PSH-20-0065

*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: June 4, 2020 ) Case No.: PSH-20-0065
)
__________________________________________)
Issued: September 17, 2020
____________________________
Administrative Judge Decision
____________________________
James P. Thompson III, Administrative Judge:
This Decision concerns the eligibility of XXXXX (“Individual”) for access authorization under
the Department of Energy’s (DOE) regulations set forth at 10 C.F.R. Part 710, entitled,
“Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear
Material.”1 As discussed below, after carefully considering the record before me in light of the
relevant regulations and the National Security Adjudicative Guidelines for Determining Eligibility
for Access to Classified Information or Eligibility to Hold a Sensitive Position (June 8, 2017)
(“Adjudicative Guidelines”), I conclude that the Individual’s security clearance should not be
restored.
I. BACKGROUND
The Individual works in a position which requires him to possess a security clearance. In May
2020, the Local Security Office (LSO) issued the Individual a letter (“Notification Letter”), which
indicated that the LSO possessed reliable information that created substantial doubt regarding the
Individual’s eligibility for access authorization. See 10 C.F.R. § 710.21. In the attachment to the
Notification Letter, the LSO explained that the derogatory information fell within the purview of
Guidelines E and M of the Adjudicative Guidelines. In general, the allegations contained within
the Notification Letter state that the Individual (1) inappropriately accessed documents on the
employer’s network and violated other rules, (2) failed to disclose a written reprimand and
involvement in an internal investigations during the security investigation process, and (3) failed
to take responsibility for his misconduct.
Upon receipt of the Notification Letter, the Individual exercised his right to request an
administrative review hearing pursuant to 10 C.F.R. Part 710. The LSO forwarded the Individual’s
1 Under the regulations, “access authorization” means 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 also be referred to in this Decision as a security clearance.
- 2 -
request to the Office of Hearings and Appeals (OHA). On June 4, 2020, the Director of OHA
appointed me as the Administrative Judge in this matter. DOE submitted eleven exhibits, marked
as Exhibits 1 through 11 (cited as “Ex.”). The Individual submitted ten exhibits, marked as Exhibits
A through J.2 At the hearing, the Individual presented his own testimony.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED 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. The LSO cited Guideline E (Personal Conduct) and Guideline M (Use of Information
Technology) as the basis for suspending the Individual’s security clearance. Guideline E states that
“[c]onduct 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 or sensitive information.” Adjudicative Guidelines
at ¶ 15. Special emphasis is placed on “any failure to cooperate or provide truthful and candid
answers during national security investigative or adjudicative processes.” Id. A condition that
could raise a security concern includes “a pattern of dishonesty or rule violations.” Id. at ¶ 16
(d)(3). Guideline M states that “[f]ailure to comply with rules, procedures, guidelines, or
regulations pertaining to information technology systems may raise security concerns about an
individual’s reliability and trustworthiness, calling into question the willingness or ability to
properly protect sensitive systems, networks, and information.” Id. at ¶ 39. Information technology
“includes any computer-based . . . device used to . . . access . . . information.” Id. The information
submitted by the LSO includes the Individual’s three-day suspension for information technology
system misconduct, his documented rule violations, his failure to disclose information during the
security process, and his continued failure to take responsibility for his actions. The information
presented in the Notification Letter justifies the LSO’s invocation of Guidelines E and M.
III. REGULATORY STANDARDS
A DOE administrative review proceeding under Part 710 requires me, as the Administrative Judge,
to issue a Decision that reflects my comprehensive, common-sense judgment, made after
consideration of all of 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). 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) (strong presumption against the issuance of a security clearance).
The Individual must come forward at the hearing with evidence 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 Individual is afforded a
full opportunity to present evidence supporting his or her eligibility for an access authorization.
2 Exhibits 11 and J were submitted and received after the hearing.
- 3 -
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). Hence, an individual is afforded the utmost latitude in the presentation of
evidence to mitigate the security concerns at issue.
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
The Individual’s Alleged Inappropriate Access of Files on Classified Computer Systems
In 2018, the Individual’s employer directed an investigation into the inappropriate access of
unclassified documents contained on a DOE site’s classified computer system by several
employees. Ex. 7 at 1. During the investigation, the investigator identified twenty-seven
documents allegedly accessed by the Individual, and then asked the Individual to confirm whether
he had viewed each document. Id. at 18-21. The Individual admitted to viewing some but not all
of the documents. Id. at 19. Some of the documents he admitted viewing included a Counseling
Database; interview questions for a higher-ranked position because he thought “it could help him
in an interview”; a union discipline document; and emails to and from other employees. Id. at 19,
20-22. For the remaining documents, the Individual admitted attempting to access them, but he
explained that he was unsuccessful due to access restrictions. Id. These documents included,
among others, a document referred to as “Grievances”; a verbal counseling letter to another
employee; a document with a title that included the name of two other employees; and two union
related documents. Id. at 20-22. After being shown the documents he attempted to view, he
confirmed that several of them contained information that would not have been appropriate for
him to read, had he gained access to them. See, e.g., id. at 21.
The investigator’s report provided general and specific conclusions and recommendations.
Generally, it concluded that the employees were unintentionally given access to several
documents. Ex. 7 at 37. The report recommended training employees on the company’s “need to
know” standard for accessing documents in light of the employees’ apparent lack of understanding
that the standard applied to unclassified material. Id. at 37. Specific to the Individual, the report
concluded the Individual had been untruthful during the investigation, noting that while the
Individual admitted to viewing some documents, he had denied accessing the most sensitive
management-intended documents. Id. at 42. The report also concluded that he had accessed
documents in violation of the net user agreement and his access of the interview questions and lack
of truthfulness violated the employer’s rules of conduct. Id. at 42.
Based on the report, the Individual received a three-day suspension in September 2018. Ex. 8. The
suspension letter recounted that the Individual admitted that he had opened a document with the
designation “Personal & Private” and “Management Sensitive Communication” that was not
intended for him to access. Id. It also stated that he “failed to fully cooperate during the Company
investigation, lied, and/or withheld information during [the] interview.” Id.
The Individual submitted evidence that several other investigated employees also told investigators
that they were unable to access, or could not recall accessing, some of the documents that they
- 4 -
were alleged to have accessed. Ex. A; Ex. B; Ex. C. The report of investigation similarly concluded
that many of these employees were not credible or provided misleading statements. See, e.g., Ex.
C at 30.
At the hearing, the Individual testified that he only received a few minutes of training on the
concept of “need to know” in relation to unclassified documents. Tr. at 15. In essence, the
Individual explained that he did not believe, at the time, that he was violating the company policy
by attempting to access the twenty-seven documents. See, e.g., Id. at 31. Furthermore, the
Individual testified that several colleagues engaged in the same behavior. Id. at 23. The Individual
explained that the questionable documents he accessed were in the same folder as documents that
he was authorized to access. Id. at 30-31. He also testified that he was completely truthful during
the investigation and took responsibility for his actions. Id. at 45.
Turning to specific documents, the Individual testified that he believed he had a right to view the
Counseling Database because he heard his name was included in the database and he wanted to
evaluate its accuracy. Tr. at 38-39. Afterward, the following exchange occurred:
[Individual]: Yes. So, like the verbal counseling database, when I was granted
access to that I thought, I felt that I should absolutely be able to see that.
[DOE Counsel]: Okay. You felt you should be able to see that? Anything that might
have contained personal information about other employees?
[Individual]: Personal information? I don’t ever recall seeing anything that was,
that contained personal information.
[DOE Counsel]: [. . . .] Would you consider a counseling statement given to a fellow
[employee] as being personal employment information?
[Individual]: I guess, I don’t know. I guess you could call it that.
[DOE Counsel]: All right. Well, isn’t it a fact that you reviewed all of the
counseling statements that were contained in the folder?
[Individual]: So, yes. Well, in order to find the ones that included me you had to
scroll through everything. So, in this also you could argue that everyone had access
to my information as well.
. . . .
[DOE Counsel]: So, it’s your testimony today then that you went through most of
the files in the PF counseling folder, and reviewed even negative counseling
statements given to fellow employees?
[Individual]: That is correct, as well as my own.
- 5 -
Id. at 66-69. When later asked whether the suspension letter was correct in stating that he admitted
to opening a document designated “Personal & Private” and “Management Sensitive
Communication,” he first agreed with the statement before testifying that he could not remember.
Id. at 105-06. He also testified that he does not currently think it was inappropriate for him to
access and review the interview questions for a higher-ranked position for which he was interested
in applying. Id. at 32, 75-76.
The Individual further testified that he no longer accesses documents at work unless he is told to
do so, and he keeps it “very simple on the computers . . . .” Id. at 99. He also testified that he
“would seek advice from management” if he believed he was going to view something which
appeared “questionable.” Id. at 116. He went on to state that the entire process has been
“painstaking” and something he does not want to repeat. Id. at 99.
Finally, the record includes a declaration from an Information Technology Advisor (“IT Advisor”)
who opined that, while the Individual’s record of accessing documents “could technically have
included failed attempts . . . in addition to actual access to document content[,] . . . it is standard
practice that files inherit permissions from their parent folders so I would expect that access would
be consistent across all files in a particular directory.” Ex. 11 at 4. The report of investigation
contains similar information. Ex. at 5.
The Individual’s Alleged Rule Violations
In addition to the above technology-related misconduct, the Individual allegedly failed to follow
site security procedures on four occasions. The first three alleged violations were for excessive
cell phone use and resulted in verbal counseling for each of the violations. Ex. 4 at 7, 8. The fourth
alleged violation occurred after the Individual was caught watching a video on his personal phone
while on duty. Ex. 6 at 16. As a result, his manager issued him a November 2017 Record of
Discussion. Id. In response, the Individual told the manager that he would comply with security
procedures and no longer watch videos on his cell phone. Ex. 4 at 8. When questioned about this
incident during an Enhanced Subject Interview (ESI), the Individual stated he was not aware that
he was breaking any rule watching the video. Id. at 7. The Record of Discussion states that the
Individual watched the video for an “extended period” and “was unaware of what was happening
at his assigned post.” Ex. 6. The letter also notes that, when the Individual’s manager first asked
what he was watching on his phone, the Individual responded by stating “nothing” before
admitting the truth. Id.
At the hearing, the Individual admitted he watched a “short video clip” on his phone and also
testified that other employees engaged in the same behavior because it was part of the culture. Tr.
at 47-48. He testified that he did not recall the dates of the verbal counseling that preceded the
Record of Discussion, and he could not “recall any sort of conversation on those dates” or
“remember what was said . . . or what was not said. . . .” Id. at 89. The Individual also testified that
he had generally received exemplary performance evaluations from his employer since being hired
in 2014. Tr. at 13.
The Individual’s Alleged Failure to Report Misconduct
- 6 -
The record indicates the Individual did not disclose the investigation in his May 2018
Questionnaire for National Security Positions (QNSP) that he submitted in connection with a
reinvestigation for continued access authorization. The Individual testified that he did not know
about the investigation when he initially submitted the QNSP. Tr. at 46-47. He also testified that
he disclosed the investigation to the investigator during the first ESI interview despite there being
no reference to the disclosure in the ESI records. Tr. at 47, 49.
There is no dispute the Individual failed to disclose his Record of Discussion in the QNSP. The
QNSP included the question whether the Individual had received, within the last seven years, a
written warning or official reprimand for misconduct from his employer. Ex. 3 at 27. He similarly
provided a negative response to the same question during his initial ESI interview, but when the
investigator confronted him in a follow-up ESI interview after discovering the Record of
Discussion, he stated that he “completely forgot” about it. Ex. 4 at 7.
The record contains the text of the Record of Discussion, which the Individual acknowledged and
signed.3 Ex. 6. The letter contains the following language: “This is the fourth occurrence of this
unacceptable behavior in the past 9 months . . . . The previous 3 events resulted in verbal
counseling. This behavior . . . is a serious matter. Any further occurrences will result in disciplinary
action up to and including termination.” Id. at 16.
At the hearing, the Individual testified that a Record of Discussion differs from a letter of
reprimand.4 Tr. at 48. He defined the former as “simply an on the record talk between me and my
supervisor . . . about behavior[,]” not discipline. Id. He stated the Union Board told him that “a
letter of discussion is not a discipline or reprimand” and “it does not need to be noted on anything.”
Id. at 97. However, he also stated that while it is “an informal thing[,] management uses it to
“address the behavior and kind of nip it in the bud.” Id. at 48-49. Finally, he stated that, despite
his understanding that it is not discipline, he would include it in future QNSPs. Id. at 97.
V. ANALYSIS
I have thoroughly considered the record of this proceeding, including the submissions tendered in
this case and the testimony of the Individual. 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) and the Adjudicative Guidelines. After due deliberation, I have determined that the
Individual’s access authorization should not be restored. I cannot find that restoring the
Individual’s security clearance will not endanger the common defense and security, and that it 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.
Guideline E
The Guideline E security concerns stem from the Individual’s repeated rule violations and
alleged lack of candor during the employer-led investigation and the subsequent security
3 The record contains the relevant information from the Record of Discussion, not the letter itself.
4 The terms Record of Discussion and letter of discussion are interchangeable.
- 7 -
clearance investigation process. Conditions that may mitigate Guideline E concerns include,
in relevant part:
. . .
(b) The refusal or failure to cooperate, omission, or concealment was caused or
significantly contributed to by advice of legal counsel or of a person with
professional responsibilities for advising or instructing the individual specifically
concerning security processes. Upon being made aware of the requirement to
cooperate or provide the information, the individual cooperated fully and truthfully;
(c) The offense is so minor, or so much time has passed, or the behavior is so
infrequent, or it happened under such unique circumstances that it is unlikely to
recur and does not cast doubt on the individual’s reliability, trustworthiness, or
good judgment;
(d) 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 contributed to untrustworthy, unreliable, or other inappropriate
behavior, and such behavior is unlikely to recur;
. . . .
Adjudicative Guidelines at ¶ 17.
In this case, the Individual committed two types of rule violations: the security protocol
infractions that led to his Record of Discussion and his misuse of the computer system that
resulted in his three-day suspension. Regarding the former, excessive phone use while on duty
is relatively minor. However, it required three verbal counseling notices and one written notice
within a nine-month period before the Individual ceased the behavior. Furthermore, less than
a year passed before he received a three-day suspension for misconduct.
Although almost two years have passed since the Individual’s last disciplinary incident, the
suspension, I remain concerned by his statements and testimony surrounding his rule
violations, which reflect negatively on his candor and character for truthfulness. For instance,
he did not initially respond truthfully to his supervisor when asked about his cell phone use;
he only admitted to watching a video when confronted with evidence. Then, during his ESI,
he told the interviewer that he did not know he was breaking a rule, which I find not to be
credible because the Individual had been verbally counseled on three prior occasions regarding
his phone use; he must have therefore known that he was violating the rules the second, third,
and fourth time he decided to inappropriately use his cell phone while on duty. Furthermore,
if he truly believed that he was not violating a rule, he would have little incentive to deny his
conduct before his supervisor confronted him with the evidence. Further still, he characterized
the video as short while the record reflects he watched the video for an extended period. While
minor, it appears to be another attempt to minimize the behavior. Additionally, I do not place
much weight on his testimony that his behavior was part of the work culture. I do not find this
- 8 -
excuse credible given that his employer counseled him several times on the issue. Finally, the
Individual’s testimony that he had generally received exemplary performance evaluations from
his employer since being hired in 2014 does not outweigh the concerns raised by his
misconduct discussed above.
I am similarly concerned by his testimony surrounding his questionable use of the employer’s
computer system. The Individual disputes the finding that he was not truthful during the
investigation, and attempts to blame his attempts to access the prohibited documents on a lack
of training. I do not believe he has thereby mitigated the Guideline E concerns. I did not receive
any information which convinced me that his employer was incorrect in its finding of
misconduct. First, he admitted that he attempted to access the twenty-seven documents.
Second, an IT Advisor explained that it would be atypical for the Individual to have access to
some, but not all, documents in a particular folder. Thus, the employer had evidence the
Individual withheld information or failed to fully cooperate with the investigation when he
denied reading some of the files. Third, the Individual admitted during the investigation that
he should not read documents identified as “Personal & Private.”
The Individual conceded during the hearing, after an initial denial, that some of the documents
he reviewed contained personal information related to other employees. Consequently, I find
specious his continued explanation that, at the time, he did not think he was violating a rule by
reviewing documents that contained personal information related to other employees and
unrelated to his employment. In a similar vein, I am concerned by his continued belief that it
was appropriate to access and review interview question in order to gain personal advantage.
My concerns remain despite the fact that he did not apply to the position and that other
employees engaged in similar behavior. I therefore remain concerned by the Individual’s
questionable judgment, lack of candor, dishonesty, and unwillingness to comply with rules and
regulations.
Turning to the Individual’s failure to disclose misconduct during the security clearance
process, I find questionable his explanation for omitting his Record of Discussion in his QNSP.
Standing alone, this may be characterized as minor, but it is another example of questionable
judgement and lack of candor. Just as he initially denied watching a video on his cell phone
until confronted with evidence, he initially denied receiving any record of warnings or
discipline before being challenged during a second ESI interview. He then blamed his omission
on poor memory. At the hearing, he went to great lengths to explain that he thought, and still
thinks, that the Record of Discussion, which documented his “fourth occurrence” of
“unacceptable behavior” and stated that any further occurrences will result in “disciplinary
action up to an including termination,” did not constitute a written warning. The language of
- 9 -
the document leaves little doubt it is a written warning. His present assertion that he relied
upon the Union Board’s definition of reportable discipline does not mitigate the concern.
Finally, the record contradicts the Individual’s testimony that he disclosed the misconduct
investigation during the first ESI interview. Accordingly, I do not find that the Individual has
mitigated the Guideline E concerns.
Guideline M
The Individual attempted to mitigate his failure to comply with his employer’s information
technology system rules by demonstrating that he is not likely to repeat the behavior and that
the behavior resulted from the company’s culture and inadequate training. The following
relevant conditions may mitigate Guideline M concerns:
(a) So much time has elapsed since the behavior happened, 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;
. . .
(d) The misuse was due to improper or inadequate training or unclear instructions.
Adjudicative Guidelines at ¶ 41.
The LSO relied upon information related to the Individual’s concerning use of the employer’s
technology system to invoke both Guidelines E and M. Therefore, the same conclusions I
reached in the preceding section for Guideline E also prevent me from finding that the
Individual has mitigated the Guideline M concerns. The record in this case, along with the
Individual’s testimony regarding the circumstances that led to his suspension for violating his
employer’s information technology rules of conduct, leave me with doubt regarding his
reliability, trustworthiness, and good judgment or that such misconduct will be unlikely to
reoccur.
VI. CONCLUSION
Upon consideration of the entire record in this case, I find that there was evidence that raised
concerns regarding the Individual’s eligibility for a security clearance under Guidelines E and M
of the Adjudicative Guidelines. I further find that the Individual has not succeeded in resolving
those concerns, and I cannot conclude that restoring the Individual’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). Accordingly, I have determined that the Individual’s access authorization
should not be restored. Either party may seek review of this Decision by an Appeal Panel pursuant
to 10 C.F.R. § 710.28.
James P. Thompson III
Administrative Judge
Office of Hearings and Appeals