How to Guide Your Employee During the Clearance Process

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How to Guide Your Employee During the Clearance Process

  1. 1. How to Guide Your Employee During the Clearance Process Brian Kaveney bkaveney@armstrongteasdale.com Phone: 1-800-243-5070 x7685
  2. 2. ―But the SF 86 is just a form, right? I can provide more information later...‖ Bad Idea!  It all starts with a form  What is the cost of a mistake? • Damage to your reputation with your customers • Indelible mark to your reputation • One person, one comment on a form… • Lost profits 2
  3. 3. An Effective FSO saves time, money, and frustration  Anticipate issues to be more efficient in your job  Prevent Problems  Best Practice: − Have employee draft and revise complete and accurate information tied to mitigating conditions and whole person concept to explain or mitigate − Consider most efficient way to navigate the DoD CAF 3
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  6. 6. Effective FSO’s Tools to Preempt Personnel Clearance Issues  Provide SF 86 worksheet to employee as early as possible  Encourage the use of the SF 86 Additional Comments Section  Provide a sample Statement of Reasons  Provide a sample Interrogatory  Identify and apply relevant mitigating conditions  Show Applicant link to DOHA cases 6
  7. 7. Sequestration and Security - Industry  Downturn and reduction in funding for future and existing contracts: • Result: Reduced personnel • Remaining employees receive more responsibility • Increased Security Violations and Classified Spills • Security will become more active: − More investigations and more computer sanitizations 7
  8. 8. Sequestration and Security – Government  DSS changed the PR process from 90 days to 30 days prior to the expiration date of the investigation • More changes in the coming months  Salary Creep – affects company profits • Downgrades and reductions  Furloughs  Reduced Funding: • Example: More Hearings by VTC rather than in person • Consequence: Less persuasive by VTC rather than in person? 8
  9. 9. Top Reasons for Rejection by DSS and OPM  Lack of correct employment information  No SSN for spouse or co-habitant  Lack of complete and accurate information for relatives  Missing Selective Service registration info.  Lack of complete information concerning debts or bankruptcy  Discrepancy with applicant’s place of birth and DoB  Missing or Discrepancy in Reference Information  Missing or Discrepancy in Employment Information 9
  10. 10. Additional Reasons for e-QIP Rejection  Start date or current employer information incorrect  Selective service number missing  Status of debts—incomplete information on financial questions (e.g., names, addresses of creditors) missing  Missing entries (or gaps) in employment, education, and/or residence  Missing citizenship information for foreign-born family members 10
  11. 11. Additional Reasons for e-QIP Rejection  Applicant verifying self-employment and/or employment periods  Missing fingerprint cards and/or signed releases  Discrepant information between e-QIP and fingerprint cards (e.g., date or place of birth) and  Not providing SSN and/or POB information for adults currently residing with applicant (co-habitant) 11
  12. 12. Better to disclose  Failure to disclose will trigger additional adjudicative guidelines • Example: Even though the employee thinks he will resolve the potential lien on his house, it is better to disclose • Avoids triggering additional adjudicative guidelines • The Truth is ALWAYS Best • If RESOLVED, inform the government, and it can be a non- issue. 12
  13. 13. Who are we protecting?  Everyone associated with NCMS has a responsibility to the warfighter 13
  14. 14. Transition of DISCO to the Department of Defense Central Adjudicative Facility (DoD CAF) • Complete consolidation into a single organization: − The Defense Industrial Security Clearance Office (DISCO), − Army Central Clearance Facility, − Department of the Navy CAF, − Air Force CAF, − Joint Staff CAF, Washington Headquarters (WHS) CAF, and DOHA • Initial operational capability by the beginning of FY13 • Full operational capability by the start of FY14 14
  15. 15. DoD CAF Status  Total Pending Cases as of Spring of 2013 • 15,000 industry backlog • Personnel Security Adjudicative Function Consolidation for Greater Efficiency 15
  16. 16. What is the $ of a mistake?  Rework to an SF 86 from a missing SSN to a key security concern that could have been mitigated or explained: • Based on a blended avg. salary for an FSO and executive or key employee: − 4-8 man hours or $140.00 - $160.00 = $560.00 - $1,280.00 − Extra costs for the FSO, employee, and admin. costs − Employee must “redo” the questions section and the relative section and print out the new signature forms − FSO will then have to review the submission, load forms, and spend additional time in JPAS, etc.  Can pull individuals away from direct charge time (profit) 16
  17. 17. What is the $ of a mistake?  Waste of government resources  Increases government costs  Create backlog in the process to the detriment of others 17
  18. 18. Given the current environment, how can an FSO be effective during the Adjudication Process  Government’s Examination of the Applicant’s Life  Weighs a Number of Variables Known as the ―Whole Person Concept‖  Evaluates the Relevance of the Individual’s Conduct  Considers the Nature, Extent and Seriousness of the Conduct  Considers the Frequency and Recency of the Conduct  Considers the Age and Maturity of the Individual at the Time 18
  19. 19. Consider Adjudicative Guidelines  DoD CAF Relies on 13 Adjudicative Guidelines when Determining Eligibility • Allegiance To The U.S. • Foreign Influence • Foreign Preference • Sexual Behavior • Personal Conduct • Financial Considerations 19
  20. 20. Adjudicative Guidelines cont. • Alcohol Consumption • Drug Involvement • Emotional, Mental, and Personality Disorders • Criminal Conduct • Handling Protected Information • Outside Activities • Misuse of Information Technology Systems 20
  21. 21. Reporting Requirements  Change in Personal Status • Marital status – married, divorced, separated • Cohabitation – living in a spouse-like relationship; intimate relationship, or engaged  Foreign Travel  Foreign Contacts  Security Violations  Suspicious Contacts 21
  22. 22. Reporting Requirements  Adverse Information  Arrests regardless of whether you were convicted or charges were dropped  Financial difficulties including bankruptcy, garnishment or judgment against wages, foreclosures, short sales, voluntary repossessions  Emotional or psychological problems  Alcoholism or abuse of other legal drugs; use of illegal drugs  Other involvement with the legal system; target of legal action such as being sued 22
  23. 23. Reporting Logistics  What do you Report? • Arrests • Financial Issues • Foreign Contacts • Foreign Military • Change in Marital Status • Foreign Travel • Cohabitation • Drug Involvement 23
  24. 24. Problems do not get better with age . . .  Many individuals face problems with inter-personal relationships, depression, alcohol, family issues, or similar difficulties at some point in their lives  The vast majority of those seeking professional help for their problems do not suffer damage to their career  Rather, professional help often allows individuals to recognize problems and take an active step in resolving those problems  EARLY INTERVENTION and thorough reporting are often the keys to early resolution 24
  25. 25. FSO Challenges  Implementing proper and effective procedures  Working in a FOCI environment  Developing a robust and effective security program  Ensuring key employees receive required/critical clearances to support the company  Dealing with competing priorities  Spearheading deadlines for clearances  Serving as the link between employees and the clearance- granting authority 25
  26. 26. FSO’s Tools to Preempt Personnel Clearance Issues  Provide SF 86 worksheet to employee as early as possible  Encourage the use of the SF 86 Additional Comments Section  Provide a sample Statement of Reasons  Provide a sample Interrogatory  Identify and apply relevant mitigating conditions  Show Applicant link to DOHA cases 26
  27. 27. FSO: Saving Government Resources by making the government’s life easier  Tools to Assist the Government: • Provide ALL requested information to adjudicators • Use Additional Comments Section to assist OPM investigator, particularly where mitigation is compelling • Utilize attachments to provide a complete picture for the government = DoD CAF . . . DISCO, OPM, & DOHA  Example: Detailed information about Escaping through Iraq 27
  28. 28. SF 86 28
  29. 29. SF 86 29
  30. 30. SF 86 Additional comments Prevention opportunity OR TROUBLE 30
  31. 31. Loss of Clearance: Main Causes  The Busy Executive = Inadvertent failure to disclose  The young, key Engineer = Non-Disclosure due to lack of attention to detail • Example: Financial Issue  Overseas Property = Foreign Influence issues • Could be dealt with before submission of SF 86 − Example: Close the bank account to prevent a specific allegation in a Statement of Reasons − Demonstrate the U.S. Citizen is firmly rooted in the U.S. 31
  32. 32. NISPOM 32
  33. 33. Complete and Accurate ―The FSO or designee shall … review the application solely to determine its adequacy and to ensure that necessary information has not been omitted. The FSO or designee shall provide the employee with written notification that review of the information is for adequacy and completeness, information will be used for no other purpose within the company, and that the information provided by the employee is protected by [the Privacy Act]. The FSO or designee shall not share information from the employee’s SF 86 within the company and shall not use the information for any purpose other than determining the adequacy and completeness of the SF 86.‖ ISL 2006-01 #5. (2-202)NISPOM 33
  34. 34. Completing the Electronic Version of the SF 86 ―The electronic version of the SF 86 shall be completed jointly by the employee and the FSO or an equivalent contractor employee(s) who has (have) been specifically designated by the contractor to review an employee’s SF 86. ‖ Section 2-202. 34
  35. 35. Proactive Measures for the FSO  Explain the adjudicative guidelines to identify concerns  Conduct a Prescreen interview  Explain the investigation and adjudication process  Use security education and awareness training program  Encourage honesty and full disclosure 35
  36. 36. Proactive Measures for the FSO  Provide: • (1) Sample Statement of Reasons, • (2) Sample Interrogatories • (3) Opinion from an Administrative Judge denying a clearance, • (4) Opinion from an Administrative Judge denying a clearance, and 36
  37. 37. STATEMENT OF REASONS 37
  38. 38. STATEMENT OF REASONS Allegation A 38
  39. 39. STATEMENT OF REASONS Allegation B 39
  40. 40. STATEMENT OF REASONS Result of the failure to disclose by the employee 40
  41. 41. How will the DOHA Judge view this? 41
  42. 42. DECISION OF JUDGE “Applicant has worked for government contractors and held a clearance for about 22 years. Her misconduct was not the product of immaturity or inexperience.” 42
  43. 43. DECISION OF JUDGE “She is very dedicated to her job and she performs it with dedication and skill. Unfortunately, she has demonstrated that she will engage in deception to protect her job.” 43
  44. 44. DECISION OF JUDGE “Applicant claimed that she omitted mention of her departure from XTON Systems in April of 2010 because she forgot about it. I find this explanation implausible and unconvincing.” 44
  45. 45. How DOHA Judges View ―Failure-to-Disclose‖ Cases  The only people who can prevent the failure to disclose are the FSO and the employee.  Someone who has lied on his or her SF 86 should not hold a clearance. 45
  46. 46. 46
  47. 47. years in prison. Today, at 42, he is out of prison and working in a white-collar job in the defense industry. He remains on parole until 2006. As a convicted felon, he can’t vote in many states. But under federal law, he can and does hold a government-issued security clearance, a privilege that allows access to sensitive classified information off-limits to most Americans. Continued from Page 1B USA TODAY 47
  48. 48. Where are we today? 48
  49. 49. 49
  50. 50. Know Your Audience  Consequences for Executive  Consequences for Security 50
  51. 51. COMMON PROBLEM: Inadvertent Failure to Disclose by Busy Executive  Raises Guideline E – Personal Conduct • A. In 2005, you failed to properly inform your Chairman & CEO that you had worked with a non-profit entity which created a potential conflict of interest for you and your work with your current employer at the time 51
  52. 52. Could This Have Been Avoided?…YES!!  FSO - Get the SF 86 (and worksheet) to the key employee, including executives, as early as possible  FSO - Advise the key employee to allow sufficient time to gather information and complete the SF 86  FSO - Advise the key employee to use the Additional Comments section of the SF 86  FSO - Show example Statement of Reasons to the key employee  Here is where we can help the FSO . . . to reinforce the message 52
  53. 53. Could This Have Been Avoided?  Our Clients and companies that use this approach . . . • Never have received Interrogatories • Never have received a Statement of Reasons • Never gone to a hearing  Save their company time, money and frustration 53
  54. 54. Conflicting Facts: Conditions that May Mitigate Security Concerns 54
  55. 55. FSOs Advising Executives  Encounter multiple attempts to receive a ―complete‖ SF 86  RECOGNIZE CLUES: • Having to initiate the investigation multiple times • May show that the executive does not want to deal with a situation • Could be a difficult situation for the executive to reveal − “ABC Company’s CEO Heard the Clock Tick.” − “XYZ Company’s CFO Pushed Out after acquisition.” 55
  56. 56. FSO SOLUTIONS  Be diplomatic  Have an early dialogue  Ask for supporting documents  Convey that more information is often better  Reference the mitigating conditions • Example: Foreign Influence • Explain how mitigating conditions apply  Recommend outside counsel • Attorney Client Privileged Communications 56
  57. 57. INTERROGATORIES – What to do ―Additional information is needed from you to assist this office to determine whether granting or continuing a security clearance eligibility is in the national interest. You must respond and answer the interrogatories within twenty (20) calendar days from your receipt of this letter. ‖ 57
  58. 58. INTERROGATORIES  Use this Opportunity to Address all Security Concerns • Provide all requested documentation; • Explain any disqualifying conditions including inconsistencies in the record; and • Prove that Applicant has mitigated security concerns and should receive clearance. “Prompted by information from employee given during the interview with the Authorized Investigator for the Department of Defense.” 58
  59. 59. Why wait? There is no reason to wait: Explain & Mitigate  Spot Recurring Problems: • Example: Young engineers in college  New Hires and Executives: • Provide SF 86 well before clearance is needed 59
  60. 60. Result of Proactive Measures  Justify your own budget  May even increase your budget 60
  61. 61. Pre-employment Clearance Action ―If access to classified information is required by a potential employee immediately upon commencement of their employment, a PCL application may be submitted to the CSA by the contractor prior to the date of employment provided a written commitment for employment has been made by the contractor, and the candidate has accepted the offer in writing. The commitment for employment will indicate that employment shall commence within 30 days of the granting of eligibility for a PCL.‖ NISPOM 2-205 61
  62. 62. Timing the SF 86 Submission  As soon as the offer letter is signed, send the SF 86  See NISPOM 2-205 Pre-employment Clearance Action 62
  63. 63. Employment Issues: Offer Letter Language John Doe 123 Any Street St. Louis, MO 63102 Dear Mr. Doe: This position requires that your Top Secret clearance transfer to (Company) within a reasonable period of time (approximately two weeks) and that you maintain your Top Secret clearance. If your clearance is denied, suspended or revoked for any reason or does not transfer, you will not be able to work in this position. Your continued employment with (Company) in a position not requiring a security clearance would depend on the availability of such a position for which (Company) will determine if you are qualified. Very truly yours, 63
  64. 64. Offer Letter Language: Start Date and Background Investigation We would like your employment to begin within 30 days of you being issued the appropriate personnel clearance. This offer is contingent upon a favorable completed Single Scope Background Investigation (SSBI) and Top Secret clearance (or favorable completed National Agency Check (NAC) and Secret clearance) granted through Defense Security Services (DSS). Before (Company) can conduct a background investigation, we must receive your signed offer of employment and your signed Consent Form. For that reason, please carefully read, ―A Summary of Your Rights Under the Fair Credit Reporting Act‖ and carefully read, sign, and return the ―Disclosure and Consent Concerning Consumer and Investigative Consumer Reports‖ to Human Resources at (Address). 64
  65. 65. Offer Letter Language 65
  66. 66. FSO’s Proactive Steps  As soon as the offer letter is signed, send the SF 86; and • See NISPOM 2-205 • Include this in the offer letter  Send the link and a worksheet as soon as the offer letter is sent 66
  67. 67. Representative Case: Foreign Influence and Foreign Preference Allegations  Mother diagnosed with cancer in Taiwan • Renewed Taiwan ID Card & Passport to access accounts in Taiwan for parents − Purpose: to provide medical care for mother • Applicant did not have a clearance at the time  Mitigation: • Closed the accounts opened by his father • FSO maintains passport • Traveled on his US passport  Key: FSO and managers were proactive from the beginning 67
  68. 68. Representative Case: Effective Chief Security Officers & FSOs  Government issued a favorable security clearance ruling for a key engineer employed by an engineering client  A naturalized U.S. citizen originally from Middle East  Ties to foreign nations, including real estate holdings  Demonstrated deep loyalty to the United States in various ways  Demonstrated strong compliance program at company and history of strong industrial security program 68
  69. 69. What are the benefits for the company and the country?  Effective engineer to continue to work on key programs  FSO demonstrated strength of security program to the government  Knowledge preserved for certain key programs  Saved time and resources with the existing and future contracts 69
  70. 70. Representative Case: Providing Clear Evidence in a Complex Situation  A field service engineer, who had been deployed to combat zones in Iraq and Afghanistan  Won reinstatement of her revoked security clearance within 72 hours of submitting evidence to the government  Shocked to learn about the revocation because neither she nor her company had received notice  In less than six weeks, gathered dozens of sworn statements from personnel all over the world and prepare a detailed, 20-page response  Convinced government of the young engineer’s integrity and suitability to handle classified information  The government quickly restored the clearance in August 2011 without requiring a hearing or any further documentation to obtain the right result 70
  71. 71. Return on Investment (ROI)  Complex Situation streamlined  Saved the reputation of the company with the government and the prime  Saved costs by avoiding further adjudication (hearing)  Demonstrated to the company employees that the company will stand by those who deserve assistance in the right situations 71
  72. 72. Proactive Approach during Sequestration  Saves your company money and resource  Reinforces you as a leader to your leadership that you are cost-effective and forward thinking  Saves the company time, money and frustration  The consequences of a delay and damage to a reputation are costly 72
  73. 73. It all starts with a form…  Image Management  Relationships with your customers  One form can get you in trouble  Cost of re-submitting 73
  74. 74. What must you have in the current environment?  Preventative mindset  Investigation Capabilities  Resolve issues quickly and efficiently  Advisors who understand of FCL issues, including FOCI 74
  75. 75. Brian E. Kaveney, Partner Armstrong Teasdale LLP 7700 Forsyth Blvd., Suite 1800 St. Louis, MO 63105 Direct: 314.259.4757 | Fax: 314.552.4830 Main Office: 314.621.5070 1-800-243-5070 bkaveney@armstrongteasdale.com QUESTIONS? 75 An effective FSO strives to save time, money, and frustration

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