PSH-13-0116

*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: October 31, 2013 ) Case No.: PSH-13-0116
)
____________________________________)
Issued: January 29, 2014
______________________
Administrative Judge Decision
______________________
Richard A. Cronin, Jr., Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXX (hereinafter referred to as “the
Individual”) to hold an 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 DOE should
restore the Individual’s access authorization.
I. BACKGROUND
The Individual is a contractor employee at a DOE facility and possessed a security clearance.
Exhibit (Ex.) 3 at 1. In July 2013, the police entered the Individual’s house pursuant to a search
warrant and, after a search, arrested the Individual’s two sons on various illegal drug charges
including Possession of Marijuana and “Crack” Cocaine and Intent to Sell Marijuana and Crack
Cocaine. Ex. 4 at 4. The Individual was also arrested on charges of Facilitating the Manufacture
or Sale of Schedule II and VI drugs (Cocaine and Marijuana) and Child Neglect. Ex. 4 at 4. The
DOE facility’s Local Security Office (LSO) subsequently conducted a personnel security
interview (PSI) with the Individual in July 2013 (July 2013 PSI). Ex. 4. Because the July 2013
PSI did not resolve the concerns arising from the Individual’s and her sons’ arrests, the
Individual’s security clearance was suspended in September 2013. Ex. 2. In September 2013, the
Individual received a detailed notification letter (Notification Letter) from the LSO outlining the
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 be referred to in this Decision as an
access authorization or a security clearance.
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specific derogatory information, described under 10 C.F.R. § 710.8 (k) and (l) (Criterion K and
L, respectively), upon which it relied upon in making the decision to suspend the Individual’s
security clearance. Ex. 3.
The Notification Letter also informed the Individual that she was entitled to a hearing before an
Administrative Judge2 to present evidence to resolve these doubts. Ex. 1. The Individual
requested a hearing in this matter. The LSO forwarded this request to OHA and the OHA
Director assigned me as the Administrative Judge in this matter. The DOE introduced 6 exhibits
(Exs. 1-6) into the record of this proceeding. The Individual introduced two exhibits (Exs. A and
B) and presented the testimony of 10 witnesses in addition to her own testimony.
II. FACTUAL FINDINGS AND THE
ASSOCIATED SECURITY CONCERNS
The Part 710 regulations require that I “make specific findings based upon the record as to the
validity of each of the allegations” in the Notification Letter. 10 C.F.R. § 710.27(c). In this case, the
Notification Letter cites Criteria K 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. Ex. 1.3 The Individual does not dispute
the factual accuracy of the Criterion K and L derogatory information described in the
Notification Letter and I set forth my factual findings below.
A. Criterion K
In a personnel security interview conducted in November 2003 (November 2003 PSI), the
Individual confirmed to an interviewer that she had been arrested for Possession of Marijuana in
1986. The Individual was arrested when marijuana was found inside a vehicle in which she was
riding. Ex. 6 at 47-54.
During the July 2013 PSI, the Individual related that local police had entered and searched her
house and arrested her and her sons. One son (Son 1), 21 years old, was arrested for Possession
of Marijuana with the Intent to Resell and Possession of Crack Cocaine with the Intent to
2 Effective October 1, 2013, the titles of attorneys in the Office of Hearings and Appeals (OHA) changed from
Hearing Officer to Administrative Judge. See 78 Fed. Reg. 52389 (August 23, 2013). The title change was
undertaken to bring OHA Hearing Officers in line with the title used at other federal agencies for officials
performing identical or similar adjudicatory work. See Personnel Security Hearing, Case No. PSH-13-0114 at 1 n.1
(2014).
3 Criterion K describes derogatory information suggesting that an individual may have “[t]rafficked in, sold,
transferred, possessed, used, or experimented with a drug or other substance listed in the Schedule of Controlled
Substances established pursuant to section 202 of the Controlled Substances Act of 1970 (such as marijuana,
cocaine, amphetamines, barbiturates, narcotics, etc.) except as prescribed or administered by a physician licensed to
dispense drugs in the practice of medicine, or as otherwise authorized by Federal law.” 10 C.F.R. § 710.8(k).
Criterion L refers to information indicating that an individual 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).
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Resell.4 Ex. 4 at 4. The other son (Son 2), 19 years old, was arrested for possession of drug
paraphernalia and possession of marijuana. Ex. 4 at 5. The Individual was arrested for
Facilitating the Manufacture or Sale of Cocaine and Marijuana and Child Neglect. The Child
Neglect charge arose from the fact that her 17-year old daughter (Daughter) was living at the
Individual’s house where 6.57 grams of marijuana and 5.5 grams of crack cocaine were
discovered along with a digital scale and a gas mask modified to permit the inhalation of
marijuana. The Individual’s automobile was also seized when a small amount of a green leafy
substance, presumed to be marijuana, was discovered inside of the vehicle. Ex. 4 at 8. During
this PSI the Individual again confirmed that she had been arrested in 1986 for Possession of
Marijuana when a marijuana cigarette was found inside a vehicle in which she was riding. Ex. 5
at 122-29; Ex. 6 at 47-54.
Involvement with the transfer illegal drugs can raise questions about an individual's reliability
and trustworthiness, both because it may impair judgment and because it raises questions about a
person’s ability or willingness to comply with Laws, rules, and regulations. See Revised
Adjudicative Guidelines for Determining Eligibility for Access to Classified Information issued
by the Assistant to the President for National Security Affairs, The White House (December 29,
2005) (Adjudicative Guidelines), Guideline H. Given the Individual’s and her sons’ arrests
involving illegal drugs, the LSO had sufficient grounds to invoke Criterion K.
B. Criterion L
During the November 2003 PSI, the Individual admitted that she had used marijuana one to two
times a month from 1983 to 1992. Ex. 6 at 47-54; see also Ex. 5 at 111-20. The Individual also
admitted to having been arrested for Larceny Shoplifting in the early 1990s. Ex. 6 at 36-38.
In the July 2013 PSI, the Individual admitted that her Daughter had been arrested in February
2013 for Possession of Marijuana. The Individual’s Daughter was placed on probation. In March
2013, her Daughter failed a drug test for marijuana administered by her probation officer. During
this interview, the Individual also stated that she believed that her Daughter and Sons 1 and 2
were then currently using marijuana. The Individual related during the interview that Son 2 had
been expelled from high school for possessing marijuana in his backpack and had been arrested
in 2010 for Possession of Cocaine. Ex. 5 at 187-93. The Individual also confirmed that Son 1 had
been arrested in 2010 for Aggravated Assault when he pointed a gun into a vehicle containing
people. Ex. 5 at 171-75, 183-85. Further, the Individual admitted that, in 2009 or 2010, both sons
had been arrested for assault after being involved in a physical altercation with another
individual. During the interview, the Individual admitted that she continued to let Sons 1 and 2
and her Daughter live with her despite their history of arrests and then current use of marijuana.
Criminal activity or association with persons involved in criminal activity creates doubt about a
person's judgment, reliability and trustworthiness. By its very nature, criminal activity calls into
question a person's ability or willingness to comply with laws, rules and regulations.
Adjudicative Guidelines, Guideline E, ¶ 16(g); Guideline J, ¶ 30(c). Given her and her Sons’
arrests the LSO had sufficient grounds to invoke Criterion L in the Notification Letter.
4 Son 1 subsequently entered into a plea agreement with the local prosecutor where Son 1 would plead guilty to a
lesser charge and receive six years of probation. Tr. at 71-73.
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III. REGULATORY STANDARDS
The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710
dictates that, in these proceedings, an Administrative Judge 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 and unfavorable, that has a bearing on the question of whether granting
the Individual 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). In considering these factors, the Administrative Judge also consults the Adjudicative
Guidelines that set forth a more comprehensive listing of relevant factors.
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). 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. ANALYSIS
A. Criterion K
An examination of the police report regarding the July 2013 arrest indicates that the local police
found crack cocaine (weighing 5.50 grams) inside a hole in one of the walls in Son 1’s bedroom.
Ex. 4 at 8-10. Inside a locked black safe inside Son 1’s bedroom closet local police discovered
marijuana (6.57 grams). Ex. 4 at 8. On a dresser in Son 2’s bedroom was a small baggie
containing marijuana, a digital scale containing a white residue, and a gas mask “fashioned in a
manner to smoke marijuana.” Ex. 4 at 8. Additionally, a small amount of marijuana was
discovered in the Individual’s vehicle. Ex. 4 at 8. During the arrest, Son 1 informed local police
that the marijuana in the automobile was his and that he had used the Individual’s automobile
while his vehicle was being repaired. Both Son 1 and Son 2 informed the police during the arrest
that the illegal drugs and paraphernalia belonged to them. Ex. 4 at 8. The police report indicated
that the Individual stated that she knew that Son 1 used to sell drugs and that she was away from
her house from 10 to 13 hours while she worked at the facility. Ex. 4 at 8. Because the local
police believed that there was probable cause to find that the Individual knew of her sons
activities “regarding the sale of controlled substances out of her residence,” they charged the
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Individual with Facilitating the Manufacture or Sale of Crack Cocaine and Marijuana.
Additionally, because the Individual had allowed her Daughter to live at her residence where the
Individual “knowingly allowed her sons to smoke marijuana and sell narcotics” they charged the
Individual with Child Neglect.
The Individual presented testimony and documentary evidence to establish that all charges
regarding her July 2013 arrest have been dropped by the local prosecutor. See Ex. A (Local
Court’s Order of Nolle Prosequi regarding charges against the Individual); Tr. at 13, 36. All of
the witnesses, comprising a number of coworkers who have worked with her from periods of
time from three to ten years, her Pastor for the last 23 years, a sister (Sister), a cousin (Cousin),
and the Individual’s two Sons, testified that, in the years they have work with and known the
Individual, they have not seen any evidence that the Individual has used or been involved with
illegal drugs. Tr. at 23, 31, 39, 52, 66, 106, 117. The Sister, while being aware of the
Individual’s arrest for possession of marijuana in 1986, had not seen any other evidence that the
Individual had been involved with illegal drugs since that date. Tr. at 107. The Sister also
testified that the Individual spoke to her about the Individual’s concern that her children were
having involvement with illegal drugs in high school and that the Individual spoke to her
children about that concern. Tr. at 107. Son 2 affirmed that the Individual had spoken to him
concerning her request that they avoid using illegal drugs. Tr. at 118 (Son 2). The Sister testified
that she had been to the Individual’s house on a weekly basis and never had detected any smells
or other indications that illegal activities were being conducted at the house. Tr. at 108. The
Cousin testified that she visited the Individual’s house in July 2013 and did not detected anything
that would lead her to believe anything illegal was going on. Tr. at 65-66.
The Individual testified that on the night of the July 2013 arrest, she had been watching movies
with Sons 1 and 2 and their girlfriends along with her Daughter. Tr. at 129-30. The Individual
and the Daughter then went to bed and afterwards she was awakened by the local police. Tr. at
130. The Individual was surprised that her sons had been involved with or kept illegal drugs in
her house especially since she had spoken to them about the fact that she could not be around
illegal drugs given her security clearance. Tr. at 125, 127-28. She admitted, however, that she
knew that her sons had smoked marijuana in the past. Tr. at 125. The Individual testified that she
would not do anything illegal because she fears for her employment. Tr. at 127. She is concerned
that this incident will prevent her from trying to obtain custody of another child which she thinks
of as her grandson. Tr. at 126.
The Individual testified that the hole in the wall had been created by Son 1 and that she did not
repair the hole because she believed Son 1 should have to pay for the repair. Tr. at 121. Son 1
had moved in with her two or three months before the July 2013 arrests. Tr. at 122. Three weeks
after the arrests, after the July 2013 PSI, Son 1 came to her and told her that he and Son 2 should
have not been living in her home since they were adults. Tr. at 131. The Individual then asked
Son 1 and Son 2 to leave her house and live with their father. Tr. at 131. Both Son 1 and 2
moved out of the Individual’s house. Tr. at 128-29; Tr. at 36, 61 (coworkers testimony); Tr. at 76
(Son 1 now living at girlfriend’s residence); Tr. at 116 (Son 2 now living with father). The
Individual testified that she has increased her scrutiny of her Daughter and has informed her that,
if she cannot honor the Individual’s rules, she will have to live with her father. Tr. at 128-29; Ex.
5 at 235.
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The Daughter was unable to attend the hearing but submitted a notarized statement affirming that
she has made poor choices which have impacted her mother. Ex. B. She also states that in
addition to attending high school she is now in counseling which is teaching her to make better
decisions regarding her life and that drugs can only have a negative effect in her life. Ex. B. She
believes that her counseling will help her to put others ahead of herself, make good decisions
about her life, and be a better role model for her nephew. Ex. B. She does not believe that her
mom, the Individual, should be punished for the mistakes she made with using marijuana in the
past. Ex. B.
After reviewing all of the evidence in this case, I find that the Individual has resolved all of the
Criterion K concerns arising from the July 2013 arrest. I found the testimony of the Individual,
the Sister and the Cousin convincing on the issue of whether the Individual currently used or had
any other connection to the manufacture or sale of illegal drugs. Further, I believe that, despite
the charges, the Individual did not deliberately endanger her 17-year old Daughter. Son 1’s drugs
were concealed in a hole in the wall and his safe. A search of the Individual’s room in the house
during the arrest did not reveal the presence of any illegal drugs. Ex. 4 at 8. While the Individual
testified that she would go into Son 1’s room to clean, she never observed the presence of any
illegal drugs. Further, the Individual would be away from the house 10 to 13 hours on any day
she had to work. Ex. 4 at 8. Neither the Sister nor the Cousin, when visiting the Individual’s
house, observed any indication that any type of illegal activity was occurring on the premises.
The Individual testified that she had never observed any of her children using illegal drugs. Tr. at
125. Further, Sons 1 and 2 no longer live with the Individual. All of the Individual’s witnesses
testified that the Individual is an honest and reliable person in whom they could not detect any
indication that she was involved with illegal drugs or any other illegal activity. The July 2013
charges against the Individual themselves were dropped by the local prosecutor. While this fact
is not dispositive with regard to the Individual’s involvement with illegal drugs, I find that it
does support my finding that the Individual did not intentionally facilitate the use or transfer of
illegal drugs or was aware that such use or distribution may be occurring in her home.
With regard to the marijuana that was found in the Individual’s vehicle, Son 1 testified that the
Individual had no involvement with any of the illegal drugs found during the July 2013 arrest.
Tr. at 70-71. At the time of the July 2013 arrests, Son 1 admitted that the marijuana found in the
Individual’s automobile belonged to him. Ex. 4 at 8 (arrest statement). Further, the search of the
Individual’s room revealed no illegal drugs. Given the evidence before me, I find that the
marijuana found in the Individual’s vehicle did not belong to the Individual. As to the
Individual’s use of marijuana in the 1980s and early 1990s and her 1986 arrest for possession, I
find that these events occurred so long ago that the passage of time has mitigated any concerns
arising from these incidents. See Adjudicative Guidelines, Guideline H ¶ 26(a). Given the
findings above, I find that the Individual has resolved the Criterion K concerns in this case.
B. Criterion L
The two concerns raised by the Criterion L derogatory information are the Individual’s
association with individuals involved with criminal conduct and the Individual’s pattern of
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criminal conduct. After my review of the evidence and hearing testimony, I find that the
Individual has resolved all of the Criterion L concerns raised in this case.
1. Association with Individuals Involved in Criminal Conduct
This Office has found on previous occasions that individuals should take appropriate steps to
distance themselves from people who engage in the use of illegal drugs. However, while the
Individual has presented evidence that she has removed Sons 1 and 2 from her home, she is still
caring for her 17-year old daughter. OHA has recognized that, with regard to clearance holders,
they may have family members who may use illegal drugs from whom a person cannot simply
withdraw. See, e.g., Personnel Security Hearing, Case No. TSO-0874 (2010) (security concerns
from association with father and sister who used illegal drugs when individual indicated to both
that they cannot use illegal drugs in his presence, nor can he bring them to the individual’s
family home and individual limits contact with each); Personnel Security Hearing, Case No.
TSO-0766 (2009) (access authorization restored where wife set very clear rules against
husband’s possessing or using illegal drugs in her presence or in her vehicle). Under the present
circumstances, for example, the Individual cannot realistically be expected to disassociate herself
entirely from her daughter, especially since she is below the age of majority and needs to
complete high school.
The Individual testified that her sons no longer live with her and has provided convincing
testimony confirming that fact. The Individual also testified that her 17-year-old daughter, who
still lives with her, is currently receiving outpatient treatment for her marijuana usage and
intends not to use illegal drugs in the future. Ex. B. The Individual informed her Daughter and
Sons 1 and 2 that they should avoid illegal drugs and that such substances are not allowed at her
house. Tr. at 126-27; see Ex. 5 at 96-98. When she was informed about the arrest, she made
arrangements for her Daughter to attend an outpatient treatment center to receive counselling
regarding her marijuana use. Tr. at 79, 127.
From the evidence before me, it is apparent that the Individual knew that Sons 1 and 2, as well as
her Daughter, had a history of using illegal drugs yet the Individual continued to let her children
live with her until she asked Sons 1 and 2 to move. As recounted above, I find that the testimony
provided by the Individual, the Individual’s Sister and Cousin, Sons 1 and 2, and the Daughter
convincing on the issue as to whether the Individual had actual knowledge that anything illegal
was occurring at her home. Further, I find the relative youth of Sons 1 and 2 and the Daughter
along with the Individual’s understandable concern with her children to be a mitigating factor as
to the concern arising from her intentional association with individuals who have committed
criminal conduct. Given the evidence before me, I find that the Individual has resolved any
Criterion L security concern arising from her association with her children and their past criminal
activities.
2. Pattern of Criminal Conduct
The testimony of the Individual’s Sister, Cousin and co-workers indicates that the Individual is a
capable worker and has a reputation of being honest and trustworthy. Tr. at 17, 23, 28, 38, 47,
52, 55, 62-63. As an example of this testimony, the Pastor testified as to the Individual’s position
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at the church where she is responsible for working with the youth and directing the youth choir.
Tr. at 46. The Pastor stated that he would trust his life with the Individual and has no doubts as to
the Individual’s integrity or her judgment. Tr. at 46, 48, 52.
As discussed above, I find that the Individual did not intentionally facilitate the possession or
sale of illegal drugs by Sons 1 and 2.5 I also find, as described above, that the Individual has
mitigated the concerns arising from the Child Neglect charge. As for the remaining instances of
criminal conduct, her arrest in 1986 for possession of marijuana, her arrest in the early 1990s for
Larceny Shoplifting, and her use of marijuana during the 1980’s until 1992, I find that the
passage of time, approximately 20 years, has sufficiently mitigated any concerns arising from
these incidents. See Adjudicative Guidelines, Guideline J ¶ 32(a). Therefore, I conclude that any
Criterion L concerns arising from the Individual past criminal conduct have been resolved.
V. CONCLUSION
For the reasons set forth above, I conclude that the Individual has resolved the DOE’s security
concerns under Criteria K and L. Therefore, the Individual has demonstrated that restoring her
access authorization would not endanger the common defense and would be clearly consistent
with the national interest. Accordingly, I find that the DOE should restore the Individual’s access
authorization. Review of this decision by an Appeal Panel is available under the procedures set
forth at 10 C.F.R. § 710.28.
Richard A. Cronin, Jr.
Administrative Judge
Office of Hearings and Appeals
Date: January 29, 2014
5 During the hearing, several witnesses, including the Individual and Son 1, suggested the possibility that the search
and arrest were motivated by the fact that Son 1 had, in the previous month, been given a $50,000 settlement in a
suit against the local police department for misconduct. Tr. at 49, 76, 99; see Ex. 5 at 47-48. I have given this
testimony no weight since, in the absence of any evidence of police misconduct during the July 2013 arrest, such
testimony would be irrelevant as to the facts of the arrest that constituted derogatory information recorded in the
Notification Letter.