/bavkds

Case No. V SO-0502 (H.O. Wieker February 26, 2002)

For full history of this case, and links to othercases, click here.

* 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.

FEBRUARY 26, 2002

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Decision

Name of Case: Personnel Security Hearing

Date of Filing: November 7, 2001

Case Number: VSO-0502

This Decision 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 Decision 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 October 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 her continued eligibility for access authorization. In the Notification Letter the Operations Office also informed the individual that she 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 and the Operations Office forwarded this request to the Office of Hearings and Appeals. 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).

In the Notification Letter, the Operations Office finds that the individual has raised a security concern under Sections 710.8(k) and (l) of the regulations governing eligibility for access to classified material. (Criterion (k) and Criterion(l)). 10 C.F.R. § 710.8(k),(l).

With respect to Criterion (k), the Operations Office cites information indicating that on August 24, 2001, the individual participated in a random drug screen. The results of that drug screen were positive for cocaine metabolites. The Operations Office further cites a September 11, 2001 personnel security interview (PSI) during which the individual admitted to smoking a pipe containing a combination of crack cocaine and marijuana on August 11, 2001.

With respect to Criterion (l), the Operations Office refers to the individual’s August 2001 positive drug screen for cocaine, her admission during the September 2001 PSI that she used cocaine while holding a security clearance, and her acknowledgment that in April 1992 she signed a drug certification providing written assurance that she would refrain from using or being involved with any illegal drugs for as long as she remained employed in a position requiring a DOE access authorization.

II. REGULATORY STANDARD

In order to frame my analysis, I believe that it will be useful to discuss briefly the respective requirements imposed by 10 C.F.R. Part 710 upon the individual and the Hearing Officer. As discussed below, once a security concern has been found to exist Part 710 clearly places upon the individual the responsibility to bring forth persuasive evidence concerning his eligibility for access authorization, and requires the Hearing Officer to base all findings relevant to this eligibility upon a convincing level of evidence. 10 C.F.R. §§ 710.21(b)(6), 710.27(b), (c), and (d).

A. The Individual's Burden of Proof

It is important to bear in mind that a DOE administrative review proceeding under this Part is not a criminal matter, where the government would have the burden of proving the defendant guilty beyond a reasonable doubt. Once a security concern has been found the standard in this proceeding places the burden of proof on the individual. It is designed to protect national security interests. 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 individual must come forward at the hearing with evidence to convince the DOE that restoring her access authorization "would not endanger the common defense and security and would be clearly consistent with the national interest."

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) ("clearly consistent with the national interest" standard for the granting of security clearances indicates "that security 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). Consequently, it is necessary and appropriate to place the burden of persuasion on the individual in cases involving national security issues. In addition to her own testimony, we generally expect the individual in these cases to bring forward witness 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).

B. Basis for the Hearing Officer's Decision

In personnel security cases under Part 710, it is my role as the Hearing Officer to issue a Decision as to whether granting an 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(a). Part 710 generally provides that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all relevant information, favorable and unfavorable, as to whether the granting or continuation of access authorization will not endanger the common defense and security and is clearly consistent with the national interest." 10 C.F.R. § 710.7(a). I must examine the evidence in light of these requirements, and assess the credibility and demeanor of the witnesses who gave testimony at the hearing.

III. The Hearing

At the hearing, the individual was assisted by a union representative. Tr. at 7. The individual testified on her own behalf. She also presented the testimony of her current supervisor, one friend, 2 co-workers who are also social friends, her husband, mother and nephew. The DOE Counsel presented the testimony of a DOE security specialist (the security specialist).

In her opening statement at the hearing the individual apologized for her behavior. She indicated that she recognizes that her use of illegal drugs at a family gathering on August 11 shows a serious lapse in judgment. She indicated that she believes her lapse in judgement occurred because of stresses in her life, including dealing with her son’s emotional needs after her husband moved to another state, providing aid to handicapped parents, working two jobs to meet financial obligations and testing for beryllium sensitivity. She believes these general stresses were exacerbated by attending a family birthday party and a family get-together without any of her immediate family being present. Tr. at 9. During her opening statement, the individual indicated that the testimony of her witnesses would indicate that her use of illegal drugs was totally “out of character.” Tr. at 9. She also indicated the testimony would demonstrate that she is honest, trustworthy and reliable. Tr. at 9.

The following is a summary of the testimony presented at the hearing.

1. The Individual’s Mother

The individual’s mother testified that she sees her daughter two or three times a month and that she has never seen her daughter use illegal drugs. Tr. at 47. She testified that it was a total shock to her that her daughter had used drugs. Tr. at 46. She testified that her daughter has often indicated that she believes using illegal drugs is inappropriate. Finally, she testified that her daughter is very dependable and reliable and her daughter is always available to help her. Tr. at 45.

2. The Individual’s Husband

The individual’s husband testified that he and the individual have been married for 17 years. In 1996 he relocated to another city as a result of an employment opportunity. Tr. at 52. He currently talks to the individual two or three times a week and sees her every other month. Tr. at 52, 58. He testified that he was not present at the family party when the individual used illegal drugs. He testified that during the period they have been married he does not believe the individual has ever used illegal drugs.

3. Friend

The individual’s friend testified that she has known the individual for 15 years and sees the individual every few days. Tr. at 59, 62. She testified that she and the individual are close friends. They often visit each other homes and regularly go out shopping or to a restaurant. Tr. at 62. She testified that she has never seen the individual use illegal drugs. Tr. at 60. She testified that the individual has over the years indicated on many occasions that she believes using illegal drugs is inappropriate and that she would not use illegal drugs. She also testified that when she learned of the individual’s drug use she was shocked and thought the drug use was out of character for the individual. Tr. at 61. Finally, she testified that she has seen illegal drugs at social functions when she and the individual were present but that the individual never used any of the illegal drugs. Tr. at 63.

4. First Co-worker Friend

The first co-worker friend has worked with the individual for several years and sees the individual outside of work two or three times a year. Tr. at 65. She testified that she has never seen the individual use illegal drugs. Finally, she testified that the individual is an excellent worker and very serious about security matters. Tr. at 67.

5. Second Co-worker Friend

The second co-worker friend has known the individual for twenty years and sees the individual outside of work four or five times a year. Tr. at 71 and 74. He testified that before the August drug test the individual has indicated that she would never use illegal drugs. Tr. at 75. He testified that he was shocked to learn that the individual used illegal drugs because he does not believe that the individual is the type of person who would use illegal drugs. Tr. at 75.

6. Supervisor

Her supervisor testified that he has supervised the individual for three years. Tr. at 92. He indicated she is a good employee who takes her job responsibilities seriously. Tr. at 93. He further testified that he believes she is loyal and trustworthy. Tr. at 93.

7. Uncle

The individual’s uncle testified by telephone. He testified that on August 11 many family members and friends attended an afternoon birthday party for the individual’s grandmother. After the afternoon birthday party ended a group of 30 or 40 people got together at around 6:00 P.M. at the home of the individual’s mother. Tr. at 82-84. He testified that he attended both events and that he left the evening get-together at 8:15 P.M. Tr. at 83. He testified that there was marijuana present at the evening get- together. Tr. at 81. He indicated that it was not being used by the majority of the people at the get-together. Rather a few people went outside and used marijuana in the back yard. Tr. at 89. He testified that he did not see the individual use marijuana. Tr. at 86. He indicated that there no cocaine being used at the evening get-together. Tr. at 87.

8. The Individual

The individual testified that on August 11, 2001, she was at her grandmother’s afternoon birthday party. Tr. at 96. She described the birthday party and evening get-together at her mother’s home in a manner that confirmed the details of her uncle’s testimony. She testified that soon after the get-together started, she went out to the back yard of the house to check on whether there was anything she could do for her mother’s guests. Tr. at 96. The individual testified that she did not specifically go into the back yard looking for illegal drugs. She also testified that she had no intent to use illegal drugs on August 11. Tr. at 119. However, she did testify that her cousin often brings illegal drugs to social gatherings. Tr. at 102. She testified that there was a group of men in the back yard talking, drinking and smoking cigarettes. Tr. at 98. The only two people in the group who she knew were her uncle and cousin. Her cousin offered her a pipe. Tr. at 98. She believed the pipe contained marijuana. Tr. at 100. After she had smoked the pipe she indicated to her cousin that the marijuana smelled a little funny. He told her the pipe contained a mix of marijuana and cocaine. Tr. at 101. She testified that by the time she realized the pipe contained cocaine, she had already taken two or three hits.(1)

During her testimony at the hearing the individual explained that she was under a great deal of pressure prior to her grandmother’s birthday party. Tr. at 96. She testified that this pressure was increased because “None of my immediate family was [at the party or get-together], my sisters, my husband, my son.” Tr. at 96. She indicated that at the evening get-together she was just slowing down. Tr. at 96. She testified that when the pipe was offered to her she just took it without thinking. Tr. at 98. She testified that when she decided to smoke the pipe she did not give any thought to the fact that she was a clearance holder. Tr. at 96.

The individual testified that after she was notified of the positive drug test she sought the advice of the EAP counselor at her work site. The EAP counselor referred her to an outpatient counseling program. She testified that she enrolled in the outpatient program which consisted of twelve group sessions and four individual sessions. Tr. at 120. Prior to the hearing the individual submitted a letter from the outpatient counseling program indicating she had successfully completed an intensive outpatient program that included twelve group sessions.(2) The letter from the outpatient program indicates the individual was discharged from the outpatient program on September 26, 2001. At the hearing the individual testified that the counseling program helped her understand that “I need to quit trying to do everything on my own.” Tr. at 122.

The individual testified that she is much stronger as a result of the counseling. Tr. at 122. She also indicated that she has learned from this experience and she does not plan on losing control again. Tr. at 118.

She also testified that prior to the August PSI when she was shown her 1992 Drug Certification, she did not recall that she had signed such a drug certification. Tr. at 105. After she was shown the drug certification, she recalled signing the certification. She testified that she believes that when she signed the drug certification she thought it was a routine matter that all employees were required to sign. Tr. at 105. She testified that, at the time, she did not appreciate the importance of her signing a drug certification that indicated that she promised not to use illegal drugs.

IV. ANALYSIS

There are no material disputes about the factual information contained in the Notification Letter concerning the individual’s positive drug test. As discussed above, in August 2001, the individual submitted to a random drug test administered by her employer, a DOE contractor. The results of the drug test showed that the individual tested positive for cocaine metabolites.

Following the positive drug test, the individual participated in a PSI concerning her involvement with drugs. During the PSI the individual admitted using cocaine on August 11. She also confirmed that she had experimented with marijuana during the 1970s in her high school years. During that interview she also confirmed that she had signed the drug certification in 1992. Her statements during the PSI were responsive and indicate that she was being candid.

On the basis of her statements during the PSI, there is no dispute that the individual used cocaine. There is also no dispute that the individual violated her 1992 drug certification. I must therefore determine whether the individual has mitigated the DOE’s Criterion (k) and (l) concerns arising from her use of cocaine and the violation of her drug certification.

In rendering my opinion concerning whether access authorization should be restored, I must consider whether there are factors present to mitigate the DOE's security concerns. In this case, the individual asserts that she smoked a marijuana cocaine mixture only once and that except for August 11, she has not used illegal drugs since her high school experimentation.

A. THE DOE’S CRITERION (k) CONCERN

Security concerns over drug use can be mitigated in cases of recent drug use where the usage was an isolated incident or an event infrequent enough to warrant acceptance of the individual's assurance that she will not be involved with drugs while holding a DOE access authorization. In evaluating a claim of isolated use of illegal drugs, evidence independent of the individual's own testimony is necessary if we are to accept that her use of illegal drugs was limited. Only a substantiated assertion of limited usage can mitigate the DOE’s concerns.

The individual has provided testimony to corroborate her claim that her use of illegal drugs was a one time event. The two co-worker friends and the individual’s supervisor did not have the type of regular contact with the individual that would permit them to provide valuable testimony regarding the behavior of the individual. However, the testimony of her best friend, mother and husband indicates that they have considerable contact with the individual and believe she does not use illegal drugs. The testimony of these individuals was forthright and honest. After reviewing the testimony, I find that the individual has convinced me that she is not a regular user of illegal drugs.

However, such a finding is not sufficient in this case to allow me to conclude that the individual has resolved the Criterion K concern. I do not believe the individual has established that her use of drugs was an isolated or one time event as she asserts. First, I am concerned about the inconsistencies of the testimony regarding the events of August 11. For example, the individual’s uncle testified there was only marijuana being smoked in the back yard at the family get-together. This testimony is inconsistent with the individual’s positive test for cocaine and does not even agree with the testimony of the individual herself, who testified that there was a discussion that the pipe contained a marijuana/cocaine mixture.

Furthermore, as noted above, according to the individual, the cocaine use took place 13 days before the drug screen. However, as a rule, cocaine can only be detected for a few days after use. Thus, I am not convinced by the individual’s assertion as to the timing of her last illegal drug use. I am inclined to believe that she must have used some cocaine very shortly before the drug test, and not as she says, 13 days prior to it. I have also considered the fact that the drug use was detected through a random drug screen. The individual maintains that she has not used illegal drugs for about 30 years. In such a case, I believe that the purported one-time drug use followed several days later by a random drug test is rather unlikely. The positive drug test suggests a more frequent usage. Given these circumstances, the individual has not convinced me that her drug use was an isolated or aberrational event. Accordingly, I find that the Criterion K concerns in this case have not been resolved.

B. THE DOE’S CRITERION (l) CONCERN

With respect to Criterion (l), the Operations Office refers to the individual’s positive drug screen for cocaine in August 2001, her admission that she smoked a marijuana cocaine mixture, her acknowledgment that she was aware of the DOE’s non-use drug policy and her acknowledgment that she signed a drug certification promising not to use illegal drugs. The violation of the drug certification is a breach of trust, which is very difficult to mitigate. With the seriousness of the security concern in mind, I have considered her explanations.

As noted above, the individual provided two explanations for having breached her drug certification. The first is that she used drugs because she was under stress. The second is she had forgotten that she had signed a drug certification. During her opening statement the individual provided a list of stresses including caring for a child as a single parent, providing aid to handicapped parents, and working two jobs. She provided no further explanation or detail about these stresses. The individual has failed to provide sufficient detail about these stresses to convince me they are different from the type of stress that employees generally face. Therefore, I do not believe the individual has demonstrated that her stress was the type of unusual stress that might be considered a mitigating factor.

Her explanation that she had forgotten that she previously signed a drug certification heightens rather than mitigates the reliability and judgment concerns raised by her conduct. Even if the individual did not flagrantly disregard her assurances to the DOE, her failure to recognize the import of her actions and the significance of DOE security policies regarding illegal drug use, demonstrates that she lacks the sense of responsibility to hold an access authorization. Accordingly, I conclude that the individual has not mitigated the criterion l security concern.

IV. CONCLUSION

As indicated above, I have concluded that the Individual has not resolved the DOE security concerns under 10 C.F.R. § 710.8(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 review procedures applicable to proceedings under Part 710 were revised effective September 11, 2001. 66 Fed. Reg. 47061 (September 11, 2001). Under the revised procedures, the review is performed by an Appeal Panel. 10 C.F.R. § 710.28(b)-(e).

Thomas L. Wieker

Hearing Officer

Office of Hearings and Appeals

Date: February 26, 2002

(1)During the September 2001 PSI, the individual testified that her illegal drug use on August 11 was the only time she has ever used cocaine. She also testified that except for August 11 she has not used any illegal drugs since her high school experimentation. Transcript of PSI at 16.

(2)In addition to the letter from the outpatient counseling center the individual submitted three documents showing that she had submitted additional urine specimens to her employer on October 23, 2001, July 13, 1999, and July 2, 1999. Given the fact that no administrative review followed those drug screens, I must conclude that the results of those screens was negative.