Here’s a hypothetical to consider: someone gives you two options – option A and option B – both of which accomplish the exact same objective. Option A costs little, is quick and easy to implement, and has almost no chance of going sideways on you. Option B, on the other hand, is time-consuming, expensive, and has a higher chance of failure. Which option do you choose?

If you’re a rational person you choose option “A”. But what if I now gave someone else – your employer – those same options and firing you from your job was the objective. You’d demand that option “B” be implemented, right?

This may sound like an improbable hypothetical, but its not. In fact, it is a calculous that federal agency managers make routinely when deciding what to do about a problem employee. That’s because a vast number of scenarios that implicate a government employee’s reliability, integrity, or judgment can be dealt with through either the employee discipline process or the security clearance revocation process[1].

The latter is, per Supreme Court precedent, almost never appealable to the courts and is quick and easy to implement in-house. The former requires a complicated legal analysis of criteria known as the “Douglas Factors”, can result in a lengthy appeals process, and affords the aggrieved employee an appeal to the independent Merit Systems Protection Board for anything beyond a suspension from duty of 14 days or less.

When Personal Conduct is a Security Issue – and When It Isn’t

Comparing the options, it isn’t hard to imagine why clearance revocations for “personal conduct” allegations (Guideline “E” of the National Adjudicative Guidelines for Security Clearances) are proliferating across government. Almost anything agency managers dream up can be shoe-horned in under the vague and overbroad language of the personal conduct guideline, and federal agencies have discovered that security clearance revocation is the path of least resistance for disciplining or discharging an employee.

This is a problem for a variety of reasons, not the least of which is that the revocation of a security clearance often portends far more serious career implications – with far less due process – than a punitive suspension from duty or even a termination of employment for those who work in fields dominated by security clearance requirements (e.g. intelligence analysts, diplomats, federal law enforcement, etc.).  It also opens the security clearance process up to being weaponized for purposes of whistleblower reprisal, settling personal vendettas, or other improper motivations when the line between what warrants initiating revocation versus a human resources penalty is blurred.

There are plenty of scenarios where a security clearance revocation is appropriate, but substituting a clearance revocation for the employee discipline process simply because it’s easier for the agency isn’t one of them. Unfortunately, current law and policy provide little recourse in situations where an agency does precisely that.

 

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

[1] Nothing prohibits an agency from both disciplining an employee and revoking the employee’s clearance, but agencies generally choose one track or the other for reasons of efficiency.

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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