Case No. VSO-0401, 28 DOE ¶ 82,791 (H.O. Fine March 5, 2001)

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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.

March 5, 2001

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: September 27, 2000

Case Number: VSO-0401

This Opinion concerns the eligibility of XXXXXXXXX (hereinafter referred to as "the Individual") to maintain 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.” A Department of Energy (DOE) Operations Office (the Operations Office) suspended the Individual's access authorization under the provisions of Part 710. This Opinion considers whether, on the basis of the evidence and testimony in this proceeding, the Individual's access authorization should be restored. For the reasons stated below, it is my opinion that the Individual's access authorization should not be restored at the present time.

I. BACKGROUND

The events leading to the present proceeding began on May 4, 2000, when the Individual was arrested for Driving While Intoxicated (DWI), tampering with evidence, and possession of marijuana. The Individual reported this information to DOE Security Officials as required. Because this information raised serious security concerns, a Personnel Security Interview (PSI) of the Individual was conducted on June 9, 2000 (the June 9th PSI). The June 9th PSI failed to resolve the security concerns raised during this investigation. Accordingly, the Individual was evaluated by a board-certified psychiatrist (the DOE Psychiatrist) at the Operations Office's request. The DOE Psychiatrist's evaluation consisted of an interview of the Individual, a review of his security file and the administration of standardized psychological tests. After evaluating the Individual, the DOE Psychiatrist issued a report indicating that the Individual does not suffer from alcohol abuse and is not dependent on alcohol.

Nevertheless, the evaluation and investigation failed to resolve several other security concerns and an administrative review proceeding was initiated. See 10 C.F.R. § 710.9. The Operations Office then issued a letter notifying the Individual that it possessed information that created a substantial doubt concerning his eligibility for access authorization (the Original Notification Letter). The Original Notification Letter specified two areas of derogatory information described in 10 C.F.R. § 710.8. First, the Original Notification Letter alleged that the individual “Trafficked in, sold, transferred, possessed, used, or experimented with a drug or other substance listed in the Schedule of Controlled Substances established pursuant to section 202 of the Controlled Substances Act of 1970 (such as marijuana, cocaine, amphetamines, barbiturates, narcotics, etc.) except as prescribed or administered by a physician licensed to dispense drugs in the practice of medicine, or as otherwise authorized by law.” 10 C.F.R. § 710.8(k). Second, the Original Notification Letter alleged that the Individual has “engaged in unusual conduct or is subject to circumstances which tend to show that [he] is not honest, reliable, or trustworthy; or which furnishes reason to believe that [he] may be subject to pressure, coercion, exploitation, or duress which may cause [him] to act contrary to the best interests of the national security.” 10 C.F.R. § 710.8(l). The Individual filed a request for a hearing in which he made a general denial of the allegations contained in the Original Notification Letter. This request was forwarded to the Office of Hearings and Appeals (OHA) and I was appointed as Hearing Officer. On October 3, 2000, the DOE amended the Original Notification Letter by adding a charge that the Individual had; “Deliberately misrepresented, falsified, or omitted significant information from a Personnel Security Questionnaire, a Questionnaire for Sensitive Positions, a personnel qualifications statement, a personnel security interview, 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, or proceedings conducted pursuant to §§ 710.20 through §§ 710.31.” 710 C.F.R.§ 710.8(f).

At the hearing, the DOE presented two witnesses: the Individual and his supervisor. The Individual presented two witnesses: his spouse and his brother. The Individual also testified on his own behalf. See Transcript of Hearing, Case No. VSO-0401 (hereinafter cited as “Tr.”).

II. STANDARD OF REVIEW

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

III. FINDINGS OF LAW AND FACT

In 1983, the Individual applied for a DOE access authorization. During the course of a resulting routine investigation of his suitability for a DOE access authorization, the Individual disclosed a history of marijuana use that apparently ended with his arrest in 1977. On December 15, 1983, the Individual signed a DOE Drug Certification in which he promised to avoid involvement with illegal drugs as long as he maintained a DOE access authorization. The Individual was subsequently granted a DOE access authorization.

On May 4, 2000, the Individual was arrested and charged with several offenses: Marijuana Possession; Driving While Under the Influence of Intoxicating Liquor or Drugs; Careless Driving; Consumption or Possession of Alcoholic Beverages in an Open Container In a Motor Vehicle; and Tampering with Evidence. The Individual then reported this arrest to DOE in accordance with DOE Security procedures. Because the May 4th arrest raised serious security concerns, a PSI with the Individual was conducted on June 9, 2000 (the June 9th PSI). During the June 9th PSI, the Individual indicated that he had been drinking and driving at the time of the May 4th arrest. June 9th PSI at 10- 13,15-17.

He further admitted that he had an open container of alcohol in his motor vehicle at the time of his arrest. June 9th PSI at 12. During the June 9th PSI, the Individual indicated that an acquaintance had used his motor vehicle to “roll a joint” and then left marijuana and rolling papers in the Individual’s motor vehicle. Apparently, the Individual drove this motor vehicle shortly afterward and was spotted speeding by local police. The Individual further explained that when he realized he was going to be stopped by the police, he grabbed the marijuana and rolling papers and concealed them in his pocket. June 9th PSI at 11-12. The police apparently detained the Individual and administered a breathalyzer test to him. While he was being detained by the police, but before he had been searched by the police, the Individual threw the marijuana and rolling papers into some nearby bushes. June 9th PSI at 12. The police apparently observed the Individual throwing the marijuana and rolling papers into the bushes. This action resulted in the Tampering with Evidence charge.

During the June 9th PSI, the Individual was questioned about his past use of marijuana. The Individual indicated that he had not used marijuana since the May 1977 arrest. After the June 9th PSI, the Individual was evaluated by a DOE Consultant Psychiatrist (the DOE Psychiatrist). After interviewing and testing the Individual, the DOE Psychiatrist issued a report (the Psychiatrist’s Report). The Psychiatrist’s Report is notable for two reasons: First, it indicates that the DOE Psychiatrist did not diagnosis the Individual with any mental disorder or with any substance abuse disorder. Second, it indicates that the Individual informed the DOE Psychiatrist that he had used marijuana during a hunting trip in November 1999.

A. Criterion K

The Individual admits that, prior to his arrest in 1977, he used marijuana on a frequent basis. The Individual also admits that he used marijuana in November 1999. Tr. at 3-4. The Individual further admits that he was in possession of marijuana on May 4, 2000. Tr. at 4. This uncontroverted derogatory information creates serious security concerns about the Individual.

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

Since there is reliable, derogatory information that creates a substantial doubt concerning the Individual's continued eligibility for access authorization, I need only consider below whether the Individual has made a showing of mitigating facts and circumstances sufficient to overcome the DOE's security concerns arising from his use of marijuana.

An Individual must provide convincing evidence mitigating the security concerns related to illegal drug use. Personnel Security Hearing, Case No. VSO-0102, 26 DOE ¶ 82,763 at 85,587 (1996) (citing Personnel Security Hearing, Case No. VSO-0051, 25 DOE ¶ 82,784 (1995)); Personnel Security Hearing, Case No. VSO-0019, 25 DOE ¶ 82,759 (1995). In the present case, there are several factors I must consider in determining whether the questions raised under 10 C.F.R. § 710.8(k) by the Individual's marijuana use and involvement are resolved. Standing alone, none of the three incidents of marijuana use would necessarily lead me to recommend against restoration of the Individual's access authorization. The Individual's youthful indiscretions with marijuana in high school and college are substantially mitigated by the long period of time that has elapsed since then and by the Individual's youth at the time. More problematic is the Individual's use of marijuana in November 1999. At that time, the Individual possessed a DOE access authorization and had signed a DOE Drug Certification in which he promised the DOE that he would refrain from involvement with illegal drugs for as long as he maintained a DOE Access Authorization. The fact that the Individual self-reported the November 1999 marijuana use provides some mitigation of the concerns raised by that particular instance of marijuana use, but the weight of this mitigation is reduced by the Individual’s concealment of this instance of marijuana use during the June 9th PSI.

Serious security concerns are also raised by the Individual’s possession of marijuana on May 4, 2000. While there is no evidence in the record indicating that the Individual had used marijuana on this date, the Individual’s own explanation of how he came to possess the marijuana fails to resolve the Criterion K security concerns raised by this incident. During the June 9th PSI, he provided the following account of how he obtained the marijuana:

. . . during the course of our consuming some beers and a couple of shots of peppermint schnapps some people showed up there at our house, some local people . . . and subsequently, one of these individuals had some marijuana, he rolled a joint and he did it inside my pickup truck . . . and unknowingly he left the marijuana and the rolling papers on the seat of my truck.

June 9th PSI at 11. It is clear that the Individual was aware of the marijuana use at the time, since he stated that his acquaintances offered him some of the marijuana. Id. at 50-51. By allowing his acquaintances to smoke marijuana in his truck, the Individual became involved with an illegal drug.

These three episodes of marijuana use or involvement, when viewed together, raise serious and substantial concerns about the Individual's fitness to maintain a security clearance. While I am not unduly concerned about the Individual's involvement with marijuana in high school and college, he has been involved with marijuana twice since that time. On both occasions, he became involved with marijuana while possessing a DOE security clearance, therefore risking his career and access authorization, violating DOE safety and security regulations, and putting himself, his fellow employees, and the national security at risk.

For these reasons, I find that the Individual has not resolved the security questions raised by his marijuana involvement. Accordingly, I find that restoring his access authorization would not be consistent with the national interest and the common defense.

B. Criterion F

During the June 9th PSI, the DOE Personnel Security Specialist asked the individual when his last use of marijuana occurred. The Individual answered that he hadn’t used marijuana sine the May 1977 arrest. June 9th PSI at 47. The Individual later admitted that he had used marijuana in November 1999 to the DOE Psychiatrist. This concealment of information from DOE Security raises a serious security concern under Criterion F. Falsification, particularly during a PSI which DOE depends upon in making a determination of eligibility for access authorization, raises serious concerns about the honesty and trustworthiness of an individual. In the present case, the Individual’s falsification is somewhat mitigated by his subsequent self disclosure of the fact that he had concealed important information from the DOE. However, this mitigation is insufficient to resolve the security concerns raised by this incidence of falsification.

C. Criterion L

Criterion L refers to information that an individual has “[e]ngaged in any unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable, or trustworthy; or which furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation or duress which may cause the individual to act contrary to the best interests of the national security.” 10 C.F.R. § 710.8(l).

The DOE’s security concerns under Criterion L are based upon: (1) the Individual's use of marijuana despite his promise, contained in his 1983 Drug Certification, that he would not use or be involved with illegal drugs, (2) his operation of a motor vehicle while under the influence of alcohol, and (3) his tampering with evidence by attempting to dispose of marijuana while in police custody.

I find that DOE properly invoked Criterion L in suspending the Individual's clearance. The Individual's failure to honor his Drug Certification, and his violation of DOE's drug policies, raise important security concerns. The DOE security program is based on trust. If an employee breaks a written promise to the DOE, that trust is violated. It was precisely because of the Individual's prior illegal drug use that he was asked in 1983 to sign a Drug Certification, promising that he would never again use or be involved with illegal drugs while employed in a position requiring an access authorization. He clearly violated this promise when he used marijuana in 1999 and again in 2000 when he allowed himself to become involved with marijuana.

The Individual’s attempt to conceal marijuana and rolling papers during his arrest also raises a serious security concern. It is troubling that when faced with an embarrassing or compromising situation, the Individual’s first instinct was to conceal evidence from the authorities. This type of reaction could result in serious harm if it were to occur in a national security or safety context.

Finally, I note that the Individual’s driving under the influence of alcohol is troubling. However, the Individual has been evaluated by a DOE Psychiatrist for substance abuse issues. Since the DOE Psychiatrist found no evidence of substance abuse or dependency, I find that the security issues raised by this single incidence of DWI are not serious enough by themselves to warrant revocation of his access authorization at this time.

My impression of the Individual, formed at the hearing, is that he is an extremely competent and dedicated worker, that he provides strong leadership at the DOE facility at which he is employed, and that he is a highly valued employee. It is also clear that he is an outstanding husband and father as well as a person who makes a particularly strong contribution to his community. Moreover, the testimony presented at the hearing showed that the Individual is generally very decent and mature. This evidence provides some mitigation of the security concerns. Simply put, I would find it hard to believe that this Individual would ever intentionally betray national security. However, our concern here is not only with potential intentional compromises of national security but with unintentional compromises of national security or failure to appropriately safeguard special nuclear materials resulting from the exercise of less than excellent judgment. The events set forth above show me that the Individual is prone to occasional lapses in judgment that might compromise national security or interfere with the safeguarding of special nuclear materials.

Accordingly, I find the Individual has not resolved the security questions raised by his use and involvement with marijuana, conscious disregard of his Drug Certification, and concealment of drug use during his June 9th PSI. I therefore cannot find that the Individual has resolved the Criterion K, L and F security questions raised in the notification letter.

IV. CONCLUSION

For the reasons set forth above, I conclude that the Individual has not resolved the Operations Office’s allegations under Criterion K, L and F. I therefore conclude that the Individual has not demonstrated that restoring his security clearance would not endanger the common defense and would be clearly consistent with the national interest. Therefore, it is my opinion that the Individual's access authorization should not be restored at this time.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that the Office of Security Affairs or the Individual may file a request for review of this Hearing Officer Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585-0107, and served on the other party. If either party elects to seek review of the Opinion, that party must file a statement identifying the issues on which it wishes the OHA Director to focus. This statement must be filed within 15 calendar days after the party files its request for review. The party seeking review must serve a copy of its statement on the other party, who may file a response within 20 days of receipt of the statement.

Steven L. Fine

Hearing Officer

Office of Hearings and Appeals

Date: March 5, 2001