* 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 24, 2002
DEPARTMENT OF ENERGY
OFFICE OF HEARINGS AND APPEALSHearing Officer's Decision
Name of Case: Personnel Security Hearing
Date of Filing: February 1, 2002
Case Number: VSO-0523
This Decision concerns the eligibility of xxxxxxxxxxxxx (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 decision that the individual's access authorization should not be restored.
I. BACKGROUND
In January 2002, 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. In the Notification Letter the Operations Office 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 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 indicates that the individual tampered with a drug screening specimen he providedon March 3, 1999. The Notification Letter also indicated that during a Personnel Security Interview (PSI) on April 6, 1999, the individual denied that he had tampered with his drug screening specimen. In addition, prior to and during a November 10, 1999 polygraph examination, the individual denied that he tampered with his specimen. During the interview immediately following the polygraph examination, the individual finally admitted he had tampered with his specimen.(1)
The security concern in this case relates to the individual’s tampering with his urine specimen and his failure to be honest when he was questioned by the DOE about the adulteration. The Notification Letter states that this constitutes a security concern under 10 C.F.R. Section 710.8(f) and (l) (hereinafter Criterion F and Criterion L). During the pre-hearing conference in this case the individual indicated that he would provide testimony that demonstrates that his conduct was not indicative of his character and he will be honest with the DOE in the future.
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 raised, 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), (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 raised, 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 his 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 an access authorization. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988) ("clearly consistent with the national interest" standard for the granting of access authorizations 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 an access authorization). Consequently, it is necessary and appropriate to place the burden of persuasion on the individual in cases involving national security issues. In addition to his own testimony, the individual in these cases is generally expected 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 of 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). 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 business manager for a local union. Transcript of Hearing (Tr.) at 8. The individual testified on his own behalf. He also presented the testimony of his current supervisor, a long time family friend, two co-workers, his son, and his fiancee. The DOE Counsel presented the testimony of a DOE security specialist and a central service specialist who in her professional capacity was familiar with the individual’s personnel file.
In his opening statement the individual indicated that he was asking for forgiveness for his dishonesty. Tr. at 9. He indicated that he panicked at the time he was untruthful with the DOE. Tr. at 9. He stated that “I thought that I could just go ahead and actually pull it through.” Tr. at 12. He indicated that “I promise to you, to my country, to my God, that I’ll never do such an act again. I panicked when I did this . . .” Tr. at 9.
The following is a summary of the testimony presented at the hearing.
1. The Individual
The individual was the first witness to testify. He testified that until his recent authorization suspension he has held an access authorization since he started working at the site in 1976. Tr. at 17. He testified that he has worked many hours of overtime and is active in his union. Tr. at 20. He also testified that he is active in his community and manages rental houses and a seasonal business. Tr. at 20 and 22.
The individual testified that prior to 1999 he had been in a position where he was not required to randomly provide urine specimens for drug screening. However, in late 1998 he was transferred to a location on the site that is under the PSAP program and therefore, he was required to provide random urine specimens. Tr. at 22 and 24.
The individual testified that he does not use marijuana. Tr. at 24. However, he testified that his fiancee did smoke marijuana in his house and he was concerned about the effects second hand smoke would have on any urine specimen he provided to the DOE. Tr. at 24.
He testified that he visited his brother-in-law in another State shortly after his job transfer. He and his brother-in-law, who is subject to random drug tests by his employer, discussed the individual’s fears about second hand smoke. The brother-in-law gave him a small container of Clear(2) and suggested that he carry and use Clear if he were called for a random drug screening. Tr. at 25. The individual adopted his brother-in-law’s suggestions. When the container was damaged, he purchased a new supply of Clear from a local store. Tr. at 25.
The individual testified that he had been carrying the Clear for “probably a few months” when, on March 3, 1999, he was called to provide a random urine specimen. Tr. at 23. The individual testified that he used the Clear to adulterate his urine specimen. Tr. at 26. The individual testified that on March 4, 1999, the day following the adulterated drug test, he was asked to provide a second urine specimen. This sample was not adulterated and the test result showed no presence of illegal drugs.
In addition, the individual testified that he was not truthful during his security interview on April 9 and during his polygraph examination on November 10, 1999. On a number of occasions during the hearing the individual expressed remorse for not being honest about his actions. For instance he testified, “If I made a mistake, sir, I’m sorry. I just don’t have any excuse for it.” Tr. at 26. Finally, the individual testified that he has worked with his girl friend for a period of time to convince her to reduce her use of marijuana.
2. Long time Family Friend
The friend testified that he has known the individual since the individual was born. He indicated that he car pooled with the individual’s father for many years and retired from the site a few years after the individual began working there. He testified that he currently sees the individual twice a week. Tr. at 37. The friend indicated that the individual had candidly told him about his failure to be truthful and that the individual was remorseful that he had not been truthful when questioned by the DOE. Tr. at 36. The friend testified that he believes the individual to be honest. He indicated that he believes the individual is not a security risk and the individual deserves a second chance because he served honorably in the armed forces and the individual is actively and positively involved in union and community affairs. Finally, the friend testified that he had worked with and observed the individual when the individual participated effectively in the activities of a fraternal organization that promotes character building activities. Tr. at 37.
3. The Central Service Specialist
The central service specialist, who works with the DOE security database and files, testified that she had recently reviewed the individual’s personnel file. Tr. at 56. She testified that the file contains seven letters of commendation for his good work on seven different jobs. Tr. at 56. She also testified that there was one disciplinary action in May 2000 relating to a dispute with a supervisory employee. Tr. at 57.
4. The Supervisor
The individual’s supervisor testified that the individual is a good and trustworthy employee. Tr. at 66. He also testified that he has done community volunteer work with the individual and has coached little league with the individual. Tr. at 66. He also testified that he worked with the individual on union election committees and union lecture assignments and they have been involved in fund raising activities for several charities. Tr. at 66. He believes the individual to be trustworthy and that the individual access authorization should be restored. Tr. at 71.
His supervisor also testified that the individual’s skills are in short supply at the site and that important projects on the site would be more promptly completed if the individual were granted an access authorization.
5. Two Co-workers
The first co-worker testified that he has had numerous discussions with the individual and believes that he is honest and loyal. Tr. at 79.
The second co-worker has worked with the individual for many years and socializes with him occasionally. Tr. at 87. He testified that the individual is a good person who made a mistake. Tr. at 88. He believes the individual has recognized the error in his ways and is not a security risk. Tr. at 88.
6. The Son
The individual’s son testified the individual was great father who was involved in many activities with his children and his church. Tr. at 90.
7. Union Business Manager
The business manager testified that he has known the individual since 1980 through contacts at union activities and work assignments. Tr. at 100. He has socialized with the individual on a few occasions. He testified that the individual has always been an honest person and that he was surprised to learn that the individual had lied to the DOE. He indicated it was his belief that the individual had gotten himself into a problem without realizing what he was doing. Tr. at 100. He testified that it was out of character for the individual to be less than candid with the DOE. Tr. at 101.(3)
8. The Individual’s Fiancee
The individual’s fiancee testified that she has lived with the individual for six years. Tr. at 104. She testified that she feels responsible for the individual’s problems. Tr. at 105. The night before the random drug test, she and her friends were smoking marijuana in the individual’s home. When the individual came home, the house was full of smoke. She testified that the individual was angry with her because he believed she had committed not to smoke marijuana. Tr. at 104.(4)
The fiancee testified that the individual has never lied to her. Tr. at 107. She testified that she believes that the individual was untruthful with the DOE because of her actions and his fear of losing his job. Tr. at 108. She believes that the individual has realized what he did was wrong and he will not repeat his mistake. Tr. at 108. She indicated remorse for causing the individual problems with his access authorization but indicated that at the time she did not realize that she was placing the individual in jeopardy. Tr. at 106.
IV. ANALYSIS AND FINDINGS
I have thoroughly considered the record of this proceeding, including the recommendation letters submitted by the individual and the testimony of the witnesses presented at the hearing. In resolving the question of the individual’s eligibility for access authorization, I have been guided by the applicable factors prescribed in 10 C.F.R. § 710.7(c)(5). After due deliberation, I have determined that the individual’s access authorization should not be restored at this time. I cannot find that such restoration would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. §710.27(a). The specific findings I make in support of this decision are discussed below.
A. Security Concerns Associated with the Derogatory Information
As noted earlier in this Decision, the derogatory information in this case arises from the individual’s adulteration of his urine specimen and his false statements during his PSI and polygraph examination. It is undisputed that the individual did adulterate the sample and was not truthful about his action.
From a security standpoint, deceptive acts and false statements made by an individual in the course of an official inquiry regarding a determination of eligibility for DOE access authorization raise serious issues of honesty, reliability, and trustworthiness. The DOE security program is based on trust, and when a access authorization holder breaches that trust, it is difficult to determine to what extent the individual can be trusted again in the future. See, e.g., Personnel Security Hearing (Case No. VSO-0013), 25 DOE ¶ 82,752 at 85,515 (1995), (affirmed by OSA, 1995); Personnel Security Hearing (Case No. VSO-0281), 27 DOE ¶ 82,821 at 85,915 (1999), aff’d, 27 DOE ¶ 83,030 (2000) (terminated by OSA, 2000).
Based on the record before me, I find that the DOE correctly invoked Criterion F and Criterion L when it suspended the individual’s access authorization. Nevertheless, a finding of derogatory information does not end the evaluation of evidence concerning the individual’s eligibility for access authorization. See Personnel Security Hearing (Case No. VSO-0244), 27 DOE ¶ 82,797 (1999) (affirmed by OSA, 1999); Personnel Security Hearing (Case No. VSO-0154), 26 DOE ¶ 82,794 (1997), aff’d, Personnel Security Review (Case No. VSA-0154), 27 DOE ¶ 83,008 (1998) (affirmed by OSA, 1998).
B. Mitigating Evidence
At the hearing, the individual testified that his failure to provide truthful answers to questions at the PSI was an error in judgement. He stated that after the initial false statement, he continued to provide false information because he was afraid he would lose his job. I must determine whether the individual has mitigated the DOE’s Criterion F and L concerns arising from his adulterating his urine specimen and his failure to be truthful.
As an initial matter, assuming the individual’s explanation of the reason he adulterated his urine specimen is truthful, it does little to resolve the security concern regarding adulterating his urine specimen. Even if he did not himself smoke and was only in the house with second hand smoke, and even if he believed that, as a result of the second hand smoke, he was likely to have positive drug test, I do not see mitigation of the Criterion F and L concerns. The proper response for an individual in such a case is to take the drug screen honestly. The individual’s approach in this instance, to covertly scheme to evade his obligations by deceit and thereby exacerbate the original deceit with repeated falsehoods under oath, is precisely the type of behavior that creates a security concern. The individual planned to be dishonest. He provided no convincing evidence that he will not resort to evasion when he believes that it is in his best interest to do so.
The fiancee and the individual both suggest that it was her fault that he was faced with the problem of second hand smoke. While it may be true that the individual was faced with the problem as a result of the actions of his fiancee, he had many options other than a pattern of deceit to deal with the situation. Again, he choose to be dishonest, his selection of a pattern of deceit and his attempt to blame another person indicate he has not fully recognized that he is the one responsible for being honest with the DOE. The DOE has an ongoing concern that holders of access authorizations who are not open and honest may cause additional security problems by their failure to be candid.
The individual has attempted to mitigate the concerns regarding his denials about using Clear by stating that he feared he would lose his job if he told the truth. I have no doubt this is so. While this is an understandable explanation, it in no way mitigates the security concern caused by those false statements. Thus, overall, the individual has not provided information that resolves the security concerns about tampering with his urine sample or regarding his repeated falsification.
However, even if a person has not been truthful with the DOE, a security concern regarding honesty may be resolved by a showing that a sufficient period of time has passed during which the individual demonstrates honesty with the DOE. Personnel Security Hearing (Case No. VSO-0410), 28 DOE ¶82,786 (2001) (eight years of responsible behavior mitigated concerns about prior behavior); Personnel Security Hearing (Case No. VSO-0319), 27 DOE ¶ 82,851 (2000) (nine years of responsible behavior mitigated concerns about prior behavior). In view of the pre planning his use of Clear and his extended period of providing false information, a two year period of honesty would not begin to meet that standard. Therefore, if the individual had been honest and candid with the DOE since 1999, I do not believe that he would have had a sufficient period of honesty to mitigate the DOE security concerns in this case.
Moreover, the individual’s behavior at the Hearing indicates to me that he does not have a two year period of candor. His testimony indicates he continues his pattern of not being honest and candid with the DOE in matters involving his access authorization. His statements that he never had any problems on the job were contradicted by the testimony of the central service specialist that he was involved in a disciplinary matter in May of 2000 for which he was suspended for a short period. After he heard the testimony of the central service specialist, he asked the union business manager to explain the incident. The union business manger testified the individual was suspended for a disciplinary matter and the union filed a grievance against the company on behalf of the individual claiming the individual was unjustly disciplined. The business manager testified that he believes that under the settlement of the grievance the matter should have been purged from the individual’s file. Tr. at 97.
The individual tried to explain why he had not been candid about the disciplinary matter. He admitted that he had failed to include the incident in his testimony, but testified that he had taken the question “lightly.” Tr. at 96 and 98. He further testified that he was surprised that the disciplinary matter was bought up. Tr. at 97. Finally, the individual placed the blame for the incident itself and the discipline he received on the supervisor involved. Tr. at 98-99. His attempt to explain away the lack of candor about his performance on the job indicates that he still does not understand the importance of answering questions fully and honestly. It is clearly not appropriate for the individual to omit information from his answers on the basis that he believes the information has been purged from his personnel file or that the incident was not his fault. These rationales for deceit are clearly unacceptable from a holder of an access authorization.(5)
Finally, the individual presented the testimony and letters from a number of people who have known the individual for many years. Their statements indicate they believe that the individual is honest and that he panicked and made a mistake. I believe that each truly believes the individual is a truthful person. Nevertheless, the testimony of the character witnesses does not convince me that the individual has an understanding of and a commitment to truthfulness that is at the level expected of those who hold “access authorizations.”
V. CONCLUSION
As indicated above, I have concluded that the individual has not resolved the DOE security concerns under 10 C.F.R. § 710.8(f) 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 AppealsDate: May 24, 2002
(1) The individual’s access authorization was suspended on December 23, 1999. On February 17, 2000, the individual wrote to the DOE indicating that he no longer required an access authorization. As a result of that letter the DOE ceased processing the individual’s request for an access authorization. During March 2001 the individual renewed his request for an access authorization.
(2) Clear is a liquid that contains nitrites. The nitrites make it impossible to test the urine specimen for the residuals of drug use. However, the test results of such an adulterated specimen indicate that the specimen was adulterated. An adulterated specimen in and of itself creates a security concern.
(3) The business manager also testified that the union currently has calls for skilled union employees who have access authorizations that the union is unable to fill. The need for skilled workers with an access authorization is not an issue I can consider in reaching my determination. My responsibility is once a security concern has reasonably been raised to make a determination regarding whether the individual has mitigated the security concerns raised in the notification letter. For the same reason I cannot consider the supervisor’s testimony that projects at the site would be more promptly completed if the individual’s access authorization was reinstated.
(4) The fiancee testified that she has reduced but not completely stopped smoking marijuana. Tr. at 107.
(5) His attempt to excuse his behavior by focussing on another person’s behavior is similar to blaming his fiancee’s marijuana use for his access authorization difficulties with the DOE.