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Preventing Personnel Clearance Issues

Preventing Personnel Clearance Issues



CLE Presentation: Brian Kaveney, Litigation Partner at Armstrong Teasdale ...

CLE Presentation: Brian Kaveney, Litigation Partner at Armstrong Teasdale

The choice of a lawyer is an important decision and should not be based solely on this presentation. All rights are reserved and content may not be reproduced, disseminated or transferred, in any form or by means, except with the prior written consent of Armstrong Teasdale.



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    Preventing Personnel Clearance Issues Preventing Personnel Clearance Issues Presentation Transcript

    • PREVENTING SECURITY CONCERNS FOR KEYINDIVIDUALS DURING THE DoD CAFCONSOLIDATIONBrian Kaveneybkaveney@armstrongteasdale.comPhone: 1-800-243-5070 x7685Date: April 11, 2013 Security in the Real WorldVon BraunCenter, Huntsville, AL
    • ―But the SF 86 is just a form, right? I canprovide more information later...‖ BadIdea! 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 profits2
    • An Effective FSO Must: Prevent Problems Anticipate issues to be more efficient in your job FSO saves time, money, and frustration Best Practice:− Have employee draft and revise complete and accurateinformation tied to mitigating conditions and wholeperson concept to explain or mitigate− Consider most efficient way to navigate the DoD CAF3
    • Sequestration and Security Downturn and reduction in funding for future andexisting 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 sanitizations4
    • Sequestration and Security DSS changed the PR process from 90 days to 30 daysprior to the expiration date of the investigation• More changes in the coming months Salary Creep – affects company profits• Downgrades and reductions5
    • Top Reasons for Rejection by DSSand OPM Lack of correct employment information No SSN for spouse or co-habitant Lack of complete and accurate information forrelatives Missing Selective Service registration info. Lack of complete information concerning debts orbankruptcy Discrepancy with applicant’s place of birth and DoB Missing or Discrepancy in Reference Information Missing or Discrepancy in Employment Information6
    • Better to disclose Failure to disclose will trigger additional adjudicativeguidelines• Example: Even though the employee thinks he willresolve the potential lien on his house, it is better todisclose• Avoids triggering additional adjudicative guidelines• The Truth is ALWAYS Best• If RESOLVED, inform the government, and it can be anon-issue.7
    • Who are we protecting? Everyone associated with NCMS has a responsibilityto the warfighter8
    • Transition of DISCO to the Department ofDefense Central Adjudicative Facility(DoD CAF)• Complete consolidation of the functions, resources,and assets into a single organization under theDirector of Administration and Management.− 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 FY149
    • DoD CAF Status Total Pending Cases as of March 1, 2013• 15,500 industry backlog• Personnel Security Adjudicative FunctionConsolidation for Greater Efficiency10
    • What is the $ of a mistake? Rework to an SF 86 from a missing SSN to a keysecurity concern that could have been mitigated orexplained:• Based on a blended avg. salary for an FSO andexecutive 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 therelative section and print out the new signature forms− FSO will then have to review the submission, loadforms, and spend additional time in JPAS, etc. Can pull individuals away from direct charge time11
    • What is the $ of a mistake? Waste of government resources Increases government costs Create backlog in the process to the detriment ofothers12
    • Given the current environment, how canan FSO be effective during theAdjudication Process Government’s Examination of the Applicant’s Life Weighs a Number of Variables Known as the ―WholePerson Concept‖ Evaluates the Relevance of the Individual’s Conduct Considers the Nature, Extent and Seriousness of theConduct Considers the Frequency and Recency of theConduct Considers the Age and Maturity of the Individual atthe Time13
    • Consider Adjudicative Guidelines DoD CAF Relies on 13 Adjudicative Guidelines whenDetermining Eligibility• Allegiance To The U.S.• Foreign Influence• Foreign Preference• Sexual Behavior• Personal Conduct• Financial Considerations14
    • Adjudicative Guidelines cont.• Alcohol Consumption• Drug Involvement• Emotional, Mental, and Personality Disorders• Criminal Conduct• Handling Protected Information• Outside Activities• Misuse of Information Technology Systems15
    • 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 Contacts16
    • Reporting Requirements Adverse Information Arrests regardless of whether you were convicted orcharges 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 ofillegal drugs Other involvement with the legal system; target oflegal action such as being sued17
    • Reporting Logistics What do you Report?• Arrests• Financial Issues• Foreign Contacts• Foreign Military• Change in Marital Status• Foreign Travel• Cohabitation• Drug Involvement18
    • Problems do not get better with age . . . Many individuals face problems with inter-personalrelationships, depression, alcohol, family issues, orsimilar difficulties at some point in their lives The vast majority of those seeking professional helpfor their problems do not suffer damage to theircareer Rather, professional help often allows individuals torecognize problems and take an active step inresolving those problems EARLY INTERVENTION and thorough reporting areoften the keys to early resolution19
    • FSO Challenges Implementing proper and effective procedures Working in a FOCI environment Developing a robust and effective security program Ensuring key employees receive required/criticalclearances to support the company Dealing with competing priorities Spearheading deadlines for clearances Serving as the link between employees and theclearance-granting authority20
    • FSO’s Tools to Preempt PersonnelClearance Issues Provide SF 86 worksheet to employee as early aspossible Encourage the use of the SF 86 Additional CommentsSection Provide a sample Statement of Reasons Provide a sample Interrogatory Identify and apply relevant mitigating conditions Show Applicant link to DOHA cases21
    • FSO: Saving Government Resources bymaking the government’s life easier. Tools to Assist the Government:• Provide ALL requested information to adjudicators• Use Additional Comments Section to assist OPMinvestigator, particularly where mitigation is compelling• Utilize attachments to provide a complete picture forthe government= DoD CAF . . . DISCO, OPM, & DOHA Example: Detailed information about Escapingthrough Iraq22
    • SF 8623
    • SF 8624
    • SF 86Additional commentsPreventionopportunityORTROUBLE25
    • Additional Reasons for e-QIPRejection Start date or current employer information incorrect Selective service number missing Status of debts—incomplete information on financialquestions (e.g., names, addresses of creditors)missing Missing entries (or gaps) in employment, education,and/or residence Missing citizenship information for foreign-bornfamily members26
    • Additional Reasons for e-QIPRejection Applicant verifying self-employment and/oremployment periods Missing fingerprint cards and/or signed releases Discrepant information between e-QIP and fingerprintcards (e.g., date or place of birth) and Not providing SSN and/or POB information for adultscurrently residing with applicant (co-habitant)27
    • Loss of Clearance: Causes Busy Executive = Inadvertent failure to disclose Key Engineer = Non-Disclosure due to lack ofattention to detail• Example: Financial Issue Overseas Property = Foreign Influence issues• Could be dealt with before submission of SF 86− Example: Close small bank accounts to prevent anallegation in a Statement of Reasons28
    • NISPOM29
    • Complete and Accurate―The FSO or designee shall … review theapplication solely to determine its adequacy and toensure that necessary information has not beenomitted. The FSO or designee shall provide theemployee with written notification that review of theinformation is for adequacy andcompleteness, information will be used for noother purpose within the company, and that theinformation provided by the employee is protected by[the Privacy Act]. The FSO or designee shall not shareinformation from the employee’s SF 86 within thecompany and shall not use the information for anypurpose other than determining the adequacy andcompleteness of the SF 86.‖ISL 2006-01 #5. (2-202)NISPOM30
    • Completing the ElectronicVersion of the SF 86―The electronic version of the SF 86 shall becompleted jointly by the employee and the FSO or anequivalent contractor employee(s) who has (have) beenspecifically designated by the contractor to review anemployee’s SF 86. ‖ Section 2-202.31
    • Proactive Measures for the FSO Explain the adjudicative guidelines to identifyconcerns Conduct a Prescreen interview Explain the investigation and adjudication process Use security education and awareness trainingprogram Encourage honesty and full disclosure Provide sample Statement of Reasons, opinion froman Administrative Judge denying a clearance, andinterrogatories from DOHA32
    • STATEMENT OF REASONSAllegation A34
    • STATEMENT OF REASONSAllegation B35
    • STATEMENT OF REASONSResult of the failure to disclose by the employee36
    • How will the DOHA Judge view this?37
    • DECISION OF JUDGE“Applicant has worked for government contractorsand held a clearance for about 22 years. Hermisconduct was not the product of immaturity orinexperience.”38
    • DECISION OF JUDGE“She is very dedicated to her job and she performs itwith dedication and skill. Unfortunately, she hasdemonstrated that she will engage in deception toprotect her job.”39
    • DECISION OF JUDGE“Applicant claimed that she omitted mentionof her departure from XTON Systems in Aprilof 2010 because she forgot about it. I find thisexplanation implausible and unconvincing.”40
    • How DOHA Judges View―Failure-to-Disclose‖ CasesSomeone who has lied on his or her SF 86should not hold a clearance.The only people who can prevent the failure todisclose are the FSO and the employee.41
    • 42
    • years in prison.Today, at 42, he is out of prisonand working in a white-collar jobin the defense industry. Heremains on parole until 2006. Asa convicted felon, he can’t vote inmany states. But under federallaw, he can and does hold agovernment-issued securityclearance, a privilege that allowsaccess to sensitive classifiedinformation off-limits to mostAmericans.Continued from Page 1BUSA TODAY43
    • COMMON PROBLEM: Inadvertent Failureto Disclose by Busy Executive Raises Guideline E – Personal Conduct• A. In 2005, you failed to properly inform yourChairman & CEO that you had worked with a non-profit entity which created a potential conflict ofinterest for you and your work with your currentemployer at the time44
    • Could This Have BeenAvoided?…YES!! FSO  Get the SF 86 (and worksheet) to the keyemployee, including executives, as early as possible FSO  Advise the key employee to allow sufficienttime to gather information and complete the SF 86 FSO  Advise the key employee to use theAdditional Comments section of the SF 86 FSO  Show example Statement of Reasons to thekey employee Here is what we can help the FSO . . . to reinforce themessage45
    • 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 frustration46
    • Conditions that MayMitigate Security Concerns47
    • FSOs Dealing with 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 dealwith a situation• Could be a difficult situation for the executive to reveal48
    • 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 apply49
    • INTERROGATORIES – What to do―Additional information is needed from you toassist this office to determine whether granting orcontinuing a security clearance eligibility is in thenational interest. You must respond and answer theinterrogatories within twenty (20) calendar days fromyour receipt of this letter. ‖50
    • INTERROGATORIES Use this Opportunity to Address all SecurityConcerns• Provide all requested documentation;• Explain any disqualifying conditions includinginconsistencies in the record; and• Prove that Applicant has mitigated security concernsand should receive clearance.“Prompted by information from employeegiven during the interview with the AuthorizedInvestigator for the Department of Defense.”51
    • 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 clearanceis needed52
    • Pre-employment Clearance Action―If access to classified information is required bya potential employee immediately uponcommencement of their employment, a PCL applicationmay be submitted to the CSA by the contractor prior tothe date of employment provided a written commitmentfor employment has been made by the contractor, andthe candidate has accepted the offer in writing. Thecommitment for employment will indicate thatemployment shall commence within 30 days of thegranting of eligibility for a PCL.‖ NISPOM2-20553
    • Timing the SF 86 Submission As soon as the offer letter is signed, send the SF 86 See NISPOM 2-205 Pre-employment Clearance Action54
    • Employment Issues:Offer Letter LanguageJohn Doe123 Any StreetSt. Louis, MO 63102Dear Mr. Doe:This position requires that your Top Secret clearance transfer to (Company)within a reasonable period of time (approximately two weeks) and that youmaintain your Top Secret clearance. If your clearance is denied, suspended orrevoked for any reason or does not transfer, you will not be able to work inthis position. Your continued employment with (Company) in a position notrequiring a security clearance would depend on the availability of such aposition for which (Company) will determine if you are qualified.Very truly yours,55
    • Offer Letter Language:Start Date and Background InvestigationWe would like your employment to begin within 30days of you being issued the appropriate personnelclearance. This offer is contingent upon a favorablecompleted Single Scope Background Investigation (SSBI)and Top Secret clearance (or favorable completed NationalAgency Check (NAC) and Secret clearance) granted throughDefense Security Services (DSS). Before (Company) canconduct a background investigation, we must receive yoursigned offer of employment and your signed ConsentForm. For that reason, please carefully read, ―A Summaryof Your Rights Under the Fair Credit Reporting Act‖ andcarefully read, sign, and return the ―Disclosure and ConsentConcerning Consumer and Investigative ConsumerReports‖ to Human Resources at (Address).56
    • Offer Letter Language57
    • 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 offerletter is sent58
    • Armstrong Teasdale RepresentativeCase Government issued a favorable security clearanceruling for a key engineer employed by an engineeringclient. A naturalized U.S. citizen originally from Middle East Ties to foreign nations, including real estate holdings Demonstrated deep loyalty to the United States invarious ways59
    • Return on Investment Effective engineer to continue to work on keyprograms FSO demonstrated strength of security program tothe government Knowledge preserved for certain key programs Saved time and resources with the existing andfuture contracts60
    • Armstrong Teasdale RepresentativeCase A field service engineer, who had been deployed tocombat zones in Iraq and Afghanistan Won reinstatement of her revoked security clearancewithin 72 hours of submitting a response to thegovernment She was shocked to learn about the revocation becauseneither she nor her company had received notice In less than six weeks, our security clearance team wasable to gather dozens of sworn statements from personnelall over the world and prepare a detailed, 20-pageresponse Convinced government of the young engineer’s integrityand suitability to handle classified information The government quickly restored the clearance in August2011 without requiring a hearing or any furtherdocumentation to obtain the right result61
    • Return on Investment (ROI) Complex Situation streamlined because . . . Saved the reputation of the company with thegovernment and the prime Save costs by avoiding further adjudication (hearing) Demonstrated to the company employees that thecompany will stand by those who deserve assistancein the right situations62
    • Proactive Approach during Sequestration Saves your company money and resource Reinforces you as a leader to your leadership thatyou are cost-effective and forward thinking Saves the company time, money and frustration The consequences of a delay are costly63
    • It all starts with a form… Image Management Relationships with your customers One form can get you in trouble Cost of re-submitting64
    • What must you have in the currentenvironment? Preventative mindset Investigations Litigation – objective to resolve quickly andefficiently Corporate – with an understanding of FCL issues Former FSOs, former DSS, former DISCO and DOHA,former Judges Full service firm that understands security issues toachieve the right result65
    • Brian E. Kaveney, PartnerArmstrong Teasdale LLP7700 Forsyth Blvd., Suite 1800St. Louis, MO 63105Direct: 314.259.4757 | Fax: 314.552.4830Main Office: 314.621.50701-800-243-5070bkaveney@armstrongteasdale.com66Security in the Real World