Case No. VSO-0410, 28 DOE ¶ 82,786 (H.O. Mann January 23, 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 23, 2001

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: October 11, 2000

Case Number: VSO-0410

This Opinion concerns the eligibility of XXXXX (hereinafter referred to as "the individual") to hold an access authorization (also called a security clearance). The local DOE security office determined that information in its possession created substantial doubt about the individual's eligibility for an access authorization under the Department of Energy (DOE) regulations set forth at 10 CFR Part 710, Subpart A, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." As explained below, I recommend granting the individual’s access authorization.

Background

The individual is employed by a contractor at a DOE facility where she has worked for a decade. Her employer requested that she be granted an access authorization, and the local DOE security office ordered a background investigation of the individual. The local DOE security office issued a Notification Letter to the individual on August 17, 2000. The Notification Letter alleges under 10 CFR § 710.8(l) that the individual “has engaged in unusual conduct or is subject to circumstances which tend to show that 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.”

The bases for the concerns in the Notification letter are the individual’s dismissal from a job in 1989 for falsifying her time cards, and her arrest for shoplifting in 1992. The individual voluntarily disclosed the essential facts about her involvement in both incidents during a Personnel Security Interview (PSI) held in November 1999. In addition, the Notification Letter refers to a DOE consultant psychiatrist who examined the individual and reported his opinion that while she did not have a diagnosable mental condition, she showed bad judgment in falsifying her time records and in shoplifting items, and, as of the time of his evaluation of the individual in December 1999, by continuing to withhold information from her husband and family members about the shoplifting incident.

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

At the hearing that I convened, the DOE Counsel called two witnesses: a DOE personnel security specialist, and the DOE consultant psychiatrist. The individual, who was not represented, testified on her own behalf, and called three other witnesses: her husband, and two coworkers at the DOE facility who were also familiar with her personal life. The DOE submitted 15 written exhibits.

Standard of Review

The applicable DOE regulations state that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all the relevant information, favorable or unfavorable, as to whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest." 10 CFR § 710.7(a). In resolving questions about the individual’s eligibility for access authorization, I must consider the relevant factors and circumstances connected with the individual’s conduct. These factors are set out in § 710.7(c):

the nature, extent, and seriousness of the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the voluntariness of participation; the age and maturity of the individual at the time of the conduct; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct; the potential for pressure, coercion, exploitation, or duress; and the likelihood of continuation or recurrence.

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

Findings of Fact

The individual admits the allegations in the Notification Letter. During the hearing, the individual presented evidence to mitigate the security concerns in the Notification Letter, and this opinion will focus primarily on whether the individual met her burden of showing that granting her access authorization is warranted under 10 CFR Part 710. I will begin with a description of the events that gave rise to the security concerns.

The record indicates the time card incident occurred in July 1989 when the individual and her team leader were both fired after their employer determined that there were discrepancies between the hours claimed on the individual’s time cards for the period April through June 1989 and the hours recorded by a badge reader that recorded access to the building. November 1999 PSI Transcript at 17 (hereinafter cited as “1999 PSI Tr.”). According to the employer, the individual received $242 in extra pay as a result of claiming approximately 15 hours of extra work on her time cards. Id. According to the individual, she had to work overtime through lunch and on weekends to complete her assigned task, which was processing the payroll, and at the time she felt she was not being fairly compensated. Id. at 18. The individual’s team leader, who also had to work overtime, apparently encouraged her to claim the extra hours, and signed her time cards. Id.; Hearing Transcript at 38 (hereinafter cited as “Tr.”). The individual does not recall whether she or her team leader originated the idea, but in the 1999 PSI and at the hearing I convened, she readily admitted that her actions were wrong. 1999 PSI Tr. at 20; Tr. at 38-39. The individual stated that she recognizes that she handled the situation incorrectly, and should have asked for extra compensation for extra work. 1999 PSI Tr. at 21; Tr. at 39. She also maintained that she would never do it again. Id.

The shoplifting incident happened in December 1992. The individual was buying groceries in a supermarket with her young children. The children were in the cart, and may have been playing with some of the food items, putting them in and out of the individual’s purse. 1999 PSI Tr. at 28. It is not clear from reading the 1999 PSI transcript exactly what happened, but the individual failed to pay for three small items worth only a few dollars and she was apprehended with them in her purse. Id. at 29-30. She was taken to the local police station where she admitted her guilt, paid a small fine, and was released. Id. at 34. The individual was unable to explain to the DOE security interviewer why she took the items. Id. at 30. She admits it was a “bad judgment call,” and claims this was the only time she has ever taken anything without paying for it because “I’m not that kind of person.” She told the DOE security interviewer she will never take anything again. Id. at 34.

The individual did not tell her husband about the shoplifting incident when it occurred because she was “too embarrassed to say anything.” Id. at 36. When she first she received the Notification Letter, the individual neither realized, nor understood the reason why, concealing the shoplifting incident from her husband raised a security concern. Memorandum of Conference Call held on October 26, 2000. The individual did not grasp this essential concept until the DOE Counsel and I explained it to her during our several prehearing conference calls.(1) Once she understood the nature of the security concern, the individual promptly told her husband about the shoplifting incident. See Memorandum of Telephone Call from the individual on October 30, 2000; Tr. at 25-26 (testimony of individual’s husband). During the hearing, the individual complained that the DOE personnel security specialist and the DOE consultant psychiatrist had never explained that not telling her husband was a concern to DOE. Tr. at 41. According to the individual, “Had I known, I would have told him.” Id.

Evidence Presented by the Local DOE Security Office

The DOE personnel security specialist testified about the security concerns raised by the time card and shoplifting incidents, and the individual’s failure to tell her husband about the shoplifting arrest. Tr. at 5-7. She also recounted the DOE psychiatrist’s non-medical conclusion that the individual “had a significant defect in her judgment and reliability.” Id. at 7. When I asked the security specialist to consider the adjudicative guidelines codified in 32 CFR Part 147, which serve as a general reference for assessing an individual’s eligibility for access authorization, she agreed that by divulging information about the shoplifting arrest to her husband, the individual had taken positive steps that mitigated that concern.(2) Tr. at 10.

I next asked the security specialist whether she thought the individual had mitigated the concerns raised by the timecard and shoplifting incidents, referring to the adjudicative guideline for considering “criminal conduct,” and the conditions that could mitigate the concern, which include: “(1) The criminal behavior was not recent; (2) The crime was an isolated incident; . . . (6) There is clear evidence of successful rehabilitation.(3) The security specialist stated that the two incidents, which happened eight and 11 years ago, were not considered recent. Id. at 11. She did not respond directly when asked whether she thought the two incidents were “isolated,” noting instead that while the individual was formally charged only in the second incident, “they are in essence the same because there were dishonest activities in my eyes.” Id. at 13.

I asked the security specialist if she thought there was clear evidence of successful rehabilitation. The witness began by stating “I believe a person can change. I really believe that.” Id. Nevertheless, she testified that

I believe [the individual] can be susceptible to blackmail or coercion if she’s under financial duress. Now, on those two issues, she was under financial difficulties, as she stated on the record. And if she was placed in a position–if she worked with classified information, she can probably be susceptible to blackmail or coercion.

Id. At this point, the DOE Counsel and I interrupted the witness and we alluded to the 1999 PSI, which among other things, considered the individual’s financial situation, and the August 17, 2000 Notification Letter, which did not raise any concerns about the individual’s finances. Id. at 14.

DOE COUNSEL: In other words, you raised the issue of financial pressure in the context of something that had occurred and been resolved in the past. . . . as far as you know, there isn’t an ongoing problem in terms of her financial situation?

SECURITY SPECIALIST: That’s correct.

DOE COUNSEL: . . . . And as far as the [Notification Letter], there haven’t been any incidents, or the Office is not aware of any incidents, or arrests or falsification of time cards since the ?92–that’s the most recent one the Office knows about. Is that correct?

SECURITY SPECIALIST: That’s correct.

Id. Finally, the security specialist indicated, in response to questions from the DOE Counsel, that the individual had voluntarily disclosed the facts and admitted her wrongdoing in regard to the time cards and shoplifting. Id. at 15-16.

The DOE psychiatrist testified that when he evaluated the individual in December 1999, his principal concern was her then-ongoing concealment of the shoplifting incident from her husband. Id. at 22. According to the DOE psychiatrist, “this was still a very sensitive issue for her. There was still a lot of uneasiness and apprehension about dealing with this issue.” Id. I queried the DOE psychiatrist about mitigation:

HEARING OFFICER: Now if I were to tell you that since she talked to you, she has told her husband about this, what you think about that?

DOE PSYCHIATRIST: I think that’s a step in the right direction, definitely. It would lessen the pressure on her.

Id. at 23.

Mitigating Evidence Presented by the Individual

At the hearing, the individual presented evidence to show that the security concerns were mitigated by two principal factors: (1) the passage of eight years since the shoplifting incident without the individual ever getting in any kind of trouble, and (2) her disclosure of the shoplifting incident to her husband which ended her vulnerability to blackmail and coercion.

1. The Individual

The individual’s testimony at the hearing was very brief. The individual admitted that she had falsified her time cards. She knows this was wrong, and that she should have handled the situation differently when she felt she was not being fairly paid for working extra hours. The individual said she had never done anything like that before, and that she felt embarrassed: “it was a painful time for me. I felt awful.” Id. at 38. Finally, she said she would never do anything like that again in the future. Id. at 36-39.

Similarly, the individual admitted that she should not have taken three small grocery items without paying for them, although she was not able to explain why she did it, or even whether she intended to shoplift these items. Id. at 40. According to the individual, she did not tell her husband about this because she was so embarrassed. She was annoyed that neither the DOE security specialist nor the DOE psychiatrist had told her it was a concern, stating that if they had explained it, she would have told him. Id. at 41, 45. However, once the DOE Counsel and I did explain to the individual why her continued concealment of the information from her husband was a security concern, she told him about the shoplifting incident that had occurred some eight years earlier. The individual described his reaction: “He was annoyed, upset. He said that I should have trusted him and talked to him about it when it happened a long time ago.” Id.

The individual claimed that the time card and shoplifting incidents were the only two dishonest things she had done, that she had never done anything dishonest before or since in ten years of working at the DOE facility, and would not do anything dishonest in the future. Id. at 43.

2. The Individual’s Husband

The individual’s husband testified by telephone from his work site. He recounted learning about the shoplifting incident when the individual told him a few months before the hearing. The individual’s husband testified that he could understand her embarrassment, that she did not feel proud of herself, and that it was hard for her to explain. Id. at 26. He said he was “surprised, a little bit annoyed,” but thought it was “a trivial matter from I guess ten years ago,” and considered it to be “an aberration in any and all forms.” Id. at 26-27. He was very supportive of his wife, and felt she was an honest and trustworthy person, whom he considered to be “of stellar character.” Id. at 27.

The individual’s husband also described his reaction when she was fired from her job in 1989 after submitting time cards claiming extra hours of work. He said he was surprised and shocked, but that the company was “disorganized,” “out of control,” had “a real unusual way of dealing with employees and it tended to be kind of a turnstile.” Id. at 28. He did not “feel it was any reflection on her. I’ve known [the individual]. She worked long hours, she worked through lunches. So, again, I could understand where she was upset, but it didn’t upset me. She took it very hard.” Id. The individual’s husband went on to assert that many people in many jobs “work through their lunches and just tack it on.” Id. at 29. However, he did admit “with 20-20 hindsight” that his wife should have handled the situation differently.

3. The Individual’s Co-workers

Two people who had worked with the individual at the DOE facility, and who knew her socially, testified as character witnesses. Both stated that the individual was honest and trustworthy. For example, the first coworker said “I think she’s very honest and trustworthy, and I would trust her in my home–I have trusted her in my home. And I would trust her with anything I have.” Id. at 32. This witness dismissed the time card incident as attributable to the individual’s supervisor authorizing her to work “and then there was some concern over that, and she was doing what she was told by her supervisor. And I believe both of them were let go.” Id. at 33. The first coworker was also not very troubled by the shoplifting incident, attributing it to confusion while the individual was shopping with her small children: “I could see how something like that could happen, that she could end up with something that she didn’t know was there.” Id. at 34.

The second coworker no longer works in the same office as the individual, but still drives with her to and from the DOE facility each day. According to the second coworker, “In the confines of the car, you get to know people.” Id. at 49. She thought the individual was honest and trustworthy, and that she “could tell [the individual] anything. All I have to do is say–blab it type of thing, you know–and it goes no further.” Id. This witness had no trouble reconciling the individual’s two mistakes in the past with her present perception of the individual as honest, trustworthy and having good judgment. Significantly, the second coworker attributed “a lot of it” to the individual’s “background and stuff” as an immigrant who did not fully understand “all of the American language and slang, and things like that, which I’ve been teaching her.” Id. This witness thought the individual did not understand “when people are happy with you, or sad with you, or whatever. She was a frightened person, you know? When you’re out in public and stuff, when you’re not sure of what’s going on around you, just as we would be in another country.” Id. at 50.

Analysis

For the reasons explained below, I find that the individual has presented information sufficient to resolve the concerns in the Notification Letter. Thus, I recommend granting access authorization to this individual.

As the DOE security specialist pointed out, the time card and shoplifting incidents clearly involved dishonest behavior, and I find that they raise valid security concerns. In my judgment, however, there are mitigating circumstances that cast a different light on the individual’s actions and resolve the security concerns. Both incidents took place many years ago, the individual voluntarily disclosed them to the DOE, and she readily admitted that she had exercised poor judgment. A significant factor that influenced my analysis is that the individual was foreign born and grew up in a culture that was very different from the United States. One witness observed that the individual was not totally conversant with American customs or the nuances of the English language, and I noticed this from the onset in my dealings with the individual. In my view, this also helps to explain why the individual did two foolish things that seem so utterly out of character with my present impression of her as an honest person.

The individual’s naivete and timidity were cultural factors that could have made her more easily influenced than she should have been in going along with her team leader and submitting inflated time cards. Moreover, this incident was not as sinister as would appear at first blush. It only involved 15 extra hours over a period of several months. Although I cannot condone her conduct, I find there are mitigating factors. Most importantly, it happened 11 years ago. Since that time (including ten years at the DOE facility), the individual has never been involved in any kind of trouble at work. The individual admits she handled the situation poorly, and concedes that she should have asked for extra pay if she had to work extra hours to complete her assignment, instead of resorting to self-help. The individual suffered humiliation as a result of losing her job, and she showed remorse. I believe the passage of time shows the individual learned from this mistake, and that she will not repeat it.

A salient feature of the shoplifting incident is that it involved items worth approximately $5.00. It appears to have been an inexplicably foolish, impulsive action on the spur of the moment that was not premeditated and may even have been unintended. Someone who was seriously bent on stealing would surely have taken more valuable items. It was an isolated event, and it has never been repeated. As the individual maintained in her written response to the Notification Letter, “It has been eight years and I have led a straight and narrow path.” DOE Exhibit 5. From this incident as well, the individual suffered embarrassment, and as noted by the DOE psychiatrist, experienced continued angst until she finally revealed it to her husband eight years after the fact.

While any shoplifting is troubling from a security standpoint, the shoplifting incident in this case was relatively insignificant in comparison to the fact situations considered in prior OHA decisions. For example, in Personnel Security Hearing, Case No. VSO-0183, 27 DOE ¶ 82,761 (1998), an OHA Hearing Officer recommended against granting a clearance to an individual who had been involved in three separate shoplifting incidents over an eight-year period, and had a record of dishonest behavior that spanned a 20-year period. In Personnel Security Hearing, Case No. VSO-0133, 26 DOE ¶ 82,782 (1997), the individual failed to disclose a shoplifting arrest during a psychiatric evaluation, and had a lengthy record of mental problems, unsatisfied financial obligations, domestic problems, and anger management problems. In a third case, Personnel Security Hearing, Case No. VSO-0320, 27 DOE ¶ 82,836 (2000), the individual was charged with petit larceny after fleeing from a Wal-Mart store where he was apprehended trying to steal a VCR; that individual never admitted any wrongdoing despite strong evidence of guilt. By contrast, the individual in this case was involved in one isolated shoplifting incident, she readily admitted her guilt to the DOE, and she has led a blameless life for the past eight years.

Although the concern about the individual’s susceptibility to coercion or blackmail has now been resolved, I think that cross-cultural considerations are also relevant to this concern. Initially, the individual was so concerned with saving face that she chose not to tell her husband about the shoplifting incident. I am convinced that she did not realize how hiding something from her spouse could make her susceptible to blackmail until the DOE Counsel and I explained it to her. This conclusion was confirmed by my observation of the individual at the hearing, when she displayed a genuine sense of betrayal at the failure of the DOE security specialist and the DOE psychiatrist to educate her about the concern. The important thing is that she quickly told her husband about the shoplifting incident once we explained the concern to her. The individual learned an important lesson about security from this experience, albeit the hard way.

I am persuaded that the individual has shown sufficient evidence of reformation or rehabilitation in the many years since the time card and shoplifting incidents. I find it significant that while the individual’s witnesses tended to offer excuses for her two incidents of errant behavior, the individual owned up to her mistakes. She knows her actions were wrong, she admits she used bad judgment, she makes no excuses, and she feels remorse. The individual was a credible witness, and she displayed genuine contrition for her misdeeds. On the basis of her testimony, in particular from her candor and straightforward manner, I believe the individual was telling the truth when she said she would not do anything dishonest in the future. It is a difficult call, but after weighing and balancing all the evidence in the record, I find that eight years on the “straight and narrow” is the best evidence that this individual has reformed. See , Case No. VSO-0319, 27 DOE ¶ 82, 851 (2000) (nine yearsPersonnel Security Hearing of blameless conduct is long enough to mitigate concerns about an individual’s prior dishonest behavior). I am convinced that this individual is now a trustworthy person.

Gauging the individual’s conduct under the factors set forth in 10 CFR § 710.7(c), I find her two acts of dishonesty were isolated events that took place over eight and 11 years ago, respectively. In addition they involved relatively minor amounts of money, and were not part of a pattern of behavior that has continued after the shoplifting incident, a very petty offense that took place over eight years ago. Although I find that her participation in both events was knowledgeable and voluntary, and the conduct took place when she was a mature adult, there are extenuating circumstances that tend to diminish their seriousness. The concern that once existed about the individual’s susceptibility to blackmail was resolved before the hearing when she told her husband and friends about the shoplifting incident. It is reassuring that the individual learned from her mistakes and never got in any trouble again after 1992. I am convinced the steps this individual has taken have resulted in her reformation and rehabilitation, and I can say with a high degree of confidence that the conduct is unlikely to recur in the future.

Conclusion

Based on the entire record in this proceeding, I find that the individual has resolved the security concerns raised under 10 CFR § 710.8(l). I find that she has resolved the concern that she might be susceptible to blackmail for hiding the shoplifting incident from her husband and friends. I conclude that the individual has mitigated the concern raised by her involvement in the time card incident and the shoplifting incident. The individual has also convinced me that she is reformed and rehabilitated.

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

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

Director

Office of Safeguards and Security, SO-21

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874

Thomas O. Mann

Hearing Officer

Office of Hearings and Appeals

Date: January 23, 2001

(1) Since she was not represented, the DOE Counsel and I also provided the individual with relevant portions of the adjudicative guidelines, and excerpts from two of my prior personnel security hearing opinions, so she would have a written reference for understanding the concerns, and for addressing them at the hearing. See November 6, 2000 Letter from Hearing Officer and enclosures.

(2) I specifically referred to 32 CFR § 147.7, Guideline E–Personal Conduct, and the conditions that could mitigate security concerns about concealment of information that may increase an individual’s vulnerability to coercion. The adjudicative guidelines used in this case were issued by the Department of Defense and as yet, they have not been officially adopted by the DOE. However, they are virtually identical to the DOE guidelines, which are not binding, but used (as in this hearing) for general reference purposes.

(3)” 32 CFR § 147.12, Guideline J–Criminal conduct.