Case No. VSO-0084, 26 DOE ¶ 82,754 (H. O. Mann Aug. 23, 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.

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Case Name: Personnel Security Hearing

Date of Filing: February 2, 1996

Case Number: VSO-0084

This Opinion concerns the continued eligibility of XXXXX (hereinafter referred to as "the individual") to hold a level "Q" access authorization under the 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." The individual's access authorization was suspended by the Manager of DOE's XXXXX Operations Office (DOE/XXXXX). As explained below, I recommend against restoring the individual's access authorization.

Statement of the Case

The individual has been employed for over 17 years at the DOE's XXXXX. On February 11, 1993, he was arrested by the XXXXX Police Department 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, which occurred on February 3, 1993. 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 XXXXX, a DOE-consultant psychiatrist. In his report, prepared on September 17, 1995, the DOE psychiatrist found that the individual has two mental conditions, voyeurism and exhibitionism. 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.

On December 8, 1995, the DOE/XXXXX issued a Notification Letter to the individual which charged under 10 C.F.R. § 710.8(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) 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.

On January 16, 1996, the individual filed a request for a hearing on the charges that led to suspension of his "Q" clearance. DOE/XXXXX transmitted the individual's hearing request to the Office of Hearings and Appeals (OHA) on January 30, 1996. We received the request on February 2, 1996, and the OHA Director appointed me as Hearing Officer in this case on February 7, 1996. I convened a hearing in this matter at the XXXXX on XXXXXXXXXXX, and received the transcript of the hearing on XXXXXXXXXXXX. The record was kept open for the submission of additional evidence after the hearing, until it was closed on July 26, 1996.

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.

The applicable DOE 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 or 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 resolving questions about the individual's eligibility for access authorization, I must consider the relevant factors and circumstances connected with the individual's conduct. These factors are set out in 10 C.F.R. § 710.7(c):

the nature, extent, and seriousness of the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the voluntariness of participation; the age and maturity of the individual at the time of the conduct; 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; and the likelihood of continuation or recurrence.

A DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal case, in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. See Personnel Security Hearing, Case No. VSO-0078, 25 DOE ¶ 82,802 (1996). In this type of case, we are dealing with a different standard which is designed to protect national security interests. Administrative review is authorized when the existence of derogatory information leaves unresolved questions about an individual's eligibility for access authorization. A hearing is "for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization." 10 C.F.R. § 710.21(b)(6). The burden is on the individual to come forward at the hearing with evidence to convince the DOE that restoring his 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). This standard implies that there is a strong presumption against the granting or restoring of a security clearance. See Dep't of Navy v. Egan, 484 U.S. 518,531 (1988) ("clearly consistent with the national interest" standard for the granting of 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), cert. denied, 499 U.S. 905 (1991). Consequently, it is necessary and appropriate to place the burden of persuasion on the individual in cases involving national security issues. Personnel Security Hearing, Case No. VSO-0002, 24 DOE ¶ 82,752 at 85,511 (1995).

Findings of Fact and Analysis

As charged in the Notification Letter, the individual's mental condition and his history of arrests for sex offenses raise serious questions about his judgment and reliability, and his vulnerability to coercion, pressure or exploitation. See Personnel Security Hearing, Case No. VSO-0034, 25 DOE ¶ 82,768 (1995). Under these circumstances, the individual must show sufficient evidence of rehabilitation to lead to the conclusion that he would be unlikely to engage in the behavior again. In addition, the individual must provide evidence to mitigate the concern that he would be subject to coercion, exploitation or pressure. Only if he meets his burden of providing that evidence could I conclude that restoring his access authorization would not constitute an unwarranted risk to the national security. After reviewing the record in the present case, I have reached the opinion that the individual has failed to meet this burden, and accordingly, that his security clearance should not be restored. I will address each of the charges in the Notification Letter below.

Criterion H

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 individual masturbates while exposing himself. In some cases, the individual has the sexually arousing fantasy that the observer will become sexually aroused. DSM IV at 525. Voyeurism involves the act of observing unsuspecting individuals, 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.

The individual admits that he has these two mental conditions, and he accepts responsibility for his actions in 1992 and 1993 (described below). Transcript of May 9, 1996 Hearing (hereinafter cited as "Tr.") at 276. The individual attributes his sexual misconduct during that period to marital problems, and an obsession with pornography which he had at the time. Id. at 257. He asserts that he suffered great humiliation after he was chased down and arrested in February 1993. According to the individual, he realized that he was in danger of losing his job, his marriage and his family. Id. at 264. He began individual psychotherapy and took other steps to turn his life around, such as destroying his pornography and returning to his church. Id. at 255. As a result of these actions, the individual claims that his marital relationship has significantly improved, and that he has been rehabilitated. The individual asserts that the negative experience he suffered was so traumatic that he will never engage in exhibitionism or voyeurism again. Id. at 263-264. The individual points to the fact that he was recertified in 1994 under DOE's Personnel Assurance Program (PAP), a safety program for persons who work with nuclear explosives, as evidence that his sexual problems have never interfered with his judgment and reliability in the workplace. Id. at 405-409.

While he admits responsibility for the actions which led to his arrests in February 1993, the individual denies that he exposed himself to a woman from his garage in 1985, the first time when he was arrested for Indecent Exposure. DOE Exhibit 3 (February 22, 1995 PSI Transcript) at 15-17; Tr. at 251. He also denies that he committed the Criminal Trespass on January 8, 1995 for which he was later arrested after his photo was identified by a witness. He offers 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 at a DOE facility in XXXXX. 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. See Statement of Fact dated July 18, 1996.

At the hearing, DOE/XXXXX introduced evidence to show what actually happened when the individual was arrested, and what the impact of his behavior was on the victims of his crimes. The female neighbor who was the primary victim testified that in 1992, she had seen a man in her back yard "about once a week," and whenever she tried to see who it was, he jumped over the fence and ran away. Tr. at 96. The individual admits that he was the intruder who was seen in the woman's yard. Id. at 256-257. Once when this woman was going out to a convenience store late at night, she encountered a naked man in the alley. The individual admits that he was the naked man in the alley. Id. at 253. On September 14, 1992, the woman's doorbell rang, and when she went to the door, she found a man standing there with his fly open, masturbating, who then ejaculated on her glass door and fled. Id. at 99-100. On the night of February 3, 1993, while this woman was away from home, her teenaged daughter saw a man (again the individual) peeping in their windows, and called her mother's boyfriend for help. Id. at 129. The boyfriend arrived and chased the peeper. Id. at 145. The individual evaded the boyfriend for a while, and hid in the neighborhood. Then he made a dash for his pickup truck, which was parked nearby. The boyfriend jumped into the bed of the pickup, smashed in the back window of the cab with his bare hands, and grabbed the individual by the neck to try and make him stop the truck. The individual crashed into several parked vehicles and other objects on the way home, and finally stopped in front of his house and ran inside. Id. at 146. The boyfriend reported the incident to the police, who subsequently arrested the individual and charged him with several counts of Criminal Trespass. The police officer in charge of the investigation later showed the woman a lineup of six photographs and asked her if she could identify the man who had masturbated at her door in September 1992. She identified the individual as the man who had ejaculated on her glass door. Id. at 179; 191-194. The woman testified that she and her children were so terrified that they moved out of their house in early 1993, and did not move back until the following year. Id. at 109-110.

The most recent incident resulting in the individual's arrest occurred on the night of January 8, 1995. The neighbor who lives next to the woman who was the individual's previous victim heard his dog barking. He testified that "[his dog] doesn't bark a lot. When she barks, there is something back there." Tr. at 163-165. He went out to investigate and saw a man standing in the woman's yard peeping in the window. He testified that he could see the man's face and the clothes he was wearing. The peeper had a stocking hat, a coat, and he wore glasses. When the peeper saw the neighbor, he jumped over the fence and ran. Id. The neighbor tried to follow the peeper while his wife went inside and called the police. After the police responded to the call and spoke with the neighbors, they went to the individual's house, located about five minutes away from the woman's house, and found him in his bathrobe. The engine of his truck was cold, indicating that it had not been driven recently. They asked the individual where he had been for the previous 20 minutes, and he told them he had been in his hot tub, which is located in his back yard. Id. at 258-260. The individual's wife also stated that he had been in the hot tub, that she had gone out and checked on him every ten minutes, and that he had been there about half an hour. Id. at 397.

Shortly after the January 8, 1995 incident, the individual received the following anonymous letter in the mail:

Mr. [individual],

This letter is to let you know that most of neighbors know what kind of pervert you are. I have personally told about 50 people in this neighborhood about you, and they have assured me that they have told all their friends. Your recent actions have only strengthened our resolve.

Your attendance at school functions also has not gone unnoticed. This has given a lot of people an opportunity to see what you look like. Thank you! I am not convinced that you have reformed however, and I and 20 to 30 of my closest friends are going to do everything in our power to get your job and make life for you in this neighborhood, miserable.

If you feel that people are staring at you, you are probably correct.

Real estate value(sic) are high now. You may want to think about selling.

People get hurt doing what you do. Think about it.

Individual Exhibit 4 (also submitted as DOE Exhibit 11). The envelope was postmarked from XXXXX on January 10, 1995. The individual gave a copy of the letter to DOE/XXXXX.

After the incident, the case was referred to the same police officer who had investigated the individual's previous crimes. The officer showed the neighbor a lineup consisting of six photographs. From the photo lineup, the neighbor identified the individual as the intruder in the woman's yard on the night of January 8, 1995. Id. at 191-196. On February 2, 1995, the individual was arrested and charged with Criminal Trespass for the incident on January 8. At the May 9, 1996 hearing, the neighbor identified the individual as the man he saw trespassing next door on that night. He testified that he knows who the individual is now, but that he did not know him when he identified the individual's photo in the lineup. Id. at 166.

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, and the thing that characterizes his particular blending of that is his anger, noninvolvement emotionally with the people around him, thinking primarily about himself, doing the things that he wants to do when he wants to do them...." Id. at 232. He thought that in addition to his personality type, the individual's family situation (in 1992 and 1993) had been a contributing factor to his exhibitionism and voyeurism. Id. at 239. Nevertheless, the therapist indicated that the individual had made great progress since his arrest in 1993. Id. While the therapist believed that the individual had shown questionable judgment in his own personal life, he voiced the opinion that his mental condition did not affect his judgment on the job. Id. at 235. The therapist conceded that "it is often characteristic of [persons with exhibitionism and voyeurism] that they reoffend," id. at 239, but he stated that he thought the individual was rehabilitated. Id. at 242.

The DOE psychiatrist had a less sanguine view of the individual's rehabilitation. He characterized the desires to expose or to be a voyeur as preferences that go back to a person's early psychosexual development, "a predisposition that you have for the rest of your life," and that "one never talks about being . . . cured of it." Id. at 296. However, he did say that "[y]ou can learn how to control it and how to handle it so that it's unlikely that you'll act on it." Id. In this connection, the DOE psychiatrist thought that the type of individual counseling the individual had received was not the most effective treatment for his condition. He preferred a combination approach which included group therapy, behavioral therapy and relapse prevention. Id. at 298-301. Nor did the DOE psychiatrist think that the individual's exhibitionism and voyeurism could be caused by problems with his marriage or by his interest in pornography, or cured by his religious revival. Id. at 308-310. He pointed out that happily married men and celibate priests also suffer from these conditions, and opined that they were not related to an interest in pornography. Id. at 309-311. Although the DOE psychiatrist characterized the individual's acts of exhibitionism as "extreme,""worrisome,"and "clearly very deviant behavior," he indicated that the severity of this condition is not correlated with the likelihood of rehabilitation. Id. at 313, 347-348. The DOE psychiatrist also thought that the results of the Minnesota Multiphasic Personality Inventory (MMPI) that the individual took twice in the past few years indicated the presence of personality disorders. He stated that the individual's MMPI results corroborated his clinical impression, and corroborated the diagnosis under the DSM-IV system. Id. at 316. To illustrate this point, the DOE psychiatrist cited the following portions of the individual's MMPI profile: "he is experiencing chronic psychological maladjustment characterized by personality traits of impulsivity combined with compulsive behavior. [The individual's] symptom pattern is somewhat contradictory, reflecting a tendency toward acting-out behavior along with feelings of guilt and concern about his actions." DOE Exhibit 12 (Psychiatrist's Report) at 43; Tr. at 318.

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." Id. 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." Id. at 324-325; 333. 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.

Another area addressed by the DOE psychiatrist also concerns the extent of the individual's claimed rehabilitation. In his February 22, 1995 PSI (DOE Exhibit 3), and in his testimony at the hearing, the individual has emphatically denied that he was trespassing and peeping as charged on January 8, 1995. He claims that he was framed by angry neighbors who were trying to get him punished for his sexual offenses in 1992 and 1993. At the hearing, the DOE psychiatrist pointed out that while the woman who was the victim of the 1992 and 1993 incidents and her boyfriend testified that they were angry at the individual, the neighbor who was the only eyewitness to the January 8, 1995 peeping incident appeared "quite composed and calm." Tr. at 345. The individual also denies that he "flashed" a woman passerby from his garage in October 1985. The DOE psychiatrist observed that unlike the individual's neighbors in 1995, the woman who reported the 1985 incident would have no motive to make up her story. Finally, he notes that "the probability of that happening [to the individual]," an admitted exhibitionist and voyeur, and that the individual "really didn't do it [in 1985] is very low." Id. at 346. The DOE psychiatrist cites these two incidents as evidence of denial, which is typical of sex offenders, and questions the extent of the individual's rehabilitation. Id.

After considering the evidence in the record, it is my opinion that Notification Letter properly invoked the provisions of 10 C.F.R. § 710.8(h), and that the individual has a mental condition that has caused and may in the future cause a significant defect in his judgment and reliability. At the outset, I acknowledge that none of the witnesses believes that the individual's condition adversely affects his judgment, reliability or safety on the job. However, there are serious concerns about the individual's judgment and reliability away from the workplace. The individual's errors of judgment are limited to his personal sexual behavior, but they are substantial. With respect to his past conduct, there is ample evidence that the individual has engaged in acts of exhibitionism and voyeurism for many years. The individual has failed to convince me that he did not expose himself to the woman whose complaint to the police led to his first arrest in 1985. As the DOE psychiatrist noted in his testimony cited above, there is no reason to believe that this woman had any motive for making the story up. I agree with the DOE psychiatrist that it would be too improbable to believe that this individual, an admitted exhibitionist and voyeur, would have been falsely accused of that act. It is also worth noting that several of the incidents in 1992 and 1993, for which the individual admits responsibility, were disturbing and terrifying to the victims, and even led one family to move out of their own house for a year. There is evidence that these acts stirred up strong feelings against the individual, as admitted by the woman victim and her boyfriend, who testified that they agreed with the sentiments expressed in the anonymous January 10, 1995 letter threatening the individual. Both of these witnesses denied writing the letter. In the area of his personal sexual behavior, there is no question that the individual's mental condition caused him to exercise bad judgment, to violate the criminal law and accepted social norms, and to commit acts that disrupted the lives of innocent people.

The individual has repeatedly maintained his non-involvement in the alleged 1995 incident, even to the point of taking one polygraph examination to establish his innocence, and offering to take a second exculpatory polygraph. The expert testimony at the hearing shows that the method used in the first polygraph examination was defective because it did not meet accepted practices in the profession. This polygraph was doubly defective because the recorded data had been lost. Tr. at 421-456. Unfortunately, the individual's recent cancer treatment ruled out a second chance to take an exculpatory polygraph, which DOE/XXXXX was prepared to conduct. With or without reliable polygraph evidence, it is impossible for me to determine with absolute certainty whether the individual is the man who was seen peeping in his neighbor's window on the night of January 8, 1995. Nevertheless, that is not the function of this administrative review proceeding. A lower standard of proof is used here, Personnel Security Hearinge, Case No. VSO-0002, 24 DOE ¶ 82,752 at 85,511 (1995), and the evidence which is in the record weighs heavily against the individual. The individual's photo was identified in a lineup by the neighbor who witnessed the crime. From observing his demeanor at the hearing, I find that the neighbor who identified the individual is a credible witness. Under the circumstances, the burden is on the individual to come forward with evidence to prove that he was not responsible for that incident. See Personnel Security Hearing, Case No. VSO-0060, 25 DOE ¶ 82,788 at 85,760. There are several reasons why I find that the individual has not made a convincing showing. Many witnesses at the hearing testified about the individual's history of peeping in the victim's window. The only alibi testimony comes from the individual's wife, who said that she checked on him in the hot tub every ten minutes. 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.

Two months after the May 9, 1996 hearing, the individual's attorney submitted two local newspaper articles about a man who was arrested after he broke into a house and attacked a woman. July 19, 1996 letter from individual's attorney to DOE Counsel and Hearing Officer. The man was nude except for a ski mask, sunglasses and black support belt. The individual's attorney contends that this information "is relevant to produce a reasonable doubt in [the individual's] case." Id. As noted in the cases cited above, the "reasonable doubt" standard of proof does not apply in this DOE personnel security proceeding. See, e.g., Personnel Security Hearing, Case No. VSO-0078, 25 DOE ¶ 82,802 (1996). Moreover, the descriptions provided by the police of the man in the newspapers and the individual are different, and the modus operandi of the more recent perpetrator is altogether different from that of the individual. More importantly, the mere presence of another sex offender in the same city does not outweigh the positive identification of the individual by an eyewitness to the January 8, 1995 incident. Based on the totality of the evidence, I believe that it is more likely than not that the individual was the man seen peeping in a neighbor's yard on January 8, 1995. Finally, it is my view that even without the 1995 incident, there is still enough evidence in the record to support the Notification Letter's charge under 10 C.F.R. § 710.8(h).

I turn next to the question of rehabilitation. The individual's therapist and the DOE psychiatrist are both experienced in treating individuals with exhibitionism and voyeurism. Both of these witnesses agree 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. However, they differ in their assessments of the individual's condition. The individual's therapist attributes greater significance to the individual's marital problems, and states that the individual has made progress toward rehabilitation. But the therapist admits that he does not know whether the individual is telling the truth about his involvement in the 1995 peeping incident, and he cannot be certain that the individual will not engage in exhibitionism or voyeurism in the future. The DOE psychiatrist has a different opinion about the origins of the individual's behavior, and consequently, more doubts about the efficacy of the individual's treatment. Although he is uncertain about whether the individual will be able to control his exhibitionism and voyeurism in the future, the DOE psychiatrist believes that the individual is still in denial, and is more likely than not to reoffend. After considering the testimony of the individual's therapist and the DOE psychiatrist, I am not convinced that the individual, a man with a ten year history of arrests for exhibitionism and voyeurism, is rehabilitated.

Criterion L

There is a security concern under 10 C.F.R. § 710.8(l) that engaging in exhibitionism and voyeurism could make the individual susceptible to pressure, coercion, exploitation and duress. The individual maintains that his conduct after his recent arrests shows that he is not susceptible to blackmail. Tr. at 263-264; 278-280. It is true 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. In addition, once he was arrested in 1993, the individual has not attempted to hide the basic facts about his exhibitionism and voyeurism from his coworkers and the members of his community. It is also true that he promptly furnished a copy of the anonymous threatening letter that was postmarked on January 10, 1995. However, even if the individual has been forthcoming about his arrests in the past, there is still a security concern that if his access authorization were restored, he might be subject to pressure in the future. The individual has argued that he is unlikely to reoffend because he knows that his security clearance and his job would be lost if he were arrested again. Unfortunately, this situation weighs against restoring the individual's access authorization. The psychiatric evidence discussed above suggests that there is a substantial risk that the individual might engage again in those behaviors. Since his clearance and his job are in jeopardy, it is possible that the individual would be vulnerable to pressure from someone who threatened to report his sexual misconduct to the authorities. The chance of that happening may be remote, but the risk of exploitation is certainly much greater for this individual than for a person without his mental condition and his history of arrests for sex offenses. After considering the evidence in the record, it is my 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.

Conclusion

Based on the foregoing discussion, I find under 10 C.F.R. § 708(h) that the individual has an illness and a mental condition--exhibitionism and voyeurism--that has caused and may cause a significant defect in his judgment and reliability. I further find that the individual has not met his burden of coming forward with evidence to show that he is rehabilitated and that his exhibitionism and voyeurism are unlikely to recur. For the same reasons, I find under 10 C.F.R. § 708(l) that he has engaged in unusual conduct or is subject to circumstances which furnish reason to believe that he is subject to pressure, coercion, exploitation or duress which may cause the individual to act contrary to the best interests of the national security.

As explained in this Opinion, I find 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, I recommend that the individual's access authorization not be restored.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of this Hearing Officer's Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., SW, Washington, D.C. 20585-0107, and served on the party. If either party elects to seek review of the Opinion, that party must file a statement identifying the issues on which it wishes the OHA Director to focus. This statement must be filed within 15 calendar days after the party files its request for review. The party seeking review must serve a copy of its statement on the other party, who may file a response within 20 days of receipt of the statement. 10 C.F.R. § 710.28(b). The address to which submissions must be sent for purposes of serving them on the Office of Security Affairs is as follows:

Director

Office of Safeguards and Security, NN-51

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874

Thomas O. Mann

Hearing Officer

Office of Hearings and Appeals

Date: