ISCR Case 15-04386.h1

Case Headnote

ISCR Case No. 15-04386.h1

deniedFeb 16, 2017· Hon. Michael H. Leonard· hearing

Summary

A 61-year-old former chief of police was denied a security clearance under Guideline E (Personal Conduct) due to a pattern of workplace misconduct and questionable judgment. The denial stemmed primarily from his 2010 termination as a town marshal, which followed his sworn criminal complaint against a suspect. This complaint was based on an oral report alleging aggravated assault against a police officer, but a post-trial investigation revealed the "officer" was uncertified, having had his certification lapse in 2002. The applicant had issued this individual a gun and badge, leading to a loss of trust from the county attorney's office and compromising the judicial process.

Further concerns included a prior termination in 2002 from another chief of police position, which the applicant attributed to political retaliation after investigating the mayor's businesses. While accused of misusing a criminal justice information system, he was never charged or disciplined for this incident. Additionally, in 1978, at age 22, the applicant was convicted by special court-martial for larceny of private property while serving as a military police officer, resulting in a reduction in rank, hard labor, and forfeiture of pay. He later received an honorable discharge.

The judge concluded that the applicant failed to demonstrate the necessary reliability and trustworthiness, finding that the mitigating evidence presented was insufficient to overcome the security concerns. Therefore, granting a clearance was deemed inconsistent with national interest.

Why the Applicant Was Denied

The applicant did not present sufficient evidence to mitigate security concerns stemming from workplace misconduct.
The applicant demonstrated questionable judgment and lack of candor in a criminal case that led to his termination.
The applicant's actions compromised the integrity of the judicial process, resulting in a loss of trust from the county attorney's office.

Conditions Referenced

Disqualifying

AG ¶ 16(c)raisedCredible Adverse Information

Mitigating

AG ¶ 17(c)rejectedMinor Offense or Unique CircumstancesThe applicant's past offenses and circumstances did not mitigate the serious concerns regarding his judgment.
AG ¶ 17(f)rejectedUnsubstantiated InformationThe applicant's claims of retaliation and lack of misconduct were not substantiated by evidence.

Key Rule Quoted

“"the clearly consistent standard indicates that security clearance determinations should err, if they must, on the side of denials."”
— Department of the Navy v. Egan, 484 U.S. 518, 531 (1988)

Procedural Posture

SOR issuedMar 11, 2016
Answer filedApr 11, 2016
Hearing heldSep 6, 2016
Decision dateFeb 16, 2017

Cite For

Questionable Judgment and Lack of Candor Under Guideline E
Impact of Workplace Misconduct on Security Clearance Eligibility
Burden of Persuasion in Security Clearance Cases

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

¶	Allegation	Finding	Conduct	Concealed Issue	Response	Disqualifying (¶16)	Mitigating applied (¶17)	Mitigation
1.a	Applicant served as town marshal (chief of police) for another small town from November 2006 until his termination in October 2010. According to Applicant, drug trafficking was quite prevalent in the area, and the police department made numerous arrests, which included family members of the town council. The events leading up to Applicant’s termination began when the police department arrested a suspect (John Doe) and filed charges against him in September 2009 for aggravated assault with a deadly weapon or dangerous instrument (a broken glass bottle) on a police officer as well as charges of domestic violence, burglary, aggravated assault/forcible rape of Doe’s girlfriend.	Against Applicant	Rules Violation at Workplace	—	Denied	—	—	—
1.b	The charges against Doe were primarily based on an oral report of the incident that Applicant gave to the chief criminal deputy prosecuting attorney of the county attorney’s office, which culminated in a criminal complaint sworn to by Applicant. Doe was convicted of the aggravated assault offense against the police officer. Post-trial, Doe’s defense filed a motion to vacate the judgment, which the prosecution did not oppose, based on newly discovered evidence that the victim was not a bona fide police officer at the time of Doe’s arrest. Applicant explained at the hearing that the victim had been a certified police officer and was assisting at the police department pending recertification. The county attorney’s investigation of the issue established that Applicant issued the victim a gun and a badge although he was not a certified police officer, as his certification had lapsed in 2002 following his retirement from a big-city police department.	Against Applicant	Rules Violation at Workplace	—	Denied	—	—	—
1.c	During August-November 2002, Applicant served as the chief of police for a small town after many years of service with a big-city police department. His employment was limited to three months as he quickly ran afoul of what appears to be small-town politics due to police investigation of the town’s mayor’s personally-owned businesses and properties for possible violations of the town’s laws. The town accused him of possible felony conduct by misusing the state’s criminal justice information system in advance of the town’s upcoming local elections, although he was never charged or disciplined by any pertinent authority for misconduct. He believes the town terminated him in retaliation for performing his duties as chief of police, which led him to investigate the activities of the town’s mayor.	For Applicant	Rules Violation at Workplace	—	Denied	—	—	—
1.d	In 1978, at the age of 22, Applicant was serving as a military police officer when he and another military police officer stole two wheels with tires from a car parked on a military installation. They were discovered and prosecuted by the Army at a trial by special court-martial. Applicant was found guilty of larceny of private property and sentenced to the following punishment: (1) hard labor without confinement for three months; (2) reduction from specialist (pay grade E-4) to private (pay grade E-1); and forfeiture of $50 pay per month for three months. Subsequently, Applicant served the remainder of his enlistment, was promoted to private (pay grade E-2), and received an honorable discharge in 1979.	For Applicant	Rules Violation at Workplace	—	Denied	—	—	—
1.e	specific text not stated in this decision	Withdrawn	Unspecified Personal Conduct	—	Unknown	—	—	—

Allegation

Finding

Conduct

Concealed Issue

Response

Disqualifying (¶16)

Mitigating applied (¶17)

Mitigation

1.a

Applicant served as town marshal (chief of police) for another small town from November 2006 until his termination in October 2010. According to Applicant, drug trafficking was quite prevalent in the area, and the police department made numerous arrests, which included family members of the town council. The events leading up to Applicant’s termination began when the police department arrested a suspect (John Doe) and filed charges against him in September 2009 for aggravated assault with a deadly weapon or dangerous instrument (a broken glass bottle) on a police officer as well as charges of domestic violence, burglary, aggravated assault/forcible rape of Doe’s girlfriend.

Against Applicant

Rules Violation at Workplace

—

Denied

—

1.b

The charges against Doe were primarily based on an oral report of the incident that Applicant gave to the chief criminal deputy prosecuting attorney of the county attorney’s office, which culminated in a criminal complaint sworn to by Applicant. Doe was convicted of the aggravated assault offense against the police officer. Post-trial, Doe’s defense filed a motion to vacate the judgment, which the prosecution did not oppose, based on newly discovered evidence that the victim was not a bona fide police officer at the time of Doe’s arrest. Applicant explained at the hearing that the victim had been a certified police officer and was assisting at the police department pending recertification. The county attorney’s investigation of the issue established that Applicant issued the victim a gun and a badge although he was not a certified police officer, as his certification had lapsed in 2002 following his retirement from a big-city police department.

Against Applicant

Rules Violation at Workplace

—

Denied

—

1.c

During August-November 2002, Applicant served as the chief of police for a small town after many years of service with a big-city police department. His employment was limited to three months as he quickly ran afoul of what appears to be small-town politics due to police investigation of the town’s mayor’s personally-owned businesses and properties for possible violations of the town’s laws. The town accused him of possible felony conduct by misusing the state’s criminal justice information system in advance of the town’s upcoming local elections, although he was never charged or disciplined by any pertinent authority for misconduct. He believes the town terminated him in retaliation for performing his duties as chief of police, which led him to investigate the activities of the town’s mayor.

For Applicant

Rules Violation at Workplace

—

Denied

—

1.d

In 1978, at the age of 22, Applicant was serving as a military police officer when he and another military police officer stole two wheels with tires from a car parked on a military installation. They were discovered and prosecuted by the Army at a trial by special court-martial. Applicant was found guilty of larceny of private property and sentenced to the following punishment: (1) hard labor without confinement for three months; (2) reduction from specialist (pay grade E-4) to private (pay grade E-1); and forfeiture of $50 pay per month for three months. Subsequently, Applicant served the remainder of his enlistment, was promoted to private (pay grade E-2), and received an honorable discharge in 1979.

For Applicant

Rules Violation at Workplace

—

Denied

—

1.e

specific text not stated in this decision

Withdrawn

Unspecified Personal Conduct

—

Unknown

—

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Case Profile

Summary

Why the Applicant Was Denied

Conditions Referenced

Key Rule Quoted

Procedural Posture

Cite For

Full decision

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

STATEMENT OF CASE

FINDINGS OF FACT

DISCUSSION

FORMAL FINDINGS

CONCLUSION

FOOTNOTES