Security clearance determinations

What factors are considered?

To be eligible to access classified information, the agency will consider a number of factors including:

  • Allegiance to the United States;
  • Foreign influence;
  • Foreign preference;
  • Sexual behavior;
  • Personal conduct;
  • Financial considerations, including falling behind on bills or loans;
  • Alcohol consumption;
  • Drug involvement;
  • Emotional, mental, and personality disorders;
  • Criminal conduct;
  • Security violations;
  • Outside activities; and
  • Misuse of Information Technology systems

Can my security clearance be challenged after I am hired?

Yes, a security clearance can be challenged or revoked at any time during employment. The agency will consider whether the employee voluntarily reported the information, was truthful in responding to questions, sought assistance and followed professional guidance, and has demonstrated positive changes in behavior and employment.

What if my security clearance is revoked?

We have had success in assisting our clients with security clearance issues. These are just a few.

  • Department of Energy- Our client, a contract electrician, received a denial of access to classified information based on his submission of an EQIP improperly referencing an arrest from 23 years prior. We submitted a written response and then conducted a hearing before the Department of Energy Office of Hearings and Appeals. At the hearing, we demonstrated that our client never intended to deceive the government regarding his arrest and that his conduct did not create a danger or threat to national security. After receiving an unfavorable ruling from the Administrative Judge, we appealed and filed for review to the Appeal Panel at the Department of Energy Office of Departmental Personnel Security, and we persuaded the Appeal Panel to overturn the unfavorable ruling, find in our client’s favor, and held that our client’s behavior did not constitute a threat to national security. As a result, our client was granted access to classified information, and was able to keep his job which required the security clearance.
  • Department of the Navy- Our client received a letter of intent to revoke his security clearance based on allegations that he had mishandled sensitive information and had a disqualifying psychological condition because he suffered from anxiety and depression. We contested the proposal and filed a response demonstrating that the alleged mishandling of sensitive information occurred under unusual circumstances when the employee was tasked with an unfair workload by a hostile supervisor. We also established that the allegations regarding the employee’s psychological condition did not amount to a security concern. The Department of Defense Central Adjudication Facility agreed and restored the employee’s clearance.
  • USCIS- We represented a client whose security clearance (access to classified and Sensitive Compartmented Information) was suspended and then revoked due to his personal use of a government laptop in ways that violated policy and resulted in malware invading the laptop. We appealed the revocation, arguing that most of the client’s personal use of the computer did not violate policy, that he did not intend to violate policy or cause harm to the government, and that his understanding of the seriousness of his actions combined with his long history of exemplary government service indicated that he would never allow such a mistake to reoccur. The Deciding Official agreed that the violation was minimal, most of the violation was unintentional, and that the client was unlikely to ever allow recurrence. Thus, the Deciding Official reversed the revocation of our client’s security clearance and restored his access.

For assistance with security clearance matters, contact Alan Lescht and Associates today. Call us at (202) 463-6036, or email alan.lescht@leschtlaw.com.

Ins and outs of suitability determinations

We posted a news update last week about how Trump’s hiring freeze will affect new federal employees who have not yet been deemed suitable for employment. Read below to learn more about suitability determinations.

Who is required to undergo suitability determinations?

Positions requiring a suitability determination are those in the competitive service, positions in the excepted service where the employee can be noncompetitively converted to the competitive service, and career appointments to a position in the Senior Executive Service. The Office of Personnel Management (OPM) is tasked with making suitability determinations for new federal employees.

Making suitability determinations

The following factors are considered in determining whether an individual is suitable for federal employment:

  • Misconduct or negligence in employment;
  • Criminal or dishonest conduct;
  • Material, intentional false statement, or deception or fraud in examination of the appointee;
  • Alcohol abuse, without evidence of substantial rehabilitation;
  • Illegal use of narcotics;
  • Knowing or willful engagement in acts or activities designed to overthrow the U.S. government.

What else will OPM consider?

OPM may also consider the following:

  • The nature of the position for which the person is applying for;
  • The nature and seriousness of the conduct;
  • The circumstances surrounding the conduct;
  • The recency of the conduct;
  • The age of the person involved at the time of the conduct;
  • Contributing societal conditions;
  • The absence or presence of rehabilitation or efforts towards rehabilitation.

Can suitability be challenged after appointment?

Yes! OPM may initiate a suitability action at any time. OPM is required to notify an employee in writing of the proposed action, and allow the employee to respond in writing. You are permitted to hire a lawyer if you are facing a proposed suitability action.

Successful suitability cases

  • We were retained by a recent college graduate who received a job offer from the federal government. On his suitability questionnaire, he honestly disclosed his prior drug use and arrest for underage drinking. The government found him unsuitable for federal employment. Our firm submitted a response, arguing that the client had been completely rehabilitated. He graduated from college with honors, was an excellent employee at his prior job, and had a new group of friends. We also emphasized that recreational drug use was very common among college-aged people. The government reversed its decision and allowed our client to begin his job.
  • U.S. Customs and Border Protection – A federal employee with over 8 years of federal service contacted us after she received a proposal to remove her from her position and the federal service due to a negative suitability determination based on allegations that she had engaged in misconduct/negligence in employment and dishonest conduct related to her disclosures in her job application. We submitted a written response demonstrating that she had in fact provided honest disclosures and many of the cited incidents were verbal warnings that did not require disclosure. Based on this submission, the agency reinstated her and determined that our client had illustrated that she did not commit the infractions alleged.
  • Peace Corps – A federal employee contacted us after receiving a proposal to terminate his employment as a result of an adverse suitability determination based on allegations that he made material, intentional false statements on his declaration for federal employment. We submitted a response to the proposal demonstrating that the employee misunderstood a particular question and believed that he had responded truthfully on his declaration for employment. The agency overturned the adverse suitability determination and cancelled his proposed removal.

If you have questions about suitability determinations or if you are facing a purposed action, contact Alan Lescht and Associates today. Call us at (202) 463-6036, or send us an email.

Check back next week for a discussion of security clearances.

Timely security clearance investigations are a focus for NBIB in 2017

In September, we wrote about changes coming to the federal security clearance system, namely the new National Background Investigations Bureau, which replaces Federal Investigative Services, and how for many federal employees and contractors, getting (and keeping) the proper security clearance is necessary to doing their jobs.

NBIB Director Charlie Phalen weighs in

More recently, the Federal Times in November reported on the NBIB director’s take on what his role and priorities will be in 2017 and beyond. Director Charlie Phalen, a former CIA security director, wants to re-establish confidence in investigations, as Carten Cordell writes.

Lack of confidence in investigations

This lack of confidence stems from the 2013 Navy Yard shooting perpetrated by Aaron Alexis, which commentators opined could have been prevented with a strengthened security clearance system, as well as the 2015 data hack of the Office of Personnel Management, which left vulnerable the personal data of 21+ million federal employees and contractors.

Existing backlog vs. timeliness of adjudication

Plus, there’s the existing backlog of hundreds of thousands of security clearance cases (more than 500,000) waiting to be completed. But Phalen isn’t concerned with the backlog. “The real relevant number is 40 or 80,” referring to the number of days it should take to adjudicate a federal employee’s or contractor’s security clearance. “So we are truly focused,” Phalen said, “on what is the timeliness and how can we get back to our standard for getting these background investigations adjudicated.”

Problems with your security clearance? Contact Alan Lescht & Associates, P.C.

Despite the upcoming changes to the security clearance system, federal employees and contractors will very likely continue to face the same types of issues they’ve faced in the past. Your security clearance may be at risk. It may also have already been suspended or even revoked. Contact Alan Lescht and Associates today for legal advice on your security clearance.

Changes coming to federal security clearance system

A new federal agency will soon take over security clearance and background investigations. The National Background Investigations Bureau (NBIB) will replace the Federal Investigative Services program in the coming weeks and months. Like its predecessor, the new agency will be responsible for handling security clearance investigations and background checks – a critical function for vetting employees and contractors who will have access to sensitive government information.

Announced by the White House in early 2016, the NBIB aims to:

  • Enhance the security of private data, especially in the wake of major hacks that compromised the data of 22 million Americans last year
  • Ensure greater accountability when it comes to maintaining cyber security and preventing data breaches
  • Address the backlog of pending security clearance investigations
  • Modernize legacy systems with more automation and greater efficiency

The new agency will still be housed within the Office of Personnel Management (OPM); however, the Department of Defense will manage its IT systems. This arrangement will hopefully result in a stronger IT infrastructure – one that’s resistant to cyber attacks.

Fewer delays but increased costs for security clearance process

For many federal employees and contractors, security clearances are necessary to perform their jobs. Yet those seeking clearance currently face delays of up to 200 days, thanks to substantial backlogs.

OPM recently awarded contracts to vendors who will help work through these backlogs. Once in place, the new agency will leverage improved systems to minimize delays.

It’s unclear exactly how this new infrastructure will work, however. Some sources are speculating that the agency will factor in consumer data such as credit scores and predictive analytics to paint a fuller picture of individual applicants.

Along with these improvements, security clearance costs are expected to rise in the coming years.

Contact Alan Lescht and Associates today if you need legal representation regarding your security clearance.

How social media can affect your security clearance

Social media provides a window into the private lives of individuals. Sometimes, that window can reveal red flags that cast doubt on the character of those entrusted with our nation’s secrets.

A federal policy released last month allows agencies to consider social media when vetting employees or contractors for security clearances. The policy covers traditional social media platforms – such as Facebook, Twitter and Instagram – as well as other types of user-generated Internet content such as comments and discussion forums.

The move reflects a growing recognition of the insights social media can offer when it comes to evaluating risks. As part of a “whole person” approach to reviewing security clearance applications and renewals, social media profiles are difficult to ignore.

What this means for you

Security clearances are valuable credentials. Your clearance may be essential for your career. Fortunately, the new policy doesn’t mean you will have to steer clear of social media entirely.

Securing – and maintaining – these clearances has always required passing a rigorous background investigation. The new policy simply adds another dimension to that inquiry. Importantly, it is limited in scope to public postings only. Agencies won’t require applicants to divulge their login information, nor will they require disclosure of every social media handle.

The takeaway: Use common sense

It’s no secret that questionable behaviors can potentially jeopardize your clearance.

And, as most people are by now well aware, there is no such thing as true anonymity on the Internet. Taking a commonsense approach to your social media presence can go a long way toward safeguarding your security clearance.

Feds issue ‘first-ever’ social media policy for security clearance determinations

As the Washington Post reports, the Director of National Intelligence has issued a directive that Facebook, Twitter, and other social media platforms will now figure in the government’s investigation of federal employees and would-be employees who are applying (and re-applying) for security clearances.

The Post calls it a “first-ever” policy.

The ‘whole-person’ approach includes looking into social media accounts.

The Post quotes Beth Cobert of the Office of Personnel Management:

“Agencies make security clearance decisions using a ‘whole person’ approach to assessing who is an acceptable security risk. One component of that approach in the 21st century is social media.”

Investigators will look only at info that is ‘readily available.’

Apparently, a key aspect of this new policy is that the government won’t look into everything posted online, nor will it take everything it finds into account in its security clearance determination – though the Post report lacks details as to how this will be policed.

Indeed, some lawmakers are skeptical.

“How will this work?” asked Rep. Gerry Connolly. “How do we flag the serious from the trivia?”

“Alan gave me the information I needed to save my federal career.” – Former client

If you have an issue with your security clearance, consider contacting Alan Lescht & Associates, P.C. Based in Washington, D.C., we regularly represent federal employees facing trouble with security clearances – whether at-risk or suspended/revoked. For more information on our practice, visit this page about security clearances, or call 202-463-6036.

Financial considerations and revoking or denying security clearance

The federal government will revoke, suspend or deny security clearance for many reasons. Some of the most common reasons are personal conduct, which often includes lying on the application, a criminal history, or the appearance of foreign influence or foreign preference. Far and away the most common reason for denying or revoking security clearance is financial considerations. In 2015, the Department of Defense used financial considerations to deny hundreds of security clearance applications.

In many of these cases, individuals filed bankruptcy, had delinquent student loans, or were having trouble paying their mortgage. In rare cases, individuals had gambling debts that prevented them from gaining security clearance. Regardless of the type of debt, the government will look closely at any person with significant financial issues.

Why does the federal government analyze a person’s finances?

The federal government takes the position that individuals with significant debt are more likely to engage in illegal activities to pay their debts. People with serious financial problems may be at greater risk for selling classified or top-secret government information. When analyzing a person’s finances and their eligibility for security clearance, the government will consider many factors, including:

  • How the debts were incurred: For example, student loan debts are less damaging than debts incurred by reckless behavior
  • The steps the applicant took to mitigate the debt: Undertaking a repayment plan will be looked upon more favorably than taking steps to avoid repayment
  • How much debt was incurred: The larger the debt, the more likely the government will carefully scrutinize the person’s application

The law firm of Alan Lescht & Associates represents federal employees across the United States in security clearance matters. If you received a Statement of Reasons (SOR) that your security clearance was revoked or suspended, our lawyers are ready to take action. We can present an appeal before the appropriate agency and help you take appropriate steps to mitigate these concerns. Call 202-463-6036 to schedule a consultation.