* 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.
June 20, 2002
DEPARTMENT OF ENERGY
OFFICE OF HEARINGS AND APPEALSHearing Officer's Decision
Name of Case: Personnel Security Hearing
Date of Filing: December 27, 2001
Case Number: VSO-0513
This Opinion concerns whether xxxxxxxxxx (hereinafter "the Individual") is eligible for access authorization. As explained below, I have concluded that the Individual has not demonstrated his eligibility for access authorization.
I. The Applicable Regulations
The Department of Energy (DOE) regulations governing this matter are set forth at 10 C.F.R. Part 710. Those regulations describe the criteria and procedures for determining eligibility for access to classified matter or special nuclear material, i.e., “access authorization” or a “security clearance.”
An individual is eligible for access authorization if such authorization “would not endanger the common defense and security and would be clearly consistent with the national interest.” 10 C.F.R. § 710.7(a). Certain types of derogatory information raise an issue whether an individual is eligible for a clearance. 10 C.F.R. § 710.8. The ultimate decision concerning eligibility is a comprehensive, common sense judgment based on a consideration of all relevant information. 10 C.F.R. § 710.7(a), (c). Such information includes the nature of the conduct at issue, the absence or presence of reformation or rehabilitation, and the
impact of the foregoing on the relevant security concerns. 10 C.F.R. § 710.7(c).
The purpose of a hearing is to give an individual an opportunity to resolve any identified security concerns. 10 C.F.R. § 710.21. Thus, the burden is on the individual to present testimony or evidence to demonstrate that he is eligible for access authorization, i.e., that access authorization “will not endanger the common defense and security and will be clearly consistent with the national interest.” 10 C.F.R. § 710.27(a). This standard is designed to protect the national interest and thus differs from the standard applicable to criminal proceedings in which the prosecutor must prove guilt beyond a reasonable doubt.
II. Background
The Individual has worked at the DOE site for most of the past 24 years. During most of that employment, the Individual has held a clearance.
In September 1998, a vehicle driven by the Individual struck a police officer who was directing traffic. The Individual was arrested, and later indicted, for driving under the influence of alcohol (DUI) and vehicular assault.(1)
Although the arrest occurred in September 1998, the Individual did not report the arrest to DOE security until February 2000. At that time, DOE security was conducting a routine reinvestigation of the Individual’s eligibility for a clearance, and the reinvestigation required that the Individual complete a standard security questionnaire. One question asks whether the individual has any “charges” currently pending against him; another question asks whether the individual has ever been “charged” with an offense involving alcohol. The Individual answered “yes” to both questions and listed the charge as “DUI.(2)
The Individual subsequently described the arrest and related events on four occasions. First, at some point between February and December 2000, the Individual orally described the arrest to an Office of Personnel Management (OPM) investigator, and the investigator’s understanding of that description is set forth in the OPM report.(3) Second, in December 2000, the Individual described the arrest in written answers to an interrogatory letter from DOE security.(4) Third, in May 2001, the Individual described the arrest in a Personnel Security Interview (PSI).(5) Fourth, in June 2001, the Individual described the arrest to a DOE consultant-psychiatrist, who issued a report on his evaluation of the Individual.(6)
The DOE consultant-psychiatrist did not diagnose the Individual with an alcohol problem or other mental condition. The DOE consultant-psychiatrist agreed, however, with DOE security’s view that some of the Individual’s prior statements about the arrest were inconsistent or incomplete. As to whether the Individual’s reported alcohol consumption was consistent with the Breathalyzer test result, the DOE consultant-psychiatrist stated that he thought that it was unlikely that the reported consumption would have produced that result but indicated that he did not have enough information to render an opinion on that issue.(7)
In October 2001, the Individual pled guilty to reckless endangerment under a diversion of judgment, and the other charges were dismissed.(8) It appears that, if the Individual satisfies the terms of the diversion of judgment for two years, the charge of reckless endangerment will be dismissed and the Individual will be eligible for an expungement of his record.(9)
In December 2001, DOE security notified the Individual that his clearance was suspended.(10) The letter cited the arrest itself, as well as the Individual’s failure to report the arrest to DOE security for over a year. The notification letter also alleged that the Individual had made inconsistent statements about the arrest. The notification letter found that the foregoing information was derogatory under 10 C.F.R. § 710.8(l) (Criterion L) (information tending to show that an Individual is not honest, reliable, and trustworthy), and 10 C.F.R. § 710.8(f) (Criterion F), (information indicating that the Individual provided inaccurate information in this security proceeding).
In response to the notification letter, the Individual requested a hearing. DOE security and the Individual submitted documentary evidence before, during and after the hearing. A hearing was held,(11) and the last submission was on May 28, 2002. The record was closed on May 29, 2002.
The Individual presented testimony and evidence in an effort to resolve the identified concerns. The Individual maintains that the arrest was an isolated incident and that he did not report the arrest to DOE security until February 2000 because he did not know that he needed to do so. The Individual further maintains that any apparent inconsistencies in his statements are either reconcilable or inadvertent and insignificant.
III. The Evidence
A. Documentary Evidence
With respect to the arrest, the record contains the arrest warrants, the bill of indictment, the transcript of the preliminary court hearing,(12) and a stipulation that the Individual passed the field sobriety tests. The record also contains a copy of the Individual’s driving record for the last three years, showing no violations.
With respect to whether the Individual knew that he was required to report the arrest, the record contains security acknowledgments signed by the Individual in 1978, 1985, 1989, and 1994, each of which is a one-page document that includes the requirement to report arrests except for traffic violations with fines below a certain amount.(13) The record also contains affidavits of the security education manager and the Individual concerning his security training.(14) The DOE security manager stated in his affidavit that DOE records show that the Individual attended an April 1999 security briefing, and that the security manager believes that the contractor at the time provided in-person training in which attendees would have received a handout containing the reporting requirement.(15) The Individual stated in his responsive affidavit that all his training since 1998 has been by e-mail and that he did not receive any such handout. The Individual further stated that he did not recall the security acknowledgments.
B. The Testimony at the Hearing
Eighteen witnesses testified at the hearing: the Individual, sixteen character witnesses, and the security specialist.
1. The Individual
The Individual testified at length about the arrest and his alcohol consumption, as well as whether he had made inconsistent statements on those topics. He also testified about his understanding of the reporting requirements.(16) The Individual largely reiterated what he had stated in the PSI.
With respect to the arrest, the Individual testified that, after consuming alcohol, he was driving home, accidentally struck a police officer directing traffic, and was arrested for DUI.(17) The Individual testified that the arrest was an isolated incident(18) and that since the arrest he has not driven when he has had more than two beers, typically one before and one after a golf game.(19)
As to the Individual’s failure to report his arrest until his February 2000 completion of the security questionnaire, the Individual testified that he did not know that he was required to report it. The Individual testified that at the time of the arrest he was upset, and he did not consider, until sometime later, whether he needed to report the arrest.(20) The Individual testified that when he considered the matter, he thought that he needed to report an arrest only if he was convicted or fined more than $150.(21) The Individual testified that he reported the arrest on the security questionnaire because it asked him if he had any “charges” pending against him and he knew that he did.(22) As to DOE security’s contention that an April 1999 security briefing would have set forth the reporting requirement, the Individual testified that he did not remember having the briefing (23) and, in any event, did not remember seeing the reporting requirement.(24) Finally, the Individual testified that he now understands the reporting requirement and he will, without question, comply in the future.(25)
With respect to the alleged inconsistencies in his statements concerning the arrest, the Individual testified that his statements were either not inconsistent or that any inconsistencies were inadvertent. The Individual’s specific testimony about the identified statements is discussed in the analysis section of this decision.
2. The Individual’s Coworkers
Seven workplace colleagues testified in support of the Individual. Of the seven colleagues, two have known the Individual for 20 years; one for 15 years; one for 12 years; two for five years, and one for two and one-half years. The colleagues include a supervisor and an oversight manager. Most of these workplace colleagues have socialized with the Individual outside of work in golf leagues.
The coworkers testified that the Individual scrupulously follows all safety and workplace rules. Coworkers testified that the Individual follows safety rules “to the T(26) and “does not take short cuts.(27) As to administrative matters, his former secretary testified that the Individual “always” followed the rules and that his group’s time sheets were “always right.(28) Coworkers also testified that the Individual followed the rules for the protection of sensitive information.(29) Coworkers testified that they did not believe that the Individual would ever wilfully violate a safety, security, or other workplace rule.(30)
Further, the coworkers testified that the Individual was very responsible and honest, at work and outside of work.(31) One co- worker stated that he has “never questioned [the Individual’s] honesty at work or outside of work” and that he has never known the Individual to lie to anyone.(32) In addition to the Individual’s honesty at work, coworkers cited instances in which the Individual was a role model for others in the way he managed the golf and bowling leagues, refusing to let participants cheat on their handicaps or scores, or violate other rules.(33)
Finally, the coworkers who socialized with the Individual testified that the Individual’s consumption of alcohol was limited. Co- workers who golfed with the Individual testified that the Individual would have two beers or two nonalcoholic drinks over the course of a golf outing.(34)
As the foregoing indicates, the testimony of the coworkers was very positive.
3. The Individual’s Friends
Five of the witnesses who testified on behalf of the Individual were friends. Two of the friends have known the Individual more than 30 years - one friend since middle school,(35) the other since high school.(36) Two other friends have known the Individual for approximately six years through the Individual’s sister.(37) The fifth friend was a longtime site employee who played golf with the Individual until about a year ago when the league disbanded.(38)
The Individual’s friends testified that they know the Individual to be honest, reliable and trustworthy and that he has a reputation for those qualities.(39) The friends testified that the Individual has been active in organizing and managing a golf league, a bowling league, and his high school class reunions.(40) The friends testified that the participants in these activities trust the Individual to handle the money and make the appropriate arrangements. They testified that they believed that the Individual behaves responsibly with respect to alcohol consumption.(41) Finally, they expressed a strong belief in the Individual’s reliability and trustworthiness: “I would trust him with anything,(42) it’s “just not in his nature” to be untruthful or unreliable,(43) “he is trustworthy, yes,(44) and on a scale from one to ten on honesty, a “ten.(45) One witness put it this way:
[H]e’s just honest and he lives his life that way every day. There’s not one thing that sticks out that he does, you know, that’s special. It’s just every, it’s just a bunch of little things. He’s constantly honest and follows the rules and he’s a good person.(46)
Accordingly, the testimony of the Individual’s friends was very positive.
4. The Individual’s family
Four members of the Individual’s family testified: his father,(47) his brother,(48) and two sisters.(49)
The Individual’s family testified that since childhood the Individual has been exceptionally honest and been a role model for his three younger siblings.(50) The Individual’s brother stated that when one thinks of the Individual, one thinks of “the integrity and honor that he has.(51) The brother stated that the Individual is “the epitome of trustworthiness and his value system is beyond reproach.(52) The Individual’s sisters described him as “number one” and “first” in terms of honesty, integrity, and trustworthiness.(53) The Individual’s father stated that the Individual has “always” told the truth even if it would result in punishment.(54) Finally, his family testified that the Individual behaves responsibly with respect to alcohol consumption.(55) Accordingly, the testimony of the Individual’s family was very positive.
5. The security specialist
The security specialist testified that he continued to believe that the Individual had not resolved the concerns relating to the arrest and the failure to report the arrest. (56) In addition, the security specialist testified that he continued to believe that inconsistencies exist in the Individual’s statements about the arrest.(57)
IV. Analysis
A. Criterion L
The notification letter cites the arrest itself and the delayed reporting of the arrest as derogatory information that raises concerns under Criterion L. A Criterion L concern arises if the individual has
[e]ngaged in unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable or trustworthy; or may be subject to pressure, coercion, exploitation, or duress which might cause him to act contrary to the best interests of the national security. Such conduct or circumstances include, but are not limited to, criminal behavior, a pattern of financial irresponsibility, or violation of any commitment or promise upon which DOE previously relied to favorably resolve an issue of access authorization eligibility.
10 C.F.R. § 710.8(l). As explained below, the Individual has resolved the concern arising from the arrest, but the Individual has not resolved the concern arising from his delayed reporting of the arrest.
The Individual has established that the arrest - which occurred more than three years ago - was an isolated incident. The Individual’s clean driving record indicates that he is generally a safe driver, and the testimony of his co-workers, friends and family indicates that the Individual behaves responsibly with respect to alcohol consumption. The Individual’s coworkers, friends, and family all testified strongly that the Individual conscientiously follows rules and is trusted and respected. Accordingly, I believe that the Individual has mitigated the concern arising from the arrest itself.
The Individual’s failure to report the arrest is a different matter. The reporting requirements are essential to DOE security’s need to have timely notice of derogatory information casting doubt on an individual’s continued eligibility for a clearance. A DUI arrest raises a concern about a possible alcohol problem, as well as a general issue of reliability. Accordingly, an individual’s failure to promptly report a DUI arrest precludes DOE security from addressing whether the individual continues to be eligible for a clearance and casts doubt on whether DOE security can rely on the individual to follow security rules and be forthcoming in all instances - even when it is not in his interest to do so. For this reason, the Individual’s failure to report the DUI arrest raises a serious concern. As explained below, at this time, I cannot conclude that the Individual has resolved the concern.
Whether an individual can resolve the concern arising from a failure to report an arrest depends on the specific circumstances of the case. Relevant factors include the length of time the arrest went unreported, whether the individual ultimately disclosed the arrest, the time period that has elapsed since the individual made any such disclosure, and whether the failure to report was an isolated incident involving special circumstances. See generally Personnel Security Hearing (VSO-0037), 25 DOE ¶ 82,778 at 85,691 (1995), aff’d, (OSA, 1996) (six-month delay in reporting DUI arrest was an isolated incident associated with absence from work and medical problems).
With the foregoing in mind, I turn to the Individual’s mitigation arguments. As the Individual’s testimony indicates, the Individual maintains that he did not know that he needed to report the arrest, that he now knows that he should have reported the arrest and will not make the same mistake in the future, and that his failure to report the arrest is an isolated incident.
The Individual’s testimony that he did not know that he needed to report the arrest does little to mitigate the concern. The DUI arrest was a serious matter and the Individual should have known to at least inquire about whether he needed to report it.
On the other hand, the record contains significant, favorable information. First, the Individual reported the arrest on his February 2000 security questionnaire. Second, the testimony at the hearing indicates that the reporting violation was an isolated instance. The Individual’s workplace colleagues, most of whom have known the Individual for many years, believe that he is scrupulous about compliance with safety and workplace rules and about protecting sensitive information. His workplace colleagues, as well as friends and family, believe that the Individual is exceptionally honest, reliable and trustworthy, that he has a general reputation to that effect, and that he would disclose a matter even if such disclosure would adversely affect him.
In the final analysis, however, I believe that it is too soon to conclude that the Individual has resolved the concern. The Individual failed to report a DUI arrest for 17 months, and only two years has elapsed since he reported it. Given the importance of the reporting requirement, and the length and relative recency of the noncompliance, I am unable to conclude that the Individual’s otherwise fine work record and reputation are sufficient, at this time, to resolve the concern about his failure to report.
B. Criterion F - Honesty and Candor Concerning Eligibility for a Clearance
The notification letter cites various statements by the Individual to OPM and DOE security as inaccurate or inconsistent. The notification letter finds that such statements are derogatory information under Criterion F, which concerns information that indicates that an individual “[d]eliberately misrepresented, falsified, or omitted significant information” during an official inquiry concerning his eligibility for a clearance.(58) As explained below, the Individual has resolved the Criterion F concern.
The first inconsistency identified in the notification letter concerns whether the Individual had to post bond. In the PSI, the Individual stated that he was released on his own recognizance, but the arrest warrant lists a bond amount. The Individual’s attorney has identified a notation indicating that despite the listing of a bond amount, the Individual was, in fact, released on his own recognizance.(59) DOE security now agrees that the Individual did not have to post bond and, therefore, that the Individual’s PSI statement to that effect was accurate.(60)
The second inconsistency concerns the Individual’s statements about his alcohol consumption. The arrest occurred after the Individual left an evening football game. The OPM report indicates that the Individual reported having four beers over an apparently unspecified time period. In the interrogatory letter, the Individual reported having several drinks of liquor which was “brought by a friend to the game.(61) In the PSI, the Individual reported his consumption over the day as: two beers at home in the early afternoon, three beers at a restaurant in the late afternoon/early evening, and liquor at the game, which he had bought and his girlfriend had carried into the game.(62) DOE security argues that these various statements reflect inconsistencies as to the amount, type, and source of alcohol consumed.
The Individual has resolved this concern. The only real inconsistency is the OPM report of four beers and the interrogatory letter report of several drinks of liquor. I note that the Individual maintains that he told the OPM investigator four drinks, not four beers. But the difference is not significant: for the purpose of assessing the Individual’s blood alcohol level, they are equivalent, and the Individual has consistently disclosed his blood alcohol level. The remaining inconsistencies refer to the fact that the PSI reflects more alcohol consumption and detail than the OPM report or the interrogatory letter, but that fact is consistent with the more thorough nature of the PSI, which was a two hour question and answer discussion of the issues.
A third alleged inconsistency concerns the Individual’s statements concerning what his girlfriend said at the time of the accident. In the interrogatory letter, the Individual reported that, at the time of his accident, his girlfriend exclaimed that someone had hit his truck. In the PSI, the Individual testified that he did not recall his girlfriend making that statement. At the hearing, the Individual satisfactorily explained this apparent inconsistency: the Individual testified that his girlfriend helped him prepare the answers to the interrogatory letter and he reported what she recalled she said.(63) More importantly, whether she made the statement is not important: the arresting officer’s testimony at the preliminary hearing indicates that she viewed the incident as an accident.(64)
Finally, a group of alleged inconsistencies concern the Individual’s statements about whether he felt that he was impaired and about his intentions concerning alcohol consumption. Statements about opinions and future intentions are not “hard facts” and can vary over time. In this case, the Individual views the fact that he passed the field sobriety tests as indicating that he was not impaired, even though his blood alcohol level indicates otherwise. Similarly, the Individual’s vacillating statements about whether he will quit drinking indicate just that - vacillation about his intentions, not deliberate misrepresentations about facts. Finally, the Individual’s statement that he will not “drink and drive” is not inconsistent with his statement that he will not drink more than a beer or two and drive: “drink and drive” is an expression that can mean anything from drinking and driving at the same time, to drinking any amount and then driving, or, as the Individual apparently meant, to drinking to the point of impairment and then driving while impaired. Accordingly, the Individual’s statements about whether he was impaired or his intentions concerning alcohol consumption do not reflect deliberate misrepresentations or omissions.
As the foregoing indicates, the record of this case indicates that the Individual did not deliberately make any significant inconsistent statements. Accordingly, the Individual has resolved the Criterion F concern that he “[d]eliberately misrepresented, falsified, or omitted significant information” during an official inquiry concerning his eligibility for a clearance.
V. Summary and Conclusion
The Individual has resolved any Criterion F concerns, as well as the Criterion L concern arising from the arrest itself. It is too early, however, to conclude that the Individual has resolved the Criterion L concern arising from his failure to report his arrest. Because the Individual has not resolved the Criterion L concern arising from his failure to report the arrest, I am unable to conclude that access authorization “would not endanger the common defense and security and would be clearly consistent with the national interest.” 10 C.F.R. § 710.(7)(a). Accordingly, I conclude that the Individual should not be granted access authorization at this time.
Janet N. Freimuth
Hearing Officer
Office of Hearings and AppealsDate: June 20, 2002
(1)DOE Ex. 14 (bill of indictment), Ex. 15 (arrest warrant for vehicular assault), Ex. 16 (arrest warrant for DUI).
(2)”DOE, Ex. 7 (Questionnaire for National Security Positions, Form 86, Questions 22c, 22d).
(3)Although the OPM report is not part of the record, DOE security has referred to the report, and the Individual has testified concerning his comments to the OPM investigator.
(4)DOE Ex. 8.
(5)DOE Ex. 9. The PSI transcript will be cited in this decision as “PSI Tr.”
(6)DOE Ex. 12.
(7)DOE Ex. 12 (Report at 3).
(8)DOE Ex. 10 (letter from Individual’s attorney).
(9)DOE Ex. 10.
(10)DOE Ex. 3.
(11)The hearing transcript will be cited in this decision as “Hrg. Tr.”
(12)The transcript of the preliminary hearing will be cited in this decision as “Prelim. Hrg. Tr.”
(13)DOE Submission of April 11, 2002 (No. 7 of the 1974, 1985, and 1989 acknowledgments; No. 9 of the 1994 acknowledgment). The record also contains the 2000 acknowledgment, which the Individual executed in connection with his February 2000 security questionnaire.
(14)April 17, 2002 affidavit of security education manager; May 21, 2002 affidavit of Individual.
(15)The security education manager stated that the handout consisted of the 13-page packet attached as an exhibit to his affidavit. The reporting requirements are on page 12, and the first item on the list of reporting requirements is “All arrests, criminal charges (including charges that are dismissed) or detentions by any law enforcement agency for violations of law, other than traffic violations for which a fine of $250 or less was imposed, within or outside the United States.” April 17, 2002 affidavit of security education manager, Ex. 2.
(16)Hrg. Tr. at 58-182.
(17)Hrg. Tr. at 76-113.
(18)Hrg. Tr. at 133.
(19)Hrg. Tr. at 171-174, 176.
(20)Hrg. Tr. at 128.
(21)Hrg. Tr. at 128.
(22)Hrg. Tr. at 132.
(23)Hrg. Tr. at 168-169.
(24)Hrg. Tr. at 122.
(25)Hrg. Tr. at 130.
(26)”Hrg. Tr. at 266.
(27)”Hrg. Tr. at 240-241. See also Hrg. Tr. at 249; 265-66.
(28)”Hrg. Tr. at 281. See also Hrg. Tr. at 251 (rather than overlooking small inaccuracies, the Individual “went according to the book”).
(29)Hrg. Tr. at 202; 223; 297-298.
(30)Hrg. Tr. at 222; 252-253; 266.
(31)Hrg. Tr. at 202; 211; 234-235; 266; 283-283; 298-299, 305.
(32)Hrg. Tr. at 250-251.
(33)Hrg. Tr. at 208-210; 252; 298-299.
(34)Hrg. Tr. at 216-218; 257-258. See generally Hrg. Tr. at 255.
(35)Hrg. Tr. at 306-323.
(36)Hrg. Tr. at 324-333.
(37)Hrg. Tr. at 333-339, 340-350.
(38)Hrg. Tr. at 290-91.
(39)Hrg. Tr. at 294, 326, 334.
(40)Hrg. Tr. 287-289, 341.
(41)Hrg. Tr. at 290-91, 323; 330-331; 349-350.
(42)”Hrg. Tr. at 291.
(43)Hrg. Tr. at 318.
(44)”Hrg. Tr. at 328.
(45)”Hrg. Tr. at 335.
(46)Hrg. Tr. at 347.
(47)Hrg. Tr. at 382-402.
(48)Hrg. Tr. at 350-379.
(49)Hrg. Tr. at 369-381, 381-395.
(50)Hrg. Tr. at 354, 360; 371-374, 383-384, 387.
(51)”Hrg. Tr. at 354.
(52)”Hrg. Tr. at 354.
(53)Hrg. Tr. at 372; 385.
(54)Hrg. Tr. at 398.
(55)Hrg. Tr. at 366-367; 380-381; 394.
(56)Hrg. Tr. at 19, 188-189.
(57)Hrg. Tr. at 12-13.
(58)10 C.F.R. § 710.8(f).
(59)See DOE Ex. 16. See also January 28, 2002 affidavit of Individual’s attorney.
(60)Hrg. Tr. at 45.
(61)”PSI Tr. at 12.
(62)PSI Tr. at 7-18.
(63)Hrg. Tr. at 105-109.
(64)Prelim. Hrg. Tr. at 12, 15, 18 (arresting officer’s testimony).