By John V. Berry, Esq., www.berrylegal.com
Guideline E of the Adjudicative Guidelines, located in Security Agent Executive Directive 4, is one of the most commonly used guidelines by the government for denying security clearance applications, renewals or upgrades. This guideline covers general misconduct. This article discusses Guideline E Personal Conduct cases in more detail.
Guideline E Personal Conduct Issues (or Misconduct)
Guideline E, Personal Conduct, covers quite a broad category of issues such as honesty, falsification, reliability and questionable judgment. One of the most common issues that we see in our legal practice involves lack of candor or honesty in completing the SF-86 or eQIP. We also see other security clearance concerns falling under Guideline E, where an individual receives a Statement of Reasons (SOR) or Notice of Revocation (Revocation) related to alleged poor judgment evidenced by engaging in inappropriate behavior, the failure to follow rules and/or other work-related misconduct.
Truthfulness or lack of candor falling under Guideline E, is viewed as one of the most important issues by the government for those holding a security clearance (or seeking one) and therefore is one of the most common issues that arises in security clearance investigations and appeals. One of the other critical areas for review by investigators under this guideline involves an applicant’s willingness to follow rules, laws and regulations. The government believes that the protection of classified information generally requires strict compliance with rules and regulations. An individual’s willingness to comply, in general, with rules and regulations is, therefore, a very important qualification for access to sensitive information. Therefore, any personal conduct which indicates an individual’s inability or the lack of desire in following laws, rules and regulations can be a significant security concern under Guideline E, Personal Conduct.
When issues involving personal conduct arise, in the scope of a security clearance examination or review, it is very important to take them seriously and to obtain legal counsel familiar with these types of issues in order to minimize the potential damage to a security clearance. Guideline E, Personal Conduct, in pertinent part, lists the government’s concerns under this provision, as follows:
Guideline E: Personal Conduct
The Concern. Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, trustworthiness, and ability to protect classified or sensitive information. Of special interest is any failure to cooperate or provide truthful and candid answers during national security investigative or adjudicative processes. The following will normally result in an unfavorable national security eligibility determination, security clearance action, or cancellation of further processing for national security eligibility:
Conditions that could raise a security concern and may be disqualifying include:
(a) deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine national security eligibility or trustworthiness, or award fiduciary responsibilities;
(b) deliberately providing false or misleading information; or concealing or omitting information, concerning relevant facts to an employer, investigator, security official, competent medical or mental health professional involved in making a recomrnendation relevant to a national security eligibility determination, or other official government representative;
(c) credible adverse information in several adjudicative issue areas that is not sufficient for an adverse determination under any other single guideline, but which, when considered as a whole, supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the individual may not properly safeguard classified or sensitive information;
(d) credible adverse information that is not explicitly covered under any other guideline and may not be sufficient by itself for an adverse determination, but which, when combined with all available information, supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the individual may not properly safeguard classified or sensitive information. This includes, but is not limited to, consideration of: (1) untrustworthy or unreliable behavior to include breach of client confidentiality, release of proprietary information, unauthorized release of sensitive corporate or govemment protected information; (2) any disruptive, violent, or other inappropriate behavior; (3) a pattern of dishonesty or rule violations; and (4) evidence of significant rnisuse of Government or other employer’ s time or resources;
(e) personal conduct, or concealment of information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress by a foreign intelligence entity or other individual or group. Such conduct includes: (1) engaging in activities which, if known, could affect the person’s personal, professional, or comrnunity standing; (2) while in another country, engaging in any activity that is illegal in that country; (3) while in another country, engaging in any activity that, while legal there, is illegal in the United States;
(f) violation of a written or recorded commitment made by the individual to the employer as a condition of employment; and
(g) association with persons involved in criminal activity.
While these are the potential security concerns, there are mitigating factors that can increase the chance of retaining or obtaining a security clearance. These include a multitude of factors.
Mitigating Factors Under Guideline E
(a) the individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts;
(b) the refusal or failure to cooperate, ornission, or concealment was caused or significantly contributed to by advice of legal counsel or of a person with professional responsibilities for advising or instructing the individual specifically concerning security processes. Upon being made aware of the requirement to cooperate or provide the information, the individual cooperated fully and truthfully;
(c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment;
(d) the individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that contributed to untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur;
(e) the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress;
(f) the information was unsubstantiated or from a source of questionable reliability; and
(g) association with persons involved in crirninal activities was unwitting, has ceased, or occurs under circumstances that do not cast doubt upon the individual’s eliability, trustworthiness, judgment, or willingness to comply with rules and regulations.
Some Tips in Responding to Personal Conduct Security Concerns for Applicants or Clearance Holders
In security clearance cases involving Guideline E, Personal Conduct, it is very important to thoroughly review all of the facts listed in the Statement of Reasons or Notice of Revocation and make a checklist of the allegations that are at issue. This is important because it will be crucial, especially in cases alleging instances of untruthfulness or falsification, to fully contest each of the factual allegations mentioned in the SOR or revocation to support the security concern under Guideline E.
In our practice, we advise individuals that have security clearance issues falling under Guideline E to obtain as much information regarding the allegations to rebut them in your response before your agency, Central Adjudication Facility (CAF), Personal Security Appeals Board (PSAB) and/or other oversight authority (e.g. NRO, NGA, NSA, CIA, DIA) for your clearance. Providing a general response to the allegations, without providing supporting evidence, often does not result in effectively rebutting the security concerns raised. It is quite often the case that the more documentation and/or testimony to rebut or mitigate the concerns of an individual’s conduct, the better.
Essentially, when Guideline E allegations are raised, an applicant needs to aggressively respond to each of the factual allegations made, providing a full explanation/rebuttal of each issue raised by the agency, in addition to providing documents to support your response. One of the most helpful types of information that can be provided by an individual seeking a clearance are written (and preferably sworn) statements from other individuals that support your version of events regarding an allegation.
Examples of Personal Conduct Cases
While there are too many types of personal conduct examples to list, the following 3 are some common examples of ones that individuals face in clearance reviews:
- In this first example, if a clearance holder is alleged to have had a history of not following rules and regulations due to a prior series of employment terminations, it might be important to try to obtain letters from others that knew you during that time (and potentially co-workers) to refute this. Because a former employer provided this allegation to investigators, the best type of response would include written statements from others that were present which would support your version of events. While obtaining documents and witness statements can be time consuming and/or difficult, often times it is what makes the difference in obtaining a positive outcome as to one’s security clearance application.
- A second example might involve a case where Guideline E security concerns are alleged because the person is alleged to have not been truthful in their security clearance application by omitting negative information. In this type of case, it would be important to provide as much information about the individual’s good character to refute or mitigate the concerns. In this type of case, we like to provide as many character reference letters as possible and other evidence of good character.
- A third example could involve the use of drugs by an individual while holding a security clearance. In such a case, it might be important to gather evidence about the timing of the drug use, the individual’s changes in their social life, dissociation with individuals that use drugs, abstinence from the usage of drugs and how that person has changed their life overall.
Personal conduct cases under Guideline E involve a broad range of facts, and a number of mitigating factors are specific to each case so it is important for a lawyer to be consulted as soon as possible in the process to assist applicants.
If a federal employee or government contractor is facing a Guideline E, personal conduct security concern, it is important to obtain counsel early in the process to attempt to mitigate the security concerns and retain or obtain a security clearance. We represent federal employees and government contractors in these matters and can be reached by telephone at (703) 668-0070 or through our website at www.berrylegal.com or through Facebook.