For many clearance holders, the prospect of self-reporting an arrest is like revisiting a nightmare. The arrest itself was horrible enough; now you have to inform your security office about it?!
The solution some overwhelmed and panicked clearance holders arrive at is to simply ignore the matter and hope it goes away. They rationalize the self-reporting requirement found in Security Executive Agent Directive 3 and/or agency-specific policy as not really meaning what it says. They hope that prosecutors will decline charges, drop charges, or that they will be found “not guilty” at trial before anyone at work is the wiser. Or, they hear from their well-meaning but ill-informed criminal defense attorney that they have no obligation to tell their employer about the arrest under state law.
Unfortunately, the requirement of self-reporting an arrest means what it says: an arrest. Not a decision by prosecutors to file charges and not a conviction. Just the act of an arrest itself is enough to trigger the reporting requirement. Every federal agency of which I am aware requires that the reporting be made at the first available opportunity after arrest – usually, by the next business day.
This is true despite state laws that may exist to the contrary. When it comes to security clearances, federal law trumps state law. And under federal law, the government has wide latitude to establish policies and procedures governing security clearances.
Of course, I realize that this may all seem very unfair. As many clearance holders have complained over the years, the requirement to self-report an arrest seems like pre-judging the outcome. After all, an arrest requires only the lower legal standard of probable cause, whereas conviction in a court of law requires proof beyond a reasonable doubt.
I don’t disagree with any of that, but philosophical arguments don’t save careers. With Continuous Evaluation now in full swing, the odds of the government not discovering the arrest on their own are slim. Self-reporting averts an additional allegation for lack of candor and simultaneously bolsters the clearance holder’s credibility.
That doesn’t guarantee the clearance won’t still be revoked, but it is a start to mitigating concerns. Clearance holders should just be sure to follow the advice of their criminal defense attorney on specifically how much information to volunteer when self-reporting. There is no question that the arrest, the date, and the charge(s) must all be reported at the first available opportunity. But making statements beyond that while a criminal case is open can, in some cases, potentially risk jeopardizing rights or defenses the individual may have available at trial. Comply with your self-reporting requirements, but be smart about protecting yourself.
This article is intended as general information only and should not be construed as legal advice. Although the information is believed to be accurate as of the publication date, no guarantee or warranty is offered or implied. Laws and government policies are subject to change, and the information provided herein may not provide a complete or current analysis of the topic or other pertinent considerations. Consult an attorney regarding your specific situation.
