Case No. VSA-0084, 25 DOE ¶ 82,754 (OHA Nov. 4, 1996)

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* 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 XXXXX's.

NOVEMBER 4, 1996

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Name of Case: Albuquerque Operations Office

Date of Filing: September 27, 1996

Case Number: VSA-0084

This Opinion considers a Request for Review filed by XXXXXX (hereinafter "the individual") concerning his eligibility to retain an access authorization under the regulations set forth at 10 C.F.R. Part 710, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." <1>The individual's access authorization was suspended at the direction of the Manager of DOE's XXXXX Operations Office (DOE/XXXXX). The individual requested an administrative review of this action before a Hearing Officer, and on August 23, 1996, the Hearing Officer assigned by the DOE Office of Hearings and Appeals issued an Opinion recommending that the individual's access authorization should not be restored. On September 27, 1996, the individual filed a Request for Review of the Hearing Officer's Opinion pursuant to 10 C.F.R. § 710.28. 10 C.F.R. §710.28(a). On October 11, 1996, he filed a Statement setting forth the issues on which he wishes the Director of the Office of Hearings to focus (Statement of Issues). 10 C.F.R. §710.28(b). On October 30, 1996, the Director, Office of Safeguards and Security (OSS) filed a response to the Request for

Review, indicating that his Office did not wish to submit additional comments in this proceeding. 10 C.F.R. § 710.28(b). This Opinion considers the issues raised by the Statement of Issues.

I. BACKGROUND

The facts in this case, as found by the Hearing Officer, are as follows. On February 11, 1993, the individual was arrested and charged with Criminal Trespass for peeping into a female neighbor's window on February 3, 1993. On February 25, 1993, he was arrested for Indecent Exposure, which occurred when he exposed himself to that woman on September 14, 1992, and for an additional Criminal Trespass involving a February 3, 1993 peeping incident. The individual promptly reported these arrests to DOE/XXXXX's Personnel Security Division, which took no action at that time to suspend his access authorization. On February 2, 1995, he was arrested again for Criminal Trespass, which occurred on January 8, 1995. In this instance, the individual is alleged to have peeped into the same woman's window. The individual promptly reported the 1995 arrest to the DOE/XXXXX. The individual pled guilty to one of the charges arising out of the February 3, 1993 incident, and the other charges were dropped after he agreed to participate in a pre-trial diversion program, which commenced on May 15, 1995, and concluded on May 15, 1996.

In addition to the arrests for sex offenses committed in 1992, 1993 and 1995, during a Personnel Security Interview (PSI) conducted on February 22, 1995, the individual acknowledged that he was arrested in October 1985 for Indecent Exposure and had plea bargained to reduce this charge to Disorderly Conduct, for which he paid a $20 fine. On August 16, 1995, the individual was evaluated by a DOE- consultant psychiatrist. In his report, the DOE psychiatrist found that the individual has two mental conditions, voyeurism and exhibitionism.<2> He opined that "It is more likely than not that [the individual] will reoffend and engage in either Voyeurism and Exhibitionism again." The DOE psychiatrist also found that "[the individual] would be subject to blackmail were he to reoffend and a neighbor threatened to tell authorities." DOE Exhibit 12 at 47.

The DOE/XXXXX issued a Notification Letter to the individual which charged under 10 C.F.R. § 710.8(h) (Criterion H) that the individual has two illnesses or mental conditions--voyeurism and exhibitionism--of a nature which in the opinion of a board- certified psychiatrist, cause, or may cause, a significant defect in his judgment or reliability. The Notification Letter also charged under 10 C.F.R. § 710.8(l) (Criterion L) that in view of his arrests for sex offenses, 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 which furnishes reason to believe that he may be subject to pressure, coercion, exploitation, or duress which may cause him to act contrary to the best interests of the national security.

The individual filed a request for a hearing on these charges. At the hearing, the individual was represented by an attorney. The individual testified on his own behalf, and he called ten other witnesses, including his wife, a number of his co-workers, the psychotherapist who has treated him for voyeurism and exhibitionism, and officials from the DOE's Personnel Assurance Program. DOE/XXXXX presented nine witnesses at the hearing, including the complaining witnesses who reported the individual's offenses, the investigating police officer, the DOE psychiatrist, a DOE contractor-polygraph expert, and two DOE personnel security specialists.

A. Criterion H

Derogatory information that falls within Criterion H includes an illness or mental condition of a nature which in the opinion of a board-certified psychiatrist may cause a significant defect in judgment or reliability. The individual admitted at the hearing that he has the mental conditions described in the Notification Letter, exhibitionism and voyeurism, and he accepts responsibility for the peeping and exhibitionism incidents that occurred in 1992 and 1993. According to the individual, he realized that he was in danger of losing his job, his marriage and his family, and began individual psychotherapy and took other steps to turn his life around, such as destroying his pornography and returning to his church. As a result of these actions, the individual claimed that his marital relationship has significantly improved, and that he has been rehabilitated.

While he admitted responsibility for the actions which led to his arrests in February 1993, the individual denied that he exposed himself to a woman from his garage in October 1985, the purported act that led to his first arrest for Indecent Exposure. He also denied that he committed the Criminal Trespass on January 8, 1995, for which he was later arrested. He offered alibi evidence to show he was not present at the scene of that incident, and he insists that he has been wrongly identified as the man who was peeping in a neighbor's window on that night.

Before the hearing, the individual took a polygraph examination at his lawyer's suggestion to prove that he was not involved in the 1995 peeping incident, but the test format was defective and key records were lost, so that this first polygraph does not provide any useful evidence. At the hearing on May 9, 1996, the individual offered again to take an exculpatory polygraph examination, conducted by DOE contractors. The DOE/XXXXX was agreeable, and the record was kept open after the hearing while the DOE Counsel and the individual's attorney attempted to make arrangements for the individual to take a polygraph. But the individual was unable to obtain clearance from his personal physicians who are currently treating him with chemotherapy for cancer, and DOE/XXXXX would not subject the individual to an exculpatory polygraph without medical authorization.

At the hearing, the individual's therapist (who is a psychiatric social worker) and the DOE psychiatrist both testified about the individual's mental condition. His personal therapist stated that in addition to exhibitionism and voyeurism, the individual has "a blending of schizoid personality disorder with narcissistic personality disorder." While conceding that persons with exhibitionism and voyeurism often reoffend, he stated that he thought the individual was rehabilitated. Transcript of Hearing (hereinafter Tr.) at 242.

The DOE psychiatrist concluded that although the individual may be rehabilitated "to some extent," he feared that "it's to the wrong extent in that he has grasped on to something that, even though it may be helpful, it's not really the best way to treat this sort of problem." Tr. at 323. Based on his experience treating persons with these sexual behaviors, the DOE psychiatrist opined that the individual was more likely than not to "exhibit a very narrowly circumscribed defect in judgment," and to "reengage in that kind of behavior at some point in the future." Tr. at 324-325; 333. However, the DOE psychiatrist agreed with several other witnesses who testified at the hearing that the individual's judgment, reliability and safety in the workplace were not affected by his sexual behavior off the job. Id. at 338-340.

After considering the evidence in the record, the Hearing Officer found that Notification Letter properly invoked the provisions of Criterion H. The Hearing Officer found that the individual had failed to come forward with evidence showing that he was not involved in the January 1995 peeping incident. He noted the many witnesses at the hearing who testified about the individual's history of peeping in the victim's window. He stated that the only alibi testimony comes from the individual's wife, who said that she checked on him in the hot tub every ten minutes. He found that it was physically possible for the individual to get from his house to the victim's house in a short time, estimated by various witnesses as no longer than five minutes. Finally, he determined that even without the 1995 incident, there was still enough evidence in the record to support the Notification Letter's charge under Criterion H. <3>

With respect to the question of rehabilitation, the Hearing Officer considered the testimony of both the individual's therapist and the DOE psychiatrist, both of whom are experienced in treating individuals with exhibitionism and voyeurism. Both witnesses agreed that persons with those illnesses are caught only in a small percentage of the times in which they engage in those behaviors, and that the behaviors tend to be chronic so that many exhibitionists and voyeurs will reoffend. The Hearing Officer noted that they differ in their assessments of the individual's condition. The individual's therapist attributed greater significance to the individual's marital problems, and stated that the individual has made progress toward rehabilitation. The therapist admitted that he did not know whether the individual was telling the truth about his involvement in the 1995 peeping incident, and he was not certain that the individual would not engage in exhibitionism or voyeurism in the future. The Hearing Officer pointed out that the DOE psychiatrist had a differing opinion about the origins of the individual's behavior, and consequently, more doubts about the efficacy of the individual's treatment. Although he was uncertain about whether the individual would be able to control his exhibitionism and voyeurism in the future, the DOE psychiatrist believed that the individual was still in denial, and more likely than not to reoffend. After considering the testimony of the individual's therapist and the DOE psychiatrist, the Hearing Officer was not convinced that the individual, a man with a ten year history of arrests for exhibitionism and voyeurism, was rehabilitated.

B. Criterion L

The Notification Letter also raised a security concern pertaining to Criterion L, which in relevant part includes information that an individual engaged in any unusual conduct which furnishes reason to believe that he may be subject to pressure, coercion, or exploitation, which may cause him to act contrary to the best interests of the national security. The security concern under Criterion L is that engaging in exhibitionism and voyeurism could make the individual susceptible to pressure, coercion, exploitation and duress.

The individual maintained that his conduct after his recent arrests shows that he is not susceptible to blackmail. Tr. at 263-264; 278-280. The Hearing Officer recognized that the individual has promptly reported all of his recent arrests to DOE/XXXXX, even though the information was embarrassing, and he knew that it might subject his access authorization to review and possible revocation. Nevertheless, the Hearing Officer found that the psychiatric evidence discussed above suggests that there is a substantial risk that the individual might engage again in those behaviors. Since future incidents would jeopardize his security clearance and his job, it is possible that the individual would be vulnerable to pressure from someone who threatened to report his sexual misconduct to the authorities. The Hearing Officer found that the risk of exploitation is much greater for this individual than for a person without his mental condition. It was the Hearing Officer's opinion that this individual's access authorization should not be restored because there is an unacceptably high degree of risk that he would to be subject to exploitation. He therefore concluded that the individual has failed to show that restoring his access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, he recommended that the individual's access authorization not be restored.

II. ANALYSIS

A. Standard of Review

As a general rule, findings of fact in these types of cases will not be set aside unless they are clearly erroneous, giving due regard to the fact that the trier of fact is in the best position to judge the credibility of witnesses. Compare, Pullman-Standard v. Swint, 456 U.S. 273 (1982) (Pullman) with Amadeo v. Zant, 486 U.S. 214, 223 (1988)(Amadeo), quoting Federal Rule of Civil Procedure 52(a). See also, Helen Gaidine Oglesbee v. Westinghouse Hanford Company, 25 DOE ¶ 89,001 (1995). Findings not supported by substantial evidence are taken to be clearly erroneous. Freeport Sulphur Co. v. S/S Hermosa, 526 F.2d 300 (5th Cir. 1976). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552 (1988). A finding is considered clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. U.S. v. United States Gypsum Co., 333 U.S. 364, 395 (1948).

In personnel security cases under Part 710, it is the role of the Hearing Officer to issue an Opinion as to whether granting an access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. § 710.27(a). Thus, in reviewing the Hearing Officer's Opinion in this case, I must assess whether there is substantial evidence to support his finding that granting an access authorization to this individual would endanger the common defense and security and would not be clearly consistent with the national interest.

After reviewing the entire record in this case, I find that both the record and the Hearing Officer's Opinion contain substantial evidence that restoring this individual's access authorization would not be clearly consistent with the national interest. As discussed fully below, I find no basis for the individual's assertions that the Hearing Officer's conclusions are incorrect or without foundation. I now turn to the specific evidence in this case and the Statement of Issues at hand.

B. Statement of Issues

The individual first argues that the Hearing Officer improperly accepted the conclusion of the DOE psychiatrist that the individual was not rehabilitated. In this regard he states that the Hearing Officer gave too much weight to the DOE psychiatrist's opinion and did not give enough deference to other psychiatric personnel who worked with the individual. The individual maintains that the DOE psychiatrist's opinion was not based on any facts, and was not based on long term observation of the individual.

The Hearing Officer is responsible for considering the demeanor and credibility of witnesses. 10 C.F.R. § 710.27(b). He also assesses the appropriate weight to be given to their testimony. Personnel Security Review (Case No. VSA-0014), 25 DOE ¶ 83,002 at 86,512. Absent some error, I will not supplant my judgment for that of the Hearing Officer in such matters. Personnel Security Review (Case No. VSA-0049), 25 DOE ¶ 83,011 (1996).

In the present case, I see no error in the weight that the Hearing Officer gave to the DOE psychiatrist's testimony. The individual claims that the DOE psychiatrist's opinion was not based on any facts, and that the opinion was not based on the individual personally or based on his particular case. I do not agree. As is clear from the record in this case, the DOE psychiatrist conducted a two and one-half hour interview with the individual, and read the individual's DOE personnel security file. Tr. at 306; DOE Exhibit 12. Thus, the DOE psychiatrist did have direct contact with the individual and was able to draw his conclusions based on direct observation of the individual, and based on a substantial amount of written material related to him.

Moreover, the DOE psychiatrist has significant professional experience in the area of evaluating and treating sex offenders. As he stated in the hearing, he has evaluated about 1000 sex offenders and treated 500 in the past twenty years, including a number of voyeurs and exhibitionists. Tr. at 295. Thus, even though the DOE psychiatrist did not spend as much time with the individual as his treating therapist, I find that he was able to make a reliable professional diagnosis of this individual, upon which the Hearing Officer could properly rely.

I further find that the Hearing Officer properly considered the testimony of all of the experts regarding the rehabilitation picture for this individual. He weighed the testimony of the individual's therapist, who attributed greater significance to the individual's marital problems, against the opinion of the DOE psychiatrist, who believed that the individual suffers from chronic psychological maladjustment. While the individual's therapist thought that the individual had made progress toward rehabilitation, the DOE psychiatrist believed that the type of treatment that the therapist had provided the individual was not really the best way to treat this sort of problem. Tr. at 303-6, 323. The DOE psychiatrist believed that the individual is still in denial and is more likely than not to reoffend. Tr. At 308.

There was also testimony at the hearing by two psychologists who were employed at the individual's plant. Tr. At 381-95. Both of these witnesses examined the individual for purposes of determining whether he was able to perform his job in a safe, reliable manner, and found that he was able to do so. However, this finding does not necessarily apply to the seriousness of the illness and the question of rehabilitation for purposes of assessing a national security risk. With respect to the matter of national security, one of the psychologists employed by the individual's plant admitted that he had rather limited knowledge on the overall security issue. Tr. at 384-386. The other psychologist could not give an unqualified opinion about whether the individual was rehabilitated or about whether he presents a security risk. Tr. at 394-95. Thus, the testimony by these two mental health witnesses was certainly far from dispositive. Moreover, the Hearing Officer had the opportunity to consider their demeanor, and judge their credibility. Considering these factors, I find that there was a substantial basis in the record from which the Hearing Officer could conclude that the testimony of these witnesses was outweighed by other evidence.

With respect to the issue of rehabilitation, the Hearing Officer was persuaded by the testimony of the DOE psychiatrist that there was a real risk of relapse. I can find no error in that determination.

In this regard, it is certainly possible for experts to differ honestly on the causes, treatments and current status of a patient's mental illness. E.g., Personnel Security Hearing (Case No. VSO-0034), 25 DOE ¶82,768 (1995); Personnel Security Hearing (Case No. VSO-0032), 25 DOE ¶ 82,765 (1995), aff'd, Personnel Security Review (Case No. VSA-0032), 25 DOE ¶ 83,004 (1995). In making his determination regarding the recommendation of access authorization, the Hearing Officer must make a predictive assessment as to whether restoring the security clearance would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. ¶ 710.7(a). Personnel Security Hearing (Case No. VSO-0044), 25 DOE ¶ 82,780 (1995). Thus, the considerations involved in determining whether an individual is rehabilitated for clinical purposes may not be identical to those involved in making an assessment as to whether an individual is sufficiently rehabilitated for purposes of being granted an access authorization. In this case, the Hearing Officer had a sufficient basis for determining that the individual had not shown that the offending sex behavior would not recur. Based on the DOE psychiatrist's testimony, he found the risk of relapse was still too high to support a recommendation in favor of the security clearance.

Given the thorough testimony of the DOE psychiatrist, the weak testimony of the two workplace psychologists, and other factors referred to by the Hearing Officer's Opinion, such as the individual's ten year history of arrests for exhibitionism and voyeurism, I find that there was a sufficient basis in the record for the Hearing Officer's conclusion that the testimony of the DOE psychiatrist outweighed that of the other mental health professionals.

The individual next points to his three years of therapy, the traumatic events caused by his mental disease (being physically attacked, and jailed), his operation for cancer and subsequent chemotherapy, his new-found religious orientation and constant monitoring by DOE psychiatric personnel. In light of these events he argues that "it is more likely than not that his behavior has been modified," and that he has been rehabilitated. In this regard, the individual maintains that according to the testimony in this case, voyeurism and exhibitionism tend to recede after the age of 40, and that these conditions can also be affected by traumatic experiences. The individual is XXXXX and asserts that the cancer treatment will continue until he is approximately age 40. He maintains that during his period of chemotherapy, his physical condition will prevent him from engaging in any sexual offenses. The individual contends that given these circumstances he is unlikely to return to any of the offending behaviors before the age of 40. He believes that he has shown that once he reaches that age he will no longer be at risk for that behavior.

As an initial matter, I cannot agree with the contention that the individual should no longer be considered a security risk because after age 40 voyeurism and exhibitionism "tend to recede" and further because they recede with trauma. The testimony of the DOE psychiatrist was that there are fewer arrests for exhibitionism after the age of 40. Tr. at 320. See also Exhibit 12 at 45. However, the DOE psychiatrist went on to relate this to the fact that the sex drive of a 50 or 60 year old man is half that of a man of 20 or 30. Tr. at 320. Thus, the testimony indicates that there is some continuum of gradually reduced arrests for exhibitionism after the age of 40, and not that at the age of 40 there is an immediate likelihood of no further sex offenses.<4> Consequently, the fact that the individual will soon turn 40 does not necessarily mean that the risk of recidivism will abruptly end, and that no further security concern is therefore warranted.

The individual also challenges the conclusion that he was involved in the January 1995 peeping incident. He argues that his wife checked on him in his hot tub every ten minutes, so that there was only a 10 minute period of time in which the incident could have taken place, implying that she would have otherwise been aware that he was missing. He contends that it is not feasible for the incident to have taken place in that short time frame. Specifically, he maintains that it was not physically possible for him to have leaped over a fence, run through the neighborhood without being seen, changed clothing, and appeared at the door of his residence with his wife within ten minutes. He maintains that the Hearing Officer erred in disregarding the testimony of the individual's wife to the effect that he could not have been the culprit in the 1995 peeping incident.

Furthermore, the individual argues that his polygraph examination establishes his innocence in the 1995 peeping incident. He also maintains that he offered to take another polygraph, which the DOE did not agree to perform because he could not obtain medical approval. Given this fact, the individual believes that he has met his burden of establishing that he was not involved in the 1995 incident. He believes that since the DOE "prevented the administration " of another polygraph, it was inappropriate to find that the individual had not met his burden of providing sufficient evidence to support his lack of involvement in the 1995 incident.

The individual also believes that the DOE improperly "threatened" him and his wife with a polygraph test. He suggests that this "threat" constitutes unethical behavior on the part of DOE personnel in connection with the polygraph issue which should have been addressed by the Hearing Officer.

I see no error with respect to the Hearing Officer's treatment of this incident. Regarding the polygraph matter, the individual has incorrectly asserted that he "passed the test." In fact, there was testimony by the DOE polygraph expert to the effect that the test was defectively designed. Moreover, as the Hearing Officer noted, the recorded data was lost. Therefore, it was certainly appropriate for the Hearing Officer to determine that this test should not be accorded any significant weight.

Further, the individual's cancer treatment ruled out another polygraph examination. Contrary to the individual's assertion, it was not the DOE's burden to provide the opportunity for a second polygraph. Thus, the Hearing Officer clearly had an ample basis for not referring to polygraph evidence in drawing his conclusion about the 1995 incident. I see no merit to the claim that the Hearing Officer was in error in finding that the individual had not met his burden of providing evidence with respect to the polygraph issue.

Finally, the record does not support the assertion that there was any improper behavior by DOE officials in connection with the polygraph test that should have been addressed by the Hearing Officer. The evidence in the record shows that the DOE security specialist simply asked the individual how he would feel about taking a polygraph test, and that the individual consented to do so. Transcript of February 22, 1995 Personnel Security Interview at 67. At the hearing, the security specialist stated that posing this question was a technique to test the sincerity of an individual's statements. Tr. at 65-66. I see no coercion or other impropriety in that question. The individual argues that since he was willing to take the polygraph test, he must not be "guilty" of the 1995 peeping incident. I certainly see no sufficient foundation for that broad conclusion. The Hearing Officer could reasonably determine that the individual's consent to undergo a polygraph alone, was not enough evidence to establish that he was not involved in the 1995 incident.

I also see no error by the Hearing Officer in his overall conclusions regarding the complicity of the individual in the 1995 incident. The Hearing Officer discussed in detail his reasons for deciding that the individual was involved in that incident, and pointed to the evidence in the record supporting his conclusions. Specifically, he found the neighbor who identified the individual as the culprit to be a credible witness at the hearing. He also pointed out that various witnesses estimated the time frame for the individual to get from his house to the victim's house as no longer than five minutes. The Hearing Officer also noted that many witnesses at the hearing testified about the individual's history of peeping in the victim's window. The Hearing Officer also pointed out that the only alibi testimony came from the individual's wife. It is clear from his Opinion that the Hearing Officer found the wife's alibi testimony alone to be less substantial than the combined testimony of the other witnesses.

From my independent review of the record, I find that there was considerable, detailed testimony from four witnesses regarding the admitted peeping incidents, as well as the 1995 disputed incident. These witnesses included the victim, her daughter, her boyfriend, and a neighbor. Tr. at 89-176. There was substantial testimony supporting the conclusion that the individual was physically capable of committing the 1995 violation. One witness stated that the "peeper" was tall and athletic. Tr. at 121. Although the individual claims that he was incapable of leaping over the victim's fence, there was testimony at the hearing to the effect that an individual did leap over the victim's fence on the occasions of the peeping incidents. Tr. at 114-16, 131, 150-51, 163-64, 168-69. At least one of those instances involved an admitted peeping incident by the individual. Witnesses testified that after the incidents, the individual took off running and could not be caught. Tr. at 108, 140, 145, 184. There was also testimony that it took only 2 minutes, or at the most five minutes to jog from the victim's house to the individual's house. Tr. at 155, 200. Thus, the Hearing Officer had an adequate evidentiary basis for concluding that it was possible to complete the peeping act, as described, in a ten minute period, and further that the individual was physically capable of climbing over the fence and jogging home in the short span of time involved here.

On the other hand, after reviewing the record, I find the wife's testimony to be insubstantial in confirming the individual's whereabouts on the evening in question. The wife stated, "I don't remember this specifically--but I don't ever remember a time not checking when people are in the hot tub." Tr. at 397. She then testified, "He [the individual] stayed out there [in the hot tub] for about 3 sits--we do it in ten minute sits so that would be about 30 minutes." Id. In this testimony the wife did not strongly confirm that she actually observed the individual in the hot tub or checked on him every ten minutes.

The wife also testified that after coming into the house from using the hot tub, the individual watched television with her. The individual then went to bed. The wife indicated, however, that she was not with him in bed because she was sitting with her sick daughter in another room for a period of time. She then testified that the police came to her home some time after 9:30 p.m. She stated that they asked her "where the individual was 10 or 15 minutes ago." The wife testified that she told them, "He's been right here, he's already in bed." Tr. at 399. This testimony is certainly not very strong. The wife indicates that there was a period when the individual was not in her presence, because she was watching her sick daughter while her husband was in bed. She then merely restates in a general way what she remembers telling the police. From my overall review of this testimony, there is certainly sufficient evidence in the record to support the Hearing Officer's implicit conclusion that the wife's alibi testimony was rather weak.

In sum, I find that the Hearing Officer, who was able to observe these witnesses and question them, was in the best position to determine whether the cumulative testimony of the neighbors and complainants regarding the 1995 incident was more credible than that of the individual's wife. This is particularly so given the wife's obvious personal interest in protecting the individual. There is also a substantial evidentiary foundation, based on the testimony of the complainants and neighbors, that the individual could well have been responsible for 1995 peeping incident. The determination of the Hearing Officer that their testimony outweighed that of the wife was well grounded. I see no error in the Hearing Officer's determination and I will not reverse it.

The individual also points to testimony at the hearing that he was cleared to handle nuclear weapons and their components under the Personal Assurance Program (PAP) from 1993 through 1995. He alleges that it is inconsistent to allow him to handle nuclear weapons under the PAP, yet consider him a threat to national security.

The Hearing Officer did not specifically address this purported inconsistency in his determination. It is clear from the hearing transcript that no inconsistency exists, and it hardly warrants detailed discussion. As a psychologist at the individual's workplace stated, PAP is a safety program. Under this program the employer evaluates whether a given employee poses a safety risk on the job. Tr. at 391-92. There was testimony to the effect that this individual does not pose a safety threat at work. For example, the DOE psychiatrist so testified, as did the two workplace psychologists. Tr. at 338-40, 382, 386. The Hearing Officer recognized this in his Opinion. However, a proceeding under Part 710 considers the broader issue of whether an individual poses an overall security risk. Thus, even though an individual may not present a safety risk on the job, there may be circumstances under which he could pose a security risk outside the work environment. It is just this type of risk that the Hearing Officer identified when he referred to the potential for blackmail and coercion of this individual. Thus, the record provides a reasoned distinction between a security risk and a safety risk, and I see no error based on the alleged failure to give proper weight to the individual's inclusion in the PAP.

In this regard, it is important to bear in mind that behavior that is illegal and shows a failure of judgment poses a security threat, no matter where it occurs. The fact that an individual might engage in such behavior off the job and still be a dependable worker does not eliminate the security risk factor. See Personnel Security Hearing (Case No. VSO-0075), 25 DOE ¶ 82,799 (1996) (request for review pending); Personnel Security Hearing (Case No. VSO-0068), 25 DOE ¶ 82,804 (1996).

The individual also contends that since his neighbors and coworkers all know about these peeping incidents, blackmail is not possible, and that there is thus no future risk to national security. This argument misses the point, noted by the Hearing Officer in his Opinion, that the individual might nevertheless be subject to pressure in the future if his access authorization were restored. As the Hearing Officer pointed out, there is psychiatric evidence that there is a substantial risk that the individual might engage again in the offending behaviors. Since his clearance and job would be in jeopardy if he does so, it is possible that he individual would be vulnerable to pressure from someone who threatened to report his misconduct. Thus, the individual's repeated claim that he is not subject to blackmail is not borne out by the record.

In view of these circumstances, I find no error in the Hearing Officer's determination this individual poses an unacceptably high degree of security risk.

III. CONCLUSION

As is evident from the above discussion, the matters raised by the Statement of Issues indicate that the individual strongly disagrees with the conclusions reached by the Hearing Officer. However, dissatisfaction and disappointment do not amount to error by the Hearing Officer. As I explained at the outset, findings of fact by a Hearing Officer will be set aside only if they are not supported by substantial evidence. Although the non-prevailing party here may well disagree with the outcome, as detailed above, there is ample evidence in the record to support the Hearing Officer's determination.

Accordingly, it is my opinion that the individual's access authorization should not be restored. 10 C.F.R. § 710.28(d).

The regulations specify that within 30 days of receipt of this opinion, the Director, Office of Security Affairs, will make a final determination regarding restoration of the individual's access authorization based upon a complete review of the record. 10 C.F.R. § 710.28(e). The Director, Office of Security Affairs, shall through the Director, Office of Safeguards and Security, inform the individual and his counsel in writing of the final determination, and provide a copy of the present opinion. Copies of the correspondence shall be provided to the Director, Office of Hearings and Appeals, the Manager, DOE Counsel and any other party. In the event of an adverse determination, the correspondence shall indicate finding by the Director, Office of Security Affairs, with respect to each allegation contained in the Notification Letter. 10 C.F.R. § 710.28(f).

George B. Breznay

Director

Office of Hearings and Appeals

Date: November 4, 1996

<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 be referred to in this Opinion as access authorization or security clearance.

<2>As defined in the fourth revised edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM IV), exhibitionism involves the exposure of one's genitals to a stranger. Sometimes the person masturbates while exposing himself. In some cases, the person has the sexually arousing fantasy that the observer will become sexually aroused. DSM IV at 525. Voyeurism involves the act of observing unsuspecting persons, usually strangers, who are naked, in the process of disrobing, or engaging in sexual activity. The act of "peeping" is for the purpose of achieving sexual excitement, often through masturbation. DSM IV at 532.

<3>That evidence includes the admitted peeping and exposure arrests of 1992 and 1993.

<4>Further, a psychologist at the individual's workplace stated that while arrests for exhibitionism tend to drop off at beginning at age 40, voyeurism is persistent. Tr. at 383.