PSH-20-0067 - In the Matter of Personnel Security Hearing

On October 1, 2020, an Administrative Judge (AJ) determined that an Individual's access authorization under  10 C.F.R. Part 710 should not be granted. The Individual was arrested in    July 2011, and charged with crimes related to the  unlawful  taking  and  use  of  a  credit  card from a resident at a nursing home (Nursing Home A) at which the  Individual  had  been  employed. The Police Report  of  the  arrest  indicates  that  the  Individual  admitted  to  taking  and using the credit card, and court records show that the resulting criminal charges were  dismissed in 2012. The Individual resigned from her position with Nursing Home A shortly afterward. In  2012,  the  Individual  was  terminated  from  her  employment  with  Nursing  Home B. In 2015, the Individual signed and submitted a Declaration for Federal Employment  (DFE) and a Questionnaire for Public Trust Positions  (QPTP). She denied being fired from any job     for any reason within the past five years in the DFE, and denied being fired from any job in the past seven years in the QPTP. The Individual also marked  "no" in the QPTP in response          to a question asking her disclose any past arrests or criminal charges. In a 2017 DFE, the  Individual marked "no" in response to the question  asking  whether  the  Individual  had  been  fired from any job for any reason within the past five years.  In  a  2017 Questionnaire  for  National Security Positions (QNSP), the Individual  marked  "no"  to  the  question  asking  whether she had been arrested omitted her employment with Nursing Home A, omitted her suspension from employment with Employer D,  and  stated  she  left  Employer  C  to  seek  federal employment, despite being terminated from her employment with Employer C. The Individual was also terminated from her employment with Employer D in 2017.

As an initial matter pertaining to Guideline E  (Personal Conduct) concerns, the AJ found that the Individual's assertions at the hearing that her omissions were unintentional or        inadvertent  were not credible.

In an effort to mitigate Guideline E (Personal Conduct) concerns, counsel for  the  Individual argued that the Individual made good faith and prompt efforts to correct her omissions.  The AJ found this argument unconvincing, as the Individual only addressed these omissions after she was confronted with them by  investigators,  and  she  continued  to  be  less  than  candid  at the hearing about her motives for making these omissions. The AJ further found that  the  Individual had several  opportunities  to  disclose  derogatory  information  that  she  had  previously omitted, having completed and signed multiple forms over the span of years.

Counsel for the Individual also asked the AJ to consider mitigating factor (c), arguing that a sufficient amount of time has passed  since  the  forms  were  completed  in  2017 and  the  incidents that took place in 2011 and 2012. The AJ  found  that  the  Individual's  lack  of  credibility during her hearing testimony shows that the concerns about her trustworthiness, judgement, honesty, and reliability raised both by these omissions and the behaviors that they concealed have continued into the present. Accordingly, the AJ found that behaviors raising concerns under Guideline E: did not occur so long ago; were not minor, were not due to any  unique circumstances; and were not infrequent.

In an attempt to mitigate the stated Guideline J (Criminal Conduct) concerns,  the  Individual argued that she was innocent of  the  charges  that  resulted  in  her  July  2011 arrest  by  stating that the charges were ultimately either dismissed  or  withdrawn.  The  AJ  found  that  the  fact  that the charges against the Individual were ultimately dismissed does  not  preclude  the  possibility that the Individual participated in  the  alleged  acts  outlined  in  the  Police  Report.  The AJ further found the Individual's assertion, that  the  arresting  officer  fabricated  her admission to taking the credit card, to be lacking in credibility.

The Individual also provided evidence that she obtained her CNA license, received a number  of commendations and cash rewards for her work performance, and  received  positive  performance reviews from her supervisors.  She  also  submitted  two  letters  recommending  her as a compassionate and kind  person,  provided  information  regarding  her  continued  involvement in her church, and indicated that she has assumed the responsibility of  providing     her severely disabled sister with necessary care. However, the AJ could not find that  the  Individual provided evidence of successful rehabilitation  under  mitigating  factor  (d),  because the Individual's employment record could not  be  characterized  as  "good,"  especially  because she was terminated from Nursing Home A in 2011, suspended from another position in 2012, and terminated from Nursing Home B in  2012.  Further,  the  alleged  circumstances  under  which she lost her job with a Nursing Home A in 2011 were particularly egregious in nature.

Accordingly, the AJ found that Individual had not resolved the security concerns arising under Guidelines E and J. OHA Case No. PSH-20-0067 (Steven Fine).