* 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 21, 2002
DEPARTMENT OF ENERGY
OFFICE OF HEARINGS AND APPEALSHearing Officer's Decision
Name of Case: Personnel Security Hearing
Date of Filing: November 19, 2001
Case Number: VSO-0506
This Opinion considers the continued eligibility of xxxxxx xxxxx xxxxxx(the individual) for 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 individual is employed by a DOE contractor. The Department suspended the individual’s access authorization because she had been adjudicated bankrupt on three occasions and continues to experience financial difficulties. Although I find that the Department correctly suspended the individual’s access authorization, it is my opinion that the individual's access authorization should be restored because of the existence of mitigating circumstances.
I. PROCEDURAL BACKGROUND
On September 26, 2001, DOE notified the individual that her access authorization had been suspended under 10 C.F.R. § 710.8 (l) (Criterion L) because she had been adjudicated bankrupt in 1975, 1988 and 1998, and was continuing to experience financial difficulties.(1) Subsequently, the individual requested a hearing concerning her eligibility for an access authorization.(2) At the hearing, DOE presented the testimony of a personnel security specialist, and the individual testified on her own behalf and presented the testimony of two witnesses.
II. FINDINGS OF FACT
It is uncontested that the individual has been adjudicated bankrupt on three occasions and continues to experience financial difficulties. The individual first filed for bankruptcy in January of 1975. At that time, the individual’s financial difficulties were caused by inappropriate spending, a failed business venture, and the expenses associated with obtaining a divorce from her husband. In March of 1975, the bankruptcy court discharged approximately $1,000 of the individual’s unsecured debt. DOE Exhibit 4-1; DOE Exhibit 5-1; DOE Exhibit 5-2.
On February 2, 1988, the individual again filed for bankruptcy. In 1988, the individual was experiencing financial difficulties because she was helping to support a sister who was paralyzed and terminally ill, had co-signed a note to enable her son to purchase a car, and had lost nine thousand dollars ($9,000) when her cleaning business failed.(3) In May of 1988, the bankruptcy court discharged approximately $13, 400 of the individual’s unsecured debt. Transcript at 42, 79; DOE Exhibit 1-8; DOE Exhibit 4-2; DOE Exhibit 5-1; DOE Exhibit 5-2.
On August 21, 1991, because of concern about the second bankruptcy, a Personnel Security Interview (PSI) was conducted to obtain information about the individual’s financial condition. At the PSI, the individual explained the circumstances surrounding her bankruptcies and also told the personnel security specialist conducting the interview that she felt very good about her current financial situation. The individual indicated that she was current on all of her bills, had purchased a new home and car, managed to save and invest some money, and had arranged for insurance that would provide her with funds if she were to become ill or disabled. The individual also said that she had a strict budget and had taken a part time job. Based on this information, as well as a favorable credit report dated August 21, 1991, a personnel security specialist concluded that the individual had suffered financial difficulties because of circumstances beyond her control and recommended that her access authorization be continued. DOE Exhibit 1-2; DOE Exhibit 5-1.
In April of 1993, during a re-investigation of the individual’s eligibility for an access authorization, a personnel security specialist concluded, amongst other things, that the individual’s current financial situation did not pose a security concern. In support of this conclusion, the personnel security specialist noted that a 1992 credit report reflected only two minor past due accounts which had become current and also indicated that there were no other indications of financial difficulties. DOE Exhibit 1-3.
On August 4, 1998, the individual again filed for bankruptcy. At this time, the individual was experiencing financial problems for several reasons. First, the individual’s fiancé had died in 1997 while she was administering CPR, and she had been unable to work for three months after his death. The individual was not paid her salary during this period, but was able to collect insurance benefits in the amount of two hundred and fifty dollars a week. Transcript at 27. Second, the individual had lost five thousand dollars ($5,000) when she unsuccessfully attempted to start a business selling spices. Third, the individual has extremely high utility bills, and had replaced the windows in her home. On November 6, 1998, the bankruptcy court discharged $12,781 of the individual’s unsecured debt.(4) Transcript at 42, 79, 85, 163; DOE Exhibit 1-8; DOE Exhibit 4-5; DOE Exhibit 5-2.
After her debts were discharged by the bankruptcy court in November of 1998, the individual continued to experience financial difficulties. These financial difficulties occurred because the individual had been unable to work during the following periods of time because of the following medical problems:
(1) The individual had been unable to work between December 15, 1998 and January 12, 1999 because of breast surgery;
(2) The individual had been unable to work between July 30, 1999 and August 2, 1999 because of foot surgery;
(3) The individual had been unable to work between September 23, 1999 and November 1, 1999 because of surgery on her right knee;
(4) The individual had been unable to work between April 24, 2000 and May 26, 2000 because of rectal surgery; and
(5) The individual had been unable to work between May 26, 2000 and July 5, 2000 because of sinus surgery.
Individual’s Exhibit 51. The individual was not paid her salary when she was unable to work, but was able to collect insurance benefits in the amount of two hundred and fifty dollars a week. Transcript at 74-75, 147-149. The individual’s recent financial difficulties were exacerbated by the fact that she helped to pay her sister’s funeral expenses and continues to receive high utility bills and incur expenses in connection with her attempts to sell her home. Transcript at 94, 149-150, 159-160; DOE Exhibit 1-7.
Notwithstanding these problems, the individual has been making great efforts to repay her debts. In addition to her full-time job for a DOE contractor, the individual also works two part time jobs. Although her hours vary, the individual usually works sixty or more hours a week.(5) Moreover, the individual has been working with Consumer Credit Counseling Services to re-negotiate certain of her debts and to make regularly scheduled payments on outstanding accounts. As a result of these efforts, the individual has reduced her indebtedness. Transcript at 51-56, 119-122, 146, 162; DOE Exhibit 1-7; DOE Exhibit 5-2. Moreover, the individual is continuing to make diligent efforts to sell her house and her car. See Transcript at 159-160.
The individual has also presented testimonial and documentary evidence that demonstrates that she is honest, reliable and trustworthy and continues to volunteer and help others in the community. Transcript at 154-158; Individual’s Exhibit 45 - Individual’s Exhibit 49.
III. ANALYSIS
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 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). In making a determination here, I will consider the relevant factors and circumstances connected with the individual's conduct. These factors, which are set forth at 10 C.F.R. § 710.7(c), include "the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the age and maturity of the individual at the time of the conduct; the voluntariness of 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; [and] the likelihood of continuation or recurrence. . . ."
A. The Individual’s Access Authorization Was Properly Suspended.
At the hearing, the personnel security specialist testified that the individual’s access authorization was suspended because she had been adjudicated bankrupt on three occasions and continued to experience financial difficulties. The personnel security specialist explained that security concerns are raised when an individual is financially overextended because he or she is at risk of engaging in illegal acts to generate funds and may be subject to coercion or pressure. Transcript at 30-31. Based on these security concerns, it is clear that the individual’s access authorization was properly suspended.
B. The Individual Has Demonstrated the Existence of Mitigating Circumstances.
Although I find that the individual’s access authorization was properly suspended, I also find that the security concerns raised by the individual’s financial difficulties are mitigated by the surrounding circumstance. I specifically find that the security concerns associated with the individual’s bankruptcies in 1975 and 1986 have been mitigated by the passage of time. I also find that the financial difficulties that led to the individual’s bankruptcy in 1998 did not occur because of fiscal irresponsibility. More specifically, I find that the individual was unable to pay her debts in 1998 because she had been unable to work for three months after her fiance passed away, her spice business had failed, and she had incurred very high utility bills and replaced her windows in an effort to reduce these bills. After her debts were discharged by the bankruptcy court in November of 1998, I find that the individual continued to experience financial difficulties because she had been unable to work due to medical problems. I specifically find that the individual had five surgeries in a short period of time and, as a result, had been unable to work and receive her full salary for approximately four months. I also find that, after the 1998 bankruptcy, the individual helped pay funeral expenses for one of her sisters, and continues to receive high utility bills and incur expenses in connection with her attempts to sell her home.
I also find that the security concerns that are raised by the individual’s financial difficulties have been mitigated by the efforts that the individual has made to repay her debt and her good character. In addition to her full-time job for a DOE contractor, the individual also works at a hospice and cares for autistic boys. She sometime works as much as eighty hours a week. Moreover, based on the testimony at the hearing as well as the other evidence in the administrative record, I also find that the individual is honest, reliable and trustworthy. I am also very impressed by the fact that the individual continues to find time to volunteer and help others in the community. For these reasons, I find that restoring the individual's access authorization would not endanger the common defense and security and would be consistent with the national interest. See Personnel Security Hearing, Case No. VSO-0128, 26 DOE ¶ 82,784 (July 14, 1997); Personnel Security Hearing, Case No. VSO-0069, 25 DOE ¶ 82,795 (March 15, 1996).
The review procedures applicable to proceedings under Part 710 were revised effective September 11, 2001. 66 Fed. Reg. 47061 (September 11, 2001). Under the prior procedures, the review of a Hearing Officer Opinion was performed by the Director, Office of Hearings and Appeals. 10 C.F.R. § 710.28(a). Under the revised procedures, a requested review of a Hearing Officer’s decision is performed by an Appeal Panel. 10 C.F.R. § 710.28(b)-(e). 66 Fed. Reg. at 47061. Thus, in this case, the Manager of the DOE Operations Office concerned may seek review of this decision under the revised regulation set forth at 10 C.F.R. § 710.28(c).
Linda Lazarus
Hearing Officer
Office of Hearings and AppealsDate: May 21, 2002
(1) Section 710.8 sets forth the principal types of derogatory information that create questions as to an individual’s eligibility for access authorization. Criterion L involves information that an individual has engaged in unusual conduct or is subject to circumstances that tend to show that he is not honest, reliable or trustworthy or that furnish reason to believe that he may be subject to pressure, coercion, exploitation or duress that may cause him to act contrary to the national security.
(2) In the letter requesting a hearing, the individual stated that she was working to pay off her bills, and was also trying to sell her house and car. The individual further indicated that she had been employed for many years by the DOE contractor, is a good citizen, a loyal American and “not a security risk to our great country.”
(3) The individual had also incurred expenses because she had been a defendant in a criminal proceeding in 1984.
(4) All of the individual’s debts were not discharged as a result of this proceeding.
(5) In her part-time employment, the individual works at a hospice and cares for autistic boys. It is clear from the letters submitted into the administrative record that the individual is an excellent and caring employee. See Individual’s Exhibit 47 and Individual’s Exhibit 48.