Case No. VSO-0439, 28 DOE ¶ 82,813 (H.O. Woods August 1, 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.

August 1, 2001

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: March 12, 2001

Case Number: VSO-0439

This Opinion concerns the eligibility of XXXXXXXXXX (hereinafter "the individual") for continued access authorization. The regulations governing the individual's eligibility are set forth at 10 C.F.R. Part 710, "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." This Opinion will consider whether, based on the testimony and other evidence presented in this proceeding, the individual's suspended access authorization should be restored. For the reasons detailed below, it is my opinion that the individual's access authorization should not be restored.

I. BACKGROUND

In February 2001, the Manager of a Department of Energy (DOE) Operations Office issued a Notification Letter to the individual, stating that the DOE was in possession of derogatory information that created a substantial doubt concerning his continued eligibility for access authorization. This authorization had been suspended in December 2000 because of these concerns.

The Notification Letter cites three areas of security concerns. First, the Notification Letter states that the individual may have "deliberately misrepresented, falsified, or omitted significant information" from a September 11, 1997 personnel security interview (the 1997 PSI). This information concerned his statements that he made to the DOE concerning his past involvement with marijuana and the circumstances surrounding his August 12, 1997 arrest for Possession and Cultivation of Cannabis. The Notification Letter finds that in a June 16, 1998 interview (the 1998 PSI), the individual admitted that some of the information that he provided at the 1997 PSI had been incorrect. Knowingly providing incorrect information in such circumstances constitutes a security concern under Criterion F of Part 710.8.

Second, the Notification Letter cites certain information as indicating that the individual trafficked in, sold, transferred, possessed or used a drug or other substance, that is, marijuana, which constitutes a security concern under Criterion K of Part 710.8. The information raising a concern in this area consists of the individual’s August 1997 arrest for Possession of Cannabis and Cultivation of Cannabis, his signed confession to the police in the matter, and his plea of guilty to that charge.

Third, the Notification Letter cites certain information as indicating that the individual engaged in unusual conduct tending to show he is not honest, reliable or trustworthy, or which furnishes reason to believe that he may be subject to pressure, coercion, exploitation or duress. This constitutes a security concern under Criterion (l) of Subpart 710.8. The Notification Letter cites the individual’s August 1997 arrest and four other arrests that occurred between 1985 and 1989 as the grounds for this concern.

The DOE also informed the Individual that he was entitled to a hearing before a Hearing Officer in order to respond to the information contained in the Notification Letter. The individual requested a hearing in this matter on January 7, 2000. On March 12, 2001, the DOE Operations Office forwarded this request to the Office of Hearings and Appeals, and I was appointed to serve as the Hearing Officer. In accordance with 10 C.F.R. § 710.25(e) and (g), I convened a hearing in this matter (the Hearing).

At the Hearing, the individual testified on his own behalf. He also presented the testimony of a friend, a co-worker, his union representative, his current supervisor, his former supervisor, and his wife. The DOE Counsel presented the testimony of the DOE security specialist who had conducted the Personnel Security Interview with the individual in 1997 (the Security Specialist).

II. THE REGULATORY STANDARD APPLIED IN THIS OPINION

The Hearing Officer's role in this proceeding is to evaluate the information presented by the DOE and the individual, and to render an opinion based on that evidence. 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. See 10 C.F.R. § 710.7(a).

The standard in this proceeding places the burden of proof on the individual. It is important to bear in mind that a DOE administrative review proceeding under this Part is not a criminal matter in which the government has the burden of proving a defendant guilty beyond a reasonable doubt. It is designed to protect national security interests. A 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 individual must come forward at the hearing with evidence to convince the DOE that restoring his 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). Personnel Security Review (Case No. VSA-0087), 26 DOE ¶ 83,001 (1996); Personnel Security Hearing (Case No. VSO-0061), 25 DOE ¶ 82,791 (1996), aff'd, Personnel Security Review (VSA-0061), 25 DOE ¶ 83,015 (1996). The individual therefore is afforded a full opportunity to present evidence supporting his eligibility for an access authorization. The regulations at Part 710 are drafted so as to permit the introduction of a very broad range of evidence at personnel security hearings. Even appropriate hearsay evidence may be admitted. 10 C.F.R. § 710.26(h). Thus, by regulation and through our own case law, an individual is afforded the utmost latitude in the presentation of evidence to mitigate security concerns.

This is not an easy evidentiary burden for the individual to sustain. The regulatory standard implies that there is a presumption against granting or restoring a security clearance. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988) (the “clearly consistent with the interests of national security” test indicates that “security-clearance determinations should err, if they must, on the side of denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance). Accordingly, the individual in these cases must present testimony and/or other evidence which, taken together, is sufficient to persuade the Hearing Officer that restoring access authorization is clearly consistent with the national interest. Personnel Security Hearing (Case No. VSO-0002), 24 DOE ¶ 82,752 (1995); Personnel Security Hearing (Case No. VSO-0038), 25 DOE ¶ 82,769 (1995) (individual failed to meet his burden of coming forward with evidence to show that he was rehabilitated and reformed from alcohol dependence).

Accordingly, in rendering my opinion in this case, I must consider whether the individual has presented mitigating factors which resolve the DOE's security concerns. 10 C.F.R. § 710.7(c); § 710.27(a). Among the factors I am to consider in rendering this Opinion concerning the individual's eligibility for access authorization are the following: the nature, extent, and seriousness of his conduct; the circumstances surrounding the conduct, including knowledgeable participation; the frequency and recency of the conduct; his age and maturity at the time of the conduct; the voluntariness of his participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for his conduct, the potential for pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and material factors. 10 C.F.R. § 710.7(c).

III. ANALYSIS

A. THE DOE’S CRITERION (f) CONCERNS

1. THE INDIVIDUAL’S MADE FALSE STATEMENTS REGARDING HIS USE OF MARIJUANA AND MISREPRESENTED THE FACTS CONCERNING HIS 1997 ARREST

The individual’s efforts to explain his August 1997 arrest for Possession of Cannabis and Cultivation of Cannabis and his activities concerning marijuana at the 1997 and 1998 PSIs form the basis for the DOE’s concern under Criterion (f) that the individual may have "deliberately misrepresented, falsified, or omitted significant information" during these PSIs. These alleged falsifications concern two aspects of the individual’s past involvement with marijuana. The first aspect concerns whether the individual has ever used marijuana. In this regard, the Notification Letter finds that during the 1997 PSI, the individual initially admitted that he tried marijuana in high school. 1997 PSI Transcript (TR) at 8. Later during the interview and in the 1998 PSI, he denied ever having tried marijuana. 1998 PSI TR at 4. At the 1997 PSI, the individual stated that “I’ve been around it. I’ve seen people that smoked it . . . . I was around people that smoked it.” 1997 PSI TR at 9. At the 1998 PSI, he denied ever having been around those who use marijuana. 1998 PSI TR at 4.

The Notification Letter also finds Criterion (f) concerns with respect to statements made by the individual at both the 1997 and 1998 PSIs concerning his August 1997 arrest for Possession and Cultivation of Cannabis. This arrest occurred when the local police discovered several marijuana plants being cultivated in a wooded area not far from the individual’s home, and also found a small packet of marijuana hidden in the individual’s truck. The Notification Letter finds that in the 1997 PSI, the individual denied that the marijuana plants were his, and denied that he knew that they existed prior to their discovery by the police. 1997 PSI TR at 8. It then finds that at the 1998 PSI, the individual made statements that contradicted these assertions:

You admitted that you knew that the marijuana which the police found in your truck was there. You denied, however, that it was yours. Transcript at p. 4.

You also admitted that you were aware that marijuana was being cultivated on your property or your father’s adjacent property. Transcript at pp. 4,5.

You admitted that you signed a confession which states: “the plants were mine. I do not smoke or sell it. I sometimes trade for artifacts with it. The bag in the truck belongs to me also.” . . . Transcript at pp. 6-7.

Notification Letter, Enclosure 1, at 1-2. Finally, the Notification Letter finds that at three points in the 1998 PSI, the individual admitted that he had not been truthful at the 1997 PSI when he provided information on this arrest. Notification Letter, Enclosure 1, at 2, citing 1998 PSI TR at 14-17.

At the Hearing, the individual attempted to clarify the record concerning his past use of marijuana. He testified that before he graduated from high school in 1984, he used marijuana a total of three or four times, and has not used it since then. When asked why he denied ever using marijuana in both the 1997 and 1998 PSIs, he offered the following explanation:

I just -- the interviews really just -- it made me nervous. I didn’t know what to say. I didn’t want [the interviewer] to think that I was . . . a real bad drug user or something like that. I thought it would reflect bad on me, and I see now that maybe I would have been better off to have went a different route.

Hearing Transcript (Hearing TR) at 122-23.

With respect to his August 1997 arrest and guilty plea, the individual asserted at the Hearing that he had never seen the marijuana plants growing in a wooded area behind his house until the police showed him the plants on the morning they arrested him. He testified that the police officers took him to where the plants were located and he witnessed them harvest the plants. He testified that the plants were located on an abandoned and grown-over farm that bordered his property. He stated that although his father later bought this property, at the time be believes it was owned by an unrelated individual who lived elsewhere.

Hearing Officer: So when did you realize that these [marijuana] plants were not on your property? Did you think that they might have been on your property?

Individual: I didn’t really think that they was that morning that [the police] showed them to me because the property stake is just right at the edge of our yard or a little bit out in there, so I knew that they wasn’t on ours. . . .

Hearing Officer: So why did [the police] think they could charge you with those plants?

Individual: Well, they really couldn’t have if I hadn’t confessed.

Hearing TR at 147. The individual also explained why he had testified at the 1998 PSI that he had been aware of the marijuana plants prior to his August 1997 arrest. He stated at the Hearing that he had not seen any plants, but he had an idea that some of his neighbors might be growing marijuana on the abandoned farm next to his property. Hearing TR at 141. He testified that his neighbor across the road “had already been arrested two years earlier” for growing marijuana, so “when they moved in across the road, I just always assumed that they was doing the same thing in that area.” Hearing TR at 148. He therefore acknowledged at the 1998 PSI that although the marijuana plants growing nearby were not his, “I had a pretty good idea it was there.” 1998 PSI TR at 4.

The individual testified at the Hearing that he knew nothing about the marijuana found in his truck until the police discovered it during a search on the day of his arrest.

Individual’s Counsel: Where was the marijuana [in his truck] found?

Individual: There was a console thing between the seats, and it was crammed -- there was a thing that went up under it in the front, and they pulled it out of there. It was under a coin change thing.

Individual’s Counsel: How do you know that?

Individual: I was there when they got it.

Hearing TR at 131.

At the 1998 PSI, the individual also answered in the affirmative when the interviewer asked “And were you aware the marijuana was in your truck?” At the Hearing, he testified that

I answered that wrong. She -- the way she posed the question, I thought she was asking me if I was aware that [the police] found marijuana in my truck.

Hearing TR at 141. At the Hearing, he denied that he ever had any idea that there was marijuana hidden in his truck prior to its discovery by the police. Id. He stated that earlier in 1997, he had loaned the truck to his former brother-in-law so that this man could move his possessions out of his wife’s house, and that “[t]hat’s the only time we [the individual and his wife] can think of that it could have got there.” Hearing TR at 143.

Accordingly, with respect to Criterion (f), the individual now admits having provided false information to the DOE at both his 1997 and 1998 PSIs when he repeatedly denied ever having used marijuana during those interviews. I find these falsifications by the individual to have been significant and serious. The individual was warned prior to both PSIs of the potential consequences of lying, but he chose to disregard them. With respect to his statements regarding his August 1997 arrest, I have reviewed the individual’s PSIs and conclude, as the individual admitted at the 1998 PSI, that he was “not completely truthful” during the 1997 PSI. Notably, he failed to tell the 1997 interviewer about the marijuana that the police discovered hidden in his truck. He also did not tell the 1997 interviewer that he had a strong belief that certain individuals were cultivating marijuana in the immediate vicinity of his home prior to his August 1997 arrest. At the 1998 PSI, he provided additional information, but his answers to questions were often evasive or self- justifying.

The individual’s explanation that the interviews made him nervous and that he did not want to give the DOE the impression that he was a bad drug user in no way excuses his decision to deliberately provide false information to the DOE. Moreover, there is no indication in the record that the individual made any attempt to correct his falsifications prior to the May 2001 Hearing. Accordingly, I conclude that the individual’s false statements and misrepresentations at his 1997 and 1998 PSIs raise significant concerns regarding his eligibility for access authorization.

2. THE INDIVIDUAL HAS NOT YET DEMONSTRATED REHABILITATION FROM CRITERION (f) CONCERNS

In the administrative review process, it is the Hearing Officer who has the responsibility for making the initial decision as to whether an individual has exhibited rehabilitation or reformation from particular security concerns identified by the DOE. See 10 C.F.R. § 710.27. The DOE does not have a set policy on what constitutes rehabilitation and reformation in particular areas such as drug use or illegal conduct, but instead makes a case-by-case determination based on the available evidence. At the Hearing, the individual admitted that he used marijuana in high school in the early 1980's and lied to the DOE concerning that use at the 1997 and 1998 PSIs. While his experimenting with drugs in high school may be attributed to immaturity, that is no basis for ascribing the individual’s subsequent falsifications on that issue to immaturity. At the time of the 1997 and 1998 PSIs, the individual was a mature man who had worked at the DOE for several years.

In addition to admitting his earlier lies at the PSI, at the Hearing the individual provided the DOE with what appears to be a complete account of the circumstances related to his 1997 arrest in a cogent and forthright manner. However, as discussed below, he has failed to provide sufficient evidence to adequately corroborate his contention that he was innocent of the charges to which he pled guilty in 1997, i.e., the cultivation and possession of cannabis. I therefore remain unconvinced concerning his assertions of innocence in those matters. I do find that his assertions at the Hearing constitute a full and coherent explanation concerning his arrest that is not demonstrably self-contradictory or false. I therefore do not view it as a further falsification for purposes of Criterion (f). Accordingly, I will look at whether the individual’s correction at the hearing of the untruthful statements made at the PSIs concerning his use of marijuana establish rehabilitation or reformation.

With regard to the issue of rehabilitation or reformation, there is no expert who can determine the length of time one needs to be considered rehabilitated from lying. However, the OHA has generally found that a lengthy period of truthful, honest behavior is necessary to mitigate Criterion (f) concerns regarding falsification. See Personnel Security Review (Case No. VSA-0289), 27 DOE ¶ 83,025 (2000); affirmed by OSA, 2000)(19-month period that elapsed between the date the individual disclosed the falsification and the hearing was insufficient to establish rehabilitation or reformation); and Personnel Security Hearing, Case No. VSO-0013, 25 DOE ¶ 82,752 (1995) (affirmed by OSA, 1995)(13-month period subsequent to covering up use of illegal drugs did not constitute a sufficient pattern of honest behavior). In this case, the individual lied to the DOE in September 1997 and in June 1998. While his false statements and misrepresentations were made more than three years ago, he did not disclose that he made false statements to the DOE concerning his past use of marijuana until the June 2001 Hearing. At this point, I am unwilling to consider the brief period of time that has elapsed since the hearing date as adequate for rehabilitative or reformative purposes in this case.

B. THE DOE’S CRITERION (k) AND CRITERION (l) CONCERNS

1. THE INDIVIDUAL’S REPRESENTATIONS OF INNOCENCE CONCERNING HIS 1997 ARREST ON DRUG CHARGES ARE NOT ADEQUATELY SUPPORTED

As noted above, the individual’s August 1997 arrest for Possession of Cannabis and Cultivation of Cannabis, his signed confession to the police in the matter, and his plea of guilty to that charge form the basis for the DOE’s Criterion (k) concerns in this case. At the Hearing, the individual basically repeated the assertions he made at his 1997 and 1998 PSIs that he had nothing to do with the marijuana plants found growing near his home, and no prior knowledge concerning the marijuana that the police found concealed in his truck, However, he admits that he signed the following confession on the day of his arrest. “The plants were mine. I do not smoke or sell it. I sometimes trade artifacts with it. The bag in the truck belongs to me also.” 1998 PSI TR at 6-7. He also acknowledges that he pled guilty to the charges of Possession of Cannabis and Cultivation of Cannabis, and paid a find of $1276. Hearing TR. at 127 At the Hearing, he testified that he felt under extraordinary pressure to plead guilty and pay a fine rather than be prosecuted and possibly convicted of a felony offense.

Well, [the police] took me to the police station . . ., and of course they had told me the same things they told [my wife] about taking our child away and that it was going to be felony charges.

And they really didn’t have a charge on me for cultivating because the marijuana didn’t turn out to be on my property or they didn’t catch me at it or didn’t have any evidence relating me to it, but they did have the possession charge in the truck.

And they said if I would plead guilty to two misdemeanor charges and pay a fine, that that would be the end of it and there would be no jail time and that in two years, probation -- if I made the two- year probationary period, that my record would be clean and that I wouldn’t ever have any felony charges on there. And my fines turned out to be $1,276.

Hearing TR at 128. The individual explained that the police officer who offered this agreement had suggested that he sign a confession saying that the individual sold marijuana or used marijuana, and the individual refused to do that. According to the individual, the police officer then suggested an alternative. “He said I could say that I traded [marijuana] for something or swapped it for something, . . . I told him that I was not going to write on that confession that I grew or sold marijuana, and he said that he could get by with that.” Hearing TR at 129. The individual testified that because the individual has a collection of Native American artifacts in his home that the police had seen when they conducted their search, he wrote down that he sometimes traded marijuana for such artifacts. Hearing TR at 127-28.

There clearly is a security concern associated with someone holding an access authorization who is arrested and pleads guilty to the charges of Cultivation of Cannabis and Possession of Cannabis. The individual’s assertion that these are misdemeanor rather than felony offenses does not mitigate this concern, because any possession, transferring or use of marijuana is a concern under Criterion (k). Moreover, we have determined in previous cases that “the demonstrated willingness of an individual . . . to decide unilaterally which rules are worth following and which are not can present a risk to the common defense and security, despite the individual’s best intentions.” Personnel Security Hearing, Case No. VSO-0075, 25 DOE ¶ 82,799 (1996), affirmed in Personnel Security Review, Case No. VSA-0075, 26 DOE ¶ 83,005 (1996). In addition, a finding that a person has difficulty with following rules leads to the conclusion that his judgment, reliability, and trustworthiness are not adequate to the requirements of holding access authorization. Personnel Security Hearing, 27 DOE ¶ 82,768 (1998); Personnel Security Hearing, Case No. VSO-0073, 25 DOE ¶ 82,794 (1996). The individual's being arrested for and pleading guilty to these charges thus convinces me that a security concern exists. In order for me to recommend restoration of his DOE access authorization, the individual must present evidence of rehabilitation from these activities, or must present other mitigating evidence and testimony sufficient to resolve this concern.

Although the individual clearly seeks to portray himself as an innocent party in these matters, I find that the individual’s presentation of testimony and evidence concerning these events is insufficient to mitigate the security concerns raised by his pleading guilty to the cultivation and possession of marijuana in August 1997. In his 1997 and 1998 PSIs and at the Hearing, the individual has consistently denied that he actually committed the acts to which he pled guilty in August 1997. He consistently maintains that he never viewed the marijuana plants discovered by the police near his home prior to the police showing them to him. Further, he has consistently maintained that he did not know that there was marijuana hidden in his truck until it was discovered by the police. However, in the absence of substantial evidentiary support for these assertions, it is not possible for me to conclude that the charges of cultivation and possession of marijuana, to which he confessed and pled guilty, are simply unfounded.

The law concerning the applicable evidentiary standard in this case is unequivocal. In personnel security cases in which an individual seeks to overcome the security concern with an explanation that he did not in fact act illegally, we expect the individual to provide substantial corroboration of his version of events. This standard has been applied in numerous Part 710 proceedings involving the alleged use of illegal drugs by individuals with access authorization. See, e.g., Personnel Security Review (Case No. VSA-0087), 26 DOE ¶ 83,001 (1996); Personnel Security Hearing (Case No. VSO-0163), 26 DOE ¶ 82,799 (1996); Personnel Security Hearing (Case No. VSO-0094), 26 DOE ¶ 82,753 (1996). Clearly, this standard is applicable to other illegal acts such as the cultivation and possession of marijuana. The individual’s “mere say-so as to allegations that minimize the security concern” cannot form a sufficient basis for restoration of a security clearance. Personnel Security Review (Case No. VSA-0087), 26 DOE at 86,508.

In the present case, the individual was well aware of the necessity of providing appropriate corroboration for his assertion that he knew nothing about the marijuana found growing near his home and hidden in his truck. At the May 15, 2001 conference call in this proceeding, I told the individual’s counsel that the individual must present additional witnesses who can provide corroborative testimony concerning the individual’s assertions regarding his involvement with marijuana that led to his 1997 guilty plea. I also stated that the individual should present witnesses who could support his assertion that he is currently conducting himself in an honest and trustworthy manner outside the workplace. Record of Telephone Conversation with the Parties, May 15, 2001. At a second conference call convened on May 17, 2001, I again suggested that additional witnesses could be called by the individual to corroborate his assertions and that I would leave the door open for such witnesses to be called without prior notice. Record of Telephone Conversation with the Parties, May 17, 2001. However, despite my comments, the individual introduced the testimony of only one witness, his wife, who could provide any corroboration of his version of the August 1997 events at the hearing. As discussed below, her knowledge of these events was too limited to corroborate the individual’s assertions concerning his noninvolvement with the marijuana discovered by the police.

The individual’s wife stated she married the individual in 1991 and that she was present in August 1997 when the police arrived and searched their home. She further testified that she has never seen the individual use illegal drugs and had never known him to cultivate marijuana. Hearing TR at 96, 101. She also said that she knew nothing about the marijuana that the police discovered in the individual’s truck. She confirmed that the individual’s former brother-in-law had borrowed the individual’s truck for a couple of days about one month prior to the police search of the vehicle. Hearing TR at 101. She testified that the individual had never admitted to her that he was guilty of the charges to which he pled guilty in August 1997. Hearing TR at 102. Finally, she stated that she had never heard of anyone, including the individual, trading marijuana for Native American artifacts. While her testimony does not contradict the individual’s version of events, it does not provide solid corroboration that the individual had no involvement with the marijuana plants or the marijuana found in his truck. She testified that she does not walk into the wooded areas of their thirteen acre property or adjoining properties because “I stay in my yard because of snakes.” Hearing TR at 109. Accordingly, if the individual had been involved in cultivating the marijuana plants, he apparently would have been able to conceal that fact from his wife. Similarly, the marijuana discovered in the individual’s truck was in a concealed location, and she could not testify with certainty that someone other than the individual had placed it there.

The testimony of the individual’s other witnesses at the Hearing - a friend, a co-worker, his union representative, his current supervisor, and his former supervisor - indicated that they had no information concerning the individual’s arrest for possession and cultivation of marijuana, except what he told them at a later time. In this regard, the union representative testified that he discussed those events with the individual in early 2001 and remembered the individual telling him that he felt that he was innocent. Hearing TR at 67. Aside from what some of them had been told by the individual, none of these witnesses had any knowledge, direct or indirect, of the events that resulted in the individual’s guilty plea. Therefore I find that they did not provide any meaningful views on whether the cultivation and possession of marijuana charges brought against the individual were valid.

Aside from his wife’s testimony, the only other information of any corroborative weight submitted by the individual is a letter from one of the police officers who was present at the time of the individual’s arrest (the County Sheriff). Although submitted for the purpose of showing that the individual has behaved responsibly since his August 1997 arrest, the letter clearly indicates that the County Sheriff believes that the individual was guilty of the charges brought against him. In this regard, the County Sheriff writes that “upon our investigation at that time [the individual] was very cooperative and honest with myself and the other officers during his arrest on the drug charges.” Later in the letter, he states that the individual “at this point is trying to recover from a very bad mistake that he made in his life.” Letter of County Sheriff dated May 17, 2001, submitted by counsel for the individual on May 21, 2001. These statements do not support the individual’s position that he was innocent of these charges. The fact that the County Sheriff recalls that the individual was “cooperative and honest” at the time of his arrest, strongly indicates that the individual may have readily acknowledged his guilt at that time.(1)

Accordingly, in the absence of corroborative testimony supporting his account of the 1997 arrest and his related guilty plea, the individual’s assertion that he is innocent of any wrongdoing involving the 1997 charges of cultivating and possessing marijuana lacks sufficient evidentiary support and cannot be accepted. Therefore, in order to show that he has mitigated the § 710.8(k) concerns associated with his 1997 arrest, the individual must establish that he is rehabilitated from the probable activities involving marijuana that resulted in his 1997 arrest.

2. THE INDIVIDUAL HAS NOT YET SHOWN REHABILITATION FROM THE DOE’S CRITERION (k) AND CRITERION (l) CONCERNS

In addition to the individual’s August 1997 arrest discussed above, the Notification Letter cites four additional instances in the 1980's where the individual was arrested. It concludes that all of these arrests raise a concern about his honesty, reliability and trustworthiness under Criterion (l). Notification Letter, Enclosure 1 at 3. The four additional arrests are as follows: (1) a January 1985 DUI; (2) a December 1989 DUI; (3) a November 1985 Failure to Comply with Officer’s Signal, Wanton Endangerment and Speeding; and (4) a May 1988 Burglary 1st Degree and Wanton Endangerment and Terroristic Threatening. Id.

The individual discussed these additional arrests at the hearing. He acknowledged that he was convicted of DUI in 1985, when he was nineteen years old, and that he was guilty of that offense. He also stated that he pled guilty that year to the charge of Failure to Comply with Officer’s Signal, Wanton Endangerment and Speeding. He stated with regard to that offense: “I was just a young kid. I just made a mistake.” Hearing TR at 124. He testified that he also was guilty of the DUI conviction that he received in 1989. Hearing TR at 123-24. With respect to the 1988 charges, he stated that they were dismissed and he pleaded guilty to a reduced charge of “terroristic threatening.” He explained that that incident occurred after his house had been burglarized and he confronted a man with a reputation for burglary who his neighbors told him had been seen on his property.

And me and him had an altercation there with me threatening him and breaking into his house and everything. The reason why they dismissed the charges is when the law showed up, he had my television and VCR and rifles and a jug full of money sitting there. So I was right about who broke into my house, but I went about it the wrong way. So they dropped the charges on me because of what he had done.

Hearing TR at 126.

With respect to the four arrests and convictions discussed above, I find that although they do raise significant Criterion (l) concerns, they all occurred over thirteen years ago when the individual was between nineteen and twenty-two years of age. I believe that the individual’s youth and lack of maturity at the time of these events lessens the concerns that they raise about the individual’s current honesty, reliability and trustworthiness. Aside from his August 1997 arrest, the individual has had no additional legal problems since 1988. Were it not for this 1997 arrest, I would readily conclude that the individual’s good conduct and increasing maturity in the thirteen years since 1988 have demonstrated complete rehabilitation from the four arrests and convictions discussed above. In my opinion, the individual’s 1997 guilty plea raises far greater concerns because it occurred at a time when the individual was a mature, married man, and employed in a position requiring a DOE access authorization. Accordingly, in assessing whether the individual is rehabilitated from Criterion (f) and (l) concerns, I must determine whether the individual has demonstrated that his conduct in the four years since August 1997 indicates that he can be trusted to abstain from any association with marijuana and conduct himself in an honest and reliable manner.

At this time, I do not believe that the record in this matter supports a finding of rehabilitation from these concerns. On the positive side, the individual’s wife, his friend, his two supervisors and his union representative all testified that to their knowledge the individual is conducting himself in a law- abiding way, is a productive and trusted worker, is not using or otherwise involved with marijuana, and is not engaging in the excessive use of alcohol. In addition, in his May 17, 2001 letter, the County Sheriff states that since his “very bad mistake” in August 1997, the individual “seems to be on the right track.” He states that “I personally have had no other problems with [the individual]. I also have not received any complaints concerning [the individual] to this date.” Finally, the individual testified that he and his family have cleared the wooded areas near his home in order to make certain that no marijuana can be cultivated on his property or his father’s property. Hearing TR at 149-150.

However, as discussed above, as recently as his June 1998 PSI, the individual made false statements to the DOE concerning his past use of marijuana. He did not correct those false statements until the Hearing in May 2001. The individual cannot show that he is conducting himself in an honest and reliable manner at the same time that he is knowingly withholding accurate information from the DOE concerning his past use of an illegal drug. It therefore was necessary for him to admit that he lied and to provide correct information to the DOE before any period of rehabilitation from the DOE’s Criteria (f) and (l) concerns could begin. I believe that the individual now has taken steps to begin the process of restoring the DOE’s trust in his reliability and honesty. However, the brief period of time that has elapsed since the May 2001 hearing date clearly is not adequate to confidently establish that the individual will refrain from all future dishonest statements concerning his use or involvement with drugs or other illegal activities.

IV. CONCLUSION

As indicated above, I have concluded that the Individual has not resolved the security concerns under 10 C.F.R. § 710.8(f), (k), and (l). In view of the record before me, I am not persuaded that restoring the individual's access authorization would not endanger the common defense and security and would be clearly 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. Section 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.

Kent S. Woods

Hearing Officer

Office of Hearings and Appeals

Date: August 1, 2001

(1)From the tone of his letter and as well as from the testimony of the individual and his wife (Hearing TR at 94, 133), it is evident that the County Sheriff knows the individual well and is generally sympathetic towards him. I therefore believe that the individual’s decision not to present the testimony of this knowledgeable and sympathetic witness strongly indicates that the County Sheriff would have presented testimony detrimental to the individual’s position that he had no prior awareness of the marijuana found growing near his home and concealed in his truck.