PSH-13-0099

*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: August 22, 2013 ) Case No. PSH-13-0099
)
_________________________________________ )
Issued: November 7, 2013
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Hearing Officer Decision
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Diane DeMoura, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXX (“the Individual”) to hold a
Department of Energy (DOE) 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 detailed below, I find that the DOE should
not restore the Individual’s access authorization at this time.
I. BACKGROUND
The Individual is employed by a DOE contractor and currently holds a suspended DOE access
authorization. DOE Exhibit (“Ex.”) 3. In November 2012, the Individual timely reported to the
Local Security Office (LSO) that he was arrested and charged with two felonies: False Voting
and Forgery. DOE Exs. 5, 6. This information prompted the LSO to request that the Individual
participate in a Personnel Security Interview (PSI) in January 2013, in order to discuss the
circumstances underlying the Individual’s arrest and the resulting criminal charges. DOE Ex. 10.
In March 2013, the LSO informed the Individual that there existed derogatory information that
raised security concerns under 10 C.F.R. § 710.8(l) (Criterion L).2 See DOE Ex. 1 (Notification
1 Access authorization, also known as a security clearance, is an administrative determination that an individual is
eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5.
2 Criterion L pertains to conduct tending to show that the Individual was “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).
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Letter, March 5, 2013). The LSO also notified the Individual that he was entitled to a hearing
before a Hearing Officer in order to resolve the security concerns. Id.
The Individual requested a hearing on this matter. The LSO forwarded his request to the Office
of Hearings and Appeals, and I was appointed the Hearing Officer. At the hearing, the
Individual, represented by counsel, presented his own testimony, as well as the testimony of the
following five witnesses: his manager, his mentor, a current co-worker, a former co-worker, and
a friend. The Individual also tendered fourteen exhibits into the record (Indiv. Exs. A-N). The
DOE Counsel submitted eleven exhibits (DOE Exs. 1-11), and presented no witnesses. See
Transcript of Hearing, Case No. PSH-13-0099 (hereinafter cited as “Tr.”).
II. REGULATORY STANDARD
The regulations governing the Individual’s eligibility for access authorization 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.” The regulations identify certain types of derogatory
information that may raise a question concerning an individual’s access authorization eligibility.
10 C.F.R. § 710.10(a). Once a security concern is raised, the individual has the burden of
bringing forward sufficient evidence to resolve the concern.
In determining whether an individual has resolved a security concern, the Hearing Officer
considers relevant factors, including “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 of the individual at the time of the conduct; the
voluntariness of 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,” and the impact of the foregoing on the relevant security concerns. 10 C.F.R.
§ 710.7(c). In considering these factors, the Hearing Officer also consults adjudicative
guidelines that set forth a more comprehensive listing of relevant factors and considerations. See
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).
Ultimately, the decision concerning eligibility is “a comprehensive, common-sense judgment
made after consideration of all relevant information, favorable and unfavorable . . . .” 10 C.F.R.
§ 710.7(a). In order to reach a decision favorable to the individual, the Hearing Officer must find
that “the grant or restoration of access authorization to the individual will not endanger the
common defense and security and is clearly consistent with the national interest.” 10 C.F.R.
§ 710.27(a). “Any doubt as to an individual’s access authorization eligibility shall be resolved in
favor of the national security.” Id. See generally Dep’t of the Navy v. Egan, 484 U.S. 518, 531
(1988) (the “clearly consistent with the interests of national security” test indicates that “security
clearance determinations should err, if they must, on the side of denials”).
III. FINDINGS OF FACT
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The facts at issue in this case, which took place during the November 2012 Presidential election,
are essentially undisputed. During the early voting period, the Individual went to a local polling
station and intentionally voted in his son’s name. DOE Ex. 10 at 66; see also DOE Ex. 6. The
Individual took this action with his son’s knowledge and consent.3 Indiv. Ex. A; DOE Ex. 10 at
63-64. It was not a spontaneous decision. The Individual and his son decided that the Individual
would vote as the son at least a few days in advance of the Individual’s first visit to the polls.
DOE Ex. 10 at 59-64. The Individual expected that he would be successful in voting as his son
because the poll staffers “are not allowed to ask for [identification].” DOE Ex. 10 at 63. During
the process of voting for his son, the Individual expressly represented to poll workers that he was
his son. At various times during the voting process, he provided his son’s name, address (the
same as the Individual’s address), and social security number as if they were his own, and signed
an electronic signature pad with his son’s name. Tr. at 62-63; DOE Ex. 10 at 66-68. When
asked for a poll worker for identification, the Individual, aware that identification could not be
required as a condition of voting, responded that he did not have his with him because he did not
have one with show his likeness and his son’s name. Id. at 66-67. The Individual was permitted
to vote. However, at some point, his appearance aroused suspicion among the poll workers,
likely because he did not appear to be the age listed on his son’s voter registration. The staff at
the polling station investigated the matter, learning that another male voter – the Individual – was
registered at the Individual’s address. Consequently, the Individual’s voter registration was
flagged. DOE Ex. 10 at 82-85. A few days later, the Individual visited a different polling station
in order to vote again – this time as himself. Id. at 93. However, because his registration had
been flagged, the Individual was provided a provisional ballot on which to cast his vote. Id. at
95-100. Unbeknownst to the Individual at that time, the matter was turned over to local law
enforcement for investigation of possible voter fraud. Within two weeks, a warrant was issued
for the Individual’s arrest. Id. at 111-12. He was charged with two felonies, False Voting and
Forgery. Id. at 34-35.
In lieu of indictment and prosecution, the Individual was accepted into a pre-prosecution
diversion program in August 2013, and he was placed on probation for a period of twelve to
twenty-four months. Indiv. Ex. N. As of the hearing date, the Individual had successfully
completed approximately two months of his probationary period. Tr. at 31.
IV. THE NOTIFICATION LETTER AND ASSOCIATED SECURITY CONCERNS
As stated above, the LSO issued a Notification Letter identifying security concerns under
Criterion L of the Part 710 regulations. DOE Ex. 1. In support of its Criterion L concerns, the
LSO cited the Individual’s November 2012 arrest, and the underlying facts leading to the arrest.
Id. It is well-established that criminal conduct raises security concerns under Criterion L. Such
conduct “creates doubt about a person’s judgment, reliability, and trustworthiness. By its very
nature, it calls into question a person’s ability or willingness to comply with laws, rules and
regulations.” See Adjudicative Guidelines, Guideline J, ¶ 30; see also Guideline E, ¶ 15
(“Conduct involving questionable judgment . . . can raise questions about an individual’s
3 The Individual’s son was away at college at the time of the incident. He did not timely obtain an absentee ballot
because he intended to return home to vote. Indiv. Ex. A. When the son unexpectedly decided not to return home
during the voting period, the son and the Individual decided that the Individual would cast his vote. Id.
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reliability, trustworthiness, and ability to protect classified information.”). Given the facts in this
case, I find that the LSO had ample grounds to invoke Criterion L.
V. ANALYSIS
The Individual did not dispute any of the facts underlying the security concerns in this case. The
only question remaining is whether the Individual has brought forward sufficient evidence to
mitigate the security concerns. In making a determination regarding the Individual's eligibility
for DOE access authorization, I have thoroughly considered the record in this proceeding,
including the hearing testimony and the documentary evidence. For the reasons set forth below,
I am unable to find that restoring the Individual's suspended DOE 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).
At the hearing, the Individual explained the events leading to his November 2012 arrest in detail.
Tr. at 46-56. The Individual stated that he did not act with the intention to “steal a vote” or to
commit a crime. Tr. at 49-50, 62. He acknowledged that when he voted, he was aware,
generally, that voting for another person was illegal, but he was not thinking of his actions in that
light when he voted for his son. Tr. at 47, 60. Rather, according to the Individual, he and his
wife are admittedly overprotective of their children, and he was used to handling his son’s
affairs, such as his banking and taxes. Therefore, when it appeared that his son would not return
home in time to vote, the Individual discussed the matter with his son and, with his son’s
consent, decided to cast his son’s vote for the candidate that his son selected. Tr. at 61; see also
Indiv. Ex. A. The Individual believed that he was acting as “an extension” his son, representing
his interests. Id. The Individual stated that he did not anticipate that he could face such severe
consequences for his illegal act. Rather, he believed that the worst that could happen was that he
would not be allowed to vote for his son. He never imagined that he would be arrested and
charged with felony offenses. Tr. at 62.
Throughout the hearing, Individual expressed remorse for his behavior leading to his November
2012 arrest. He acknowledged that he should not have voted for his son simply because he
believed that he could get away with doing so. Tr. at 28. He stated, “it was wrong, and I know
that now, and that came out clear to me [during the PSI], you know, that I did it because I could
do it, and that’s not what I believe, and that’s not what I teach my family to believe.” Tr. at 29.
The Individual claimed that he is an “honest person” who made a “bad decision.” Tr. at 57. He
further characterized his decision to vote for his son as “a dumb thing, a stupid mistake, that is
really out of character . . . .” Tr. at 35. According to the Individual, such a mistake will not
happen again in the future because he “couldn’t go through this again.” Tr. at 64. Specifically,
he stated that he has gained humility and learned a great deal from the personal, professional, and
financial consequences that he has faced as a result of the November 2012 incident. Id. As a
result, he has changed the way he thinks about how he should comport himself, “not trying to get
away with things just because [he thinks he] can . . . .” Tr. at 33.
The Individual averred that he cannot be subjected to blackmail or coercion as a result of his
November 2012 arrest. Tr. at 24. He testified regarding the importance he places on national
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security, and stated that he would immediately report any attempts to blackmail or coerce him to
the appropriate officials, regardless of the potential consequences to himself. Tr. at 34, 71.
The other witnesses’ testimony primarily served as an attempt to bolster the Individual’s
assertion that his criminal behavior in November 2012 was an isolated incident. For example,
the witnesses testified that the Individual is honest, reliable, and of high integrity. Tr. at 108,
116, 132-33, 139-40. The Individual’s friend and his former co-worker added that they were
surprised when they learned of his arrest because the behavior was unlike something the
Individual would do and “out of character” for him. Tr. at 110, 144. According to the witnesses,
the Individual is someone who is devoted to his family, and a highly-regarded, high-performing
professional, who is looked upon as a mentor to others. Tr. at 76, 93-94, 121, 123, 131-32, 139,
141; see also Indiv. Exs. E-L (professional recognition awards), M (performance appraisals).
They also stated that, when discussing his arrest, the Individual has been forthright about his
conduct, accepted responsibility for his behavior, and expressed remorse for his poor judgment.
Tr. at 117-19, 134. The Individual was actively involved in his community and church prior to
November 2012, and has become even more involved in various volunteer capacities since his
arrest. Tr. at 15-21. In recognition of his dedication to his community, the Individual has
received the President’s Volunteer Service Award on a number of occasions. Tr. at 21-22; see
also Indiv. Exs. B-D.
According to the Adjudicative Guidelines, among several factors that may serve to mitigate
security concerns raised by an individual’s past criminal behavior are that the criminal conduct
was not recent, is unlikely to recur, and has been successfully rehabilitated. Adjudicative
Guidelines, Guideline J, ¶ 32. Successful rehabilitation may include, but is not limited to, “the
passage of time without recurrence . . . , remorse . . . , good employment record, or constructive
community involvement.” Id. at ¶ 32(d). Similarly, several conditions may serve to mitigate
security concerns pertaining to an individual’s questionable judgment. Adjudicative Guidelines,
Guideline E, ¶ 17. Among them are that “the offense was so minor, or so much time has passed,
or the behavior is so infrequent, or it happened under such unique circumstances that it is
unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good
judgment;” “the individual has acknowledged the behavior and . . . taken positive steps to
alleviate the stressors circumstances, or factors that caused untrustworthy, unreliable, or other
inappropriate behavior, and such behavior is unlikely to recur;” and “the individual has taken
positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress.” Id.
at ¶¶ 17(c), (d), (e).
In this case, there is no question that the Individual is a highly-educated, highly-accomplished
professional with an excellent work record, and that he is dedicated to his family and active in
several community organizations. In addition, he readily admits his criminal behavior, and has
fully accepted the consequences of his actions and expressed his remorse for his conduct. After
evaluating the Individual’s demeanor throughout the hearing, I found him to be a candid and
credible witness, and his testimony, particularly with respect to his remorse, was corroborated by
the testimony of other witnesses. However, despite these positive factors, I cannot find that the
Individual has mitigated the security concerns stemming from his considerable lack of judgment
in November 2012, which ultimately caused him to commit a serious criminal offense for which
he was arrested.
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While the Individual has characterized his criminal behavior as an isolated lapse in otherwise
good judgment that will not recur in the future, the very nature of that lapse, particularly its
illegality, raises significant questions regarding the Individual’s judgment and reliability. While
there are no other incidents of criminal behavior or poor judgment documented in the record, I
cannot readily attribute the November 2012 incident to an unexplained, uncharacteristic lapse in
otherwise sound judgment. It is undisputed that the Individual planned in advance to vote for his
son, that he was aware of the illegal nature of his plan, that he had multiple opportunities to
rethink his decision and not go through with the plan, and that he affirmatively represented
himself as his son to poll workers on multiple occasions during the voting process. The
Individual is a highly-educated, well-established, civic-minded professional who is obviously
knowledgeable of politics and the applicable laws and rules. Quite simply, he should have
known better and his conduct was inexcusable. Moreover, this incident occurred slightly less
than one year prior to the hearing. The Individual is still on probation for the offense, and is
likely to remain so until at least August 2014. Therefore, he currently must refrain from further
criminal behavior, and comply with the conditions of his probation, or face prosecution for his
felony offenses. That the Individual remains on probation at this time is an important factor in
my consideration of the likelihood of recurrence. Specifically, in assessing the length of time
without recurrence of similar questionable conduct, I cannot begin to mark the Individual’s
period of responsible comportment until such time that he is off probation and no longer
compelled to good behavior by the legal system, but rather behaves responsibly and exercises
sound judgment on his own, unmotivated by the fear of additional legal or criminal
consequences. Given these factors, I am unable to conclude at this time that the criminal
behavior at issue here “is unlikely to recur or does not cast doubt on the Individual’s reliability,
trustworthiness, or good judgment[.]” See Adjudicative Guidelines, Guideline E, ¶ 17; Guideline
J, ¶ 32. Consequently, I find that the Criterion L concerns cited in the Notification Letter remain
unresolved.
VI. CONCLUSION
Upon consideration of the entire record in this case, I find that there was evidence that raised
doubts regarding the Individual’s eligibility for a security clearance under Criterion L of the Part
710 regulations. I also find that the Individual has not presented sufficient information to fully
resolve those concerns. Therefore, I cannot conclude that restoring the Individual’s suspended
DOE access authorization “will not endanger the common defense and security is clearly
consistent with the national interest.” 10 C.F.R. § 710.7(a). Accordingly, I find that the DOE
should not restore the Individual’s suspended DOE access authorization at this time.
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The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth
at 10 C.F.R. § 710.28.
Diane DeMoura
Hearing Officer
Office of Hearings and Appeals
Date: November 7, 2013