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Summary of Decisions - October 22, 2012 – October 26, 2012

October 26, 2012 - 11:12am

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Personnel Security Hearing (10 CFR Part 710)

On October 25, 2012, an OHA Hearing Officer issued a decision in which he concluded that an individual’s security clearance should not be restored.  A Local Security Office suspended the individual’s security clearance because the individual demonstrated financial irresponsibility through, inter alia, (1) delinquent and collection debts totaling approximately $120,000; (2)  unpaid state income taxes in the amount of $800; (3) the repossession of his camping trailer for nonpayment; (4) a series of financings secured by his residence between 1990 and 2004, the proceeds of which were primarily used for consumer purchases and the payment of credit cards; and (5) failure to pay delinquent consumer debts since 2009.  After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer found that the individual had not presented evidence that he had resolved his financial difficulties and, therefore, had not mitigated the security concerns. Specifically, he found that (1) the individual’s established pattern of financial irresponsibility with respect to consumer spending only stopped when external factors (i.e., a decrease in real property values) precluded him from addition re-financings of his residence, and (2) the individual has over $120,000 of collection and delinquent consumer debt, much of which has been in a non-payment status since 2009.  OHA Case No. PSH-12-0075 (Wade M. Boswell, H.O.)

On October 26, 2012, an OHA Hearing Officer issued a decision in which she concluded that an individual’s security clearance should not be granted.  A Local Security Office conducted a Personnel Security Interview of the individual to address security concerns about the individual’s falsification of a security questionnaire and his financial irresponsibility.  After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer found that the individual had not presented sufficient evidence to resolve these security concerns.  Specifically, she found that the requisite element of “deliberateness” was met with regard to his falsifications.  She further found that the individual’s recent efforts to resolve his debt have not yet withstood the test of time.  Given the individual’s pattern of financially irresponsible behavior, she was not convinced that the chances of a return to his previous behavior are acceptably low.  OHA Case No. PSH-12-0076 (Kimberly Jenkins-Chapman, H.O.)

On October 25, 2012, a Hearing Officer issued a decision in which he determined that an individual’s access authorization should be restored. In reaching this determination, the Hearing Officer found that the individual resolved security concerns associated with the individual’s failure to report marijuana use in a 2007 Questionnaire for National Security Positions (QNSP) form and his failure to report in a 2012 QNSP his two-time use of a prescription drug not prescribed for the individual. At the hearing, the individual presented evidence attesting to his voluntary disclosure of his limited marijuana use, his increased maturity since completing the 2007 QNSP, his history since the 2007 QNSP of reliability and trustworthiness, and his lack of knowledge as to the illegality of taking the prescription medication, as well as the fact that his two-time prescription drug use was triggered by an acute panic attack. The Hearing Officer found that, with regard to the individual’s prescription drug use, the individual did not intentionally try to mislead the local security office with the 2012 QNSP.  Further, after weighing all of the mitigating and non-mitigating factors, including the Individual’s failure to disclose his marijuana use for five years, the Hearing Officer found that the individual had presented enough mitigating factors to resolve the security concerns raised by his marijuana and prescription drug use.  OHA Case No. PSH-12-0072 (Richard Cronin, H.O.)

On October 24, 2012, an OHA Hearing Officer issued a decision in which he determined that an individual’s DOE access authorization should not be restored.  The local security office received information that criminal charges been filed against the individual for “Computer Crime and Grand Theft” and civil court had awarded a $2.1 million judgment against the individual, and two other defendants, for Breach of Fiduciary Duty, violation of a state Trade Secrets Act, and Civil Conspiracy.  These court actions resulted from two incidents.  In the first incident, one to two weeks before he left a former employer to work for a competitor, the individual backed up the contents of a laptop computer owned by his first employer onto a portable external hard drive that he had purchased.  The individual then kept the information when he went to work for the competitor.  In the second incident, the individual, while working for his first employer, sent an email to his second employer contained detailed proprietary information that would be useful for his second employer when it sought to compete with his first employer.  While the criminal charges against the individual were ultimately dropped, the Hearing Officer found that the individual had not mitigated the security concerns with regard to his honesty, reliability and trustworthiness.  OHA Case No. PSH-12-0071 (Steven L. Fine, H.O.)

On October 25, 2012, an OHA Hearing Officer issued a decision in which she determined that an individual=s request for a DOE access authorization should not be granted.  In reaching this determination, the Hearing Officer found that the individual had not resolved the security concerns arising from her personal conduct, criminal conduct, and financial difficulties.  The individual resigned from a previous employment after being told she would be terminated because she had been caught stealing from a voluntary coffee fund and tardiness.  In addition, the individual had seven criminal charges lodged against her since 1992.  Finally, she had three judgments entered against her for unpaid debts.  After considering all the evidence and testimony in the proceeding, the Hearing Officer found that the individual had not mitigated the security concerns with regard to her honesty, reliability and trustworthiness.  OHA Case No. PSH-12-0057 (Janet R. H. Fishman, H.O.)

On October 25, 2012, an OHA Hearing Officer issued a decision in which he concluded the DOE should not grant an individual an access authorization.   A Local Security Office (LSO) raised certain concerns regarding (1) diagnoses by a DOE consultant psychologist (DOE Psychologist) that the individual suffered from Alcohol Dependence and Personality Disorder NOS; (2) the individual’s history of problematic alcohol use; (3) prior criminal conduct of the individual; (4) evidence of the individual’s financial irresponsibility; and (5) inconsistent information provided to DOE during the security clearance process.  After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer found that the individual had not presented sufficient evidence to mitigate these security concerns.  Specifically, the individual had not abstained from the use of alcohol long enough, nor received treatment for her diagnosed disorders, such that the DOE Psychologist could offer a positive prognosis, and the Hearing Officer found that there remained too great a risk that the individual would use alcohol to excess in the future and/or otherwise experience lapses in judgment and reliability.  In addition, the individual did not resolve concerns raised by her most recent criminal conduct, as the criminal charges at issue were alcohol-related and the concerns related to the individual’s alcohol use had not been resolved.  Regarding the individual’s financial issues, the individual had not demonstrated sufficient progress toward resolving her outstanding delinquent debts, nor shown a sustained period of financial stability.  Finally, the individual did not present testimony or other evidence that would explain or otherwise mitigate the inconsistent accounts she provided regarding her termination from a prior job.  OHA Case No. PSH-12-0077 (Steven J. Goering, H.O.)

On October 26, 2012, an OHA Hearing Officer issued a decision in which he concluded that an individual’s security clearance should not be restored.  A Local Security Office (LSO) suspended the individual’s security clearance because (1) a DOE consultant psychiatrist diagnosed the individual as suffering from Alcohol Abuse/Dependence, (2) the individual had been arrested four times on alcohol-related charges and had received substance abuse treatment, and (3) the individual had a history of criminal behavior, of financial irresponsibility, and of failing to keep commitments made to the LSO.  After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer determined that the individual had presented sufficient evidence to resolve the security concerns stemming from his past use of alcohol, specifically that he had achieved more than five years of abstinence by the date of the hearing.  The Hearing Officer concluded, however, that the individual did not mitigate the security concerns regarding his current judgment, reliability, and trustworthiness.  Specifically, he found that the individual could not be relied upon to be truthful at all times or to keep commitments upon which the LSO had relied in continuing his security clearance.  Finally, he found that the individual’s relatively short period of recent financial responsibility did not sufficiently mitigate the concerns raised by his 20-year history of financial irresponsibility.  OHA Case No. PSH-12-0063 (William M. Schwartz, H.O.)

On October 22, 2012, a Hearing Officer issued a decision in which he determined that an individual’s security clearance should not be restored. In reaching this determination, the Hearing Officer found that the individual had not successfully addressed the DOE’s security concerns regarding his falsifications and misrepresentations on DOE security questionnaires, and during security interviews with DOE officials, and OPM investigators, concerning his past illegal drug involvement. The Hearing Officer further concluded that the individual’s testimony at the hearing was not credible, and that he had failed to show a sufficient pattern of honest behavior to mitigate his previous pattern of dishonesty. OHA Case No. PSH-12-0082 (Robert B. Palmer, H.O.)

Application for Exception

On October 23, 2012, OHA issued a decision considering an Application for Exception filed by Tailored Lighting, Inc. (TLI) for relief from the provisions of 10 C.F.R. Part 430, Energy Conservation Program: Energy Conservation Standards and Test Procedures for General Service Fluorescent Lamps and Incandescent Reflector Lamps (Lighting Efficiency Standards).  In its exception request, TLI requests exception relief for its principal product, a PAR-shaped daylight incandescent reflector lamp known as the SoLux PAR. The company maintains that it has been unable to develop a more efficient alternative that offers the same utility as the SoLux PAR and, as a result, will suffer serious hardship, gross inequity, and an unfair distribution of burdens if required to comply with the applicable energy efficiency requirements set forth in 1992 Amendments to the Energy Policy and Conservation Act of 1975, 42 U.S.C. § 6295(i)(1) (also the 1995 efficiency standards), and the enhanced Lighting Efficiency Standards that the DOE adopted in a 2009 Final Rule, 10 C.F.R. § 430.32(n)(3) (the 2012 efficiency standards).  OHA dismissed the portion of TLI’s request for exception seeking relief from the 1995 efficiency standards because those standards were set forth by statute and OHA does not have jurisdiction to consider a request for exception that purports to adjust statutorily prescribed efficiency standards.  OHA then considered the remaining question of whether it should grant TLI exception from the 2012 efficiency standards, thereby maintaining the 1995 efficiency standards as the required minimum lamp efficacy for the SoLux PAR.  On that issue, OHA determined that TLI should not be granted relief on three grounds.  First, TLI’s decision to pursue development of a product that could not attain existing or impending efficiency standards was a discretionary business decision not warranting relief.  Second, even if TLI’s hardship was not the result of its own discretionary business decision, TLI’s request for relief fell outside the scope of OHA’s authority because the cause of TLI’s hardship was not an agency-promulgated rule (which is the only hardship for which OHA has authority to fashion relief), but rather applicability of the underlying statute.  Finally, even if OHA had authority to grant relief, there was no meaningful relief to grant that would alleviate TLI’s hardship because OHA could not grant relief allowing TLI to produce a lamp whose average lamp efficacy is less than the statutory requirements and the SoLux PARs fall far short of attaining the efficiency levels mandated in the 1995 efficiency standards.  Accordingly, OHA dismissed in part and denied in part TLI’s request for exception relief.  OHA Case Nos. EXC-12-0007

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