Case No. VSO-0402, 28 DOE ¶ 82,787 (H.O. Fishman January 24, 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.

January 24, 2001

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: September 22, 2000

Case Number: VSO-0402

This Opinion concerns the eligibility of XXXXXXXXXX (the Individual) to retain a DOE 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 Department of Energy (DOE) 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.

I. BACKGROUND

The events leading to the present proceeding began in 1998 when the Individual reported to the DOE that she had been cited for marijuana possession by the State police. DOE Exhibit No. 10 at 2. In a July 10, 1998 Personnel Security Interview (July 10, 1998 PSI), the Individual indicated that she had found marijuana in her car while waiting for her husband to purchase car parts. DOE Exhibit No. 8 at 14-15. Since her son had borrowed her car the night before, she believed the marijuana to belong to either her son or her son’s friends. Id. at 15. Rather than immediately discard it, she placed it in a bag of trash in her car. Id. at 15-16. Subsequently, she and her husband attempted to enter a state correctional facility to visit a relative. Id. at 16. Unlike previous visits where they parked the car and walked into the building, all cars were being stopped as they entered the facility grounds. Id. Her husband consented to a search of the vehicle when asked. Id. at 19. At this time, the Individual indicated that there was a small amount of marijuana in a bag of trash in the car. Id. at 20. The Individual took full responsibility for the marijuana, because her husband was unaware that it was in the car. Id. at 20-21. The State police were called, and she was cited for possession of less than an ounce of marijuana. Id. at 26; DOE Exhibit No. 10 at 2. The Individual immediately reported the citation to the DOE.

DOE Exhibit No. 10 at 2. A PSI was held on July 10, 1998. At the PSI, the Individual was asked to sign a Drug Certification, which she did.(1) DOE Exhibit No. 11.

In early April 2000, the Individual reported to her supervisor that she had been using cocaine for approximately three months. Personnel Security Interview, June 14, 2000 (DOE Exhibit No. 5) at 13. She indicated that she used cocaine for the first time on New Year’s Eve 1999. Id. at 7. She then continued to use it, beginning approximately February 10, 2000. Id. at 18. The Individual estimates that she used cocaine every other Friday, until she reported her usage on April 5, 2000. Id. As of April 5, 2000, she took a leave of absence from work and entered a daily outpatient treatment program. Id. at 13. She also began attending Narcotics Anonymous (NA) meetings. The daily outpatient treatment program continued for a period of 30 days.(2) At the end of May 2000, she underwent a fitness for work assessment that she passed. The Individual indicated that she never spent any money on the drugs. Id. She stated that she began using cocaine because she was under a lot of pressure at home due to the behavior of her youngest child, who had witnessed the suicide of her father at a very young age. Id. at 17, 30.

Because of the Individual’s cocaine use, her access authorization was suspended and an administrative review proceeding was initiated. See 10 C.F.R. § 710.9. The DOE then issued a letter notifying the Individual that information the DOE possessed created a substantial doubt concerning her continued eligibility for access authorization (the Notification Letter). The Notification Letter specifies two areas of derogatory information described in 10 C.F.R. § 710.8. First, the Notification Letter charges that the Individual has:

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). The Notification Letter also charges that the Individual has:

engaged in unusual conduct or is subject to circumstances which tend to show that she is not honest, reliable, or trustworthy; or which furnishes reason to believe that she may be subject to pressure, coercion, exploitation, or duress which may cause her 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. This request was forwarded to the Office of Hearings and Appeals, and I was appointed Hearing Officer.

At the Hearing, the DOE presented three witnesses: the DOE Personnel Security Specialist, the director of the Employee Assistance Program (EAP), and the Individual’s second line supervisor. The Individual testified on her own behalf and called one witness.

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 the access authorization decision “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.

When reliable information reasonably tends to establish the validity and significance of substantially derogatory information or facts about an individual, a question is created as to the individual's eligibility for an access authorization. 10 C.F.R. § 710.9(a). The individual must then resolve that question by convincing the DOE that restoring her 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). In the present case, the Individual has not convinced me that restoring her security clearance would not endanger the common defense and would be clearly in the national interest.

III. CONCLUSIONS OF LAW AND FINDINGS OF FACT

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 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)). Further, the use of illegal drugs (and the disrespect for law and authority that such use suggests) indicates a serious lapse in judgment and maturity. Involvement with illegal drugs may also render the user susceptible to blackmail or coercion. The concerns raised by an individual’s illegal drug use are heightened when the drug use occurs while the Individual maintains a DOE security clearance, since avoiding illegal drug use is a requirement of both the DOE's safety and security regulations. Moreover, in light of the DOE’s policies against any involvement with illegal drugs, any illegal drug use by an individual who maintains a DOE access authorization evidences poor judgment. Personnel Security Hearing, Case No. VSO-0289, (November 18, 1999) (citing Personnel Security Hearing, Case No. VSO-0023, 25 DOE ¶ 82,761 at 85,579 (1995)).

In considering whether to recommend restoring the DOE Security Clearance of an individual who has used cocaine, I find the following factors to be particularly significant: (1) the extent of the individual’s cocaine use, (2) whether the individual’s cocaine use results from an ongoing medical or psychiatric condition, (3) the length of time since the individual’s last use of cocaine, (4) the individual’s demonstrated commitment to avoiding future drug involvement, (5) whether the individual’s cocaine use violated a DOE Drug Certification, and (6) the circumstances under which the individual’s cocaine use came to the DOE’s attention. Some of these factor favor reinstating the Individual’s access authorization and others do not. Taken altogether, however, I do not believe that the Individual’s access authorization should be reinstated at this time.

Criterion K

In the present case, I find that the Individual has not presented sufficient evidence to resolve the security concern raised by her cocaine use under Criterion K. My impression of the Individual, formed at the Hearing, is that she is a competent and dedicated employee who seems to recognize the seriousness and the significance of her drug use. She appears sincerely committed to avoiding future drug use. More importantly, I am convinced that the Individual is a responsible person, having herself reported the instances of involvement with marijuana and cocaine that led to this proceeding. She was candid and reliable at the Hearing.

The Individual’s actual cocaine use appears to have been infrequent and brief. She first ingested cocaine on New Year’s Eve 1999 and then every other Friday from early February 2000 until early April 2000. All of this was self-reported to the DOE. In addition, in April 2000, the Individual entered a drug treatment program designed to avoid future drug involvement. According to the clinical supervisor of the program, the Individual has taken great interest in the program and shows progress in both insight in her problem as well as her motivation towards making different choices. See Individual Exhibit No. 1. Furthermore, random urine tests, facilitated and monitored by the drug treatment program, indicate that the Individual has remained drug free since April 2000. Id. at 2-9.

However, there are a number of serious factors which weigh against reinstating the Individual’s access authorization. First, according to the Individual’s own account, she used cocaine because the behavior of her youngest child was causing her stress. While coping with these types of difficulties might be addressed in the treatment program, the situation is nevertheless continuing. Until this child changes her behavior or until the Individual learns to deal with this child’s behavior, she will be under the same stress that led to her usage in the first place. At the Hearing, the Individual stated that she has to heal herself before she can help her daughter. Hearing Transcript at 55. At this time, I find that the Individual remains under the stress that caused her to use the cocaine, i.e., her daughter’s behavior. In addition, it was apparent at the Hearing that she has not yet learned to deal with the behavior.

Further, at the time of the Hearing, the Individual had been abstinent from cocaine for eight months. Although this is a significant period of time, the EAP counselor believes that, in this case, the Individual needs to be clean and sober for at least another year from the date of the Hearing to be considered rehabilitated. Hearing Transcript at 38. In many similar proceedings, we have agreed with medical experts that a person should be clean and sober for at least 12 months to be considered rehabilitated. See e.g., Personnel Security Hearing, Case No. VSO-0063, 25 DOE ¶ 82,789, affirmed (OSA Apr. 16, 1996); Personnel Security Hearing, Case No. VSO-0005, 24 DOE ¶ 82,753, affirmed 25 DOE ¶ 83,013, terminated, (OSS) June 7, 1995; Personnel Security Hearing, Case No. VSO-0014, 25 DOE ¶ 82,755, affirmed, 25 DOE ¶ 83,002, affirmed (OSA Sept. 15, 1995); Personnel Security Hearing, Case No. VSO-0018, 25 DOE ¶ 82,758, affirmed, 25 DOE ¶ 83,006, affirmed, (OSA Sept. 21, 1995). Although we have deviated from the recommendations of health care professionals where there are substantial, compelling reasons to do so, the record in this case does not include such persuasive material. The Individual has not presented any expert evidence contrary to the EAP Counselor’s testimony.

Finally, her repeated use of cocaine, after having signed a drug certification only a year and a half earlier, weighs against a finding that she is rehabilitated. The Individual stated at the Hearing that she knew she was violating the drug certification, but she continued to use cocaine. Hearing Transcript at 25. See, e.g., Personnel Security hearing, Case No. VSO- 0208, 27 DOE ¶ 82,774 at 85,655 (1998), affirmed (OSA December 2, 1998). I therefore find that the Individual has not mitigated the DOE’s security concerns with regard to Criterion K.

Criterion L

DOE Security has asserted under Criterion L that the Individual has “engaged in unusual conduct . . . which tends to show that [she] is not honest, reliable, or trustworthy, or which furnishes reason to believe that [she] may be subject to pressure, coercion, exploitation, or duress which may cause [her] to act contrary to the best interest of the national security.” 10 C.F.R. § 710.8(l) (Criterion L). The DOE’s security concerns under Criterion L are based largely upon the Individual's use of cocaine despite her promise, contained in her 1998 Drug Certification, that she would not use illegal drugs. Consequently, I find that DOE properly invoked Criterion L in suspending the Individual's clearance.

Violation of the drug certification is a serious matter. The DOE security program is based on trust. If an employee breaks a written promise to the DOE, that trust is violated. The Individual’s use of cocaine despite her assurances to DOE Security constitutes unusual behavior that calls into question the Individual’s reliability and trustworthiness. I find that the Individual’s drug use demonstrates her willingness to disobey the law and it causes me to conclude that she might not willingly abide by security regulations or safeguard classified information. In addition, the promise the Individual gave when she signed the DOE drug certification was not an insignificant one. The DOE fully relied on it and relies on it in many other, similar cases. An individual who enters into one of these agreements must fully understand and accept that it requires a serious, sustained commitment to keeping a signed promise. Violation of the DOE Drug Certification presents serious security concerns. Personnel Security Hearing, Case No. VSO-0208, 27 DOE ¶ 82,774 at 85,655 (1998). Not only does it bring into question the Individual’s judgment and trustworthiness, but it raises concerns about the possibility of future drug use. I therefore do not consider the Individual’s overall trustworthiness and reliability to measure up to the standards expected of holders of access authorization. Accordingly, I cannot find that the Individual has sufficiently mitigated the DOE Security’s concerns under Criterion L.

IV. CONCLUSION

As explained in this Opinion, I find that DOE Security properly invoked 10 C.F.R. § 710.8(k) and (l) in suspending the Individual’s access authorization. For the reasons I have described above, I find that the Individual has engaged in unusual conduct within the purview of section 710.8(l). In addition, the Individual has failed to sufficiently mitigate the concerns of DOE Security that she has possessed, used, or experimented with a drug listed in the Controlled Substances Act of 1970, 10 C.F.R. § 710.8(k). I am therefore unable to 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 not be restored.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that either 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 other party. The party seeking review of the Opinion must file a statement identifying the issues that it wishes to contest 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). Submissions must be served on the Office of Security Affairs at the following address:

Director

Office of Safeguards and Security, NN-51

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874

Janet R. H. Fishman

Hearing Office

Office of Hearings and Appeals

Date: January 24, 2001

(1)The charges against the Individual regarding the marijuana possession were eventually dropped. Hearing Transcript at 12.

(2)The Individual noted that she missed two days of treatment to attend her nephew’s funeral and console her sister. DOE Exhibit No. 5 at 15.