PSH-14-0005

*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: January 28, 2014 ) Case No.: PSH-14-0005
)
____________________________________)
Issued: May 19, 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 Department of
Energy (DOE) should not restore the Individual’s access authorization.
I. BACKGROUND
The Individual is an employee at a DOE facility and possessed a security clearance. DOE Exhibit
(DOE Ex.) B at 1. In August 2013, the Individual received a five-day suspension from her
employer. DOE Ex. E at 1. The Individual received the suspension because she had conducted
gambling activities on the premises of the DOE facility, provided a misleading answer during an
investigation, and had used a classified computer system for unauthorized purposes. DOE Ex. E
at 1.
The Local Security Office (LSO) subsequently conducted a personnel security interview (PSI)
with the Individual in November 2013, (November 2013, PSI). DOE Ex. C. Because the
November 2013, PSI failed to resolve the security concerns raised by the Individual’s alleged
gambling activities and other derogatory information discovered during its investigation of 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.
- 2 -
Individual, the LSO suspended the Individual’s security clearance later that month. Ex. 2. In a
November 2013, letter (Notification Letter), the LSO informed the Individual of its decision to
suspend her security clearance and specified the derogatory information, described under
10 C.F.R. § 710.8 (l), upon which the LSO relied in making its decision.2 DOE Ex. A.
The Notification Letter also informed the Individual that she was entitled to a hearing before an
Administrative Judge3 to present evidence to resolve these doubts. 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 eight exhibits into the record
of this proceeding. The Individual introduced three exhibits and presented the testimony of six
co-workers, a supervisor, and her father, along with her own testimony during the hearing.
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 Criterion 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. The Individual does not, for the most
part, dispute the factual accuracy of the Criterion L derogatory information described in the
Notification Letter. I set forth my factual findings below.
In August 2012, a co-worker reported that the Individual had brought a cell phone into a “limited
area” where cell phones were prohibited.4 The Individual’s supervisor, on the same day of the
report and in the presence of a manager, asked the Individual if she had a cell phone in her
pocket. DOE Ex. G; DOE Ex. H; Hearing Transcript (Tr.) at 58, 81-82. The Individual
responded “no” although her cell phone was in her coat pocket which was located in the limited
area. Tr. at 14, 58, 81. Later in the day, the Individual reported to the LSO that she did have her
cell phone in the limited area. Tr. at 14-15; DOE Ex. G.
In September 2012, as a result of the cell phone incident, the Individual was suspended for three
days from her position at the DOE facility. DOE Ex. G. The Individual’s employer cited her
failure to cooperate and her withholding of information to her supervisor as grounds for the
suspension. DOE Ex. G.
2 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).
3 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).
4 This area will also be referred to as the “secured,” “limited” or “protected” area.
- 3 -
In 2013, the Individual’s employer conducted an investigation regarding allegations of gambling
occurring at the DOE facility.5 Various E-mail messages from the Individual’s workplace
classified computer, dated in 2013, referenced gambling activities (“pools”) that the Individual
had organized. DOE Ex. E; DOE Ex. F. During the employer’s investigation, the Individual,
when asked where she collected money for the pools, stated that she received the money outside
of the facility. DOE Ex. C at 56-57. However, the Individual, in reality, had received some of the
money in the protected area of the DOE facility. DOE Ex. C at 56-57. As a result of her
gambling activities, her misuse of a classified computer system to facilitate her gambling
activity, and her failure to be forthcoming during the course of her employer’s investigation, the
Individual received a five-day suspension. DOE Ex. E.
Pursuant to its investigation after revelation of the Individual’s participation in gambling pools,
the LSO obtained statements from co-workers indicating that the Individual had ridden an
employer-sponsored bus to work without purchasing the required bus pass. DOE Ex. C at 29; Tr.
at 153. During the November 2013, PSI, the Individual reported that, four or five years prior to
the November 2013, PSI, she had ridden the bus for approximately a year without the required
bus pass. DOE Ex. C at 30.
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).
5 During the November 2013, PSI, the Individual admitted to participating in and organizing gambling pools since
2010 or 2011. DOE Ex. C at 38.
- 4 -
Conduct involving lack of candor or unwillingness to comply with rules and regulations can raise
questions about an individual's reliability, trustworthiness and ability to protect classified
information. 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), Guideline E. Given the
Individual’s admissions that she had failed to comply with rules regarding possession of a cell
phone, gambling, and her failure to be candid regarding these activities, I find that the LSO had
sufficient grounds to invoke Criterion L.
IV. ANALYSIS
The Individual does not challenge most of the underlying facts of this case. Tr. at 186. However, the
Individual believes that the derogatory information should be examined in the light of mitigating
circumstances for which she offered testimonial evidence.
At the hearing, the Individual testified that she inadvertently took her cell phone into the limited area.
Tr. at 158. She also testified that her answer to her supervisor was in fact correct because he only
asked if she had a cell phone in her pocket when, at the time, in was in her bag which she was not
holding.6 Tr. at 158. She believes her misleading answer was an unintentional mistake. 7 Tr. at 158.
She also testified that when contacted by security agents from the facility, she told the truth about her
possession of a cell phone and, unprompted by the agents, offered to let them examine her cell
phone. Tr. at 158-59. As a measure to prevent another unintentional incident with her cell phone, she
would ride the bus with her cell phone in her hand to remind her not to take it into the limited area.
Tr. at 159-60. As for her misleading answer regarding where money was transferred in connection
with her gambling pools, the Individual stated that she told the investigator that the money was
exchanged outside of the gate to the secured area because the majority of the money was exchanged
there. Tr. at 177. Because she believed that her answer could have been misunderstood, she
elaborated her answer to the question in the November 2013, PSI. Tr. 177-78. The Individual asserts
that with regard to her misleading answers, she has made prompt admissions to remedy the
misrepresentations. Tr. at 184. The Individual also testified as to her belief that she voluntarily
revealed facts concerning the bus pass incident and her possession of a cell phone in the secured area
to the November 2013, PSI interviewer even though the interviewer did not know about these facts.
Tr. at 191-92. The Individual testified that she has integrity and is deserving of a chance to regain her
security clearance.8
6 Earlier in the hearing, the Individual stated that her cell phone was in her coat pocket. See Tr. at 15, 81-82. This
discrepancy is not significant for the purpose of evaluating the Individual’s fitness to hold a security clearance.
7 The Individual elicited testimony from a co-worker indicating that employees, such as the witnesses and the
Individual, had been trained to “answer the question and not elaborate.” Tr. at 25, 105.
8 The Notification Letter identified as derogatory information an incident where the Individual was verbally
counseled for insubordination when, in July 2012, she informed an acting supervisor that she would not perform an
assigned task. DOE Ex. A at 2 (Notification Letter. The Individual testified at the hearing that when the acting
supervisor directed her to perform a particular work task she requested that she be excused from the assignment and
that someone else be selected. The acting supervisor denied this request. Then the Individual met another co-worker
who was also dissatisfied with his work assignment. Both employees then approached the acting supervisor and
requested that they be allowed to trade assignments to which the acting supervisor agreed. Tr. at 156-57. The
- 5 -
With regard to her failure to purchase a bus pass, the Individual testified that because her grandfather
had recently passed away she neglected to sign up with her employer to receive a bus pass through
regular payroll deductions during the enrollment period. Tr. at 153. Afterwards, she contacted her
employer who informed her that, if she would come in to the appropriate office, she still could enroll
for the payroll deduction. Tr. at 153. The Individual testified that she then became busy with work
and neglected to re-enroll. She rode the bus without a pass for a year until the next re-enrollment
period. Tr. at 153. However, when the Individual access authorization was suspended and she no
longer needed to ride the bus to work, she did not cancel her then current bus pass in order to provide
restitution to her employer. Tr. at 154.
The Individual has also submitted documentary evidence about her financial status to show that she
does not have any type of significant gambling problem. Ind. Ex. C. The Individual asserted that her
participation and organizing gambling pools while working at the DOE facility was a way to have
fun with her co-workers. Tr. at 21-22. Additionally, the Individual presented testimony from a
number of co-workers and supervisors to establish that the Individual has an excellent workplace
record for following safety rules and was an excellent worker. See, e.g., Tr. at 45, 56, 60, 66, 80.
Several witnesses testified that they have not observed the Individual bring a cell phone into the
secured area since the Individual receive her 2012 suspension. Tr. at 49, 56, 58, 66. The witnesses
each expressed the opinion that the Individual could be trusted to possess a security clearance.
After reviewing the evidence in the record, I conclude that the Individual has not demonstrated
sufficient evidence to resolve the concerns raised by the Criterion L derogatory information. The
security concern raised by the derogatory information is the Individual’s failure to obey certain rules
and regulations and her failure to be totally forthcoming when asked about the cell phone and
gambling incidents. The Individual presented evidence which convinces me that she is an excellent
worker and complies with all safety regulations while she was working at the DOE facility. However,
the fact remains that the Individual willingly violated a number of rules and regulations related to her
employment such as a prohibition of gambling and failed to be completely truthful in connection
with inquiries made by her employer. Further, these incidents are recent.
In her testimony and in other witness testimony, the Individual has suggested that her failure to be
initially candid with her manager regarding the cell phone incident or the investigator concerning
where money was exchanged was a result of training that she received by her employer that she
should only “answer the question” and not elaborate on answers. Tr. at 25, 158. However, a co-
worker testified that this method of answering question was intended to be applied to fact-finding
meetings regarding an incident at the DOE facility and were not a general guidance to be used during
any other type of inquiry. Tr. at 109-110. Further, given my assessment of the Individual intelligence
and sophistication, I cannot find that her initial answer to her supervisor was a simple mistake. Her
answer, while technically truthful, was intentionally incomplete, especially given her knowledge that
bringing cell phones to the secured are was a security violation. I believe that a more compelling
reason for the Individual’s failure to be completely candid was the Individual’s fear of being
disciplined or terminated from her position. At the hearing, the Individual admitted that she did not
Individual’s supervisor testified that he spoke to the acting supervisor about the incident but that the acting
supervisor reported that he and the Individual had a disagreement about a work assignment but that it was resolved.
The acting supervisor did not report to the Individual’s supervisor that he had issued any type of verbal reprimand
Tr. at 99. Tr. at 99. Given the evidence before me, especially the Individual’s supervisor’s testimony, I find that the
Individual has resolved any concern relating to this alleged “verbal counseling.”
- 6 -
reveal the true extent of bringing her cell phone into the restricted area of the facility because of fear
of being fired. Tr. at 171-72. As such, her conduct raises serious unresolved security concerns
regarding her ability to provide accurate answers.
The Individual’s conduct in bringing a cell phone into the restricted area of her workplace raises
concerns beyond that of her misleading answer to her supervisor. Despite knowing that she should
not have brought her phone into this area, she did so over an extended period of time. During the
November 2013, PSI, the Individual admitted bring her phone into the restricted area for
approximately a year and a half. DOE Ex. C at 17; Tr. at 169. This was an extended period of
exercising poor judgment. The Individual’s excuse for this behavior, offered during the hearing, was
that she did not bring the phone in “purposely,” does not provide mitigation for this significant
failure to conform to an important security rule. See Tr. at 170.
The Individual’s conduct in continuing to operate and participate in gambling pools at work also
demonstrates a failure to comply with her employer’s rules and is a significant incident of poor
judgment, specifically so since she had received workplace discipline regarding the cell phone
incident. Even if I were to consider the testimony from her witnesses that gambling was widespread
at her workplace, almost all of the witnesses were aware of the fact that gambling was prohibited at
the DOE facility. Tr. at 30, 48, 59-60, 75, 86, 97. As to her improper use of a workplace classified
computer system for her gambling activity, the Individual offered testimony from one co-worker
indicating that the computer system could be used for non-employer purposes during an employee’s
personal time. Tr. at 71-72. However, this witness also testified that her employer never gave
authorization that gambling activity could be conducted using the firm’s computer system. Tr. at 76.
I find that the Individual could not have had a reasonable belief that such use of a classified computer
system was allowed by her employer especially since she knew gambling was prohibited by her
employer. The Individual purposely chose to ignore rules about gambling and the proper use of the
classified computer system. Further, the Individual deliberately provided a misleading answer to her
employer’s investigator admittedly because she was afraid that she would be terminated from her
position. See DOE Ex. C at 56-57. All of this conduct raises serious questions as to the Individual’s
ability to obey all rules and creates doubts as to her judgment.
I also find that the Individual exhibited poor judgment concerning her failure to pay for a bus pass.
At the hearing, she testified, that when asked why she did not purchase a bus pass, that “it's just
something I got on and did, and by the time I got to work, it's one of those [things], you fall
asleep, you're groggy, you get up, you go inside the gate, and then you go right to your work
area.” Tr. at 174. This does not excuse the Individual’s failure to purchase a bus pass and shows
a lack of attention to her responsibilities in complying with rules. Even if I assume that she
attempted to compensate her employer by not cancelling her bus pass after she stopped going to
work, her initial failure to ride the bus without a pass is a violation of her employers rules as well
as a potential fraud against her employer.
In reviewing the mitigating factors listed for Guideline E of the Adjudicative Guidelines, I find that,
the Individual, after misleading her supervisor about the presence of her cell phone, voluntarily
contacted the facility’s security force and admitted, without prompting, that she had, in fact, taken
her cell phone in the secured area of the facility. See Adjudicatory Guideline, Guideline E, ¶ 17(a).9
9 Paragraph 17(a) states “the individual made prompt, good-faith efforts to correct the omission, concealment, or
falsification before being confronted with the facts.” Adjudicative Guidelines, Guideline E at ¶ 17(a).
- 7 -
However, I cannot consider her disclosure, made during the November 2013, PSI, that she had
carried her cell phone into the secured area on a regular basis for a year and a half, as an unprompted
disclosure. This disclosure was made in response to questioning during the November 2013, PSI.
DOE Ex. C at 56-57. For similar reasons, I cannot apply this mitigating factor to her disclosures,
during the November 2013, PSI, concerning the exact locations where she collected money related to
the gambling pools. The Individual’s disclosure regarding the money was prompted by the
November 2013, PSI investigator’s questioning. DOE Ex. C at 57. Overall, the Individual has
demonstrated a pattern of not complying with rules not directly related to her immediate job
functions and not being completely candid with management and security officials. While I believe
that the Individual is an excellent worker, the fact remains that the Individual has demonstrated a
recent and repeated failure to comply with her employers rules and for failing to provide forthright
answers for which she has not shown sufficient evidence to mitigate. Consequently, I find that the
Criterion L concerns, as of the date of the hearing, have not been resolved.
V. CONCLUSION
For the reasons set forth above, I conclude that the Individual has not resolved the DOE’s
security concerns under Criterion L. Therefore, the Individual has not 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 not 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: May 19, 2014
- 8 -