Security Clearance Determinations – Conduct vs. Consequences

Security Clearance man with files

One of the more frequent complaints I hear from denied security clearance applicants is that some third party – a court, an employer, or a creditor, most often – has effectively forgiven the applicant for a transgression or ceased pursuing a penalty, and now so should federal personnel security officials. The argument comes in variations of the following:

             “The charges were dismissed”;

             “The record was expunged”;

             “I was charged with a felony, but only plead to a misdemeanor”;

             “The written warning was removed from my file”; or,

             “The debt fell off my credit report”

Unfortunately, whatever traction such arguments may gain in, say, a civil court proceeding, they carry little weight in a security clearance case. The reason for this is that, under the National Adjudicative Guidelines set forth in Security Executive Agent Directive (SEAD)-4, the government cares far more about what you actually did (or didn’t do) than whatever consequences you ultimately incurred. This is why security clearance background investigators review primary source documents like police reports, divorce pleadings, and human resources files instead of merely reviewing a RAP sheet, final court judgment, or similar “end-of-the-line” documents.

If this approach to adjudicating security cases seems counter-intuitive or mean-spirited, as it does to many applicants conditioned to believe that the outcome of a matter is conclusive, consider that the fundamental premise of any security clearance case is the protection of national security. A favorable determination must be “clearly consistent” with the interests of national security, as opposed to merely one which resolves a legal case. That’s a high bar to meet; the burden of proof shifts to the applicant early in the security clearance process, contrary to the normal evidentiary rules applicable in civil and criminal law.

The government’s argument in these matters is that someone who escaped more severe consequences on a technicality, by taking a plea deal, or by simply ignoring a creditor or being well-behaved at work long enough to evade paying the piper, isn’t automatically worthy of trust. In other words, a decision by a third party to impose lesser-than-maximum punishment or cease pursuing a remedy is often one of efficiency – for example, conserving judicial resources – not a determination of character that would inform a decision about your reliability, judgment, or integrity.

After all, how many times have you heard that a defendant in a criminal or civil trial escaped punishment on a “technicality”? Does that inspire confidence that the defendant is actually innocent of the charges, or does it simply evidence good legal counsel and/or sloppy case preparation on the part of the opposing party? Whatever the answer, the same procedural assumptions available in most legal cases don’t apply in a security clearance case because a security clearance is a privilege, not a legal right.

If you are concerned that the relatively favorable outcome of a matter in your past may be tainted by the actual underlying records, you should start by obtaining copies of those records to see with your own eyes what federal background investigators will actually be seeing. You may have some work cut out for you in preparing to address the details of the situation and mounting a credible defense; however, it can be done, and many cases are eminently winnable.

When in doubt, consider consulting with an experienced security clearance attorney for a candid assessment of how certain facts and circumstances will be viewed by the government. Its always better to set your expectations early rather than waste time and energy on a case that has only a nominal chance of success.

 

This article was written for general information purposes only and should not be construed as legal advice. Consult an attorney regarding the specific facts and circumstances of your case.

 

 

Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com

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