PSH-13-0072

*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: June 5, 2013 ) Case No.: PSH-13-0072
)
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Issued: November 6, 2013
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Decision and Order
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Robert B. Palmer, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXXXXX (hereinafter referred to as “the
individual”) for access authorization under the regulations set forth at 10 C.F.R. Part 710,
entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or
Special Nuclear Material.” 1 For the reasons set forth below, I conclude that the individual’s
security clearance should not be restored at this time. 2
I. BACKGROUND
The individual is employed by the Department of Energy (DOE), and was granted a security
clearance in connection with that employment. In 2012, the local security office (LSO) received
information about inappropriate workplace behavior and the misuse of government-owned
computers and telephones by the individual. Because this information raised security concerns,
the LSO summoned the individual for interviews with a personnel security specialist on
September 5 and September 10, 2012. Because these Personnel Security Interviews (PSIs) did
not resolve the LSO’s concerns, the individual was referred to a local psychiatrist (hereinafter
referred to as “the DOE psychiatrist) for an agency-sponsored evaluation. The DOE psychiatrist
1 An access authorization is an administrative determination that an individual is eligible for
access to classified matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will
also be referred to in this Decision as a security clearance.
2 Decisions issued by the Office of Hearings and Appeals (OHA) are available on the OHA
website located at http://www.oha.doe.gov . The text of a cited decision may be accessed by
entering the case number of the decision in the search engine located at
http://www.oha.doe.gov/search.htm.
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prepared a report based on that evaluation and submitted the report to the LSO. After reviewing
this report and the other information in the individual’s personnel security file, the LSO
determined that derogatory information existed that cast into doubt the individual’s eligibility for
access authorization. It informed the individual of this determination in a letter that set forth the
DOE’s security concerns and the reasons for those concerns. I will hereinafter refer to this letter
as the Notification Letter. The Notification Letter also informed the individual that he was
entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt concerning
his eligibility for access authorization.
The individual requested a hearing on this matter. The LSO forwarded this request to the Office
of Hearings and Appeals, and I was appointed the Hearing Officer. The DOE introduced nine
exhibits into the record of this proceeding, and presented the testimony of the DOE psychiatrist
at the hearing. The individual introduced one exhibit and presented the testimony of four
witnesses, in addition to testifying himself.
II. DEROGATORY INFORMATION AND THE DOE’S SECURITY CONCERNS
A. Derogatory Information
The following facts are undisputed. The individual was granted a DOE security clearance in
1993. In the summer of 2011, the individual engaged in an inappropriate conversation of a sexual
nature with a male co-worker at his workplace. A female co-worker overheard the conversation,
and reported the incident. The individual received a Memorandum of Counseling, which stated
that the inappropriate conversation had created a hostile work environment, and warned of
further disciplinary measures for future incidents of a similar nature. The individual was required
to undergo sexual harassment training.
During an exit interview in 2012, another female co-worker complained that she had overheard
the individual engaging in numerous telephone conversations of an inappropriate, sexual nature,
using government-owned equipment during working hours. This allegation resulted in an official
inquiry into the matter, and a Report of Inquiry (ROI) was issued in June 2012. The ROI (DOE
Exhibit (DOE Ex.) 6) concludes that, between August 2011 and April 2012, the individual used a
government telephone during working hours to participate in approximately 75 sexually-oriented
telephone calls. These calls were both incoming and outgoing, and were made to coordinate
visits to strip clubs and private strip shows at the residences of the individual and of a co-worker.
As part of this inquiry, the hard drive from the individual’s government-issued computer was
retrieved and transferred to the DOE’s Cyber-Forensic Laboratory for analysis. The technicians
found two files containing pictures of women on the hard drive. One file contained 24 pictures of
women, eighteen of whom were fully clothed, and six of whom were dressed in bikinis, bras and
panties, or lingerie. The second file contained 63 images of women. In one of them, the woman
was partially nude, and in all of the others, the women were wearing only bikinis, lingerie, bras
and panties, or what the ROI termed “provocative clothing.” According to the ROI, none of the
87 images were pornographic, but the women whose pictures were in the second file were in
“sexually suggestive” poses.
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On September 10, 2012, the individual was issued a written reprimand for inappropriate behavior
while on duty and while using government resources. As previously indicated, the LSO learned
of these events, and conducted two PSIs with the individual in September 2012. During these
PSIs, the individual admitted to retaining the services of prostitutes on approximately 30
occasions between 1982 and 2011. He further stated during these PSIs that he is a “sexual
addict,” and that “when it comes to sexual stuff, I have poor judgement.” See September 5, 2012,
PSI at 68; September 10, 2012 PSI at 81.
In January 2013, the individual was evaluated by the DOE psychiatrist. In the report that the
DOE psychiatrist prepared for the LSO, he noted that sex addiction or hyper-sexuality are not
officially recognized as mental or emotional disorders in the Diagnostic and Statistical Manual of
Mental Disorders (DSM-IV-TR Plus). However, he concluded that the individual has shown
significant defects in judgment regarding sexual issues, the most salient example of which is his
having sex with prostitutes, an illegal activity, while holding a DOE security clearance. DOE
Exhibit (DOE Ex.) 3 at 3.
B. The Notification Letter and the DOE’s Security Concerns
The LSO determined that this derogatory information created a substantial doubt as to the
individual’s eligibility to hold a clearance. In its Notification Letter to the individual, the LSO
specifically cited paragraphs (h) and (l) of the criteria for eligibility for access to classified
matter or special nuclear material set forth at 10 C.F.R. § 710.8.
Under criterion (h), information is derogatory if it indicates that an individual has an illness or
mental condition which, in the opinion of a psychiatrist causes, or may cause, a significant defect
in the individual’s judgment or reliability.10 C.F.R. § 710.8(h). As support for this criterion, the
Letter cites the DOE psychiatrist’s conclusions, and the individual’s statements that he is a “sex
addict,” who has exercised poor judgment regarding sexual matters.
Criterion (l) defines as derogatory information indicating that the individual has engaged in
unusual conduct or is subject to circumstances which tend to show that he is not honest, reliable
or trustworthy; or which furnishes reason to believe that he may be subject to pressure, coercion,
exploitation or duress which may cause him to act contrary to the best interests of national
security. Such circumstances include, but are not limited to, instances of illegal activity. As
support for this criterion, the Letter refers to the individual’s violations of rules and regulations
regarding workplace conduct and the misuse of government resources, and his illegal activities
with prostitutes.
The circumstances described above adequately justify the DOE’s invocation of criteria (h) and
(l), and raise significant security concerns. As an initial matter, a duly qualified mental health
professional retained by the U.S. Government has determined that the individual has an
emotional, mental or personality condition that can impair his judgment. Moreover, conduct
involving questionable judgment or unwillingness to comply with rules and regulations,
including those having to do with the proper usage of government-owned information
technology systems, can raise questions about an individual’s reliability, trustworthiness and
ability to protect classified information. Finally, criminal activity also creates doubt about a
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person’s judgment, reliability and trustworthiness. By its very nature, it calls into question a
person’s willingness to comply with laws, rules and regulations. See Revised Adjudicative
Guidelines for Determining Eligibility for Access to Classified Information, The White House
(December 19, 2005), Guidelines I, E, M and J.
III. REGULATORY STANDARDS
The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710
dictate that in these proceedings, a Hearing Officer must undertake a careful review of all of the
relevant facts and circumstances, and make a “common-sense judgment . . . after consideration
of all relevant information.” 10 C.F.R. § 710.7(a). I must therefore consider all information,
favorable or unfavorable, that has a bearing on the question of whether granting or restoring a
security clearance would compromise national security concerns. Specifically, the regulations
compel me to consider the nature, extent, and seriousness of the individual’s conduct; the
circumstances surrounding the conduct; the frequency and recency of the conduct; the age and
maturity of the individual at the time of the conduct; the absence or presence of rehabilitation or
reformation and other pertinent behavioral changes; the likelihood of continuation or recurrence
of the conduct; and any other relevant and material factors. 10 C.F.R. § 710.7(c).
A DOE administrative proceeding under 10 C.F.R. Part 710 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). Once the DOE has made a showing of derogatory information raising
security concerns, the burden is on the individual to produce evidence sufficient to convince the
DOE that granting or restoring 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). See
Personnel Security Hearing, Case No. VSO-0013, 24 DOE ¶ 82,752 at 85,511 (1995) (affirmed
by OSA, 1996), and cases cited therein. The regulations further instruct me to resolve any doubts
concerning the individual’s eligibility for access authorization in favor of the national security.
10 C.F.R. § 710.7(a).
IV. FINDINGS OF FACT AND ANALYSIS
The individual does not contest the allegations set forth in the Notification Letter. Instead, at the
hearing, he attempted to demonstrate that he no longer suffers from an illness or mental
condition that adversely affects his judgment or reliability, and that he can be relied upon to
follow all applicable laws, rules and regulations in the future. Based on the testimony of the
witnesses and the record in this matter as a whole, I find that the individual has adequately
addressed the DOE’s security concerns under criterion (h) regarding his mental and emotional
condition, but that valid concerns remain under criterion (l). My reasons for these findings are set
forth below.
A. Criterion (h)
The DOE psychiatrist did not diagnose the individual as suffering from a sexual addiction in his
report. However, after hearing the individual’s testimony and that of the other witnesses at the
hearing, the DOE psychiatrist opined that he did, in fact, suffer from that condition. Hearing
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Transcript (Tr.) at 183. He said that the diagnostic criteria are the same as those used in
diagnosing a substance use disorder, and that “a central diagnostic criteria (sic) is repeated use
despite adverse consequences, which speaks to the impaired control.” Tr. at 185. Applying this
standard to the individual’s case, the DOE psychiatrist cited his repeated workplace telephone
conversations of a sexual nature after having received a Memorandum of Counseling for
engaging in an earlier inappropriate sexual conversation while at work, Tr. at 191, and his
repeated trysts with prostitutes despite the risks to his security clearance, his employment, and
his marriage, as reasons for his diagnosis. Tr. at 203. The DOE psychiatrist also cited the
individual’s testimony that he had begun attending Sex Addicts Anonymous (SAA) meetings as
a factor in his diagnosis. Tr. at 195. Regarding the questions of rehabilitation or reformation, the
DOE psychiatrist found the individual’s SAA participation and the period of approximately two
years since his last admitted incident of sex with a prostitute to be positive factors. However, the
DOE psychiatrist “kind of arbitrarily” set a standard of three years without a sex-related violation
of the law or of his wife’s trust as being adequate to demonstrate rehabilitation or reformation.
Tr. at 188. Accordingly, he concluded that the individual had not met this standard. Id.
The individual’s therapist also testified. He stated that, although the individual had exercised
poor judgment regarding sexual issues, he did not believe that the individual was a sex addict.
Tr. at 158. Shortly after the individual began seeing him, the therapist administered the Sexual
Addiction Screening Test, a diagnostic tool developed by a preeminent researcher in the field.
The individual tested as having only a 25 percent chance of being a sex addict. Tr. at 159. He
described the individual’s sex drive as being “high normal,” Tr. at 159, and explained that sex
addicts “have a much more compulsive . . . use. It would be, if not daily, almost every day. It
would be much more random, promiscuous, any sexual outlet will do. It doesn’t matter if they
have a fulfilling relationship at home . . . .” Tr. at 170. He concluded that none of these
characteristics apply to the individual. Tr. at 171. Instead, the individual’s therapist testified, the
individual has had a “problem” with impulse control. Tr. at 159. However, due largely to his
work with the individual in recognizing the “triggers” for his behaviors and coping with his
impulses, he believed the individual’s prognosis to be “good.” Tr. at 163. In any event, he
concluded that the individual’s impulse control problem did not rise to the level of a mental
condition that caused or could cause a significant defect in his judgment or reliability. Tr. at 164-
165.
The conclusions of the individual’s therapist find greater support in the record than do those of
the DOE psychiatrist. I found convincing the testimony of the therapist that sex addicts generally
have a “much more compulsive” involvement with sex than that displayed by the individual. As
set forth above, the Notification Letter alleges that the individual patronized prostitutes on 30
occasions during the nearly thirty-year period between 1982 and 2011. Moreover, in contrast to
the therapist’s characterization of sex addicts, the record indicates that the individual was not
engaging in problematic sexual behaviors during periods of time in which he enjoyed “a
fulfilling relationship at home.” Two of his encounters with prostitutes happened in the early
‘eighties, before the individual married his first wife in 1987, several other encounters happened
in the early ‘nineties either while the individual was on military deployment and away from his
first wife or when he was in the process of divorcing his first wife, approximately 12 trysts
occurred between the time he divorced his first wife in 1993 or 1994 and the time he met his
second wife, in 1997, and the remainder took place between 2005 and July 2011, a period of time
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during which the individual was experiencing problems with the sexual aspect of his second
marriage and, as a result, was not having sex with his wife. DOE Ex. 7 at 22-40, Tr. at 90-95.
Regarding this time, the individual testified that he “wasn’t fond of using prostitutes,” but did so
“because I wasn’t having relations with my wife.” Tr. at 95. During his September 5, 2012, PSI,
the individual said that he and his wife had not had sex since “at least 2004.” DOE Ex. 8 at 47.
The individual’s wife confirmed this during her testimony. Tr. at 56. The incidents of
inappropriate conduct of a sexual nature while at work also happened during this period.
I also attribute greater weight to the therapist’s testimony than to that of the DOE psychiatrist
because of the therapist’s greater familiarity with the individual. The therapist has had 21
sessions with the individual since September 2012, whereas the DOE psychiatrist met with the
individual once, for about two hours. Tr. at 152-153, 182. For these reasons, I find that no
significant security concerns remain under criterion (h).
B. Criterion (l)
I reach a different conclusion, however, with respect to criterion (l). Although, for the reasons
discussed above, I do not believe that the individual suffers from an illness or mental condition
that causes, or could cause, a defect in his judgment and reliability, I find that there is an
unacceptably high risk that the individual will engage in future illegal or inappropriate behavior
of a sexual nature. I base this conclusion primarily on the lack of a completely satisfactory
primary romantic relationship, and the individual’s history of sexual misconduct in the absence
of such a relationship.
At the hearing, the individual’s wife testified about the couple’s sexual dysfunction and their
attempts to address it. She said that “at some point [her] sex drive just dropped,” and that she and
the individual sought professional counseling in 2008 to “help me to get through that.” Tr. at 55.
However, the counselor’s approach “just didn’t agree with” the individual’s wife, and after nine
months, they stopped seeing her. Tr. at 56-57. 3 Approximately seven months before the hearing,
the wife began going to another counselor, this time without the individual. The individual’s wife
testified that the two of them worked on the wife’s “low physical self-esteem,” which the
counselor saw as a potential reason for the wife’s low libido. Tr. at 81. She stopped seeing this
counselor during the month before the hearing, because the individual’s wife was satisfied with
the progress that she had made. Tr. at 72. When asked about the current state of her sex life with
the individual, the wife replied that it was “a work in progress,” and that they had “attempted”
physical relations “on a few occasions” over the last six months. Tr. at 74, 82.
When asked about his goal concerning the frequency of sexual relations with his wife, the
individual replied that “once a month would probably be enough.” Tr. at 143. He admitted,
however, that they were still “a ways away from that.” Id.
Given the individual’s therapist’s description of the individual’s libido as “high-normal,” Tr. at
159, I am skeptical that “once a month” will truly be satisfactory for the individual over the long
term. This is especially the case given the individual’s stated intention to curtail and eventually
3 They briefly resumed seeing this counselor in “2009 or early 2010.” Tr. at 59.
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end his use of pornography, which would sometimes lead to self-gratification. Tr. at 144-145.
Even if that level of sexual activity with his wife would prove to be satisfactory, I have
substantial doubts as to whether they will achieve it, especially given the wife’s apparent
satisfaction with a level of professional help that had, as of the date of the hearing, led to only
several “attempts” at sexual activity over a six-month period. In the absence of a satisfactory
outlet for the individual’s sexual urges, I am concerned that the individual will revert to the
pattern of illegal or inappropriate behavior described in the Notification letter; behavior that, as
described above, has generally occurred when the individual has not had a satisfying primary
romantic relationship.
I am also concerned that a resumption of the individual’s use of prostitutes would leave him
vulnerable to coercion that could cause him to act contrary to the best interests of the national
security. The individual testified credibly that he loves his wife and that his marriage was “very
important,” Tr. at 100-101, and his wife told him that if he patronized a prostitute again, she
would leave him. Tr. at 69. It is certainly conceivable that a foreign agent could use the threat of
disclosure of any infidelity to exert influence on the individual. For these reasons, I find that
substantial doubts remain under criterion (l) regarding the individual’s eligibility for continued
access authorization.
V. CONCLUSION
For the reasons set forth above, I find that the individual has adequately addressed the DOE’s
security concerns under criterion (h), but that valid concerns remain regarding his history of
illegal and inappropriate behavior. He has therefore failed to mitigate the DOE’s security
concerns under criterion (l). Consequently, he has failed to convince me that restoring his access
authorization would not endanger the common defense and would be clearly consistent with the
national interest. Accordingly, I find that the DOE should not restore the individual’s security
clearance at this time. Review of this decision by an Appeal Panel is available under the
procedures set forth at 10 C.F.R. § 710.28.
Robert B. Palmer
Hearing Officer
Office of Hearings and Appeals
Date: November 6, 2013