Case No. VSO-0425, 28 DOE ¶ 82,797 (H.O. Fine May 8, 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.

May 8, 2001

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: December 14, 2000

Case Number: VSO-0425

This Opinion concerns the eligibility of XXXXXX XXXXX (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.” The Department of Energy’s (DOE) Office of Safeguards and Security (OSS) 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

During the course of a routine re-investigation of the Individual’s suitability for a DOE access authorization, the OSS found that the Individual had a number of past due accounts listed in her credit report. In addition, information obtained by the OSS indicated that the Individual had used her government credit card to obtain goods, services and cash advances for her personal use. Accordingly, a PSI with the Individual was conducted on February 24, 2000 (the PSI). The PSI failed to resolve these security concerns. An administrative review proceeding was initiated and, on October 31, 2000, the DOE issued a notification letter to the Individual, citing security concerns under Criterion L and Criterion F. See 10 C.F.R. § 710.8.

The Individual filed a request for a hearing in which she made a general denial of the allegations contained in the Notification Letter. This request was forwarded to the Office of Hearings and Appeals (OHA) and I was appointed as Hearing Officer. At the hearing, the OSS presented two witnesses, both personnel security specialists. The Individual presented no witnesses but testified on her own behalf. See Transcript of Hearing, Case No. VSO-0425 (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

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 the Individual’s history of failing to meet her financial commitments and misuse of her government-issued credit card.

Allegations that the Individual Misused Her Government-Issued Credit Card

The record indicates that the Individual was issued a DOE American Express Card. This card was issued to the Individual with the express understanding that she was to use it only to pay expenses resulting from official government travel. However, during the period beginning on November 2, 1997, and ending on December 19, 1997, the Individual’s DOE American Express Card was used 23 times to obtain $2,361.80 worth of goods, services and cash, which were not related to government travel or any other government business. Tr. at 28. (1) On March 5, 1998, the Individual’s supervisor issued a Reprimand for Unauthorized Use of Government Property to the Individual. This incident constitutes a very serious security concern which raises strong doubts about the Individual’s integrity and judgment. Simply put, if the DOE cannot trust the Individual with a government-issued credit card, how can it trust her to safeguard special nuclear materials or classified information? The serious security concerns raised by these unauthorized uses of Government property were exacerbated by the Individual’s failure to pay American Express in a timely manner.

The Individual attempts to mitigate these concerns by contending that some of the unauthorized purchases were made by her drug-addicted sister, Tr. at 85, that she eventually paid American Express in full, and that she needed money to pay bills, since she had been out of work for several months due to illness. Id. However, none of these factors mitigate the serious security concerns raised by her unauthorized use of the government-issued American Express Card.

Allegations of Financial Irresponsibility

The Notification Letter lists the following alleged instances of financial irresponsibility:

  1. A repeated failure on the part of the Individual to pay rent in a timely manner during the period beginning in December 1993 and ending in June 1997. The Notification Letter indicates that the Individual was delinquent in paying her rent on at least 14 occasions during this period. These delinquencies resulted in nine lawsuits against the Individual and eventually her eviction. At the time of her eviction, the Individual had an unpaid balance of $1,444. This balance was eventually repaid though the involuntary garnishment of the Individual’s paycheck.
  2. An unpaid (as of February 10, 2000) collection account of $789 owed to the XXXX XXXX.
  3. An unpaid (as of February 10, 2000) balance of $914 owed to Wachovia Bankcard Services (formerly Wells-Fargo).
  4. A past due balance of $3,000 (as of February 10, 2000) owed to Bank of America (formerly NationsBank).
  5. A past due balance of $551 (as of February 10, 2000) owed to BankFirst.
  6. A past due balance of $926 (as of February 10, 2000) owed to Capitol One Bank.
  7. A past due balance of $1,200 (as of February 10, 2000) owed to Spiegel’s.
  8. An automobile owned by the Individual was repossessed in August 1998.

In addition, the Notification Letter indicated that the Individual has an extensive, previous history of financial problems.

The issues before me are whether the Individual has demonstrated a pattern of financial irresponsibility, and if so, whether the substantial security concerns raised by a pattern of financial irresponsibility have been resolved. Financial difficulties do not always constitute serious security concerns. However, when financial difficulties result from an individual’s irresponsibility, serious security concerns arise. A pattern of financial irresponsibility can be evidence of poor judgment, dishonesty or unreliability on the part of an individual. (2) Financial irresponsibility can also render an individual susceptible to coercion. For these reasons, financial irresponsibility raises a serious doubt about an individual's ability to handle classified material and follow security regulations. Personnel Security Review (Case No. VSA-0048), 25 DOE ¶ 83,010 at 86,545 (1996). In many cases, the consequences of financial irresponsibility include participating in deceptive, dishonest or illegal activities. Most importantly, history has shown that financial pressure is perhaps the most common motivation for espionage.

In the present case, the Individual’s financial difficulties appear to have resulted both from poor judgment on the part of the Individual and from misfortune. Apparently, the Individual was unable to work for several months due to illness, and this resulted in a reduction of her income. Tr. at 82 and 85. In at least two instances, the Individual’s payments of bills were delayed while she contested the validity or accuracy of the billing. Id. at 86-7, 106-7, and 188. Moreover, the Individual indicates that some of her debts were incurred in efforts to assist family members. Id. at 81, 83, 85, 90. Had the Individual been able to show that all of her debts were due to these misfortunes, I might be more inclined to conclude that her financial problems were not the product of irresponsibility.

However, two factors lead me to conclude that the Individual’s financial problems resulted, at least in part, from her own irresponsibility or poor judgment. First, it is apparent that even while the Individual was having difficulties in making payments to her creditors, the Individual continued to make unnecessary purchases. Id. at 6 (individual admits living beyond her means). Second, the Individual did not seem to have taken an aggressive and determined approach to solving her financial problems until the commencement of the present proceeding.

Once a pattern of financial irresponsibility has been established, the individual must demonstrate a new pattern of financial responsibility. Personnel Security Hearing (Case No. VSO-0108), 26 DOE ¶ 82,764 at 85,699 (1996). In the present case, the Individual has recently done this. However, the doubts that are raised by past financial difficulties are not necessarily resolved when an individual puts his or her financial affairs in order. See Personnel Security Hearing (Case No. VSO-0132), 26 DOE ¶ 82,780 at 85,711 (1997) (payment of debts does not in itself definitively establish that an individual will conduct his financial affairs responsibly in the future). Some OHA Hearing Officers have found periods greater than a year insufficient to establish a sufficient new pattern of financial responsibility. In those cases, the pattern of financial irresponsibility was serious or complicated by other security concerns. See Personnel Security Hearing, Case No. VSO-0240, 27 DOE ¶ 82,790 (1999) (pattern of financial responsibility was insufficient to resolve the serious doubts raised by the demonstrated pattern of financial irresponsibility since the individual had also engaged in dishonest and illegal behaviors as part of her pattern of financial irresponsibility); Personnel Security Hearing, (Case No. VSO-0244), 27 DOE ¶ 82,797 (1999) (financial irresponsibility was intertwined with a compulsive gambling disorder); Personnel Security Hearing (Case No. VSO-0347) (2000) (individual who had resolved debts still failed to accept responsibility for his actions). After considering the record, I find that serious questions persist about the Individual’s financial responsibility.

The record indicates that, although the Individual had serious financial problems at the time that the Notification Letter was issued, she seems to have put her financial house in order, at least for the time being. Apparently, the rent debt has been satisfied, albeit through the involuntary garnishment of her paycheck, and after her eviction from the premises. The record shows that the Individual paid off her debt to the XXXX XXXXX on October 13, 2000. The record further indicates that the Individual resolved part of her debt to Wachovia by convincing Wachovia that it had charged her twice for some purchases. Letter dated November 30, 2000, from Wachovia Bank Card Services. On January 31, 2001, the Individual tendered payment to Wachovia for the remaining $457.26 of her debt. Apparently, the Individual is also paying Bank of America back, even though it is through the involuntary garnishment of her paycheck. On April 20, 2000, the Individual finished paying off her past due debt to BankFirst. Her past due balance to Capital One Bank was paid in full as of April 24, 2000. The Individual has apparently paid off her past due debt to Spiegel’s, since the March 6, 2001 credit report submitted by DOE does not show this debt. Moreover, the Individual testified that she is now current on her car loan. Id. at 94. (3) In addition, the Individual has obtained professional credit counseling and developed a budget. Id. at 116-17. (4) The Individual’s successful efforts to pay off her outstanding debts and other efforts to improve her financial outlook constitute strong evidence in mitigation of the serious security concerns raised by the Individual’s past financial irresponsibility.

However, the record indicates that the Individual has an extensive history of failing to meet her financial obligations that goes back at least to 1992. Id. at 11. Given her long-standing financial problems her recent successful efforts to pay back her debts, while commendable, are insufficient to establish a sufficiently long pattern of responsibility to resolve the security concerns raised by her long standing financial irresponsibility. Simply put, one year of financial responsibility is simply not sufficient to mitigate a nine year pattern of irresponsibility.

Because the Individual has not mitigated the serious security concerns raised by her pattern of financial irresponsibility and her unauthorized use of government property, I find that the security concerns set forth in the Notification Letter under Criterion L remain unresolved.

Criterion F

The Notification Letter also alleges that the Individual had “[d]eliberately 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.” 10 C.F.R. § 710.8(f).

On February 23, 2000, the Individual submitted a form to DOE known as a Personal Financial Statement (PFS). This form was signed and dated by the Individual on that date. On February 24, 2000, the Individual submitted a form to DOE known as a Questionnaire for National Security Positions (QNSP). This form was also signed and dated by the Individual on that date.

The Notification Letter alleges that the Individual omitted several delinquent accounts from these forms. Specifically, the Notification letter alleged that she omitted the following accounts:

1) Bank America on the PFS.

2) BankFirst on the PFS and the QNSP.

3) Wachovia Bankcard Services on the PFS and the QNSP.

4) Spiegel’s on the PFS.

The record indicates that the Individual did omit these debts from the February 23, 2000 PFS and the February 24, 2000 QNSP. Moreover, the Individual’s explanations of why she omitted these debts from these reporting forms fail to sufficiently resolve the serious security concerns raised under Criterion F. Specifically, the Individual claimed that she forgot about one debt, Tr. at 120, did not list others on the PFS because she was not paying those creditors, Id. at 83, and that she omitted one debt because she disputed its validity, Id. at 118. Had the Individual omitted only one debt from the forms, one of these excuses might have sufficed. The fact that the Individual listed the Bank America and Spiegel’s accounts on one form but not the other suggests that the Individual was not attempting to mislead the DOE about these debts. Nonetheless, the number of delinquent accounts and her inconsistency in reporting them does not suggest that she exercised the level of care and the candor that DOE expects of individuals required to complete and submit these forms. I therefore find that the Individual has not resolved the serious security concerns raised by the DOE under Criterion F.

IV. CONCLUSION

For the reasons set forth above, I conclude that the Individual has not resolved the DOE’s security concerns under Criterion L and F. I therefore conclude that the Individual has not demonstrated that restoring her 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: May 8, 2001

(1)The Individual does not contest the accuracy of these facts.

(2)In some cases, financial irresponsibility can be the result of a mental condition or problem with substance abuse. However, there are no allegations in the Notification Letter indicating that these factors are present in the instant case.

(3)However, during an unusually forceful and confusing cross-examination by the DOE Counsel, the Individual subsequently testified that she was a month behind on her car payments. Tr. at 100. Since, the Individual was obviously rattled and confused during this cross examination, I am unsure whether this contradictory testimony was reliable.

(4)At the hearing, DOE Counsel repeatedly asserted, incorrectly, that the Individual had not satisfied the listed debts. However, the Individual had in fact submitted documentation to OSS before the hearing showing that she had satisfied these debts.