the individual use marijuana and these witnesses clearly did not believe that the individual used marijuana. I believe his friends and co-workers testified honestly and that they had never seen the individual use marijuana and that they did not believe that the individual has used marijuana during the period they have known him. Several of the witnesses were surprised to learn during questioning that the individual used marijuana in 1984. I believe this group of witnesses represented a wide cross section of his friends and co-workers and their testimony provided convincing evidence that the individual does not use marijuana when he is at home, at work or socializing with his friends and neighbors in his hometown. However, in view of the adulterated drug test and his prior use of marijuana, the fact that the individual does not use marijuana in his regular home and work environment does not convince me that he may not be an occasional user of marijuana in other circumstances.(6)

The individual called his mother to testify. She indicated that she knew the individual had used marijuana in the 1970's when he was in high school. She testified that she is certain that he has not used marijuana since 1980 when he promised her he would never use marijuana again. Tr. at 169. I believe his mother testified truthfully and openly. However, it is clear she was not aware of the individual’s use of marijuana in the early 1980's and would not be aware of a pattern of casual use in the 1990's.

The individual’s wife also testified. She indicated that the individual has not used marijuana since their wedding in 1981. Tr. at 173. When she was shown the section of the individual’s QSP which indicated the individual used marijuana in 1988, she testified that she was not aware of any use after 1980. Tr. at 174. She was then asked if she had filled out the QSP for the individual and whether the hand writing on the QSP was hers. Her testimony indicated that she did not recall filing out the QSP and she could not be sure if the hand writing was hers. Tr. at 175. When answering those questions she was defensive and I felt that she was attempting to avoid providing direct and truthful answers. Later in the Hearing the individual testified that his wife had filled out the QSP for him because his hand writing was not very legible. Tr. at 190. I do not believe the individual’s wife was candid about the QSP or her knowledge of her husband’s use of marijuana. This causes me to suspect the reliability of her testimony that the individual has not used marijuana since 1981. Accordingly, I will give little weight to that testimony.

Finally, I did not find the individual’s own testimony to be particularly credible or candid. He testified that his last use of marijuana was in 1984. Tr. at 193. He also testified that he did not adulterate his urine specimen. Tr. at 189. When he was asked about his admitted marijuana use in high school and the early 1980's, he indicated that it had been a long time ago and his memory was weak. Tr. at 181 and 189. My impression was that he was intentionally avoiding providing his best recollection of events in the 1980's and I felt he was not attempting to provide answers to the best of his knowledge. Another example of testimony that I did not find reliable was his testimony that he has not used marijuana since 1984 which was six years before he was employed at the DOE site. He was shown the QSP which he signed on April 20, 1990. This form was submitted soon after he was employed at the DOE facility. That QSP indicates that he last used marijuana in 1988. He testified at the Hearing that his statement regarding his last use of marijuana on his QSP was incorrect and that his last use of marijuana was in 1984. Tr. at 191. When asked why he had made such a mistake on his QSP he indicated he did not know. Tr. at 191. I find it hard to believe that in 1990 he was confused or mistaken about his marijuana use in 1988. Given the equivocation in his testimony regarding when and in what circumstances he used marijuana I found his certainty that his statements on his QSP were incorrect to be unbelievable. I believe the individual’s testimony on key points was not candid and that he did not attempt to be honest in answering questions regarding his marijuana use.

Since I do not believe his testimony regarding his marijuana use in the 1980's, I find it difficult to accept his testimony that he is not a casual user of marijuana in the 1990's and his testimony that he did not add nitrite to his urine specimen.

III. CONCLUSION

The purpose of a security hearing is to provide the individual with an opportunity to present information to mitigate the DOE security concerns. The individual has brought forward significant mitigating testimony including the testimony he is an excellent worker, does not use marijuana in his normal home life, has not used marijuana in the last year and has participated in a rehabilitation program. However, in view of the presence of nitrite in his urine and the lack of candor in his testimony, I am not convinced the individual testified honestly when he indicated he has not used marijuana since 1984. Furthermore, since the only reasonable explanation for the nitrite in his urine specimen is that the individual added it when he was in the lavatory, I believe the individual has not been truthful with regard to the nitrite in his urine specimen. Accordingly I believe the individual has not resolved a serious security concern regarding circumstances which indicate he is not “honest, reliable and trustworthy.” 10 C.F.R. § 710.8(l) I cannot recommend that the individual’s access authorization be restored.

The regulations set forth provide that the Office of Security Affairs or the individual may file a request for review of the 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, 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.

Thomas L. Wieker

Hearing Officer

Office of Hearings and Appeals

Date: July 10, 2000

(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. This authorization will also be referred to in this Opinion as a security clearance.

(2)The individual requested a hearing, and that request was forwarded by the DOE Office to the Office of Hearings and Appeals (OHA). I was appointed the Hearing officer in this matter. In accordance with 10 C.F.R. § 710.25(e) and (g), the hearing was convened.

(3)DOE Exhibit #19 includes copies of several web pages. Those web sites offer to sell a nitrite products (e.g. Klear) that will mask the presence of the residual of marijuana use in a urine specimen.

(4)PharmChem Laboratories, Inc. of Menlo Park, California.

(5)The DOE did request a retest several months later. Those tests confirmed the presence of nitrite in the specimen.

(6)For instance the individual testified that he was at his hunting club during the weekend proceeding the Wednesday, April 14, 1999, random drug test. In cases in which the individual denies using marijuana it is important for him to bring forward witnesses that are familiar with his activities during the period shortly before the test. The only testimony regarding the time spent at the hunting club came from one witness who indicated that he had never seen any marijuana used at the hunting club. This testimony did not convince me that there was no marijuana use at the hunting club. Also if marijuana were used occasionally at the hunting club, I do not believe the individual’s family and friends would have been aware of the use.