PSH-14-0015

*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: February 20, 2014 )
) Case No.: PSH-14-0015
__________________________________________)
Issued : July 11, 2014
__________________________
Administrative Judge Decision
__________________________
Wade M. Boswell, Administrative Judge:
This Decision concerns the eligibility of XXXXXX (hereinafter referred to as “the
individual”) to hold an access authorization1 under the Department of Energy’s (DOE)
regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled, “General Criteria and
Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear
Material.” As fully discussed below, after carefully considering the record before me in
light of the relevant regulations and Adjudicative Guidelines, I have determined that the
individual’s access authorization should not be restored at this time.
I. Background
The individual is employed by a DOE contractor in a position that requires him to hold a
DOE security clearance and participate in the Human Reliability Program (HRP).2 He has
been employed by the DOE contractor for approximately 29 years. As a holder of access
authorization, the individual is required to report certain occurrences to the DOE through
his employer and, in December 2011, the individual reported that he had been fined $700
under a “super speeder” law for driving 93 miles per hour (mph) in a 55 mph zone.
1 Access authorization is defined as “an administrative determination that an individual is eligible for
access to classified matter or is eligible for access to, or control over, special nuclear material.” 10 C.F.R.
§ 710.5(a). Such authorization will be referred to variously in this Decision as access authorization or
security clearance.
2
The HRP is a security and safety reliability program designed to ensure that individuals who occupy
positions affording access to certain materials, nuclear explosive devices, facilities, and programs meet the
highest standards of reliability and physical and mental suitability. See 10 C.F.R. § 712.
2
See Ex. 10. When the Local Security Office (LSO) examined the individual’s driving
record, it discovered that the individual had numerous traffic violations, most of which
were below the reporting threshold3 and not previously reported to the DOE by the
individual. To address concerns about the individual’s history of traffic violations, the
LSO conducted a personnel security interview (PSI) with the individual on March 27,
2012. During that interview the individual volunteered that his taking a defensive driving
class and not getting any traffic tickets in the future would demonstrate to the DOE that
he had changed his driving habits. Exhibit 9 at 12, 13.
The individual completed a “driver improvement” class one month later, as he had agreed
during the 2012 PSI; however, the following year, he received a traffic citation. See
Exhibits 6 and 8. The individual reported the new citation promptly after its issuance (and
prior to any determination of his culpability or a fine thereunder). Following the
individual’s self-report of his 2013 traffic citation, the LSO conducted another PSI with
the individual on June 13, 2013. The 2013 PSI focused primarily on the individual’s most
recent traffic citation, but also addressed a reprimand the individual had received from his
employer in 2010 for negligent operation of a vehicle while performing his work
assignments. See Exhibit 4.
Since the PSI did not resolve the security concerns arising from the individual’s driving
history or other matters that surfaced during the LSO’s inquiry, the LSO informed the
individual in a letter dated January 16, 2014 (Notification Letter), that it possessed
reliable information that created substantial doubt regarding his eligibility to hold a
security clearance. In an attachment to the Notification Letter, the LSO explained that the
derogatory information fell within the purview of two potentially disqualifying criteria
set forth in the security regulations at 10 C.F.R. § 710.8, subsections (f) and (l)
(hereinafter referred to as Criterion F and Criterion L, respectively).4 See Exhibit 1.
Upon his receipt of the Notification Letter, the individual exercised his right under the
Part 710 regulations by requesting an administrative review hearing. See Exhibit 2. The
Director of the Office of Hearings and Appeals (OHA) appointed me the Administrative
Judge in the case and, subsequently, I conducted an administrative hearing in the matter
(Hearing). The LSO introduced 58 numbered exhibits into the record of the case and
presented the testimony of two witnesses, including that of an LSO personnel security
specialist. The individual, represented by counsel, introduced two lettered exhibits
(Exhibits A and B) into the record and presented the testimony of two witnesses,
including that of himself. The exhibits will be cited in this Decision as “Ex.” followed by
the appropriate numeric or alphabetic designation. The hearing transcript in the case will
be cited as “Tr.” followed by the relevant page number.5
3 Traffic violations for which a fine of up to $300 is imposed are not required to be reported, unless the
violation is alcohol-or drug-related. DOE Order 472.2, Attach. 4 at 1 (July 21, 2011).
4 See Section III below.
5 OHA decisions are available on the OHA website at www.oha.doe.gov. A decision may be accessed by
entering the case number in the search engine at www.oha.gov/search.htm.
3
II. Regulatory Standard
A. Individual’s Burden
A DOE administrative review proceeding under Part 710 is not a criminal matter, where
the government has the burden of proving the defendant guilty beyond a reasonable
doubt. Rather, the standard in this proceeding places the burden on the individual because
it is designed to protect national security interests. This is not an easy burden for the
individual to sustain. The regulatory standard implies that there is a presumption against
granting or restoring a security clearance. See Department of Navy v. Egan, 484 U.S.
518, 531 (1988) (“clearly consistent with the national interest” standard for granting
security clearances indicates “that security determinations should err, if they must, on the
side of denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied,
499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance).
The individual must come forward with evidence to convince the DOE that restoring his
access authorization “will not endanger the common defense and security and will be
clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). The individual is
afforded a full opportunity to present evidence supporting his eligibility for an access
authorization. The Part 710 regulations are drafted so as to permit the introduction of a
very broad range of evidence at personnel security hearings. Even appropriate hearsay
evidence may be admitted. 10 C.F.R. § 710.26(h). Thus, an individual is afforded the
utmost latitude in the presentation of evidence to mitigate the security concerns at issue.
B. Basis for the Administrative Judge’s Decision
In personnel security cases arising under Part 710, it is my role as the Administrative
Judge to issue a Decision that reflects my comprehensive, common-sense judgment,
made after consideration of all the relevant evidence, favorable and unfavorable, as to
whether the granting or continuation of a person’s access authorization will not endanger
the common defense and security and is clearly consistent with the national interest.
10 C.F.R. § 710.7(a). I am instructed by the regulations to resolve any doubt as to a
person’s access authorization eligibility in favor of the national security. Id.
III. The Notification Letter and the Security Concerns at Issue
As previously noted, the LSO cited two criteria as the bases for suspending the
individual’s security clearance: Criterion F and Criterion L. Criterion F refers to
information that a person has “deliberately misrepresented, falsified, or omitted
significant information from a Personnel Security Questionnaire for Sensitive National
Security Positions [(QNSP)], a personnel qualifications statements, a personnel security
interview, written or oral statements made in response to official inquiry on a matter that
is relevant to a determination regarding eligibility for DOE access authorization or [Part
710 administrative review] proceedings…” 10 C.F.R. § 710.8(f). Conduct involving
questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules
and regulations can raise questions about an individual’s reliability, trustworthiness, and
ability to protect classified information. Any failure to provide truthful and candid
4
answers during the security clearance process is of particular concern. See Guideline E of
the Revised Adjudicative Guidelines for Determining Eligibility for Access to Classified
Information, issued on December 29, 2005, by the Assistant to the President for National
Security Affairs, The White House (Adjudicative Guidelines). With respect to Criterion
F, the LSO alleges deficiencies in the individual’s reporting of traffics violations and of
an employment matter on five security questionnaires that he completed between 2009
and 2012. Ex. 1 at 6 – 7.
Criterion L concerns information that an individual has engaged in conduct “which tends
to show that the individual is not honest, reliable, or trustworthy….” 10 C.F.R. § 710.8(l).
Conduct reflecting questionable judgment, lack of candor, dishonesty, or unwillingness to
comply with rules and regulations raises questions about an “individual’s reliability,
trustworthiness and ability to protect classified information.” Adjudicative Guidelines at
Guideline E. With respect to Criterion L, the LSO cites the individual’s history of traffic
violations, conduct in the workplace, undisclosed extra-martial affair, and failure to honor
his verbal commitments to the DOE. Ex. 1 at 3 – 6.
IV. Findings of Facts and Analysis
I have thoroughly considered the record of this proceeding, including the submissions
tendered in this case and the testimony of the witnesses presented at the hearing. In
resolving the question of the individual’s eligibility for access authorization, I have been
guided by the applicable factors prescribed in 10 C.F.R. § 710.7(c)6 and the Adjudicative
Guidelines. After due deliberation, I have determined that the individual’s access
authorization should not be restored at this time. I cannot find that restoring the
individual’s DOE security clearance will not endanger the common defense and security
and is clearly consistent with the national interest. 10 C.F.R. § 710.27(a). The specific
findings that I make in support of this decision are discussed below.
A. Administrative Judge Evaluation of Evidence and Findings of Fact:
Criterion F Security Concerns
With respect to Criterion F, the Notification Letter alleges that the individual failed to
report required traffic violations on four of his QNSPs and improperly characterized a
workplace disciplinary matter on five QNSPs. At the beginning of the Hearing, the
individual and the LSO entered into an oral stipulation to delete from the Notification
Letter the five items alleging mischaracterization of the workplace matter. The stipulation
also deleted from the Notification Letter the allegations that the individual had failed to
make required disclosures relating to a 2007 traffic violation.7 Tr. at 8 – 10.
6 Those factors include the following: the nature, extent, and seriousness of the conduct, the circumstances
surrounding the conduct, to include knowledgeable participation, the frequency and recency of the conduct,
the age and maturity at the time of the conduct, the voluntariness of his participation, the absence or
presence of rehabilitation or reformation and other pertinent behavioral changes, the motivation for the
conduct, the potential for pressure, coercion, exploitation, or duress, the likelihood of continuation or
recurrence, and other relevant and material factors.
7 The Notification Letter includes allegations that a 2007 traffic violation was required to be disclosed on
the QNSP based upon the maximum fine authorized by statute for the violation. The fine actually imposed
5
After giving effect to the stipulation of the parties, there remain three factual allegations
with respect to the Criterion F security concern:
 on the individual’s QNSP dated March 13, 2011, he failed to list his 2006 traffic
violation;
 on the individual’s QNSP dated August 11, 2011, he failed to list his 2006 traffic
offense with a fine of $324.00; and
 on the individual’s QNSP dated August 9, 2012, he failed to list his 2011 traffic
offense with a fine of $700 and failed to list a traffic violation with a 12-month
probation disposition.
Based on my examination of the record, I find as a factual matter that the individual
omitted his 2006 traffic violation from the two QNSPs which he completed in 2011. Ex.
11, Ex. 12. Additionally, I find that the individual reported his 2006 traffic violation to
his employer on March 11, 2006,8 after being assessed a fine in excess of the reporting
threshold. Ex. 22. The 2006 traffic violation was also reported by the individual on his
QNSPs dated August 11, 2006, August 11, 2007, and February 12, 2009.9 Ex. 21, Ex. 20,
Ex. 15. Criterion F security concerns arise when a person deliberately falsifies or omits
significant information in an attempt to mislead the government with respect to granting
or continuing a security clearance. 10 C.F.R. § 710.8(f) (emphasis added). In light of the
individual’s reporting of his 2006 traffic violation in 2006 as required, and disclosing it
on three subsequent security questionnaires, I find that the individual’s omissions of the
2006 traffic violation in 2011 lacked deliberativeness to mislead the government and, as
this information had been previously disclosed, it also lacked significance. I find that the
individual has mitigated the Criterion F security concerns with respect to his omission of
his 2006 traffic violation from his two 2011 QNSPs.
As noted above, the Notification Letter alleges Criterion F security concerns on the
individual’s 2012 QNSP for both “fail[ing] to list his 2011 traffic offense with a fine of
$700.00 and fail[ing] to list a traffic violation with a 12 month probation disposition.” Ex.
1 at 6 (Item II.A.4). With respect to the first concern, upon examination of the
individual’s 2012 QNSP, I find that the QNSP disclosed a traffic violation which matches
the description of the individual’s 2011 traffic violation, but lists the violation as
occurring in 2012. Ex. 7. The LSO has not alleged any similar traffic violation in 2012
and the individual testified that his entry on the 2012 QNSP refers to his 2011 traffic
upon the individual for the 2007 violation was $180 (per the stipulation of the parties) and, therefore, below
the reporting threshold for traffic violations. Tr. at 9 –10, 153. See DOE Form 5631.18 and DOE Order
472.2, Attach. 4 at 1.
8 The sentencing date for this violation is listed in documents provided by the LSO as May 10, 2006. Ex.
23 at 1.
9 In reaching this conclusion, I note that on the individual’s QNSP dated February 12, 2009, the date of
the traffic violation disclosed is partially obliterated by a hole-punch; however, the information that is
visible is consistent with the individual’s 2006 traffic violation and the LSO raised no concerns regarding
the inconclusiveness of this QNSP. Ex. 15; Ex.1.
6
violation. Ex. 1; Tr. at 116 – 117. In light of the foregoing, I find that the individual did
not omit his 2011 traffic violation from his 2012 QNSP, although he listed it with an
erroneous date. The 2011 traffic violation had been previously reported by the individual
to his employer on December 22, 2011, after being assessed a fine in excess of the
reporting threshold. Ex. 10. Such error lacks both the deliberativeness and significance
required by Criterion F.
With respect to the second concern raised regarding the individual’s 2012 QNSP, the
Notification Letter did not identify a specific violation with respect to the allegation that
“a traffic violation with a 12 month probation disposition” was omitted from the QNSP.
At the Hearing, both the DOE Counsel and the LSO’s personnel security specialist
identified the 2011 traffic violation (discussed in the preceding paragraph) as also
resulting in a “12 month probation disposition” which the individual omitted from his
2012 QNSP.10 Tr. at 59. After the individual’s counsel pointed out that no documentary
evidence had been submitted showing that the disposition of 2011 traffic violation
included probation, the personnel security specialist testified that the probationary period
was attached to an earlier traffic violation. Id. at 62 – 64. The fine assessed on that earlier
ticket ($168) was below the reporting threshold for traffic tickets. Ex. 23 at 2. Ultimately,
the personnel security specialist testified that she was uncertain as to which traffic
violation the Notification Letter intended to allege was omitted from the individual’s
2012 QNSP.11 Tr. at 65. As a result of the ambiguity in both the Notification Letter and
the testimony presented by the LSO, the LSO has failed to sufficiently articulate an
“omission” from the individual’s 2012 QNSP. Even if the Notification Letter intended to
refer to the earlier traffic ticket, the fine assessed on that ticket was below the threshold
for reporting traffic violations and, therefore, the individual’s omission of this violation
from his 2012 QNSP was not required under the wording of DOE Order 472.2 See Note
3, supra. At the time that the individual completed his 2012 QNSP, he knew that DOE
was aware of this earlier ticket (including the fine and probation assessed) as it was
discussed with him during an earlier PSI. Ex. 9 at 7. Based upon the foregoing, I find that
the LSO has not shown that a Criterion F security concern exists with respect to the
individual’s 2012 QNSP.
B. Administrative Judge Evaluation of Evidence and Findings of Fact:
Criterion L Security Concerns
The Notification Letter cites the individual’s history of traffic violations, conduct in the
workplace, undisclosed extra-martial affair, and failure to honor his verbal commitments
10 DOE Counsel: “Is it your understanding, that associated with that [2011] ticket was a 12 month
probationary period?” Tr. at 59.
Personnel Security Specialist: “Correct.” Id.
11 Individual’s Counsel: “Well, it appears from the records, the $700 one, probation wasn’t attached to that.
You’re now pointing to a different ticket that probation was attached. I’m really asking you to clarify which
ticket is it where he failed to list a probation period. He apparently listed the $700 for the ticket in ’12, but
then are you saying that’s the same ticket, the failure to list probation, or is that a different ticket? Now I’m
getting clarification. I originally thought you meant it was the same ticket, but you pointed us to a different
ticket.” Tr. at 65.
Personnel Security Specialist: “I don’t know, I’m sorry.” Id.
7
to the DOE to support the security concern 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 furnishes reason to believe that the individual may be subject to
pressure, coercion, exploitation or duress which may cause him to act contrary to the best
interests of national security. See Ex. 1 at 3 – 6. As noted previously, at the beginning of
the Hearing, the individual and the LSO entered into an oral stipulation and that
stipulation also modified certain of the Criterion L security concerns set forth in the
Notification Letter. Tr. at 8 – 10. I will refer to the stipulation where relevant in
addressing the various categories of concerns raised by the LSO with respect to Criterion
L.
1. Traffic Violations12
Findings of Fact. The Notification Letter states that the individual has been charged with
34 traffic offenses since 1987. The parties stipulated at the beginning of the Hearing as to
the accuracy of 32 of those traffic citations:
November 9, 1987: Speeding
June 16, 1992: Speeding
June 14, 1992: Speeding
January 17, 1996: Speeding
November 29, 1996: Speeding
September 30, 1998: Speeding
February 2, 1999: Speeding
August 1, 1999: Speeding
August 18, 1999: Speeding
November 28, 1999: Speeding
April 10, 2001: Speeding
April 30, 2001: Speeding
November 25, 2001: Speeding
December 18, 2001: Speeding
January 23, 2002: Speeding
June 2002: Speeding
January 22, 2003: Speeding
September 7, 2005: Speeding
January 18, 2006: Speeding
February 9, 2006: Speeding
November 30, 2007: Speeding (fine of $180, per stipulation)
September 17, 2008: Failure to Obey Person Directing Traffic
January 2, 2009: Speeding
March 19, 2009: Speeding
August 9, 2009: Speeding13
12 This section addresses the Criterion L security concerns raised in Section I.A. and I.D. of the Summary
of Security Concerns attached to the Notification Letter. See Ex. 1 at 3 – 6.
13 The Notification Letter listed that the citations dated August 9, 2009, February 14, 2010, May 28, 2010,
and November 4, 2010, as being for both Speeding and “Repeat Serious Commercial Disqualification.”
Although the stipulation of the parties did not address the aspect of the citations with respect to “Repeat
8
February 14, 2010: Speeding
May 28, 2010: Speeding
June 7, 2010: Speeding
October 5, 2010: Speeding
November 4, 2010: Speeding
October 20, 2011: Speeding
April 6, 2013: Speeding
The LSO stipulated to the deletion of the remaining two traffic offenses from the security
concerns raised in the Notification Letter. Tr. at 8 – 10; Ex. 1 at 3 – 4.
Although the stipulation by the parties does not include the amount of the fines assessed
for each of these traffic violations, the vast majority of these citations were assessed fines
in amounts below the reporting threshold for traffic violations. While the LSO had
conducted PSIs with the individual in 1985, 2004 and 2009, the PSI conducted in 2012 is
the first that addresses the individual’s driving record. The 2012 PSI followed the
individual’s self-report of his 2011 violation, where he was fined $700 as a “super
speeder” for traveling 93 mph in a 55 mph zone. At the time of that PSI, the LSO was
aware that the individual had received 16 traffic violations, all for speeding, between
1992 and 2011. Ex. 9 at 11. During the 2012 PSI, the individual accepted responsibility
for his driving record and stated that he had changed his driving habits. When asked what
would convince the DOE that he had changed his behavior, the individual suggested that
one could take a defensive driving class (similar to one he had taken years earlier) and
not get any more tickets. Id. at 12 – 13. This response forms the basis of an oral
commitment by the individual to the DOE.
In April 2013, slightly more than one year after the 2012 PSI, the individual was cited for
speeding. He self-reported this ticket to his employer within four calendar days of
receiving the ticket, although he did not know at that time whether the fine would be
above the reporting threshold. In June 2013, the LSO conducted another PSI with the
individual which focused on the individual’s most recent speeding ticket and a 2010
workplace incident which involved a vehicular collision with a stationary object.
The 2013 PSI occurred one week after the individual had had a scheduled court date on
his April ticket. Unlike the earlier PSI in which the individual accepted responsibility for
violating traffic laws, the individual characterized his 2013 ticket as unjust and
inappropriate. He had been cited as he was descending a hill that has a steep incline. He
stated that until he was stopped by the police, he was unaware that the speed limit was 45
mph on that section of the road. He criticized the speed limit by stating that the hill had
“a very steep incline, and to ride 45 up that incline will strain your engine….” Ex. 4 at 8.
With respect to descending the hill, the individual was also critical of the speed limit,
stating “You’d have to be riding your brakes. That doesn’t even [make] sense.
Mechanical sense to the car.” Id. The record is inconsistent as to whether the individual
was cited for traveling 61 mph or 69 mph in a 45 mph zone; for the purposes of my
analysis, this inconsistency does not need to be reconciled.
Serious Commercial Disqualification,” the individual’s driver’s record stated that these were “withdrawn”
and I have removed them from the list of violations. See Ex. 3 at 3 – 4.
9
During the 2013 PSI, the individual reported that he had retained an attorney to represent
him on the April 2013 traffic ticket because he felt the citation had been unfair. The
individual had not previously utilized legal counsel on a traffic citation. He reported that
his attorney had appeared in court the week before and entered a plea of not guilty on the
charge. He reported that the not guilty plea was sufficient for the judge and that the judge
had found him not guilty, with no assessment of a fine, points or court costs. At the same
time that the individual described his attorney as having succeeded in securing a not
guilty verdict, the individual quoted his attorney as saying “Wait for the jury trial and be
given a writ.” Id. at 6.
The individual anticipated that the DOE would need documentation on the disposition of
the April 2013 traffic citation and stated that he was trying to get it from his attorney. At
the end of the 2013 PSI, the individual signed a certificate agreeing that, within two
weeks, he would provide the LSO with (1) his driving history from his state’s department
of motor vehicles (DMV) and (2) documentation from the court showing that the April
2013 speeding ticket had been dropped with no assessment of fines, court costs or points.
On or about July 1, 2013, the individual submitted to the LSO a handwritten note that the
DMV would only provide a seven-year driving history (a ten-year driving history had
been requested during the 2013 PSI) and that the driving history did not show the court
disposition of his April 2013 ticket. Contemporaneously, the individual also submitted a
letter from his attorney stating that, three days prior to the 2013 PSI, the individual had
“entered a plea of not guilty with a demand for a jury trial” with respect to the April 2013
traffic citation. Ex. 3 at 5.
In September 2013, the individual changed his plea on his April 2013 traffic citation to
“guilty” upon the instructions of his attorney. He was assessed a fine of $285, which is
below the current threshold for reporting traffic violations. Tr. at 111 – 112. Since April
2013, he has not been cited for any other traffic violations. Id. at 113.
Analysis. A security concern arises under Criterion L when a person has engaged in
unusual conduct or is subject to circumstances which tend to show that the person is not
honest, reliable or trustworthy. 10 C.F.R. § 710.8(l). Any criminal conduct a priori
creates doubts as to a person’s judgment, reliability and trustworthiness. Adjudicative
Guidelines, Guideline J at ¶ 30. Even though the DOE security regulations require a
holder of access authorization to report only those traffic violations on which assessed
fines are $300 or greater, any traffic violation constitutes a violation of the criminal laws.
The individual and the LSO agree that the individual has violated the traffic laws 32
times over the period from 1987 through 2013, a period of 36 years. While some may
argue that infractions of traffic laws are less serious than the violation of other laws, the
inability or unwillingness to comply with traffic laws raises doubts about one’s ability
and willingness to comply with rules and regulations in general and, in in the national
security context, with those rules and regulations which exist to safeguard classified
materials. In the case of the individual, he has an established pattern of violating traffic
laws. Such a pattern of criminal behavior suggests that a person may believe they are
entitled to decide whether or not to comply with a law and it raises concerns about
whether a person will choose to disregard security regulations with which they disagree
10
or find inconvenient. In light of the individual’s pattern of traffic violations, a legitimate
security concern exists under Criterion L.
The individual argues in mitigation of this security concern that he has changed his
driving habits and is careful to be aware of the speed limit when he is driving. He notes
that since October 2011 he has only received one traffic ticket. I agree that the individual
has taken steps to change his driving habits and that a single ticket in nearly two-and-one-
half years is an improvement over his prior pattern. However, once a person has
established a pattern of behavior that creates a security concern, he or she must cease the
behavior and establish a pattern of appropriate behavior in order to mitigate the security
concern. Here the behavior most recently occurred 13 months prior to the Hearing and
the individual had received another citation approximately 18 months prior to that
citation. In examining the individual’s history of citations, I note that he has been
“citation-free” in 1997, 2000, 2004 and 2012 and, after each period of legal compliance,
has lapsed into non-compliance. Cf. Adjudicative Guidelines at Guideline J ¶ 32(a)
(mitigation possible if so much time has elapsed since the criminal behavior happened
that it is unlikely to recur or does not cast doubt on the individual’s reliability,
trustworthiness or judgment). In light of the individual’s long history of non-compliance,
together with his proven ability to periodically exhibit “reformed” behavior by being
“citation-free,” I find his current period of receiving no citations within the prior 13
months is insufficient to demonstrate reformation of his patterns of violating the law.
With respect to the individual’s most recent traffic citation, he attempted to justify his
non-compliant behavior by attacking, as inappropriate, the speed limit that he had
violated. With respect to his earlier violations, he had accepted responsibility. His attempt
to rationalize the speed at which he was traveling at the time of his most recent violation,
rather than mitigating the security concern, suggests that the individual is unaccepting of
legal authority. Cf. Adjudicative Guidelines at Guideline J, ¶ 32(d) (mitigation is
appropriate where there is evidence of successful rehabilitation, including showing
remorse).
For these reasons, the individual has not mitigated the security concerns arising from his
32 traffic violations.
With respect to the Criterion L security concerns, the Notification Letter also cites
commitments made by the individual during the 2012 PSI and 2013 PSI. During his 2012
PSI, the individual was asked what would convince the DOE that he had changed his
behavior with respect to violating traffic laws. He answered, “By taking [a defensive
driving] class and not getting any more tickets.” Ex. 9 at 13. The individual then clearly
committed to take a defensive driving class. Subsequent to the 2012 PSI, the individual
completed a defensive driving class and submitted a certificate of completion to the LSO.
With respect to the individual stating that “getting no more tickets” would convince the
DOE that he had changed, there is no actual language in the 2012 PSI where the
individual directly commits to not getting traffic tickets in the future. See Ex. 9.
Notwithstanding the lack of a direct commitment, a fair reading of the transcript from the
2012 PSI is that the individual committed to changing his driving habits so that he would
receive no tickets in the future. Any doubt about whether the individual made such a
commitment is resolved by the 2013 PSI during which the individual confirmed that in
11
the earlier PSI he had committed to receiving no future citations. Ex. 4 at 10. This was an
absolute commitment to receive no tickets, not a commitment (as argued by the
individual’s counsel at the Hearing) to make a good-faith effort to receive no future
tickets. At a minimum, it was a commitment to drive responsibly, which the individual
failed to adhere to by driving either 61 mph or 69 mph in a 45 mph zone. The individual
voluntarily made such commitment expecting that the DOE would rely upon it in
resolving the security concern that had led to the PSI and that such resolution would
result in the DOE continuing his access authorization. Approximately 12 months after
making this commitment, the individual breached it when he received another speeding
citation. While unlikely that the individual intended to receive this citation, it nonetheless
demonstrates the individual’s inability to honor his commitments to the DOE and
reinforces concerns with respect to his reliability and trustworthiness.
The individual’s initial attempt to justify his driving speed at the time of his 2013 citation
raises additional concerns, as noted above, with respect to his acceptance of authority.
The individual subsequently pleaded guilty to this traffic violation and such plea
undermines any justification that the individual may have previously offered. The
individual has not mitigated the security concern arising from his 2012 commitment to
the DOE and his subsequent breach of such commitment.
Additionally, the LSO points to other statements made by the individual during the 2012
PSI as establishing additional verbal commitments by the individual. Those statements
primarily concern the individual engaging in better time management in order to arrive
on time to work and that he is willing to arrive late if he has mismanaged his time or is
delayed en route. Those statements appear unrelated to the individual’s 2013 traffic
citation and I find no separate security concern arising from them.
During the 2013 PSI, the individual reported that he had retained a lawyer to represent
him on his 2013 traffic citation, that the lawyer had entered a not guilty plea and, on the
basis of the plea, the citation had been dismissed. He also described his lawyer as saying
to “wait for the jury trial and be given a writ.” Ex. 4 at 6. The individual stated during the
2013 PSI that he had emphasized to his lawyer that the DOE would want documentation
on the dismissal. At the end of the 2013 PSI, the individual signed a certificate to provide
the LSO with an official driving history from his state’s DMV and documentation on the
dismissal of his 2013 traffic citation.
The individual had not previously engaged legal representation on traffic citations.
During the 2013 PSI, the individual provided inconsistent information with respect to his
conversations with his attorney (e.g., his attorney had told him that the citation had been
dismissed and also had told him to wait for the jury trial) and appears not to have
understood those conversations with his attorney. Subsequent to the 2013 PSI, the
individual submitted to the LSO (by the deadline specified in his signed undertaking) a
letter from his attorney stating that the citation was still pending and that the individual
had entered a plea of not guilty on the traffic citation with a demand for a jury trial.
While the individual did not provide documentation as to the dismissal of the citation
(which was not possible since he was mistaken as to the citation having been dismissed)
and one can fault his lack of sophistication on legal matters, he did provide accurate
information on the status of the citation by the date requested. He clearly acted in good
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faith to correct the information he had erroneously provided during the 2013 PSI and it is
difficult to fault his submission to the LSO. Accordingly, I find the individual has
sufficiently mitigated the security concern arising from his mis-statement by providing
corrected information on a timely basis.
The undertaking that the individual signed at the end of the 2013 PSI also required that
the individual submit to the LSO an official driving history which he would need to
obtain from his state’s DMV. The Notification Letter states that the individual provided a
“driving history (three years), which showed more offenses than [he] reported to DOE.”
Ex. 1. The driving record submitted by the individual was actually a seven-year history
(not three-year) and does not contain the amount of any assessed fines with respect to his
traffic violations. The LSO has not identified which of the tickets on the driving history
had not been previously reported to the DOE or the fines on such tickets, which would be
necessary to determine whether the individual had a reporting obligation with respect to
such violations. I therefore find no security concern with respect to this factor.
2. Extra-Marital Affair
In the Notification Letter, the LSO cites as a Criterion L security concern that, during the
2009 PSI, the individual acknowledged having had “a 13 year affair with his current wife
and while having numerous past opportunities to disclose this information, he did not.”
Ex. 1. This behavior is cited with respect to the individual’s honesty and integrity.
Facts. During the 2009 PSI, the individual was questioned about a number of issues
relating to his divorce. He acknowledged that he had had an extra-marital affair and that
he was at that time (and continues today) to live with the woman with whom he had had
the affair. He is not married to the woman, but he had notified the LSO of their
cohabitation when such arrangement commenced.
At the Hearing, the personnel security specialist testified that the statement in the
Notification Letter that he had had numerous opportunities to acknowledge the affair was
not an acknowledgment by the individual, but a conclusion of the LSO. She testified that
those opportunities were presented during PSIs when the individual was asked at the end
of each interview “Is there anything in your background that could be [sic] susceptible to
blackmail, coercion, or pressure?” Tr. at 38. According to the testimony, the individual
“had been interviewed several times” prior to the 2009 PSI in which he had
acknowledged the affair. Id.
The individual’s extra-marital affair was between 1995 and 2008 based upon information
in the record. The only PSI with the individual during that time frame that was submitted
into the record of this Proceeding occurred in 2004. When I asked the personnel security
specialist at the Hearing about other PSIs conducted with the individual, she testified that
if a PSI transcript was not submitted as an exhibit by the LSO then no other PSI was
conducted. Id. at 70. The 2009 PSI did not contain any background question about the
individual’s susceptibility to blackmail, coercion or pressure. See Ex. 27.
Analysis. The LSO’s alleges the individual mislead the DOE by failing to honestly
answer a broad question about his background that had been posed to him numerous
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times. Even if I assume that asking “Is there anything in your background that could
[make you] susceptible to blackmail, coercion, or pressure?” is sufficient to elicit the
information sought by the LSO, I find no evidence that that question was asked of the
individual during the relevant period of time. I therefore find no security concern with
respect to this matter.
3. Reporting of Medication
In the Notification Letter, the LSO cites as a Criterion L security concern an incident that
occurred in 2008 in which the individual did not report a medication that he was taking to
the DOE site where he was working. The LSO cites this incident with respect to both the
individual’s failure to follow work-related rules and his honesty and integrity. Issues
raised by the LSO with respect to this incident under the HRP regulations will not be
considered in this Part 710 proceeding.
Facts. In 2008, the individual volunteered to work an overtime shift in an area that was
not his regular work area. The individual had recently received a prescription for an
additional pharmaceutical for asthma. He filled the prescription on the day that he
reported for the overtime shift.14 This overtime shift was a 12-hour night shift and at
approximately 5:00 a.m. the individual experienced an asthma attack and used the new
medication that he had picked up prior to starting his shift.
The individual and a union representative both credibly testified at the Hearing that the
practice at the site in 2008 was to report new medications upon the next shift in an
employee’s regularly assigned area – if an employee started a new medication and next
worked a shift outside of his or her normally assigned area, an employee waited to report
the medication until returning to his or her regular area. The contractor provided written
guidance in approximately 2011 to change the practice and require new medications to be
reported immediately upon reporting to work at the site, whether or not reporting to one’s
regularly assigned area.
Analysis. The individual had worked at this DOE site for over 20 years at the time of this
incident. Since this incident in 2008, he has been consistent in his description of his
understanding of the reporting requirements at that time of this incident – that new
pharmaceuticals were to be reported when an employee next returned to his or her
regularly assigned area. The union has corroborated that this was the practice at the site
and a union representative testified that the employer subsequently issued written
guidance to change this practice. There are no other allegations that the individual has
failed to report any use of pharmaceuticals at any other time during his 29 years working
at the site. The individual’s explanation adequately mitigates the concerns arising from
this event. This mitigation is strengthened by his long history of being compliant with the
regulations requiring the reporting of the use of pharmaceuticals.
14 In a report on this incident prepared by the individual’s employer, there is a statement that the individual
had been taking the pharmaceutical for one week prior to the incident; however, at the Hearing the author
of this report agreed that that statement was based on the individual’s stating in response to a question that
he had been prescribed the medication a week prior to the incident. Tr. at 144.
14
With respect to this incident, the LSO also alleges that the individual was inconsistent in
his description of this situation during the 2009 PSI and that this raises a security concern
with respect to the individual’s honesty and integrity. The Notification Letter alleges that
“…[the individual] indicated that he hadn’t had an opportunity to report [his new asthma
medication] to his shift, his area.” Ex. 1. However, later during the PSI “[, the individual]
indicated he reported it to his area.” Ex. 1. In reviewing the statement by the individual
that is alleged to be inconsistent with his earlier comments in the 2009 PSI, I find that his
statement is consistent with his earlier statements in the 2009 PSI (as well as his
testimony at the Hearing). The individual stated “Well, you know, I reported it to my
area. I wasn’t in that area. I’m assigned to [Area Alpha] and I worked [Area Bravo].” Ex.
13 at 45. From the context of the 2009 PSI as a whole, the individual’s use of the pronoun
“it” is a reference to new medications generally, not to the new asthma medication at
issue in the 2008 incident. Any doubt as to his meaning can be resolved by his referring
to the two different work areas – he has consistently said that at that time the practice at
his site was that he reported new medications to his supervisor in his regularly assigned
area (“Area Alpha”), but that this incident occurred when he was working an overtime
shift in “Area Bravo” and that he was waiting to report the mediation until he had his
next shift in his assigned “Area Alpha.” I find no Criterion L security concern arising
from this statement of the individual in the 2009 PSI.
4. Remaining Workplace Issues
In the Notification Letter, the LSO cites as Criterion L security concerns four other
workplace incidents and two related concerns with respect to the individual’s honesty and
integrity. The workplace incidents all occurred between 2008 and 2010.
A third matter raised by the LSO with respect to the individual’s honesty and integrity
concerned the manner in which he characterized a workplace disciplinary matter on a
2009 QNSP; this item was deleted from the security concerns by a oral stipulation of the
parties at the beginning of the Hearing.
2008 Suspension and One Year Probation. The most serious of the individual’s
workplace matters occurred near the end of the same overtime shift discussed above with
respect to whether the individual had failed to properly report a new medication. At
approximately 5:20 a.m., the individual appeared to be asleep when a DOE employee
came upon him at his duty station. The individual has acknowledged that he “nodded
off,” as a possible side effect of the new medication that he took when he had had an
asthma attack at around 5:00 a.m. At this site, a distinction is made between “sleeping on
duty” which involves making a plan to sleep while at work and “inattention to duty”
which includes inadvertent “nodding off.” The individual has consistently acknowledged
that he was inattentive, but has denied sleeping on duty.
There was an exchange between the DOE employee who discovered the individual
“asleep.” The record includes various accounts of this encounter and, for the purposes of
this Decision, those discrepancies need not be resolved. The individual testified that the
DOE employee asked the individual if he would report himself to his supervisor and,
towards the end of their exchange, he agreed. In agreeing to report himself, his primary
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intent appears to have been ending the conversation. He did not report himself before
leaving at the end of his shift and, later that morning, the DOE employee notified the
individual’s supervisor of the incident. The employee was terminated and, following a
review by his employer, the employer re-characterized the termination as a suspension
and the individual was placed on probation for one year.
2009 Written Warning. When working outside of his normally assigned area, a
malfunction required that certain equipment that was normally electronically operated
needed to be manually operated. This required a two-step process and, at a certain point,
the individual neglected to perform the second step of the manual process. He
acknowledged his responsibility for the failure. See Ex. 24.
2010 Written Reprimand. While driving a vehicle on site, the individual dropped a lapel
communications microphone and, when he attempted to retrieve it, the vehicle he was
operating slid off the embankment, with resultant minor damage to the vehicle. He called
in and reported the incident. See Id.
2010 Written Warning. The individual dropped an item of employer-supplied equipment
that he was carrying when he went to stand up. He examined it to see if any items had
fallen out of equipment and found nothing missing. When he returned the equipment, one
item had fallen out and it was later found in the area where the individual had dropped
the equipment. The individual acknowledged his responsibility for this failure. See Id.
Analysis. With respect to the 2008 Suspension, the LSO has raised two issues relating to
his honesty and integrity. The first relates to his exchange with the DOE employee during
which he agreed to report his being “asleep” to his supervisor. A review of the record as a
whole on this incident leads to the conclusion that at the time he made that commitment,
he likely did not intend to keep the commitment and was being deceitful in his
conversation with the DOE employee. Even if such was not his intent, he nonetheless
failed to perform the commitment and left work that morning knowing that he had failed
to do so. Such conduct on the part of a holder of access authorization is unacceptable. He
has subsequently acknowledged the inappropriateness of his behavior and has expressed
remorse. Such expression of remorse, together with the passage of six years since the
incident during which there is no other evidence that the individual has engaged in
deceptive behavior, sufficiently mitigates the concern arising from this incident.
His employer’s report on the investigation of the 2008 suspension states that the
individual contacted a manager to admit responsibility and express regret shortly
following the incident. The individual was purportedly more adversarial in a subsequent
interview and the Notification Letter alleges that this inconsistency raises security
concerns with respect to his honesty and integrity. The employer’s report of investigation
was submitted by the LSO as an exhibit, without exhibits, and, although the author of the
report was called as a witness, his testimony was subject to a stipulation that his
testimony would be limited to a single item – unrelated to this issue. The record reflects
that the individual has consistently acknowledged inattentiveness to duty, while denying
sleeping on duty; therefore, his purported acknowledgment to the company’s manager of
responsibility is consistent with his acknowledgement that he was inattentive while on
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duty. Based upon the foregoing, I find that there is insufficient evidence in the record to
determine whether a Criterion L security concern arises from this matter.
With respect to the four workplace disciplinary matters as a reflection of the individual’s
inability to follow workplace rules and regulations, I note that all four of these incidents
took place within a two-year period during the individual’s 29 years of employment at the
site and that the most recent occurred approximately four years ago. No other workplace
infractions during the individual’s career are alleged. In mitigation of these matters, the
individual offers his acknowledgment of responsibility for these acts, the lack of any
workplace incidents in the last four years and the confinement of these events to a brief
period of time. The latter three all appear to be inadvertent behaviors by the individual in
the course of his job performance. If these were continuous or more recent in occurrence,
I would agree that they represented a Criterion L security concern which had not been
mitigated; however, under these circumstances the individual has mitigated the concerns
arising from these incidents.
V. Conclusion
In the above analysis, I have found that the individual has sufficiently mitigated the
security concerns arising under Criterion F and certain of the matters alleged with respect
to Criterion L. Notwithstanding the foregoing, other derogatory information in the
possession of the DOE raises additional security concerns under Criterion L and, after
considering all the relevant information, favorable and unfavorable, in a comprehensive
common-sense manner, including weighing all the testimony and other evidence
presented at the hearing, I have found that the individual has not brought forth sufficient
evidence to mitigate all these security concerns. Accordingly, I have determined that the
individual’s access authorization should not be restored at this time. The parties may seek
review of this Decision by an Appeal Panel under the regulations set forth at 10 C.F.R. §
710.28.
Wade M. Boswell
Administrative Judge
Office of Hearings and Appeals
Date: July 11, 2014