Case No. VSO-0443 (H.O. Palmer September 4, 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.

September 4, 2001

OFFICE OF HEARINGS AND APPEALS

Hearing Officer’s Opinion

Case Name: Personnel Security Hearing

Date of Filing: May 16, 2001

Case Number: VSO-0443

This Opinion concerns the eligibility of XXXXXXXXXXXXXXX (hereinafter referred to as "the individual") to retain 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)

I. Background

For a number of years, the individual has been employed by a Department of Energy (DOE) contractor in a job that required that he maintain a security clearance. In 2000, the individual was arrested for Indecent Exposure. Because this information raised security concerns, a DOE Personnel Security Specialist interviewed the individual later that year. This Personnel Security Interview (PSI) failed to resolve the security concerns, and the individual was referred to a psychiatrist (hereinafter referred to as “the DOE psychiatrist”) for an agency-sponsored evaluation. The DOE psychiatrist interviewed the individual and provided a written report of his diagnosis to the local DOE Security Office. After reviewing the results of this investigation, the Manager of the local DOE Office determined that derogatory information existed which cast into doubt the individual’s suitability for continued access authorization. The Manager informed the individual of this determination in a letter which set forth in detail the DOE’s security concerns and the reasons for those concerns. I will hereinafter refer to this letter as the Notification Letter.

The derogatory information set forth in the Notification Letter pertains to paragraphs (h) and (l) of the criteria for eligibility for access to classified matter or special nuclear material set forth at 10 C.F.R. § 710.8. Paragraph (h) defines as derogatory any information indicating that the individual has “[a]n illness or mental condition of a nature which, in the opinion of a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist, causes, or may cause, a significant defect in judgment or reliability.” Paragraph (l) refers to information indicating that the individual has “engaged 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. Such conduct or circumstances include . . . criminal behavior. . . .” Both of these categories of derogatory information concern the individual’s arrest and the DOE psychiatrist’s subsequent diagnosis.

The events that led up to the arrest were described by the individual during his PSI and are set forth in the Notification Letter. The individual, who lives in a rural area, stated that he keeps cattle in a field that is about a mile from his house, and goes there every day to feed and maintain them. The woman to whom the individual exposed himself lives near this field. PSI at 3. Prior to the incident in question, the individual allegedly informed the woman that he sometimes would change clothes in his vehicle, which would usually be located approximately 100 yards from the woman’s house. He claims that he told her that at such times “you may see me in practically nothing or even nothing,” and asked her, “Is that a problem?” She indicated that it was not. PSI at 14. On the day of the incident, the individual stopped and talked to her and then “went back a little later and . . . when I stepped out of the vehicle I had taken off all my clothes.” PSI at 3. The woman then said “?Oh, my God,’ or something, and she just turned and . . . started toward . . . [her] house.” PSI at 22. Although their earlier conversation that day had not been of a sexual nature, the individual said that the woman had been dressed provocatively, and that he had gotten the idea to expose himself after this encounter. PSI at 19. The individual admitted that in acting on this idea, he exercised “very poor judgement.” PSI at 29.

After his PSI, the individual was evaluated by the DOE psychiatrist, whose report was quoted at length in the Notification Letter. In the report, the DOE psychiatrist said that the “question . . . put to me was whether, in my professional opinion, [the individual] may have an illness or a mental condition which causes, or may cause, a significant defect in judgement or reliability. I answer the question in the affirmative . . . .” DOE psychiatrist’s report at 1. The DOE psychiatrist then went on to set forth further details about the incident in question, provided to him by the individual, and to set forth the basis for his conclusion. He said that the individual intended his exposure to be a “sexual prank,” and that he was not expecting sex, but if it developed, that would be alright. “But really,” the individual said, “I thought she’d just get a kick out of it and laugh.” When she reacted with shock and started back toward her house, he yelled after her that he apologized and that he did not know that she would react that way. DOE psychiatrist’s report at 2. The individual told the DOE psychiatrist that at the time of the incident, he did not have an erection and was not sexually aroused. “This is in contrast to what he told [the DOE Personnel Security Specialist], recorded on page 28 [of the PSI], where he said that he did start out with sexual excitement, but after he got her reaction it was ?far from that.’” Id.

The DOE psychiatrist then asked the individual if there had been any other episodes involving his not wearing clothing in an unusual context, and the individual replied in the negative. Again, the DOE psychiatrist found this to be inconsistent with statements made by the individual during the PSI. At that time, the individual stated that he had walked down to the road in front of his house several times while naked, “in order to see how close he could come to getting caught without actually getting caught.” DOE psychiatrist’s report at 3. Later in the evaluation, at a point when, in the DOE psychiatrist’s opinion, the individual had ascertained that the psychiatrist had access to the PSI, the individual admitted these earlier incidents. In addition, upon further questioning the individual recounted another incident involving the woman to whom the individual exposed himself that was previous to the event that resulted in his arrest. On this occasion, the individual was changing his clothes at a time when the woman was at her mailbox, which provided her a clear line of sight to the individual. Instead of protesting, “she merely waved to him. It was an incident such as this which made him feel that she might welcome further actions along this line.” Id.

The DOE psychiatrist then concluded that the individual

fits the diagnosis of a major depression, mild. He should also carry the diagnosis of exhibitionism. It is quite possible that the major depression could be treated. I am not so sure about the exhibitionism. There are not much data to guide us in predicting the likelihood of success with this problem. His exhibitionism does not seem to be the type that thrives on shocking the victim; rather it seems to be the type that is involved with excitement and risk-taking . . . .

[I]t is the exhibitionism which is a point of concern. It was clear that during the interview [the individual] tried to minimize the incident. Only when he became aware that I had additional information did he give me additional information. . . . There certainly exists the possibility of a recurrence when sufficient time has passed beyond the arrest. Although he explained . . . that he has no need to hide this (although he does not want to broadcast it), his presentation to me suggests the opposite. He might, again, find himself in a situation where he is compromised to the point where he may be tempted to hide this. It is for this reason that I think there is a reasonable probability of his being in a situation which would indicate a lack of judgement.

DOE psychiatrist’s report at 4.

II. Analysis

The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710 dictate that in these proceedings, a Hearing Officer must undertake a careful review of all of the relevant facts and circumstances, and make a “common-sense judgment . . . after consideration of all the relevant information.” 10 C.F.R. § 710.7(a). I must therefore consider all information, favorable or unfavorable, that has a bearing on the question of whether restoring the individual’s security clearance would compromise national security concerns. Specifically, the regulations compel me to consider the nature, extent, and seriousness of the individual’s conduct; the circumstances surrounding his conduct; the frequency and recency of the conduct; 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 likelihood of continuation or recurrence of the conduct; and any other relevant and material factors. 10 C.F.R. § 710.7(c).

A personnel security 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). Once the DOE has made a showing of derogatory information raising security concerns, the burden is on the individual to produce evidence sufficient 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). See Personnel Security Hearing, Case No. VSO-0013, 24 DOE ¶ 82,752 at 85,511 (1995) (affirmed by OSA, 1996), and cases cited therein. After careful consideration of the factors mentioned above and of all the evidence in the record in this proceeding, I find that the individual has failed to make this showing, and that his clearance should therefore not be restored.

At the hearing, the individual contended that the woman to whom he exposed himself enticed him into doing so in an attempt to elicit a jealous response from her husband. He also challenged the validity of the DOE psychiatrist’s diagnosis, and attempted to show that the incident that led to his arrest was a one-time occurrence and that he is a person of good character who could not be pressured into betraying his country.

In support of his claim of enticement, the individual cited his conversation with the woman during which she allegedly indicated her assent to the individual’s changing his clothes in his vehicle. He also testified about the incident, prior to his arrest, during which the woman allegedly saw him changing his clothes outside of his vehicle while she was standing at her mailbox. He said that “at the time I looked up and saw her I was fixing to step into my shorts and when I looked down it was obvious because she was just standing there watching and it was fairly obvious to me that she had been watching the whole time.” Hearing transcript (Tr.) at 70. Although he was not wearing any underwear at the time, the individual stated, the woman did not react adversely, and, in fact, waved at him. Tr. at 70-71. The individual indicated that her reaction led him to believe that she might welcome further actions of this nature on his part. Tr. at 102. Finally, the individual testified that the woman behaved provocatively during an earlier encounter on the day that the individual exposed himself. He said

. . . when I came by to check the cattle she was on the steps and I went to talk to her and . . . she did have on a bikini there with a pair of shorts. The shorts were down below the bikini top so that you could still see some flesh between her bikini sides, the way they were pulled up, and the top of her shorts . . . . She didn’t say anything sexual, but she did make a lot of provocative movements . . . . she would keep adjusting the straps on her bikini bottom. And I felt that she was making suggestive movements and enticing me at that point. I guess between that, and we had had a couple of prior talks where I had told her that she might see me in the nude and she had no problems with it, and that’s where I got the idea . . . of exposing myself or whatever.

Tr at 60-61.

The individual also challenged the DOE psychiatrist’s diagnosis of exhibitionism, arguing that such a diagnosis requires repeated and intentional exposure to an unwilling person. Although the individual admitted walking to the road in front of his house while naked “three or four” times, he contends that these incidents do not support a diagnosis of exhibitionism because no one witnessed them. The individual testified that he lives in a remote, heavily wooded area. Tr. at 54-55. He added that his “house is on a hill and I have got a driveway there . . . . I go down and run the hill sometimes, and a couple of evenings when I did this . . . it was warm, it was getting toward dusk. For whatever reason . . . I took my shorts off and walked on down toward the road there.” Tr. at 55. When asked whether he did this because of the “excitement” of “possibly being caught” with no clothes on, he said that “It was probably a part. I think it started out probably that I had been running [with] a lot of sweat pouring off me and I don’t know whether the shorts might have been binding at that point or something, but anyway, I took them off and then as I walked toward the [road], yes, I might have felt some excitement . . . .” Tr. at 56. He said that his closest neighbors lived about one half to three quarters of a mile away and could not have seen him from their houses. Tr. at 65. He also added that, at most, four vehicles would traverse the road during an average hour, and that he would have concealed himself if he had heard one coming. Tr. at 66. The individual contends that because the incident that caused his arrest was the only time that he has exposed himself to an unwilling person, he should not have been diagnosed as an exhibitionist.

The individual also presented testimony in support of his position that he is a person of good character who will not be repeating the behavior that led to his arrest and that he is not susceptible to blackmail on this issue. In addition to his own statements in this regard, the individual’s pastor and three of his co-workers testified on his behalf. The pastor testified that the individual resigned as deacon of their church after his arrest. He added that he had counseled the individual and his wife after the arrest, and he did not believe that the individual could be blackmailed or that he would expose himself again. Tr. at 83-86. On cross-examination, however, the pastor admitted that he was not trained as a psychiatrist, and that he would not have believed that the individual was capable of exposing himself before the arrest, either. The individual’s co-workers testified that the individual’s job performance was good, that he was a person of good character and that they did not believe that the individual was susceptible to blackmail. Tr. at 76-78; 108-122.

After reviewing this testimony and the entire record in this proceeding, I conclude that there is insufficient mitigating evidence to allay the serious security concerns set forth in the Notification Letter. As an initial matter, the individual has failed to convince me that the DOE psychiatrist’s diagnosis is in error. As previously stated, the individual’s contention is that repeated exposure to an unwilling person is needed for a proper diagnosis of exhibitionism. In support of this position, the individual quoted an unnamed source for a definition of exhibitionism as “a psychosexual disorder . . . in which the repetitive exposing of the genitals in socially unacceptable situations is a preferred means of achieving sexual excitement and gratification.” Tr. at 37. However, even assuming that this definition is accurate, it does not require repeated exposure to another person, but instead refers to repetitive exposure “in socially unacceptable situations.” The fact that no one happened to see the individual does not make his repeated nude forays to a public road socially acceptable. Moreover, the criteria for exhibitionism set forth in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (Revised) (DSM-IV) include “ recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving the exposure of one’s genitals to an unsuspecting stranger.” (Emphasis added). Therefore, neither the individual’s own definition nor the DSM-IV criteria require repeated exposure to an unwilling person. At the hearing, the DOE psychiatrist indicated that “the repetition is . . . in the excitement of walking down naked to the [road]. Wondering if you are going to get caught, how close you can get.” Tr. at 37. In the absence of any expert testimony contradicting the DOE psychiatrist’s diagnosis, I am reluctant to substitute my judgement for that of a trained psychiatric professional. The individual has failed to rebut the DOE psychiatrist’s diagnosis of exhibitionism.

I further conclude that the individual’s exhibitionistic act was the result of this disorder, and was not caused by any attempt at seduction on the part of the victim. There is simply no credible evidence in the record to support the individual’s contention that the victim behaved in a sexually provocative manner in an attempt to make her husband jealous. Indeed, the individual’s fascination with the victim’s appearance and behavior during their earlier encounter on the day of the individual’s arrest (“she did have on a bikini there with a pair of shorts. The shorts were down below the bikini top so that you could still see some flesh between her bikini sides, the way they were pulled up, and the top of her shorts . . . . she would keep adjusting the straps on her bikini bottom”) indicates that the alleged seduction was more a product of the individual’s imagination than of any actions on the part of the victim.

The record also indicates that there is a significant risk of future acts of exhibitionism by the individual. The DOE psychiatrist testified that there is no reliable data that would indicate that exhibitionism can successfully be treated.

There is one study of only three cases that they claim these three people did it, apparently, stopped the process forever . . . . Using certain kinds of medications . . . . That was done in 1991 . . . . If that was a real good lead there would have been a lot of other studies, [but there was] only one study, it is anecdotal and it conforms to everything else that I have read that this is a real problem. And of course, under pressure, under arrest, . . . people behave. But after the pressure is off . . . there are no good studies to indicate that it is treatable.

Tr. at 22-23.

The individual and the witnesses who testified on his behalf stated that they did not believe that the individual would again expose himself to an unwilling person. However, the individual’s pastor would not have believed the individual capable of such an act before his arrest, and the other witnesses’ contact with the individual occurred mostly during working hours, thereby limiting their ability to observe the individual’s behavior and character. I believe that the individual is sincere in his current intention to not repeat the behavior that led to his arrest. However, as time passes, and the personal and emotional distress caused by this incident subsides, I am not at all confidant that the individual will be able to refrain from going nude in socially unacceptable circumstances.

I am also concerned that future acts of this nature by the individual might make him vulnerable to coercion, which could influence him to act contrary to the best interests of national security. The individual’s attempts to conceal the full extent of his behavior from the DOE psychiatrist, from his co-workers and from his community support this concern. When asked by the DOE psychiatrist whether there were “incidents involving his not wearing clothes in an unusual context” other than the one that led to his arrest, the individual replied in the negative. DOE psychiatrist’s report at 2. He did not mention his walks to the road in front of his house while unclothed, or the earlier occasion during which the victim allegedly saw the individual changing his clothes while standing outside of his vehicle, until questioned about them later in the evaluation, after, according to the DOE psychiatrist, the individual had become aware that the DOE psychiatrist had access to the PSI and other information provided by the DOE. At the hearing, the individual maintained that the DOE psychiatrist informed him at the beginning of the evaluation that the DOE had provided the PSI and other personnel information to the DOE psychiatrist. I do not find this contention to be credible. The DOE psychiatrist testified that he did not tell the individual at the beginning of the evaluation about the information that he had, and that he never does this because he wants to see if that information is consistent with the information that a subject provides during the evaluation. Tr. at 30. After consulting with his notes of the individual’s evaluation, the DOE psychiatrist confirmed that he did not tell the individual at the outset about the information that was in his possession. Tr. at 73. However, even if I believed the individual’s claim, the fact remains that the individual did not answer the DOE psychiatrist’s question about other exhibitionistic incidents truthfully and fully, and only disclosed the additional incidents upon further questioning.

As of the date of his PSI, the individual had not told any of his co-workers of his arrest or the incident that led up to that arrest. PSI at 11-12. Moreover, the individual attempted to keep the news of his arrest out of the local paper, and succeeded in doing so. PSI at 12. It is certainly understandable that the individual would not want this very embarrassing and personal matter made public. However, it is these very characteristics that make the information that the individual attempted to conceal so worrisome from a national security standpoint, because of the measures that he might take to avoid the public disclosure of any future acts of a similar nature. I therefore agree with the DOE psychiatrist that the individual’s apparent need to conceal the full extent of his current behavior suggests that future acts of exhibitionism might leave the individual vulnerable to coercion that would lead him to act in a manner that is inconsistent with national security.

III. Conclusion

As explained in this Opinion, I find legitimate security concerns exist under 10 C.F.R. §710.8(h) and 710.8(l), and that the arguments advanced by the individual in his defense do not adequately mitigate those concerns. Based on the record in this proceeding, I am unable to conclude 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 his access authorization should not be restored.

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 the 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, 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. 10 C.F.R. § 710.28(b).

Robert B. Palmer

Hearing Officer

Office of Hearings and Appeals

Date: September 4, 2001

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