Ask The Lawyer

By Debra Roth

Q & A Session – TS Security Clearance Question

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I am a senior in college and I have lined up a job as a consultant for a firm working with government agencies. They want me to fill out a SF-86 for TS/SSBI. I have used marijuana a total of five times, the last time occurring two years ago. Two years ago, I also tried mushrooms once. Lastly, I have two underage drinking tickets from 2011. I haven’t used anything like that since the later part of 2011 as I decided that was not the lifestyle I wanted to live. I have also cut ties with everyone except in social situations.

I am excellent student and very active in the local community and on campus organizations.

Will I run into problems getting approved for my clearance? I will of course disclose all of this on my SF-86 and I have disclosed these incidents to my future employer.

A:

Your past raises questions that will be examined. You say all the right things, but your last usage may be too recent. An adjudication will make the final decision and it could go either way. 

Bill Bransford is managing partner of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

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Q & A Session – Denial of Security Clearance

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I was hired by a federal agency last November, received my first letter of clearance denial in March 2012, and lost my final appeal in August 2012. Should the agency have asked me to sell my house and move to a different state and quit my other federal job and move here without finishing my security clearance first? I’ve lost everything as a result of one stupid thing I did ten years ago.

This leads me to my second question. I would have thought the “whole person” concept used to determine security clearances would have mitigated an incident that landed me two months in jail ten years ago.

A:

Many job offers are subject to a security clearance. Many do not allow employees to start working until the clearance is granted. Others will allow work with an interim clearance or the performance of non-sensitive duties pending approval of the clearance. Any of these are legal and proper, and, of course, if you move and are denied a clearance, you are subject to the loss of a clearance. The denial of your clearance for something ten years old can be appropriate. Security clearances are adjudicated based on uniform guidelines that allow for some flexibility, but some offenses are regarded as too serious to justify a clearance.


Bill Bransford is managing partner of Shaw Bransford & Roth PC.

 

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

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Q & A Session – Revoked Clearance

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I am a Former U.S. Navy Petty Officer Third Class. I applied and got accepted to Navy EOD School. During my Single Scope Background Investigation, I disclosed that I experimentally tried hallucinogenic mushrooms during my divorce. Divorce and drug use happened in 2008, well before EOD SSBI. I never failed a random urine analysis, nor continued use of the substance. No one knew about it until I revealed it to the investigator. Ultimately, the clearance I did have was revoked and I was denied a Top Secret Clearance. Since I couldn’t continue in training, and my enlistment was ending, I simply got out then. Honorable discharge, best re-enlistment code and no negative evaluation or marks

Can I apply for other federal positions, say Marshals or TSA? How can I find out if I will ever be able to obtain a clearance again? What can I do to be able to obtain a clearance again?

A:

You are certainly free to apply. Your prior drug history will be weighed against your other life accomplishments to decide whether to hire you and/or grant a clearance. There is no clear cut answer to your question without applying for a job, being tentatively selected and then going through the security clearance adjudication process.

 

Bill Bransford is managing partner of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

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Q & A Session – Maintaining Security Clearance

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I am exploring starting my own consulting company. I currently hold a TS/SCI and would need to maintain a minimum SECRET clearance in my new role. How can I maintain my clearance without setting up a Security Office?

A:

Prior DOD adjudicative determinations for appointments in sensitive positions or access to classified information, including those pertaining to SCI, will be mutually and reciprocally accepted by all DOD agencies without requiring additional investigation unless there has been a break in the individual’s employment greater than 12 months or unless derogatory information that occurred subsequent to the last prior security determination becomes known.  32 C.F.R. §154.25.  Therefore, so long as the consulting company obtains a contract for services that requires a clearance less than 12 months after this individual’s departure from his prior employment and nothing negative about this individual has come to light, it will not be necessary for him to be reinvestigated.

Whether a Security Office is needed appears to depend upon the structure of this individual’s consulting company.  Typically, after a security determination has been reached, an individual’s trustworthiness is continually assessed by both the government and by the individual’s supervisor and the organization’s command.  32 C.F.R. § 154.60.  Management is required to ensure that employees assigned to sensitive duties are initially indoctrinated and periodically instructed thereafter on the national security implication of their duties and on their individual responsibilities.  Id. Additionally, along with individuals receiving clearances, a DOD contractor’s facilities must also be approved for security clearances, a facility clearance (FCL).   These responsibilities generally are assigned to a company’s Security Office, as noted by the questioner.

The DOD Defense Security Service, Industrial Security Program Office addressed the security clearance and facility clearance issues for self-employed consultants in an April 16, 2003, Industrial Security Letter issued to the public.  The Industrial Security Office stated that cleared contracts may process self-incorporated consultants for a security clearance provided the consultant and members of his/her family are the sole owners of the consultant’s company and only the consultant requires access to classified information.  Additionally, in these cases, a FCL is not required.  However, should other employees of the consultant’s company require access to classified information, that would constitute a classified subcontract and as such, a DD Form 254 (a DOD Contract Security Classification Specification) must be issued by the prime contractor and the consultant’s firm would require a FCL.  In these cases where a company has multiple employees with access to classified information and must meet the standards of a FCL, a stand-alone Security Office may be the most efficient method for handling the necessary security needs of the consulting company.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

 

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Q & A Session – Lying Coworker

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I have a coworker that has been caught lying by many in the office. One situation was during his hiring interview and an IG complaint was made. The second situation involved an encounter with law enforcement while on TDY and another was accusing a supervisor of discrimination and then denying that he made the accusations. This has created a hostile work environment and individuals in the office question his trustworthiness since we all maintain top secret security clearances. What can be done?

A:

You have described situations that are actionable and provable. Someone needs to develop the gumption and follow through. Remember the standard for taking action is “efficiency of service.” This is an elastic concept that can be adapted to your situation.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

 

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Q & A Session – Short Sale and Security Clearance

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

If my husband and I were to sell our house in a short sale, would this have a negative impact on my ability to keep my security clearance?

A:

A short sale could be a factor in a security clearance adjudication, but does not necessarily mean you will lose your clearance. It depends on many other factors, including whether a short sale is being chosen to avoid financial responsibilities.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

 

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Q & A Session – Loss of Security Clearance During Renewal

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

Does someone qualify for discontinued service retirement under FERS if they lose their security clearance and have over 20 years of experience, and are over 50 years old under FERS?

A:

Yes. A loss of a security clearance alone, that is unaccompanied by job-related misconduct, can be a basis for discontinued service retirement if the loss of a security clearance also results in the loss of a federal job.

 

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

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Q & A Session – Early Retirement and Security Clearance Renewal

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I am 55 years old and have worked in the government under FERS for 25 years. I would like to end my government service. My security clearance is due and if I don’t submit it, would I be fired voluntarily or involuntarily. How would this affect my retirement?

A:

No. You would most likely be fired for failing to meet an expectation of your job, i.e., filing the update forms for your clearance. That is a very different posture than being fired for loss of a clearance, which could, in the absence of accompanying misconduct, justify an early retirement under discontinued service retirement rules.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

 

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Q & A Session – Rescinded Offer for Government Contractor

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I am a government contractor and was offered a position and attended orientation. However, I was told later that there was an issue regarding the adjudication of my security clearance and the offer was rescinded. Previously I have been granted security clearances and could not find any issues in my security records. I have not been provided with any information why I was let go. What options do I have?

A:

It sounds to me like you have a lot of speculation, but no proof about why you were let go. Government contractors are usually are usually at will employers and can remove their employees for any reason, except an illegal one, such as discrimination. Even though you were told there was a security clearance issue, you were never formally advised and it looks like from your review it is not true. You should still be able to get a job elsewhere that requires a clearance.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

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Q & A Session – Security Clearance and Credit Counseling

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I am considering using a credit counseling service to consolidate high interest debt to low interest, but have a security clearance. Will using this service alone jeopardize my security clearance or the ability to certify government funds?

A:

Using a credit counseling service alone will not jeopardize a security clearance. Failing to pay bills on time, assuming too much debt or filing for bankruptcy will cause questions to be raised about whether a clearance should be granted.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

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