Case No. VSO-0352, 28 DOE ¶ 82,774 (H.O. Adeyeye November 15, 2000)

Case No. VSO-0352, 28 DOE ¶ 82,774 (H.O. Adeyeye November 15, 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.

November 15, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer’s Opinion

Name of Case: Personnel Security Hearing

Date of Filing: March 29, 2000

Case Number: VSO-0352

This Opinion concerns the eligibility of XXXX XX(hereinafter referred to as the “individual”) to hold an 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 individual’s access authorization was suspended under the provisions of Part 710. This Opinion considers whether, on the basis of the evidence and testimony presented in this proceeding, the individual’s access authorization should be restored. As set forth in the Opinion, I recommend that the individual’s security clearance be restored.

I. Background

The individual has been employed by DOE for 20 years. The individual held an access authorization as a requirement of his job, which also required random drug tests. After examining the results of the individual’s most recent test, the laboratory determined that the individual’s specimen did not reflect the characteristics of normal human urine and reported the results as “substituted: not consistent with normal human urine.” This result was considered a refusal to test, and carried the same consequences as a positive drug test. The derogatory information was not resolved during a personnel security interview (PSI), and is set forth in the Notification Letter. The Notification Letter states that the derogatory information regarding the individual falls within 10 C.F.R. § 710.8(l) (Criterion L). The DOE Operations Office invokes Criterion L on the basis of information 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.

In a letter to DOE Personnel Security, the individual exercised his right under Part 710 to request a hearing in this matter. 10 C.F.R. § 710.21(b). On March 29, 2000, I was appointed as Hearing Officer in this case. After conferring with the individual and the appointed DOE counsel, 10 C.F.R. § 710.24, I set a hearing date. At the hearing, the DOE counsel called two witnesses: the DOE personnel security specialist and the Medical Review Officer, a DOE contractor. The individual testified and called seven witnesses: two supervisors and five colleagues. The transcript taken at the hearing shall be hereinafter cited as “Tr.” Various documents that were submitted by the DOE counsel during this proceeding constitute exhibits to the hearing transcript and shall be cited as “Ex.” The record was held open for the receipt of one document, “Individual’s Ex. 1,” which was filed in this office on October 16, 2000. The record was closed on that date.

II. Analysis

The provisions of 10 C.F.R. Part 710 govern the eligibility of individuals who are employed by or are applicants for employment with DOE contractors, agents, DOE access permittees, and other persons designated by the Secretary of Energy for access to classified matter or special nuclear material. Part 710 provides that “[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all 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).

A DOE administrative review proceeding under 10 C.F.R. Part 710 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). Once the DOE Operations Office has made a showing of derogatory information raising security concerns, the burden is on the individual to come forward at the hearing with evidence to convince the DOE that granting 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 Department of Navy v. Egan, 484 U.S. 518, 531 (1988) (the “clearly consistent with the national interest” test 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), cert. denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance).

I have thoroughly considered the record of this proceeding, including the submissions of the parties, the evidence presented and the testimony of the witnesses at the hearing convened in this matter. In resolving the question of the individual’s eligibility for access authorization, I have been guided by the applicable factors prescribed in 10 C.F.R. § 710.7(c): the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the voluntariness of the participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct; the potential for pressure, coercion, exploitation, or duress; the likelihood of continuance or recurrence; and other relevant and material factors. After due deliberation, it is my opinion that the individual’s access authorization should be restored because I conclude that a restoration would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. § 710.27(a). The specific findings that I make in support of this determination are discussed below.

A. Findings of Fact

The following facts are uncontested. Prior to joining DOE, the individual served in the armed forces, and was honorably discharged. Tab 4, Ex. 1 at 37. In 1980, DOE hired the individual and he signed a drug certification (an agreement not to use drugs), based on his admission of minor drug use as a teenager (25 years prior to the hearing). Tr. at 202; Tab 4, Ex. 3. The individual’s job required regular drug tests. Tr. at 160. Because of his direct contact with nuclear explosives, the individual participated in the Personnel Assurance Program (PAP). Tr. at 181; Tab 4, Ex. 1 at 46. PAP is a human reliability program designed to ensure that individuals who are assigned to nuclear explosive- related duties have no emotional, mental, or physical problems that could result in a threat to nuclear explosives. Tr. at 15. During his employment, the individual took random drug tests three or four times per year. Tr. at 209. From 1980 to August 1999, all of the individual’s drug tests were negative. Tr. at 16-17.

On August 18, 1999, the individual’s supervisor notified the individual that he had been selected for a random drug test and ordered the individual to report to the collection site (a local clinic) within 30 minutes. Tr. at 195. The individual reported to the collection site within approximately 10 minutes. Tr. at 198. He entered the collection site with his keys, picture identification, and a book, and waited about 10 minutes more before being asked to give a specimen. Tr. at 198-199. The individual showed his identification card to the nurse, who gave him the forms and one specimen cup. Tr. at 200. He left his keys, identification card, and book outside of the room, as directed by the nurse. Tr. at 205-207. After giving a specimen, the individual asked the nurse why there was only one specimen cup. Tr. at 201. She replied that the new boxes sent to the collection site had only one bottle inside. Id. The individual watched the nurse put the label on, and left. Tr. at 201. The specimen was sent to the lab for testing. Tr. at 36. The lab determined that the chemical composition of the specimen was not consistent with the composition of normal human urine. Tr. at 36-40; Tab 3, Ex. 2 (Litigation Packet) at 14. The lab indicated that the specimen was “substituted,” and did not run any further tests on the specimen. (1) Tr. at 46; Tab 3, Ex. 1 at 3. The lab sent the test results to a company that provided medical review officer (MRO) services to DOE. (2) Id. An MRO employed by that company reviewed the test results and classified the specimen as a “refusal to test,” a result which carries the same consequences under DOE drug testing policy as a positive test. Tr. at 40-46; Tab 3, Ex. 1 at 1. The sample was not retested. Id; Tr. at 40-46, 49, 61. The individual was immediately removed from the PAP program, and his clearance was later suspended by DOE security. Tr. at 127; Tab 2, Ex. 6.

B. Criterion L

The DOE security concern is based on the undisputed fact that the lab reported an adulterated specimen, considered a positive drug test under agency guidelines. If DOE’s allegation that the individual adulterated his specimen is true, it implies dishonesty and a lack of reliability or trustworthiness on the part of the individual. Personnel Security Hearing, Case No. VSO-0216, 27 DOE ¶ 82,781 (1998). In this case, however, although the test result raises a valid security concern with respect to Criterion L, for the following reasons I find that the individual has mitigated that concern.

(1) Procedural Discrepancies

The record contains credible evidence of non-trivial procedural irregularities in the individual’s test. First, the individual questioned the nurse at the collection site about an irregularity he observed after 19 years of taking drug tests–she gave him only one specimen bottle. Tr. at 201. The nurse informed the individual that she had received a new kit with only one bottle, and proceeded with the collection. Id. Nonetheless, in a box clearly marked “Split Specimen Required?” the nurse checked “yes.” DOE Exhibit 2, Tab 3 at 12. There is no explanation for why she checked one box and then proceeded in a different manner than she certified. When the specimen arrived at the lab, a lab employee called a “sample processor” performed an “initial discrepancy check.” Tab 3, Ex. 2 at 13. In this case, the lab found a discrepancy, and checked a box on a lab form entitled “Note for the Record” that indicated “Split Bottle Missing.” Id. The form was also stamped in capital letters “SPLIT SAMPLE DISCREPANCY.” (3) Id.

In addition, the individual’s second line supervisor, also the drug test coordinator, provided further credible evidence about procedural discrepancies in testing procedures in 1999 and the first quarter of 2000. Tr. at 171, 177-180. The supervisor, who schedules the procedure for his employees, said that the sites sometimes receive single bottle kits, instead of two bottle kits. Tr. at 177-180. According to the supervisor, the regulations require a two-specimen kit. Id. at 178-179; Individual’s Ex. 1; see also Personnel Security Hearing, Case No. VSO-0216, 27 DOE ¶ 82,781 at 85,687 (1998). In fact, the supervisor testified that on first hearing the results of the test, he suspected that the problem was with the test, and not the individual. Tr. at 171. The witness questioned his superiors at another DOE operations office when he found that the collection site was using single specimen kits:

A. Sometimes the collection people will send a single bottle kit versus a two specimen kit. We should have two specimen kits. In March of this year we went back to [a DOE Operations Office] to find out why we got single kits again for the first quarter of 2000. And they went back to the contract lab and we are assuring now that we get two [specimen] kits. We are supposed to have two bottles for two separate samples. . . .

Q. Do you know if they were sending those single kits last fall?

A. We have had them before, yes.

Tr. at 177-178.

Although this evidence does not explain what happened to the individual’s specimen, it does raise a substantial doubt about the handling of the sample and the circumstances of the collection. See Personnel Security Hearing, Case No. VSO-0126, 26 DOE ¶ 82,776 (1997) (finding “cause for concern” in deviation from established drug testing procedure). If a split sample were available or a retest performed, the accuracy of the first test could have been verified. See Personnel Security Hearing, Case No. VSO-0216, 27 DOE ¶ 82,781 at 85,687 (1998) (stating that a retest provides “a safeguard to ensure the accuracy of the test result . . .”). However, in this case there was no split sample and no provision for a retest of the original specimen.

(2) No Testimony From the Lab or Collection Site.

During the hearing, the MRO testified about the procedures used in drug testing. Tr. at 35. The MRO is not, however, an employee of the testing laboratory or an employee of the collection site clinic. Tr. at 24-26. In fact, regulations prohibit any relationship between the laboratory and the MRO. Tr. at 25. The MRO is employed by a private company that contracts with the DOE to review the results of workplace drug testing. Tr. at 24-26. He based his testimony on the Litigation Packet that his company prepared when notified that the integrity of the test was in question. Tr. at 26; Litigation Packet. The Litigation Packet contained chain of custody forms and other documents reflecting the results of the individual’s test, and explained the procedures used in testing the individual’s sample. Id. The MRO testified that he was confident that the sample was correctly reported by the lab. Tr. at 44-46. However, although the MRO is familiar with the procedure that should be used in handling the individual’s specimen, he does not have personal knowledge of what actually happened to that specimen.

The MRO was the sole DOE witness who testified about the individual’s drug test. However, in previous cases where the validity of a drug test was in question, the record contained the testimony of individuals who actually had personal contact with the specimen at issue. See, e.g., Personnel Security Hearing, Case No. VSO-0345, 28 DOE ¶ 82,753 (2000) (testimony of the vice president of the testing lab and three employees responsible for collecting, packing and shipping specimen to the testing lab); Personnel Security Hearing, Case No. VSO-0216, 27 DOE ¶ 82,781 (1998) (testimony of the director of the testing lab and two employees who actually supervised the collection of the individual’s specimen).

Although I found the MRO’s testimony credible, I conclude that he had no personal knowledge of the chain of custody in this case. The specimen was collected by a clinic in one state and shipped to the lab, which is located in another state.(4) The MRO, located in a third state, did not participate in either the collection or testing. In fact, the MRO admitted that he was not familiar with all of the lab’s internal procedures, and that the lab was one of 8,000 test sites that his company used. Tr. at 71, 78-79. In contrast to previous cases, no one from the collection site or the lab testified at the hearing. Therefore, unlike previous disputed drug test cases where witnesses who actually were part of the chain of custody for the sample testified about the circumstances surrounding the test, the record in this case lacks testimony from anyone with personal knowledge of the chain of custody.

(3) Witness Testimony

I find that the testimony of the witnesses in this proceeding was very credible, and further mitigates the charge that the individual has engaged in unusual conduct, was not honest, reliable or trustworthy, or was subject to pressure, coercion, exploitation or duress which could cause him to act contrary to the best interests of the national security.

All of the individual’s witnesses described him as honest, reliable, family-oriented, church-going, and of high moral character. Tr. at 111-176. Many of them traveled with him on business trips, and all described his behavior as above reproach. Id. All of the individual’s witnesses testified that they could not believe that the individual would tamper with his specimen in any way. Tr. at 113, 117, 125, 132, 137, 155, 171. Two of the witnesses also socialized with the individual outside of the office, and were able to give testimony about the individual’s family life and behavior at social events. Tr. at 111-113; 152, 156. Further, one witness actually lived with the individual and his family off and on over a period of 10 years. Tr. at 112. All of the individual’s witnesses were co- workers, and thus all familiar with the high standards that the PAP program requires. PSI at 38; Tr. at 127-131, 142-143, 179. More than one testified that they would trust the individual with the safety of their own family. Tr. at 135-136, 146. Several stated that he was a valuable addition to their organization, and they had felt his absence. Tr. at 143. The witnesses also testified that the individual was not subject to blackmail or coercion of any sort. Tr. at 139, 153, 161.

I was particularly persuaded by the testimony of one of the individual’s colleagues. This witness was the training specialist in the individual’s section. Tr. at 143. However, prior to joining DOE, the witness was chief of narcotics on a regional police force. Tr. at 144-150. Thus, he was an experienced narcotics officer, with substantial knowledge of drug abuse and specialized training in detecting behavioral changes caused by drug use. Tr. at 145-146. The witness testified that due to his experience in narcotics, he was able to recognize drug abusers, and had identified many during his career. Tr. at 145. He stated under oath that in 13 years he never saw any indication of a drug problem in the individual. Tr. at 144. The individual and his co-workers traveled frequently and traveled in groups, and according to this witness, the entire work group was “so close knit you could detect when someone is having a problem.” Tr. at 147-148; 180. The witness was adamant that, despite the charges in the Notification Letter, he strongly believed in the individual’s credibility and would entrust his family’s safety to the individual. Tr. at 146.

Finally, during the hearing the personnel security specialist testified that the individual seemed to be honest and forthright during his PSI. Tr. at 96-97; Tab 5, Ex.1. Under cross-examination, she stated that personnel security specialists are often lied to, and that they receive training to determine if someone is lying to them. She testified that “most of the time” personnel security specialists can detect a lie. Tr. at 97. During the PSI she felt that this individual was telling the truth. Id.

(4) The Individual’s Testimony and Demeanor

I found the individual’s testimony to be credible and persuasive. He recounted the circumstances of the drug test credibly. Tr. at 193-213. During the hearing, I was persuaded by the consistency between his testimony and the record, and the forthright manner in which he confronted a very serious issue without concocting a story to explain the incident, or placing the blame on anyone. Throughout this case he has maintained that he did not adulterate his specimen, that he does not use drugs, and that he simply does not know what happened to his specimen. PSI at 35-37; Tr. at 18, 209-212. The individual testified that he thought his supervisor was joking about the results of the test, and was shaken when he realized the truth. Tr. at 210-211. This was corroborated by the supervisor who testified that the individual responded to news of the test results with “[d]umbfounded silence. He [the individual] was startled.” Tr. at 128.

III. Conclusion

This case presents a unique set of circumstances case surrounding a laboratory report of a “positive” drug test.(5) First, the lab determined that the individual’s specimen did not reflect the characteristics of normal human urine. The lab stopped processing the specimen and reported the results to the DOE. Under DOE regulations, the test was considered a positive drug test and the individual was subjected to immediate discipline. However, unlike an individual whose specimen tested positive for an identifiable substance, in this case the individual was not provided with a critical safeguard–his specimen was not retested, and he was not permitted to request an interview. Tr. at 46, 187-188. See Personnel Security Hearing, Case No. VSO-0216, 27 DOE ¶ 82,781 at 85,687 (1998) (stating that a retest provides “a safeguard to ensure the accuracy of the test result . . .”). This was contrary to established procedure for a positive specimen. Moreover, the lab did not identify any adulterant in the specimen and we do not know what happened to the original specimen. Tr. at 71.

Second, the procedural discrepancies noted above have raised a question regarding the handling of the individual’s sample. These questions remain unresolved because of the lack of testimony from anyone who was actually in the chain of custody, and the absence of confirmation of the initial test result. Third, unlike previous cases involving an individual who has tested positive for drugs, the individual in this case has a long record of 19 years of negative random drug tests, and no evidence of recent drug use. Based on this record and persuasive witness testimony, I am convinced that the individual does not use drugs. I find that the incident of minor drug use 25 years ago is not a security concern and can be considered a “youthful indiscretion.” Personnel Security Hearing, Case No. VSO-0019, 25 DOE ¶ 82,759 (1995).

The regulations require me to make a common-sense judgment about the risk to national security that the individual would pose if his clearance were restored. After carefully reviewing the record, and assessing the credibility of the individual as he testified under oath, I cannot find that the individual is not honest, reliable and trustworthy. I am further persuaded of the individual’s trustworthiness and reliability by the testimony of his witnesses, and the sincerity of their support for him. Even the personnel security specialist found the individual to be honest and forthright during his PSI. Finally, the procedural discrepancies in the record of the individual’s drug test reflect the possibility of irregularities in the handling of his specimen. I therefore conclude that the individual has mitigated the security concerns in the Notification Letter.

As explained in this Opinion, I find that the DOE Operations Office properly invoked Criterion L in revoking the individual’s access authorization. However, the individual has presented adequate mitigating factors and circumstances to alleviate the legitimate security concerns of the DOE Operations Office. In view of this criterion and the record before me, I find that restoring the individual’s access authorization would not endanger the common defense and security and would be consistent with the national interest. Accordingly, I find 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’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 Avenue, S.W., Washington, D.C. 20585-0107, and served on the other party. If either party elects to seek review of the Opinion, that party must file a statement identifying the issues on which it wishes the OHA Director to focus. This statement must be filed within 15 calendar days after the party files its request for review. The party seeking review must serve a copy of its statement on the other party, who may file a response within 20 days of receipt of the statement. 10 C.F.R. § 710.28 (b). The address where submissions must be sent for the purpose of

serving them on the Office of Security Affairs is as follows:

Director

Office of Safeguards and Security, NN-51

Office of Security Affairs

U. S. Department of Energy

19901 Germantown Road

Germantown, MD 20874-1290

Valerie Vance Adeyeye

Hearing Officer

Office of Hearings and Appeals

Date: November 15, 2000

(1)Drug testing in the individual’s division is regulated by Department of Transportation regulations. Tr. at 36, 48, 188. Under a 1998 update, if the lab determines that a specimen meets the guidelines for a substituted, adulterated, or diluted specimen, the lab has no further responsibility to test the specimen. Tr. at 40, 187.

(2)The MRO must inform the employer that the specimen was adulterated or substituted, either result being considered a “refusal to test.” Tr. at 40, 187. The MRO also informs the employer that, unlike a positive test, the regulations do not permit a retest of the primary specimen, a test of the split sample, or a donor interview. Tr. at 46, 187-188; Tab 3, Ex. 1 at 1.

(3)The testing lab form states that the discrepancy did not affect the integrity of the sample. Litigation Packet at 13.

(4)The MRO testified that the lab has an excellent reputation, has been certified for 10 years, and performs workplace testing for other government agencies. Tr. at 29, 45.

(5)In a recent case, an individual’s specimen was also found to be inconsistent with normal human urine, but the lab in that case identified the presence of nitrite in the specimen. Personnel Security Hearing, Case No. VSO-0345, 28 DOE ¶ 82,753 (2000). Nitrite is often used as an adulterant to mask the presence of drugs in a urine specimen. Id. No such evidence was presented in this case.