PSH-13-0025

*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 XXXXXX’s.
United States Department of Energy
Office of Hearings and Appeals
In the Matter of: Personnel Security Hearing )
)
Filing Date: March 5, 2013 )
) Case No.: PSH-13-0025
__________________________________________)
Issued : July 11, 2013
______________________
Hearing Officer Decision
______________________
Wade M. Boswell, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXXXXXXXXXXX (hereinafter
referred to as “the individual”) to hold an access authorization1 under the Department of
Energy’s (DOE) regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled, “General
Criteria and Procedures for Determining Eligibility for Access to Classified Matter or
Special Nuclear Material.” As fully discussed below, after carefully considering the
record before me in light of the relevant regulations and Adjudicative Guidelines, I have
determined that the individual’s access authorization should not be restored at this time.
I. Background
The individual is employed by a DOE contractor in a managerial position that requires
him to hold a DOE security clearance and participate in the Human Reliability Program
(HRP).2 The individual’s manager received a report in November 2011 that the individual
may have been engaging in practices prohibited by his employer’s personnel policies.
The manager’s subsequent inquiries resulted in a decision by the manager and the
employer’s Human Resources Department to investigate the individual’s workplace
1 Access authorization is defined as “an administrative determination that an individual is eligible for
access to classified matter or is eligible for access to, or control over, special nuclear material.” 10 C.F.R.
§ 710.5(a). Such authorization will be referred to variously in this Decision as access authorization or
security clearance.
2
The HRP is a security and safety reliability program designed to ensure that individuals who occupy
positions affording access to certain materials, nuclear explosive devices, facilities, and programs meet the
highest standards of reliability and physical and mental suitability. See 10 C.F.R. § 712.
2
behavior. The individual was placed on “site access denial” in December 2011 and the
individual and his employer entered into an agreement in February 2012 which provided
the individual would receive a five-day retroactive disciplinary suspension and be
allowed to return to work in another position. See Exhibit 15. Notwithstanding this
agreement, the individual has not returned to work or had his site access restored.
The Local Security Office (LSO) commenced an independent investigation subsequent to
the individual being placed on “site access denial” and conducted a personnel security
interview (PSI) with the individual on May 30, 2012 (2012 PSI). See Exhibit 5. In
addition to workplace matters, the LSO’s investigation revealed a number of incidents
involving local law enforcement, including incidents which occurred subsequent to the
individual being placed on “site access denial.”
On November 13, 2012, the individual’s access authorization was suspended. The LSO
informed the individual in a letter dated November 26, 2012 (Notification Letter), that it
possessed reliable information that created substantial doubt regarding his eligibility to
hold a security clearance and explained that the derogatory information fell within the
purview of one potentially disqualifying criterion set forth in the security regulations at
10 C.F.R. § 710.8, subsection (l) (hereinafter referred to as Criterion L).3 See Exhibit 1.
Upon his receipt of the Notification Letter, the individual exercised his right under the
Part 710 regulations by requesting an administrative review hearing. The Director of the
Office of Hearings and Appeals (OHA) appointed me the Hearing Officer in the case and,
subsequently, I conducted an administrative hearing in the matter. At the hearing, the
LSO presented the testimony of no witnesses; the individual presented the testimony of
three witnesses, including that of himself and his wife. The LSO introduced 16 numbered
exhibits into the record; the individual introduced ten lettered exhibits (Exhibits A – J)
into the record. The exhibits will be cited in this Decision as “Ex.” followed by the
appropriate numeric or alphabetic designation. The hearing transcript in the case will be
cited as “Tr.” followed by the relevant page number.4
II. Regulatory Standard
A. Individual’s Burden
A DOE administrative review proceeding under Part 710 is not a criminal matter, where
the government has the burden of proving the defendant guilty beyond a reasonable
doubt. Rather, the standard in this proceeding places the burden on the individual because
it is designed to protect national security interests. This is not an easy burden for the
3
Criterion L relates to information that a person has “[e]ngaged in any unusual conduct or is subject to any
circumstances which tend to show that the individual is not honest, reliable, or trustworthy; or which
furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation, or duress
which may cause the individual to act contrary to the best interests of the national security . . .” 10 C.F.R.
§710.8(l).
4 OHA decisions are available on the OHA website at www.energy.gov/oha. A decision may be accessed
by entering the case number in the search engine at www.oha.gov/search.htm.
3
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 granting
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).
The individual must come forward with evidence to convince the DOE that granting his
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(d). The individual is
afforded a full opportunity to present evidence supporting his eligibility for an access
authorization. The Part 710 regulations are drafted so as to permit the introduction of a
very broad range of evidence at personnel security hearings. Even appropriate hearsay
evidence may be admitted. 10 C.F.R. § 710.26(h). Thus, an individual is afforded the
utmost latitude in the presentation of evidence to mitigate the security concerns at issue.
B. Basis for the Hearing Officer’s Decision
In personnel security cases arising under Part 710, it is my role as the Hearing Officer to
issue a Decision that reflects my comprehensive, common-sense judgment, made after
consideration of all the relevant evidence, favorable and unfavorable, as to whether the
granting or continuation of a person’s 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 am instructed by the regulations to resolve any doubt as to a person’s access
authorization eligibility in favor of the national security. Id.
III. The Notification Letter and the Security Concerns at Issue
As previously noted, the LSO cited one criterion as the basis for suspending the
individual’s security clearance, Criterion L. The Notification Letter contains eight pages
of single-spaced text describing the factual bases relied upon by the LSO; the events cited
span from 1978 to 2012. The LSO alleges that these incidents demonstrate two patterns
of behavior by the individual which trigger concerns under Criterions L: (1) a pattern of
criminal behavior, and (2) a pattern of inappropriate behavior in the workplace and an
inability to follow rules and regulations. Ex. 1. Further, the LSO alleges that the
individual gave inaccurate responses on an Electronic Questionnaires for Investigations
Processing dated March 23, 2011 (2011 e-QIP) to questions relating to both his police
record and workplace misconduct. Id.; see Ex. 4. Conduct reflecting questionable
judgment, lack of candor, dishonesty, or unwillingness to comply with rules and
regulations raises questions about an “individual’s reliability, trustworthiness and ability
to protect classified information.” See Guideline E of the Revised Adjudicative Guidelines
for Determining Eligibility for Access to Classified Information, issued on December 29,
2005, by the Assistant to the President for National Security Affairs, The White House
(Adjudicative Guidelines).
In light of the information available to the LSO, the LSO properly invoked Criterion L.
4
IV. Analysis
I have thoroughly considered the record of this proceeding, including the submissions
tendered in this case 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 and the Adjudicative
Guidelines. After due deliberation, I have determined that the individual’s access
authorization should not be restored. I can not find that restoring the individual’s DOE
security clearance will not endanger the common defense and security and is clearly
consistent with the national interest. 10 C.F.R. § 710.27(a). The specific findings that I
make in support of this decision are discussed below.
At the hearing, the individual and his wife both testified that the individual had had
numerous surgeries in the prior year which resulted in his taking prescribed narcotics for
pain. Tr. at 22, 24, 118 – 120. Additionally, the individual takes prescribed medications
for anxiety and depression; he began taking medication for anxiety in 2009. Id. at 42, 46,
156. According to the individual, the psychotropic medications, combined with stress,
have resulted in him having memory deficiencies. Id. at 56, 156. The individual’s wife
testified that their marriage counselor had diagnosed the individual with a psychological
disorder (separate from anxiety and depression), one of the symptoms of which is
reduced memory.6 Id. at 27, 30.
Notwithstanding the foregoing, I note that the LSO cited no security concerns arising
from illness or mental conditions.7 See Ex 1. Accordingly, I have limited my analysis
herein to Criterion L and Guideline E of the Adjudicative Guidelines, which are to the
two standards specifically cited by the LSO in the Notification Letter.
The individual’s wife was present throughout the hearing at the request of the individual,
not only as a support person, but because the individual recognizes that he has memory
deficiencies and he had requested his wife be present to help him “with some of those
gaps.” Tr. at 56. In those instances where the individual was relying on his wife’s
“memory” of events to which she was not a participant, I have accorded less weight to
such testimony than I would to the testimony of a participant in the events. In those
instances noted below where the individual’s testimony was contradictory to written
5 Those factors include the following: 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 at the time of the conduct, the voluntariness of his 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, the likelihood of continuation or
recurrence, and other relevant and material factors.
6 With respect to the diagnosis of a psychological disorder by the marriage counselor, the individual
testified that he has only heard that diagnosis from his wife and does not believe such a diagnosis has been
formally made by a mental health practitioner. Tr. at 155 – 156.
7 See Criterion H which relates to information that a person has “[a]n illness or mental condition of a
nature which, in the opinion of a psychiatrist or a licensed clinical psychologist, causes, or may cause, a
significant defect in judgment or reliability . . .” 10 C.F.R. §710.8(h).
5
documents that were either prepared contemporaneously to an event at issue or in close
proximity to an event, I have accorded greater weight to those documents. I do not doubt
the sincerity of the individual’s testimony; however, in light of the inconsistencies in the
record and the individual’s acknowledged memory issues, I found him to be an unreliable
reporter of events.
A. Hearing Officer Evaluation of Evidence and Findings of Facts:
Pattern of Criminal Behavior
The LSO cited events occurring between 1978 and 2012 to demonstrate a pattern of
criminal behavior by the individual. The individual has correctly noted that the criminal
charges brought against him were largely dismissed prior to prosecution and, since
becoming an adult, he has not been convicted of any criminal offense. However, any
examination under Criterion L focuses on the underlying behavior of an individual;
security concerns are not mitigated by the disposition of a matter by a court or prosecutor.
This focus on underlying behavior recognizes that (1) the government’s burden of proof
in a criminal matter is markedly different from the individual’s burden in an
administrative review proceeding8 and (2) determinations by local governments on
whether to prosecute or dismiss a specific matter may be less influenced by the merits of
a case than dictated by the necessity to allocate financial and human resources.
1. Teenage Behavior
The Notification Letter cites four incidents which occurred before the individual’s
eighteenth birthday: damaging a vehicle belonging to a friend’s father which he was
driving with permission; fighting at a sporting event; consuming alcohol he knew had
been stolen; and assault and destruction of property at a girlfriend’s house. Ex. 1 at 2 – 4.
The individual does not deny that these events occurred. Subsequent to the latest of these
events, the LSO cites no other incidents during the next 27 years.
The individual’s youth and lack of maturity at the time of these events, together with the
passage of 27 years without the recurrence of similar behavior, would normally mitigate
security concerns arising from these events. See 10 C.F.R. § 710.7(c). However, the
individual has engaged in conduct beginning in 2007 (see below) which raises concerns
that this teenage behavior is part of a continuing pattern of the same behavior. Cf.
Adjudicative Guidelines, Guideline E at ¶ 17(c). I cannot find that the individual’s
youthful behavior has been mitigated, absent the mitigation of the security concerns
arising from his behavior in more recent years.
2. Battery of a Child (2007)
In 2007, the individual was charged with the battery of his six-year-old daughter
following spanking her for lying about breaking items in the individual’s home. Tr. at 97.
The charge was deferred to allow the individual to engage in four months of counseling
8 See discussion above at Section II A. Individual’s Burden.
6
(eight sessions) and, following the completion of counseling, the charge was dismissed.
Ex. 13, Ex 10 at 6. The individual characterized the battery as two or three “swats” to his
daughter’s “bum”; the charge as a frivolous action brought at the instigation of a bitter
and angry former spouse; and the counseling as voluntarily agreed upon on his part. Tr. at
97, 98, 235; Ex. 5 at 22, 36, 37, 40. The individual’s characterization of the incident is
inconsistent with the record. The individual acknowledges that photographs taken one or
two days after the incident show the skin on his daughter’s buttocks being red, though he
said he could not see the welts or bruises in the photographs as claimed by his former
spouse. Id. Even if the photographs showed only redness of skin a day or two after the
incident, it suggests that the individual’s characterization of having given his daughter
two or three “swats” minimized the severity of the incident. The letter from the
prosecutor offering deferred prosecution in return for the individual entering counseling
states that his former wife had been consulted before the proposal had been made and
indicated the prosecutor would move immediately to trial if the individual did not accept
the proposal. Ex. 13 at 1, 2. From the written record, the individual’s characterization that
the counseling was voluntarily agreed upon by him seems a distortion of the prosecutor’s
offer to dismiss the criminal charge.
The hearing did not clarify the individual’s present method of disciplining his children. In
discussing the impact of the counseling he had undertaken, the individual stated, “I can
tell you right now I don’t spank my kids anymore, and I don’t support it.” Tr. at 102.
Subsequently, the DOE counsel referred to the individual’s approach to parenting and
discipline and that it no longer included spanking and the individual responded. “I
wouldn’t say does not, but I’d say it’s pretty limited. I try not to.” Id. at 123. This later
comment was in the context of the individual’s testimony on an audio tape that his
current wife had played for the local police which purported to document the individual
striking or slapping his younger child on the head. When asked if such slapping on the
head was behavior that still occurred towards his younger children (age three and under),
the individual demonstrated a thumping motion with his hand as to what he still does,
“It’s not anything harsh . . . It’s an attention getter . . . Well, when they’re ignoring me, I
like to . . . I use it to get their attention.” Id. at 124.
Notwithstanding the individual’s counseling following the 2007 battery charge and the
additional training he testified that he had undertaken in the prior year on parenting, I do
not believe the individual has acknowledged the severity of the underlying behavior or
removed doubt that behavior similar to the 2007 incident will not recur. Cf. Adjudicative
Guideline, Guideline E at ¶17(d).
3. Criminal Complaints Lodged by Former Wife
Local police records document three incidents between the individual and his former wife
in 2011 through 2012: the individual was charged with trespassing on his former wife’s
property (September 2011) and with custodial interference and battery (January 2012),
and his former wife filed a civil complaint for failure to return their daughter as agreed
(October 2012). With respect to the trespass charge, the individual testified that he had
called his former wife before he drove up her driveway with their daughter so that their
daughter could retrieve some items for school and that the police report documented that
7
he never left the vehicle. Tr. at 106 – 107, 245 – 246. At the hearing, I agreed to hold
open the record for additional time to allow the individual to submit the police report to
document his assertions. Id. at 270. To date, the individual has not been submitted the
police report to either me or DOE’s counsel.
With respect to the October 2012 civil complaint that the individual failed to return his
daughter as agreed upon with her mother, the police report indicates that the individual
misrepresented to his former wife statements made by the police to the individual.
Specifically, the individual purported to state to his former wife that the police had
“suggested” to him that he keep their daughter an extra night. Ex. 8 at 13. When asked
about the police report during the hearing, the individual did not recall the report or the
underlying statements, but also did not seemed troubled by a police report that he may
have misrepresented statements made by the police. Tr. at 243 – 244. Such dishonesty
constitutes security concerns under Criterion L.
The individual testified that his daughter did not feel safe at her mother’s home. In
January 2012, he attempted to get an emergency injunction to gain custody and, after
instituting that process, enrolled his daughter at a new school closer to his home. The
injunction was never granted. Id. at 110 – 112. The individual testified that his former
wife has been subsequently charged with “injury to a child” for injuring their daughter
and that custody of their daughter has informally been transferred to the individual. Id. at
138 – 143. The individual submitted a letter from a local prosecutor notifying the
individual and his daughter of a pretrial conference on the criminal charge against his
former wife. See Ex. A. Protecting one’s child from legitimate danger would mitigate
security concerns arising from these related criminal charges or complaints; however, the
documentation provided on this matter was quite sparse. The individual indicated that he
had “volumes of police reports” relating to the charging of his former wife for injury to a
child. Id. at 229. Again, I agreed to hold open the record to receive these materials and
none were submitted to either me or DOE’s counsel. Id. 229 – 230, 270. Without
additional documentation, I lack sufficient information to find that the individual has
mitigated that security concerns arising with respect to these incidents.
4. Criminal Complaints Lodged by Current Wife
During October 2012, the local police had a number of interactions with the individual
and his current wife. See Ex. 8. The following facts are not disputed: that the individual’s
wife reported a domestic battery; that the individual held her against the wall while
instructing his daughter to remove his two younger children from their home; and that, on
the following day, the individual took the phone from his wife while she was trying to
call the police. Tr. at 21 – 24, 31 – 33, 117 – 118, 124 – 125. Unclear is whether the
individual was aware that his wife was calling 911 when he took her phone and
disconnected the call. The contemporaneous police reports indicate he acknowledged
knowing she was making a 911 call; he has subsequently denied such knowledge at the
time. Ex 8 at 5; Tr. at 241 – 243. Also unclear is whether he struck his wife’s hand with
his fist when she attempted to retrieve her phone from his pocket; the individual testified
that he had no memory of doing so, but testified that it seemed “reasonable” that he
would have done so if she was trying to get a phone from his pocket. Id. at 33, 127. The
8
individual was subsequently charged with intentional damage to a telecommunication
device for interfering with the 911 call. Ex 10 at 1 – 2.
Subsequently, the individual’s wife obtained a restraining order and a three-month
protective order which required the individual to return their children to his wife and
vacate their home. Tr. at 38 – 40. They reconciled in December 2012. Id. at 58 – 59. The
individual’s wife has undertaken training for victims of domestic violence and the
individual has taken classes at an abuse clinic. Id. at 42; Ex. B. Together they have
engaged in marriage and family counseling and other therapeutic programs with a clear
intent to create a healthy and functional family unit. Both credibly testified as to changes
they have made to the depth and method of their communication and the manner in which
they handle conflict when it arises. Tr. at 42 – 51, 149 – 159. The individual presented
information on the training he was taking and continuing to take. Ex. B.
The individual and his wife are to be commended for the steps that they have taken to
modify their behavior within their marriage. Mitigation of security concerns arising under
Criterion L is permitted when an “individual has acknowledged the behavior and
obtained counseling to change the behavior or taken other positive steps to alleviate the
stressors, circumstances, or factors that caused the . . . inappropriate behavior, and such
behavior is unlikely to recur.” Adjudicative Guidelines, Guideline E at ¶17(d). While the
individual has commenced appropriate steps to mitigate the concerns arising from the
incidents with his current wife, in order to show sufficient rehabilitation his counseling
needs to be accompanied by a substantial period of time during which the inappropriate
behavior does not recur. As of the date of the hearing, the individual and his wife have
been reconciled for approximately five months. This is insufficient time to demonstrate
adequate rehabilitation.
At the time that the individual was subject to “move out” or protective order, his
employer reported being contacted by the local police. According to a contemporaneous
memo prepared by his employer, the police stated (1) that a person was only permitted to
remove weapons from his home during a “move out” if the weapons were required for
performance of his job, and (2) that the individual indicated he needed to retrieve his
weapon from his house because it was required for his job. The employer informed the
police officer that the individual is not required to use his personal weapons in the
performance of his job and, at the time of the “move-out,” the individual had been on
“site access denial” for nearly ten months. Ex. 7. At the hearing, the individual testified
that he had no recollection of these conversations, but stated that if he had wanted to
remove a gun from his house it was his prerogative to do so. Tr. at 237 – 238. I found the
documentation of the employer to be credible. This is another example of dishonesty that
is disqualifying under Criterion L. No mitigation was presented.
9
B. Hearing Officer Evaluation of Evidence and Findings of Facts:
Pattern of Inappropriate Workplace Behavior and an Inability to
Follow Rules and Regulations
The LSO cited events occurring between 2005 and 2011 to demonstrate a pattern of
inappropriate workplace behavior and an inability to follow rules and regulations. Ex. 1
at 7 – 9.
1. Harassment of Co-Worker – Arm Twisting (2005)
An employee filed a harassment complaint against the individual, claiming that he had
physically grabbed her arm and either pulled or twisted it behind her on three separate
occasions during a one month period of time. The individual was in a managerial position
at the time and the other employee was not (though she was not under his direct
supervision). At the hearing, the individual testified (and confirmed) that this happened
on only one occasion, not three, and it arose because the employee had asked the
individual to demonstrate a certain procedure on her. Tr. at 168, 245. This testimony
contradicts earlier statements made by the individual in the 2012 PSI in which he stated
that it had occurred on three occasions (as the employee reported) and relied upon it
occurring three times before the employee complained as evidence that it was non-
objectionable, friendly interaction between two co-workers. Ex 5 at 69 – 70. At other
times, the individual describes the co-worker as someone he had a difficult relationship
with and who was unhappy because he had reprimanded her for her inappropriate
behavior in the workplace. Id. at 64 – 70; Tr. at 164 – 172. At times, the individual has
also expressed regret that the incident occurred, but blamed the culture of the workplace.
Ex. 5 at 68 – 69.
From the evidence presented, I conclude that the behavior occurred on three separate
occasions and appears to have been intended to intimidate an employee whose behavior
he found inappropriate. This conclusion is consistent with his employer’s verbal
counseling of the individual as a result of the complaint. Ex. 15 at 12. Even setting aside
the reliability issues raised by the individual’s differing accounts of the incident(s), the
testimony offered by the individual to mitigate the behavior appeared to be an attempt to
minimize the seriousness of his behavior, as opposed to an acknowledgement of the
inappropriateness of the behavior. Cf. Adjudicative Guidelines, Guideline E at ¶ 17(c).
The physical harassment incident cited by the LSO under Criterion L has not been
mitigated.
2. Employee Reported Feeling Threatened (2006)
The individual interviewed an employee about a security infraction the employee
allegedly committed. The employee reported that he had felt threatened during the
interview; the employee’s supervisor who was present throughout the interview
corroborated the employee’s concerns. The individual received a letter of counseling for
the event and, subsequently, submitted a letter of rebuttal. His employer rejected the
arguments advanced in the rebuttal and sustained the letter of counseling. Ex. 11.
10
In mitigation of this matter, the individual testified that this was the first time in his
career that he had been disciplined for doing his job properly. Tr. at 162, 178.
Management’s sustaining the letter of counseling reinforced, in the individual’s mind, his
view that his management was inept and highlighted the need for his work unit to become
autonomous. Id. at 185 – 188. This incident and the individual’s explanation raise
concerns the individual’s ability and willingness to follow rules and regulations,
particularly in situations where he may disagree with governing authority. The individual
failed to mitigate the security concerns arising from this incident.
3. Harassment of Subordinates (2011)
The individual’s manager received a report in November 2011 that the individual may
have been engaging in sexual harassment and retaliation in violation of his employer’s
personnel policies. The report was not from one of the individual’s subordinates, but
from an employee in another work unit who had observed the individual’s conduct. The
manager’s subsequent inquiries resulted in a decision by the manager and the employer’s
Human Resources Department to investigate the individual’s workplace behavior. Ex. 15
at 4 – 10. The investigation resulted in the individual being placed on “site access denial”
and, several months later, entering into a “Last Chance Agreement” with his employer
which provided for a five-day disciplinary suspension, removal from his position and
return to work in a new position. Id. at 13 – 16. As of the date of the hearing, the
individual had not returned to work.
The investigation documented the following behavior by the individual: directing
derogatory comments, epithets and slurs towards subordinates (although the comments
referred to sexual orientation, they were not directed to individuals who were thought to
be gay); heavily targeting those comments towards subordinates that the individual
thought had made complaints to management which were the basis for a pending
reorganization; directing subordinates not to speak to his management without speaking
to him first (notwithstanding prior counseling that such a requirement was inappropriate
under his employer’s policies); and inappropriate physical contact with subordinates. Id.
at 11 – 12. The investigation cited the following as inappropriate physical contact: a
locker room incident in which the individual inserted a name tag in the crevice of a
subordinate’s buttocks and making physical contact with a subordinate while holding a
knife in his hand. Id. at 6, 7.
The employer’s investigation concluded that individual had violated the following Rules
of Conduct maintained by the employer: (1) fighting or acts of physical violence,
including pranks or horseplay; (2) failure to fully cooperate with the company or
governmental officials during an investigation; (3) threatening or indecent conduct,
abusive or threatening language, sexual or workplace harassment or discrimination of any
kind; and (4) retaliation against an individual because the individual has raised a concern,
filed a complaint or participated in an investigation or proceeding. Id. at 1.
The individual acknowledges that much of the reported behavior occurred (including the
locker room incident) and he had no memory of some of the others (including the knife
11
incident). He believes that some of the behavior that was found objectionable resulted
from his heeding advice in prior performance evaluations that he needed to be more
relaxed with his subordinates and become “one of the guys.” Ex. 5 at 83, 90; Tr. at 197.
He testified that the behavior was embarrassing and that he regretted it. Notwithstanding
his embarrassment and regret, the individual did not seem to acknowledge personal
responsibility for the behavior. Id. at 196 – 197, 201. In addition to blaming his behavior
on guidance given to him in prior performance evaluations, the individual excused his
behavior as consistent with the behavior of the workplace and argued that he was being
inappropriately singled out for common place behavior. Ex. 5 at 81.
To the individual’s credit,9 prior to the investigation he had apologized to a subordinate
who had communicated through others that the individual’s anti-gay slurs had become
excessive. Ex. 15 at 5. During the investigation, employees who had been subjected to
physical contact indicated that they had not been offended and had participated in similar
activities themselves. Id. at 5 – 8.
This does not, however, negate that a subordinate was placed in a position of seeking an
apology for verbal harassment by a manager or that a manager failed to establish an
atmosphere of compliance with an organization’s rules. At the hearing, I confirmed that
the individual had received training in his employer’s rules and policies; however, it was
unclear whether he viewed the training or the rules with much seriousness. Tr. at 250 –
252. While the individual was vocal in his unhappiness over his management lack of
understanding (in his view) of the requirements of his job work and encouraging his
subordinates (in his view) to break the “chain of command” in by-passing him to speak to
management about their concerns, the individual did not appear accepting of
requirements that his behavior needed to conform to his employer’s rules and regulations.
The chain of command seemed to apply more towards those below him than to himself.
An employer has a legitimate expectation that its rules and regulations will be followed.
This is necessary to ensure that goals of the organization are met, that order is maintained
in the workplace and that liability will be contained. Managerial personnel (such as the
individual) need to be relied upon to follow and implement those rules and regulations
regardless of their personnel views or the behavior of others in the organization. In this
case, the individual chose not to follow or implement rules and now complains that he
should not be held accountable while since his workplace culture was one of non-
compliance. This view neglects that each person is responsible for his or her own
compliance and that a manager (such as the individual) is entrusted with the
responsibility of ensuring the compliance of those reporting to him or her and as well as
setting an example for subordinates.
National security is premised upon those with access authorization complying with rules
and regulations, accepting that such rules and regulations may be necessary for reasons
9 The individual presented the testimony of one character witness and submitted eight written character
references. The written references are consistent in praising the individual’s patriotism and diligence, but
many suggested workplace tensions and reinforced the desirability of a reassignment for the individual. I
have assigned a neutral weight to these submissions.
12
unknown to them. A view excusing non-compliance based upon the behavior of others is
not compatible with holding of access authorization.
The security concerns raised under Criterion L arising from the individual’s treatment of
his subordinates has not been mitigated.
C. Hearing Officer Evaluation of Evidence and Findings of Facts:
Individual’s 2011 e-QIP
The LSO raised security concerns with respect to Criterion L10 based on two of the
individual’s responses on his 2011 e-QIP.
Section 22 of the e-QIP requires disclosure of information, inter alia, on any summons,
citation or ticket to appear in court in a criminal proceeding within the prior seven years,
regardless of whether the charge was dismissed. The individual responded “no” to this
question, notwithstanding his being charged in 2007 for battery of his daughter. Ex. 4 at
31. During the 2012 PSI, the individual said he had omitted it because “it was a frivolous
charge that was dropped.” Ex. 5 at 21 – 22. The individual’s response ignores the plain
language of the question and is a questionable characterization of a charge for which
prosecutors required four months of counseling prior to dismissing. Ex. 13. At the
hearing, the individual provided a different explanation. He stated that his office
maintains a file of prior e-QIP’s which individuals refer to when they are subject to re-
investigation; that the form is long and that he erred in merely copying information from
his prior form. Tr. 231 – 233. This response does not seem credible since the individual
answered the immediately preceding section of the e-QIP with information about his
counseling in 2007 that was required by the local prosecutor. Ex. 4 at 30. The individual
further minimized his inaccurate response by testifying that he had reported the 2007
incident to the appropriate personnel at the time he was charged and, therefore, the DOE
already had the information. Tr. at 234. This ignores the importance of holders of access
authorization providing complete, accurate information when requested as part of the
security clearance process.
Section 13C of the e-QIP requires disclosure of any written warning, official reprimand,
suspension or discipline for misconduct within the prior seven years. The individual
responded “no” to this question, notwithstanding the disciplinary action in 2006 after an
employee had felt threatened by him.11 Ex. 4 at 14. During the 2012 PSI, he stated that he
did not feel that the incident was within the parameters of the question notwithstanding
that he had received a letter of counseling on the matter and had submitted a written
rebuttal. Ex. 5 at 18 – 20. The letter of counseling was sustained by his employer
10 The LSO brought no security concerns under Criterion F and no finding in this Decision is made under
Criterion F. Criterion F relates to information that a person as “deliberately misrepresented, falsified, or
omitted significant information from a … personnel security interview, written or oral statements made in
response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE
access authorization… .” 10 C.F.R. § 710.8(f).
11 Although the individual responded “no” to this question, he did describe the 2006 complaint elsewhere
in Section 13C of the 2011 e-QIP. [14-15]
13
following a review of the matter. Notwithstanding the rejection of his rebuttal, the
individual justified his response on the 2011 e-QIP during the 2012 PSI by stating with
respect to the incident that “there was no misconduct on my part.” Id. at 19.
I find the individual’s comments during the 2012 PSI reflective of his state of mind when
responding to these questions on the 2011 e-QIP. In both answers, he chose to provide
responses that ignored the plain meaning of the question and minimized his conduct (i.e.,
a criminal charge doesn’t count if he concluded it was frivolous and workplace discipline
doesn’t count if he believed he didn’t commit misconduct). These responses indicate a
view that the individual’s beliefs and conclusions supersede existing rules and regulations
and suggest an unwillingness to conform one’s behavior to rules and regulations that are
personally inconvenient.
Additionally, these 2011 e-QIP responses do not reflect the candor and reliability
required of holders of access authorization. Lack of candor during the security clearance
process raises concerns that an individual may be unwilling or unable to comply with
required security procedures and regulations and raises questions about the individual’s
character, reliability, trustworthiness and judgment. Based on the foregoing, the
individual has not mitigated the security concerns associated with Criterion L with
respect to his honesty, reliability and trustworthiness.
V. Conclusion
In the above analysis, I have found that there was sufficient derogatory information in the
possession of the DOE that raises serious security concerns under Criterion L. After
considering all the relevant information, favorable and unfavorable, in a comprehensive
common-sense manner, including weighing all the testimony and other evidence
presented at the hearing, I have found that the individual has not brought forth sufficient
evidence to mitigate the security concerns associated with Criterion L. Accordingly, I
have determined that the individual’s access authorization should not be restored at this
time. The parties may seek review of this Decision by an Appeal Panel under the
regulations set forth at 10 C.F.R. § 710.28.
Wade M. Boswell
Hearing Officer
Office of Hearings and Appeals
Date: July 11, 2013