PSH-14-0082

*The original of this document contains information which is subject to withholding from
disclosure under 5 U.S. C. § 552. Such material has been deleted from this copy and
replaced with XXXXXX’s.
United States Department of Energy
Office of Hearings and Appeals
In the Matter of: Personnel Security Hearing )
)
Filing Date: August 27, 2014 )
_________________________________________ ) Case No.: PSH-14-0082
Issued: November 25, 2014
_______________
Administrative Judge Decision
_______________
Steven L. Fine, Administrative Judge:
This Decision concerns the eligibility of XXX X. XXX (hereinafter referred to as “the
Individual”) for access authorization under the Department of Energy’s (DOE) regulations set
forth at 10 C.F.R. Part 710, Subpart A, entitled, “Criteria and Procedures for Determining
Eligibility for Access to Classified Matter or Special Nuclear Material.”1 For the reasons set
forth below, after carefully considering the record before me in light of the relevant regulations
and the Adjudicative Guidelines, I conclude that the Individual’s request for a security clearance
should not be granted.2
I. BACKGROUND
During an initial background investigation of the Individual, a Local Security Office (LSO)
obtained information that raised security concerns. In order to address those concerns, the LSO
conducted a Personnel Security Interview (PSI) of the Individual on February 12, 2014, and
sponsored two forensic psychological examinations of the Individual which occurred on
March 14, 2014, and June 6, 2014. Because the PSI and forensic psychological examinations did
1
An access authorization is an administrative determination that an individual is eligible for access to classified
matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will also be referred to in this Decision as
a security clearance.
2 Decisions issued by the Office of Hearings and Appeals (OHA) are available on the OHA website located at
http://www.oha.doe.gov. The text of a cited decision may be accessed by entering the case number of the decision
in the search engine located at http://www.oha.doe.gov/search.htm.
2
not resolve these concerns, the LSO began the present administrative review proceeding by
issuing a Notification Letter to the Individual informing him that he was entitled to a hearing
before an Administrative Judge in order to resolve the substantial doubt regarding his eligibility
for a security clearance. See 10 C.F.R. § 710.21. The Individual requested a hearing and the
LSO forwarded the Individual’s request to the OHA. The Director of OHA appointed me as the
Administrative Judge in this matter on August 27, 2014.
At the hearing I convened pursuant to 10 C.F.R. § 710.25(e) and (g), I took testimony from the
Individual, his best friend, his brother, his spouse, his pastor, a former coworker, two co-
workers, a supervisor, a DOE Personnel Security Specialist (the PSS) and a DOE consultant
psychologist (the Psychologist). See Transcript of Hearing, Case No. PSH-14-0082 (hereinafter
cited as “Tr.”). The LSO submitted nine exhibits, marked as Exhibits 1 through 9, and the
Individual submitted 41 exhibits, which are marked, as Exhibits A through Z, and then A1
though A15.
II. THE NOTIFICATION LETTER AND THE DOE’S SECURITY CONCERNS
As indicated above, the Notification Letter informed the Individual that information in the
possession of the DOE created a substantial doubt concerning his eligibility for a security
clearance. That information pertains to paragraphs (f),3 and (l)4 of the criteria for eligibility for
access to classified matter or special nuclear material set forth at 10 C.F.R. § 710.8. The LSO
also cited 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), in support of its
contention that information in the possession of the DOE has created a substantial doubt
concerning his eligibility for a security clearance.
To justify its reliance on Criterion F, the LSO alleges that the Individual deliberately provided
false or misleading information on a Questionnaire for National Security Positions (QNSP).5
These circumstances, as alleged, would adequately justify the LSO’s invocation of Criterion F,
3 Criterion F refers to information indicating that the Individual “deliberately misrepresented, falsified, or omitted
significant information from a Personnel Security Questionnaire, a Questionnaire for Sensitive (or National
Security) Positions, a personnel qualifications statement, 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 proceedings conducted pursuant to § 710.20 through § 710.31.” 10 C.F.R. § 710.8(f).
4 Criterion L refers to information indicating that the Individual has “engaged 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. Such conduct or circumstances include,
but are not limited to, criminal behavior, a pattern of financial irresponsibility, conflicting allegiances, or violation
of any commitment or promise upon which DOE previously relied to favorably resolve an issue of access
authorization eligibility.” 10 C.F.R. § 710.8(l).
5 The LSO further alleges that the Individual deliberately provided false or misleading information on a Pre-
Employment/Pre-Clearance Suitability Investigation form (the Pre-Employment Form). However, because the Pre-
Employment Form is not a form submitted to the DOE to obtain a security clearence, I find that this allegation does
not come within the purview of Criterion F. I will, however, consider this allegation under Criterion L.
3
and would raise significant security concerns. “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. Of
special interest is any failure to provide truthful and candid answers during the security clearance
process or any other failure to cooperate with the security clearance process.” Adjudicative
Guideline E at ¶ 15. Under the Adjudicative Guidelines, a deliberate omission or concealment of
relevant facts from any personnel security questionnaire, personal history statement, or similar
form used to conduct investigations or determine security clearance eligibility or trustworthiness
could raise a security concern and may be disqualifying. Adjudicative Guideline E at ¶ 16(a).
The LSO further alleges that the Individual has exhibited: (1) a pattern of dishonesty evidenced
by his failure to provide truthful statements on a QNSP, the Pre-Employment Form, during a
PSI, and during a forensic psychological examination; (2) “an inability to work with women”;
(3) an inability to follow rules or regulations; and (4) a history which demonstrates the presence
of impaired judgment and reliability. These circumstances, as alleged, would adequately justify
the LSO’s invocation of Criterion L, and raise significant security concerns. The Adjudicative
Guidelines provide that the deliberate provision of false or misleading information concerning
relevant facts to an employer, investigator, security official, competent medical authority, or
other official government representative can raise a security concern and may be disqualifying.
Guideline E at ¶ 16(b). Similarly, questionable judgment, untrustworthiness, unreliability, lack
of candor, unwillingness to comply with rules and regulations, or other characteristics indicating
that the person may not properly safeguard protected information, may also raise a security
concern and be disqualifying. Guideline E at ¶ 16(d).
III. REGULATORY STANDARDS
The Administrative Judge's role in this proceeding is to evaluate the evidence presented by the
agency and the Individual, and to render a decision based on that evidence. See 10 C.F.R.
§ 710.27(a). The regulations state that “[t]he decision as to access authorization is a
comprehensive, common sense judgment, made after consideration of all the relevant
information, favorable and unfavorable, as to whether the granting of access authorization would
not endanger the common defense and security and would be clearly consistent with the national
interest.” 10 C.F.R. § 710.7(a). In rendering this opinion, I have considered the following
factors: the nature, extent, and seriousness of the conduct; the circumstances surrounding the
conduct, including knowledgeable participation; the frequency and recency of the conduct; the
Individual's age and maturity at the time of the conduct; the voluntariness of the Individual's
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. See 10 C.F.R. §§ 710.7(c), 710.27(a). The discussion below reflects my
application of these factors to the testimony and exhibits presented by both sides in this case.
IV. FINDINGS OF FACT
A. The Police Department
4
From October 2004 to August 2009, the Individual was employed by a large metropolitan police
department (the Police Department). Exhibit 7 at 1. According to the report generated as a
result of an Office of Personnel Management (OPM) investigation into the Individual’s
background, the Individual was terminated from this position and was ineligible for rehire.
Exhibit 7 at 1. The OPM Report further indicates that the Individual was reprimanded on two
occasions for leaving his post at a crime scene to speak to another officer, and that he had three
administrative investigations pending against him when he was terminated. Exhibit 7 at 6. The
OPM report also states that the Individual’s supervisor stated that the Individual:
Had a "chip on his shoulder" and was not a good communicator within the
community that he served. [The Individual] did not make good decisions and had
poor judgment in [her] opinion. [The Individual] received several . . . complaints
from citizens that he made contact with through his patrol duties . . . . The
[Individual] did not appear to be emotionally stable when he worked [for the
Supervisor].
Exhibit 7 at 1-2.
In his QNSP, the Individual checked “no” to a QNSP question concerning the Police Department
asking if he had been fired, quit after being told he would be fired, or left by mutual agreement
following charges of misconduct or unsatisfactory performance. Exhibit 5 at 18. Instead, the
Individual indicated that he left the Police Department to move back to his home state.6 Exhibit
5 at 18. However, the Individual reported that he had been reprimanded on a number of
occasions for: (1) checking the wrong house after a report of a burglary in progress, (2) missing a
legal hearing, (3) being involved in a motor vehicle accident (reprimanded on three separate
occasions), (4) failing to timely report another officer’s excessive use of force, (5) failing to
properly attend to a suicidal mental patient, (6) temporarily leaving his post, and (7) threatening
to fight a suspect. Exhibit 5 at 20-21.
During his February 12, 2014, PSI, the Individual again reported his reprimands during his
employment with the Police Department. He admitted “I was young and dumb and full of pride
and I just wanted [to] kick ass and take names. I'm 35 years old now and I still don't mind doing
that, but I'm not out there looking for you know stuff like excitement. I'm more of a family guy--
-.” Exhibit 4 at 25. He further described himself as “young and stupid” and as having a “chip
on his shoulder” during his employment with the Police Department, and that he may have been
emotionally unstable during that period. Exhibit 4 at 26-27. He claimed that he has been
humbled and become a different person. Exhibit 4 at 26.
B. The Nursing Home
The OPM Report indicates that the Individual was employed at a nursing home from February
2012 until March 2013, when he was “terminated for insubordination, sexual harassment and
promoting a threatening and uncomfortable workplace.” Exhibit 6 at 2. The Individual reported
to the OPM investigator that, at the time of his termination, the Nursing Home had not taken any
6 The LSO does not allege, in the Notification Letter, that this was an intentional misrepresentation or omission by
the Individual.
5
disciplinary actions against him, except for two occasions when he had been suspended while
charges against him were investigated and found to be unfounded. Exhibit 6 at 2.
On his QNSP, the Individual reported that he left his employment at the Nursing Home because
he had been “fired” on March 4, 2013, and explained that he was terminated because he had
written a letter on February 19, 2013, to the “Director of Nursing regarding unsafe conditions for
residents due to chronic low-staffing.” Exhibit 5 at 14-15. He further stated: “During the year
that I worked [at the Nursing Home] I received no verbal or written reprimands.” Exhibit 5 at
15. The Individual further reported that his application for unemployment benefits was
challenged by the Nursing Home. Id. This challenge resulted in a hearing before a state
Administrative Law Judge (ALJ). The Individual claimed that the only basis for his termination
claimed by the Nursing Home in the unemployment proceeding was “insubordination.” Id. The
ALJ’s decision, however, indicates that: “[The Nursing Home's] secondary reasons for
terminating [the Individual] were oral complaints made by coworkers and/or patients near the
end of February 2013 which were investigated by the Executive Director.”7 Exhibit O at 2. The
Individual reported that: “The Judge ruled that [the Nursing Home’s] accusation of
insubordination was unfounded.” Exhibit 5 at 15. The Individual omitted the ALJ’s findings
concerning the alleged oral complaints made by coworkers and/or patients. The ALJ’s decision
found that the Nursing Home failed to meet its burden of proof since it had: “failed to provide
firsthand testimony of the alleged insubordination and/or other allegations made against the
[Individual].” Exhibit O at 4.
During his February 12, 2014, PSI, the interviewer asked the Individual if the Nursing Home had
terminated him for “insubordination, sexual harassment, and promoting and threatening an
uncomfortable workplace? [sic]” The Individual responded by stating “yes.” Exhibit 4 at 23. He,
however, denied sexually harassing anyone. Exhibit 4 at 24. The Individual instead asserted that he
was fired for sending the February 19, 2013, letter regarding unsafe conditions for residents due to
chronic low-staffing. Exhibit 4 at 23-24.
The LSO obtained the Indivdual’s personnel records from the Nursing Home. Those records
include the March 4, 2013, Termination Form. The Termination Form indicates that the
Individual had been verbally counseled in April 2012, “regarding unprofessional communication,
including communication of a sexual nature with female staff.”8 Exhibit 9 at 1. Handwritten
7 “None of the co-workers who [made] oral complaints to [the Nursing Home] appeared at [the unemployment
compensation] hearing.” Exhibit O at 2.
8 The Termination statement further alleges in pertinent part:
Reported by multiple staff over the last week that - 1. Performance issues: Playing on I-Pad
during work hours, not answering call lights and not assisting & helping staff when asked. 2.
Unprofessional communication with multiple female staff: Inappropriate text messages to female
staff, unprofessional verbal communication, including communication of a sexual nature, and
creating a work environment that staff feel uncomfortable and not safe.
***
Due to the severity & number of issues, including responses from multiple staff, your employment
is terminated due to: 1. failure to follow Life Care Associate Conduct and Work Rules as well as
6
notes from the Individual’s Nursing Home personnel file dated April 24, 2012, and April 1,
2012, corroborated the charges set forth in the Termination Form and that the Individual had
been verbally counseled about these matters. Exhibit 9 at 11-12. The Termination Form did not
accuse the Individual of insubordination. Exhibit 9 at 1. However, the Termination Form
accuses the Individual of:
Unprofessional communication with multiple female staff; inappropriate text
messages to female staff, unprofessional verbal communication including
communication of a sexual nature, and creating a work environment that staff feel
uncomfortable and not safe [and] Failure to comply with [the Nursing Home’s]
Conduct policy and Harassment/Discrimination policy. This included
unprofessional communication with female staff. [C]reating an intimidating work
environment and making negative comments towards other staff.
Exhibit 9 at 1. The Individual testified at the hearing that: “Sexual harassment doesn't appear on
my termination form.” Tr. at 194.
C. The Pre-Employment Form
On July 13, 2013, the Individual submitted the Pre-Employment Form to his employer. The
Individual reported that he had been fired from the Nursing Home “due to filing a complaint
regarding care given to residents.” Exhibit 8 at 2. He further reported that he had resigned from
the Police Department “to move back home.” Exhibit 8 at 3. The Pre-Employment Form asked
seven questions requiring a “yes” or “no” response, including the following: Have you ever been
disciplined or discharged by an employer for any form of harassment?; Have you ever been
disciplined or discharged by an employer for insubordination?; and Have you ever been
disciplined or discharged by an employer for violation(s) of any safety
requirements/rules/regulations? Exhibit 8 at 7. The Individual checked the “no” box for each of
these questions. Exhibit 8 at 7.
D. The First Forensic Psychological Examination
At the request of the LSO, the Psychologist evaluated the Individual on March 14, 2014. Exhibit
3 at 1. After interviewing the Individual, evaluating his personnel security file, and reviewing
his medical/psychological records, the Psychologist issued a Psychological Report on March 16,
2014. The Psychologist concluded his report by stating:
[The Individual] agrees that he demonstrated poor judgment as evidenced by his
behavior while employed as a police officer. He demonstrated candor and
standard nursing practices which includes unsatisfactory work, loitering during work hours, acting
indifferent or rudely toward others and refusing to help with assignments. 2. Failure to comply
with . . . Code of Conduct policy and Harassment Discrimination policy. This included
unprofessional communication with female staff, creating an intimidating work environment and
making negative comments towards other staff.
Exhibit 9 at 1.
7
substantially improved reasoning and judgment based on a solid value system
which he has developed over the past 3 years. He represented that he resigned
from the police department because of his commitment to recovering his
relationship with his wife and his observation that he couldn't go more than a year
without having some problem. He acknowledge[s] that he was completely
unaware that the personnel records from the police department referenced him as
being terminated in the context of 3 administrative investigations. I consider that
he is not at risk of poor performance in managing his duties . . . with
responsibilities for maintaining the security of information and materials.
This report provides an explanation of [the Individual] having "a chip on his
shoulders" as related to him making an effort to prove himself through his own
independent efforts has capable of making a change in the world. He
acknowledges that this view led to him not participating well as a team member in
the police department. If he had not made these substantial changes in his value
system and behavior, he would've continued to accrue performance problems. I do
not see him as manifesting a personality disorder or other mental disorder. I
recommend that he is capable of functioning with much better judgment than he
demonstrated in the past, and is capable of functioning with emotional stability.
Exhibit 3 at 3.
E. The Second Forensic Psychological Examination
The LSO requested that the Psychologist review the Individual’s personnel records from the
Nursing Home, and consider re-evaluating him. After reviewing the Individual’s personnel
records from the Nursing Home, the Psychologist re-evaluated the Individual on June 6, 2014.
Exhibit 2 at 1. On June 8, 2014, the Psychologist issued a second Psychological Report. Exhibit
2 at 1. In this report, the Psychologist opined that the Individual’s personnel records from the
Nursing Home “added substantial additional detail[s] raising a concern about [the Individual] not
maintaining professional boundaries in the workplace.” Exhibit 2 at 1. The Psychologist
reported that he began his second interview of the Individual by confronting him with the
Individual’s personnel records from the Nursing Home, and asking the Individual why the
Individual had not previously supplied the LSO with a copy of these notes. Exhibit 2 at 1. The
Psychologist’s Report indicates that the Psychologist considered the Individual’s failure to
submit personnel records from the Nursing Home to the LSO, when he was not asked to or
required to do so, to be an intentional concealment of relevant information. Exhibit 2 at 1. The
Psychologist elicited information from the Individual which indicated that he had engaged in
frequent “sexual innuendo and flirtation” with his female co-workers at the Nursing Home;
“went out into the automobile of a female coworker, during the nighttime meal break, across the
street from the facility, and kissed her,” and exchanged “sexually explicit texts” with another
woman.9 Exhibit 2 at 1-2. The Individual further admitted to the Psychologist that he had
9 The Psychologist reported that the Individual “described a situation in a nursing station in which a young nurse
showed everyone her new tattoo on her upper thigh by pulling down her pants, revealing her panties. He recalls
[that] he just sat there and did not object. At the same time he explained there was a situation in which he spoke
directly to another woman who . . . he quoted [as] stating her intent of "I'm going to F*** you." Exhibit 2 at 2.
8
viewed pornography until 2013.10 Exhibit 2 at 2. The Individual described himself as a
"hypocrite" since he engaged in these behaviors even though he considers himself to be a devout
Christian. Exhibit 2 at 2.
The Psychologist indicated that when he issued his first report, he had considered the
Individual’s “professed Christian faith in which he explained that he had been a committed
Christian, for three years, to be potentially mitigating for his history of poor judgment [with the
Police Department] and in sexual behaviors with women.” Exhibit 2 at 2. However, the
Psychologist now discounted the Individual’s commitment to Christianity since the Individual:
(1) told him that he had been a Christian for three years, “when in fact he had only been two
years,” (2) is allegedly addicted to pornography, and (3) covered-up the reasons for his
termination from the Nursing Home. Exhibit 2 at 2.
The Psychologist concluded:
I do not consider [the Individual] to manifest diagnosable mental illness, but he
does have a history of impulsive decisions in the context of having been very
rigid, admittedly ‘black and white' in his thinking, and having a need to prove
himself. I believe that while he has a stated commitment to becoming humble in
the way that Christians establish their faith, that he does not have a substantial
history at this time that would allow me to believe he's demonstrated an ability to
have good judgment. In addition, he has not sought out formal counseling,
whether faith-based pastoral counseling, or behavior and emotional based
counseling, to address his history of sexual impulsivity and his involvement with
pornography. [The Individual] has a history of behavior and decisions which
demonstrate the presence of impaired judgment and reliability.
Exhibit 2 at 3.11
V. ANALYSIS
A. Criterion F
The LSO contends that the Individual’s OPM background investigation, as well as his personnel
records from the Nursing Home, shows that he was terminated from the Nursing Home for
“insubordination, sexual harassment and promoting a threatening and uncomfortable workplace.”
The LSO further alleges that the Individual deliberately provided false or misleading information
when he stated on the QNSP that the Nursing Home terminated him for complaining about
unsafe conditions instead of reporting the reasons supplied by the Nursing Home for his
termination.
10 The Psychologist described the Individual’s pornography use as “his addiction to looking at heterosexual
pornography for many years until he came on the [DOE] site.” Exhibit 2 at 2.
11 The Notification Letter does not cite Criterion H, or Guideline I, in its allegations concerning the Individual.
9
On his QNSP, the Individual reported that he left his employment at the Nursing Home because
he had been “fired” on March 4, 2013, and further explained that he was terminated because he
had written a letter, on February 19, 2013, to the “Director of Nursing regarding unsafe
conditions for residents due to chronic low-staffing. . . . During the year that I worked there I
received no verbal or written reprimands.” Exhibit 5 at 14-15. The Individual further stated, in
pertinent part:
Many of the accusations that the Executive Director used as grounds for firing me
are untrue. I applied for unemployment and the Executive Director subsequently
disputed me receiving unemployment with the state. We went to court and the
Executive Director finally narrowed down one reason for terminating me which
was insubordination on my part. . . . After the judge heard his testimony and my
testimony the judge ruled that his accusation of insubordination was unfounded.
Exhibit 5 at 15. The Individual’s assertions concerning his termination by the Nursing Home
omitted one key fact and included one misrepresentation. While the Individual disclosed that the
Nursing Home had a different opinion as to the grounds on which it had terminated him, he
indicated only that the Nursing Home had argued that it had terminated him for insubordination,
when in fact the Nursing Home had also contended, at the unemployment benefits hearing, that
its reasons for terminating [the Individual] included “oral complaints made by coworkers and/or
patients. . . .” Exhibit O at 2. Moreover, the Individual’s assertion that he had not received any
verbal or written reprimands during his employment with the Nursing Home, is flatly
contradicted by handwritten notes dated April 24, 2012, and April 1, 2012, from the Individual’s
Nursing Home personnel file, which indicate that the Nursing Home management had received
complaints from co-workers about unprofessional communication, including communication of a
sexual nature with female staff, and that the Individual had been verbally counseled about these
matters. Exhibit 9 at 11-12. By doing so, he deliberately concealed that fact that he had been
accused of sexual harassment and creating a threatening and uncomfortable workplace.
I find that the Individual has not resolved the security concerns arising from his deliberate
omission of information from his September 5, 2013, QNSP that would have revealed that he
had been disciplined and then terminated for sexual harassment or similar conduct. The relevant
conditions under the Adjudicative Guidelines that may serve to mitigate security concerns raised
by an individual’s deliberate falsification are: (1) that “the individual made prompt, good-faith
effort to correct the omission, concealment, or falsification before being confronted with the
facts,” (2) “that the offense is so minor, or so much time has passed, or the behavior is so
infrequent, or it happened under such unusual circumstances that it is unlikely to recur and does
not cast doubt on the individual’s reliability, trustworthiness, or good judgment,” (3) the
individual has “acknowledged the behavior and obtained counseling to change the behavior or
taken other positive steps to alleviate the stressors, circumstances, or factors that caused
untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to
recur;” and (4) “the individual has taken positive steps to reduce or eliminate vulnerability to
exploitation, manipulation, or duress.” Adjudicative Guidelines, Guideline E, ¶¶ 17(a) (b) (d)
and (e). The Individual only disclosed that he had been terminated for sexual harassment when
he was questioned by the OPM investigator. This fact provides only partial mitigation since he
only did so after it became clear that this information would be uncovered by the OPM
10
investigation. I cannot conclude that the Individual’s multiple omissions were minor since they
were clearly intended to conceal both the Individual’s history of engaging in frequent sexual
innuendo and flirtation with his female co-workers at the Nursing Home and the fact that he had
been terminated after being accused of sexual harassment. Nor can I conclude that the Individual
has fully acknowledged that he has been less than fully candid about his conduct while employed
at the Nursing Home. While he has been meeting with a member of the clergy in order to help
him address his perceived shortcomings, he did not include his lack of candor among the issues
he sought to address. I therefore find that the Individual has not resolved the security concerns
raised under Criterion F.
B. Criterion L
The LSO alleges that the Individual has exhibited: (1) a pattern of dishonesty evidenced by his
failure to provide truthful statements on a QNSP, on the Pre-Employment Form, during a PSI,
and during a forensic psychological examination; (2) an inability to work with women, and to
maintain appropriate professional boundaries, (3) an inability to follow rules or regulations; and
(4) a history which demonstrates the presence of impaired judgment and reliability.
The LSO further alleges that the Individual responded negatively to three questions on the Pre-
Employment Form. These questions are: Question 3, which asks “Have you ever been
disciplined or discharged by an employer for any form of harassment?;” Question 4, which asks
“Have you ever been disciplined or discharged by an employer for insubordination?;” and
Question 6, which asks “Have you ever been disciplined or discharged by an employer for
violation(s) of any safety requirements/rules/regulations?” Since the Individual had been
verbally counseled for harassment in April 2012 and the stated reasons for his termination from
the Nursing Home had included sexual harassment and insubordination, he should have
answered “yes” to Questions 3 and 4.
As discussed above, the Individual clearly has exhibited a pattern of concealing his behavior at
the Nursing Home and the fact that such behavior had been cited (perhaps unfairly) as a reason
for the Nursing Home’s termination of him.12 While the Psychologist and the LSO contend that
the Individual should have spontaneously shared copies of his personnel records from the
Nursing Home that were in his possession, the Individual was not asked to do so, and therefore
was not under any obligation to produce them. However, as I have discussed above, the
Individual’s concealment of some of the information contained in those records raises a security
concern under Criterion L. This concealment continued in the PSI, where the Individual was
asked: “Is there any other conducts or reprimands that happened with the [Nursing Home]?”
The Individual answered “no.” Exhibit 4 at 24. At the hearing, the Individual continued to deny
that he had ever been disciplined at the Nursing Home. Tr. at 190-191.
The LSO states in the Notification Letter that the Individual is unable to work with women or
maintain appropriate professional boundaries. Certainly, the information in the record
concerning the Individual’s history at the Nursing Home, as well as the Individual’s statements
to the Psychologist, supports the allegation that he has, at times, failed to maintain appropriate
12 Given the other evidence in the record, I find the Individual’s contrary testimony to lack credibility. Tr. at 192-
193.
11
professional boundaries, which could reflect poorly on his judgment and reliability. However,
the evidence in the record, in the form of testimony from his current co-workers and supervisor,
indicates that this has not been a recent issue. Tr. at 101, 158-59.
The LSO also cites the Individual’s history of nine reprimands during his five years with the
Police Department as evidence of his inability to follow rules or regulations. While it is clear
that the Individual did exhibit an inability to follow rules or regulations while employed by the
Police Department, the testimony of his supervisors and co-workers, as well as numerous letters
of recommendation by his present coworkers and supervisors, indicate that this is no longer a
present concern. Tr. at 96-106, 139- 162, 164-177; Exhibits A, B, C, D, E, F, G, and H. I
therefore find that he has sufficiently mitigated this concern.
The LSO further alleges that the Individual has a history which demonstrates the presence of
impaired judgment and reliability. As discussed above, this is true during his employment with
the Police Department and the Nursing Home. It also remains true in the present, as
demonstrated by his recurrent concealment of his behavior while employed at the Nursing Home,
and the lack of insight and remorse that he exhibited at his hearing. See Tr. at 224-226.
Accordingly, this concern remains unmitigated.
As indicated above, I have found that the Individual has mitigated the security concerns arising
from the allegations that he has exhibited “an inability to work with women,” and an inability to
maintain appropriate professional boundaries. He has, however, not mitigated the security
concerns arising from his pattern of dishonesty or his inability to follow rules or regulations.
For that reason, I find that the security concerns raised under Criterion L remain unresolved.
VI. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Criteria F and L. After
considering all the evidence, both favorable and unfavorable, in a common sense manner, I find
that Individual has not sufficiently mitigated the Criteria F and L security concerns.
Accordingly, the Individual has not demonstrated that granting his request for a security
clearance would not endanger the common defense and would be clearly consistent with the
national interest. Therefore, the Individual should not be granted a security clearance at this
time. The Individual may seek review of this Decision by an Appeal Panel under the procedures
set forth at 10 C.F.R. § 710.28.
Steven L. Fine
Administrative Judge
Office of Hearings and Appeals
Date: November 25, 2014