The recent revelation of Virginia Governor Ralph Northam’s medical school yearbook photo begs a number of obvious questions. Among them, are the following:

  • For an apparently smart guy, how did he exercise such poor judgment?
  • What school would allow such a photograph to be published in its yearbook?
  • How did this remain secret during a bitterly fought statewide political campaign?

We may get answers to some of these questions if Northam refuses to quickly resign and the story continues to unfold publicly. In the meantime, however, the Northam situation actually has some parallels in the world of security clearances.

Over the years, we’ve encountered cases on rare occasion in which a security clearance holder has been accused of racism, sexism, or similar attributes based upon comments or activities inside or outside the workplace. Although we didn’t handle this particular case, a great example was the DoD contractor allegedly involved in the 2017 violent white nationalist rally in Charlottesville, VA. Readers may recall that several Members of Congress subsequently called for that individual’s security clearance to be revoked; it is unclear what, if anything, ultimately happened.

The Charlottesville case was unusual from a security perspective in that it involved actual violence, which is a straightforward basis to revoke a clearance. But cases that don’t involve violence or advocating for violence pose a conundrum for personnel security officials.

When your views are more than mere difference of opinion

On one hand, one of our most sacred constitutional rights in America – the rights that federal officials are charged with upholding – is freedom of speech. That includes speech that offends or even repulses us. On the other hand, federal officials are charged with upholding those rights for all of us. A federal employee, or even a contractor with access to our nation’s secrets, who is racist, sexist, or similarly bigoted seems antithetical to that idea.

Certainly, a racist FBI agent could not, for example, credibly and objectively investigate crimes involving minorities. Similarly, a government food-service contractor who refused to serve female soldiers could not effectively do his job. The result is that these cases are highly fact-specific and hinge, in part, on whether the security clearance holder’s views can be deemed objectively “disruptive” in the workplace, reflective of poor judgment (versus a mere difference of opinion, however repulsive), or demonstrative of a vulnerability to exploitation (e.g. blackmail). In some situations, the matter may be more of a suitability issue than a security issue; in other words, the individual is not suited for their particular job, but would not pose an issue performing other sensitive national security duties. The legal question then becomes whether a personnel action like termination is more appropriate than a security clearance denial or revocation. Each avenue carries different legal consequences and rights, so the distinction is not without importance.

Imagine, for example, the Northam case in this context. One could probably argue quite convincingly that the photograph would be disruptive to the workplace and reflects poor judgment that renders someone in Northam’s position unfit for any job involving sensitive national security duties – not just a particular one. Ironically, however, the public revelation of the photo actually decreases Northam’s vulnerability to exploitation because it’s no longer a secret. A security clearance holder in Northam’s situation could be at serious risk of exploitation and manipulation by someone in possession of the information who chose to keep it secret.

Make no mistake about it: Northam’s yearbook photo is an appalling indictment of his character and he should resign. But he’s unfortunately not alone in his apparent sentiments even in 2019.  Security clearance holders who share Northam’s outlook face an uphill battle in obtaining or retaining their clearance or favorable suitability determination – and rightfully so.

 

This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation. 

Related News

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