Case No. VSO-0418, 28 DOE ¶ 82,795 (H.O. Cronin March 19, 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 19, 2001

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing:November 20, 2000

Case Number:VSO-0418

This Opinion concerns the eligibility of XXXXXXXXXXX (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.” (1) Based on the record before me, I am of the opinion that the Individual’s access authorization should not be granted.

I. Background

A. Procedural History

The Individual is an employee of a contractor at a Department of Energy (DOE) facility. The Individual’s employer requested that the Individual apply to receive an access authorization. After conducting a background investigation on the Individual, the Operations Office conducted a Personnel Security Interview (PSI) with the Individual in June 2000 to resolve several concerns raised by information discovered during the investigation. Since the security concern remained unresolved after the PSI, the Operations Office requested that the Individual be interviewed by a DOE consultant psychiatrist (DOE Psychiatrist). The DOE Psychiatrist interviewed the Individual on July 25, 2000, and issued an evaluation to the DOE on August 23, 2000 in which he concluded that the Individual did not suffer from any condition that could cause a significant impairment in judgement. See DOE Exhibit 3-1. However, the evaluation noted that the Individual admitted that she had smoked marijuana once in February or March 2000 after she had been hired to work at the DOE facility. Id. at 8, 15. This admission contradicted the information the Individual had provided in her PSI. In the PSI, the Individual stated that the last time she used marijuana was in 1978 or 1979. See DOE Exhibit 5-1 at 78 (PSI).

The Operations Office ultimately determined that two items of derogatory information created a substantial doubt about her eligibility for an access authorization. Specifically, these items were the Individual’s failure to provide an accurate answer in the PSI concerning her last marijuana usage and the Individual’s use of marijuana while aware of the DOE facility’s policy against employee illegal drug usage. Accordingly, the Operations Office obtained authority from the Director of the Office of Safeguards and Security to initiate an administrative review proceeding.

After the Manager of a DOE Operations Office has obtained the authority to conduct an administrative review proceeding, the individual is notified of the basis for the DOE’s substantial doubt concerning his (or her) eligibility for an access authorization and provided “the option to have the substantial doubt regarding eligibility for access authorization resolved in one of two ways: (i) By the Manager, without a hearing, on the basis of the existing information in the case; (ii) By personal appearance before a Hearing Officer (a 'hearing').” 10 C.F.R. §§ 710.10(b), (d), 710.21(a), (b)(3). “[I]f a hearing is requested, the individual [has] the right to appear personally before a Hearing Officer; to present evidence in his own behalf, through witnesses, or by documents, or both; and, . . . to be present during the entire hearing . . . .” 10 C.F.R. § 710.21(b)(7). The hearing is “for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization.” 10 C.F.R. § 710.21(b)(6).

The administrative review proceeding in this case began with the issuance of a Notification Letter to the Individual. See DOE Exhibit 2-4; 10 C.F.R. § 710.21. That letter informed the Individual that information in the possession of the DOE created a substantial doubt concerning her eligibility for access authorization. The Notification Letter included a statement of that derogatory information and informed the Individual that she was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt regarding her eligibility for access authorization. The Individual requested a hearing, and the DOE forwarded the Individual’s request to the Office of Hearings and Appeals (OHA). The Director of OHA appointed me as the Hearing Officer in this matter. At the hearing convened pursuant to 10 C.F.R. § 710.25(e) and (g), the DOE psychiatrist, a Personnel Security Specialist, and the Individual testified. The DOE Counsel submitted 19 exhibits and the Individual submitted 4 exhibits prior to the hearing.

B. The Basis for the DOE’s Security Concern

The derogatory information cited in the Notification Letter issued to the Individual falls within the ambit of two regulatory criteria, paragraphs (f) and (l) of 10 C.F.R. § 710.8. DOE Exhibit 2-4. In the Notification Letter, the DOE stated that the information indicated that the Individual (1) “has deliberately misrepresented, falsified, or omitted significant information from a personnel security interview” (Criterion F), and (2) “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 national security” (Criterion L). Id.; see 10 C.F.R. § 710.8(f), (l).

“The 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). In considering 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 consideration of all the relevant information in the record, I conclude for the reasons set forth in this Opinion that the concerns raised by the derogatory information regarding the Individual remains unresolved. Because of this unresolved concern, it is my opinion that the Individual’s access authorization should not be granted.

II. Analysis

A. Security Concerns Cited Under 10 C.F.R. § 710.8(f)

Criterion F pertains to information that a person has deliberately misrepresented, falsified, or omitted significant information from a Personnel Security Questionnaire, a Questionnaire for Sensitive Positions, a personnel qualification 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 a DOE access authorization or proceedings conducted pursuant to 10 C.F.R. § 710.20 through § 710.31. 10 C.F.R. § 710.8(f). The facts are undisputed concerning the Individual’s failure to provide an accurate answer concerning her last marijuana usage. In the June 2000 PSI, the individual was asked about the last time she had used marijuana:

Q: So your last use would have been when, of marijuana?

A: Probably then, high school.

Q: Okay. 11th grade?

A: Yeah.

Q: That was ni [sic] -- in ?78 probably.

A: Yeah, I graduated in ?79, ?78.

Q: Okay. Your future intentions regarding marijuana?

A: Uh, I haven’t used in years, I, I have no intention of ever using that or any other illegal drug ever again. I’m, too health conscious. . . .

DOE Exhibit 5-1 at 78.

The Individual was subsequently referred for an examination by the DOE Psychiatrist. During his July 2000 examination, the DOE Psychiatrist informed the Individual that he was going to send her to a laboratory for some tests one of which could be a test involving analysis of her hair. DOE Exhibit 3-1 at 8; Transcript of Hearing (Tr.) at 20. He further told the Individual that, because she had long hair, the test could detect drugs used several years ago. He then asked her if she wanted to revise any of her answers regarding the last time she had used any type of illegal drug. In response, she then told the DOE Psychiatrist “I took a couple of hits one night someone smoked pot around 4-5 months ago.” DOE Exhibit 3-1 at 8; see Tr. at 20, 29-30. The Individual does not challenge the accuracy of these facts.

At the hearing, the Individual explained her answer in the PSI as reflecting her belief that the question in the PSI referred to “habitual daily use.” Tr. at 28-29. She went on to testify that she didn’t disclose her one time use in February-March 2000 because “I feared losing my job and I didn’t see it as use.” Tr. at 29.

My review of the PSI transcript does not disclose any reasonable basis for the Individual to conclude that the personnel security specialist’s question referred only to habitual use. In the PSI, the personnel security specialist begins her questioning about illegal drug usage by asking “at any time of your life have you used illegal substances . . . . –even once, uh, an experiment?” DOE Exhibit 5-1 at 74. Only one question in the PSI referred to regular use “Okay. So you would say that it [usage in high school in 1978 or 1979] was just a one-time thing that you used back then or was it, uh, regular?” Id. at 75. The question the Individual responded to concerning her last use of marijuana was unequivocal - “So your last use would have been when, of marijuana?” Id. at 78. The Individual’s admission that she feared losing her job if she disclosed her recent one-time use is also an indication that she knew her answer was not entirely honest. On the basis of the evidence in the record, I find that the Individual deliberately provided an false answer in her PSI. Consequently, DOE properly invoked Criterion F, 10 C.F.R. § 710.8(f), concerning the Individual’s answer in the PSI.

The basis for the DOE security concerns is obvious. As explained by the Personnel Security Specialist at the hearing, security programs are based upon trust, and when an individual breaches that trust, it is difficult to determine to what extent DOE can trust the individual in the future. Tr. at 9. This principle has been consistently recognized by DOE Hearing Officers. See, e.g., Personnel Security Hearing (Case No. VSO-0281), 27 DOE ¶ 82,821 at 85,915 (1999).

There is no obvious medical or other type of expert that an individual can produce to support rehabilitation from falsification. There are no well-known programs that can be followed, such as the ones that exist for drug and alcohol abuse. A Hearing Officer must therefore look at the statements of an individual and facts surrounding the falsification in order to assess whether the individual has rehabilitated himself from the falsehood and whether granting or restoring the clearance would pose a threat to security. See Personnel Security Hearing (Case No. VSO-0255), 27 DOE ¶ 82,801 at 85,816 (1999); Personnel Security Hearing (Case No. VSO-0327), 27 DOE ¶ 82,844 (2000). The Individual has presented evidence which she believes mitigates the security concern raised by her falsification.

The Individual has submitted two letters written on her behalf. The first is a letter written by a friend who has known the Individual for six years. Individual Exhibit 1-3. The letter points out the Individual’s service in the National Guard and states that she has not witnessed or has any knowledge of the Individual using illegal drugs. Id. The letter also highlights the Individual’s struggle to become a good provider and parent for her daughter. Id. In the friend’s opinion, the Individual would not present a risk to national security. The second letter is from the manager of the department in which the Individual works. Individual Exhibit 1-4. The letter describes the Individual’s excellent performance in carrying out her duties and states that the Individual is a “trustworthy employee.” Id. It goes on to state that the Individual has earned the respect of her coworkers, supervisors and customers. Id. The letter also documents the Individual’s exemplary work performance by describing a monetary performance award given to the Individual for her outstanding service. Id.; Individual Exhibit 1-1. This award is even more notable since the organization that gave the Individual the award rarely gives such awards to a service employee. Individual Exhibit 1-4.

At the hearing, the Individual testified that she regrets not mentioning her one-time use in 2000 in the PSI. Tr. at 32. The Individual states that her one-time use in February-March 2000 was a serious error in judgment. Tr. at 35. Additionally, she testified that since 1978 or 1979 she only smoked marijuana one time (in February-March 2000) and that she no longer associates with the friends who offered her the marijuana. Tr. at 32. The Individual asserts that she would not use marijuana in the future even if it became legal. Tr. at 32.

After considering all the evidence before me, I do not believe that the Individual has mitigated the concern raised by her false answer in the PSI. While the DOE has presented only one incident of falsification concerning the Individual, the Individual’s falsification is relatively recent, having occurred approximately 12 months ago. Moreover, the falsification concerns illegal drug use, which raises a potential security concern in its own right. While the Individual did provide the DOE Psychiatrist a correct answer regarding her last marijuana usage, I note that her answer was prompted by the threat of drug test using a hair sample. In addition, the Individual admitted that her fear of losing her job played a role in prompting her to provide a false answer. Despite the fact that the record indicates that the Individual is an excellent employee, this, in itself, is not sufficient to establish to a sufficient degree the Individual’s trustworthiness. In sum, the Individual’s falsification, while isolated, is related to an important security concern. Further, the Individual has failed to mitigate the security concern raised by her falsification.

B. Security Concerns Cited Under 10 C.F.R. § 710.8(l)

Criterion L relates to information indicating that an 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 national security. 10 C.F.R. § 710.8(l). In the present case, the DOE cites two items of derogatory information which it asserts falls under the ambit of Criterion L. First, as described above, the Individual provided false information in the PSI concerning her last marijuana usage. Second, the Individual used marijuana while aware of the DOE facility’s policy prohibiting illegal drug usage.

With regard to her marijuana usage, the Individual does not challenge the DOE’s allegations. The Individual testified that at some time in February or March 2000 she was attending a party with a few other individuals and someone offered her a marijuana cigarette to smoke. She states that she took two “tokes” or puffs of the cigarette. Tr. at 30. The Individual also admits that when she used marijuana in February-March 2000 she was aware of the policy prohibiting illegal drug use by employees. Tr. at 31. Since this event she has disassociated herself from those friends and has no intention of ever using marijuana again. Tr. at 32. Given the Individual’s falsification of an answer in her PSI and her admitted marijuana usage, I believe that DOE properly invoked Criterion L.

Earlier in this Opinion, I found that the Individual provided a false answer in her PSI regarding her last marijuana usage and that the Individual had failed to mitigate the concerns raised by her falsification. With regard to the marijuana usage itself, I do not find any mitigating circumstances that would excuse the incident. The Individual knew of her employers policy prohibiting employee illegal drug use. More significantly, the use of marijuana violates federal and state law. The Individual’s disregard for law raises questions about the individual’s reliability and judgement. See Personnel Secrity Hearing (Case No. VSO-0099), 26 DOE ¶ 82,759 (1996). The Individual has testified that since 1978 or 1979 her usage was limited to that one occasion and that she no longer associates with the friends that offered her the marijuana. However, given the Individual’s relatively recent conduct, I find that the security concerns raised by the derogatory information presented under Criterion L have not been mitigated at this time.

III. Conclusion

As set forth above, I find that the record in this case raises a number of security concerns. First, I find that the Individual provided a false answer to a question in the PSI. Because the DOE security program depends on the honesty of clearance holders, it is imperative that such persons be completely honest. Second, the behavior of the Individual in failing to provide an honest answer in the PSI and in using marijuana when aware of the DOE facility’s policy forbidding illegal drug use tends to show that there is some doubt concerning the Individual’s reliability and judgement. After reviewing all the evidence in the record, I cannot conclude that granting the Individual’s access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. It is therefore my opinion that the Individual’s access authorization should not be granted. 10 C.F.R. § 710.27(a). (2)

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 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 C.F.R. § 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, NN-51

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874-1290

Richard A. Cronin, Jr.

Hearing Officer

Office of Hearings and Appeals

Date: March 19, 2001

(1)Access authorization is defined as an administrative determination that an individual is eligible for access to classified matter or is eligible for access to, or control over, special nuclear material. 10 C.F.R. § 710.5(a). Such authorization will be referred to variously in this Opinion as access authorization or security clearance.

(2)While I cannot recommend that the Individual clearance be granted, I do wish to remind the Individual that a security clearance determination is not a moral assessment on the life of an individual or an indication necessarily that one is not to be trusted with the important responsibilities in everyday life. It is an assessment of the risk in the national security context in giving a person a security clearance. The record indicates that the Individual has struggled and prevailed over a number of obstacles in her life for which I commend her efforts.