Can a DOE/NNSA contractor leverage known Security Q-Clearance criteria as a pretext to firing an employee? The short answer is likely yes.
As explained in the July 6, 2023 DOE OHA Administrative Judge decision in the link below, a QNSP acknowledgment (or obviously much worse, failure to acknowledge) of any “received a written warning, been officially reprimanded, suspended, or disciplined for misconduct in the workplace” can trigger a DOE evaluation of one’s Security Clearance eligibility above and beyond the normal periodic review.
In this case, the employee in question referred to as “the Individual”, under QNSP/“Employment Activities”, “affirmatively answered” “he had received a written warning, been officially reprimanded, suspended, or disciplined for misconduct in the workplace”. “The Individuals” honesty and confirmed rehabilitation efforts, likely led to his access authorization being granted or maintained.
Had “the Individual” lost his clearance he could have been dismissed based on his position requirements and DOE/Lab policy.
In this case, the concern in question was alcohol consumption and reasonable, but that is a QNSP sub-question. ANY written warning, official reprimand, suspension, or discipline for misconduct, can trigger such a clearance eligibility review.
The validity of the written warning, official reprimand, suspension, or discipline for misconduct, is not a factor for this extra DOE security clearance scrutiny, and as far as I can tell, the contractor will face no DOE blowback for merit-less or pre-textual efforts to fire “the Individual”. If the contractor’s targeted employee maintains his security clearance, afterward, the contractor can default to a “we were going to fire him anyway” position.
Therefore, if the contractor is not liable to DOE for employee false or misleading accusations or other disciplinary actions, an employee’s clearance can indeed be weaponized by the contractor against employees without consequence. Another risk free tool in the DOE contractor retaliation tool box.
https://www.energy.gov/sites/default/files/2023-07/PSH-23-0014.pdf
19 comments:
It seems that alcohol consumption may have been more acceptable during WWII and the Manhattan project -- evidently there were a lot of parties at Los Alamos, and Truman himself the president who dropped the bomb, liked to have a drink when he woke up in the morning sometimes. As for the secrets leaking out, they did through multiple channels, of course, they say Stalin knew about the success of the Trinity test before Truman, and so on. I am not sure, but I think some of the material in the KGB archives has become public, in fact. Oppenheimer of course, was a chain smoker and died after the war of throat cancer, and evidently was not part of any security leaks.
Alcohol usage - Maybe
Drug usage - Probably
Improper Pronoun Usage - You're Toast
In these kind of decisions, I think security is the most important consideration. However, I can think of several concerns and there may be more.
First, this encourages people to hide problems rather than seeking treatment.
Second, getting rid of someone would mean you now have someone with no money and limited options, creating a much greater security risk than keeping them on staff.
Third, with more aggressive security enforcement, fewer good people will work at the labs, meaning that more people need to be exposed to classified information and cleared.
Of course, some people in congress have raised concerns as well that too much information is classified, meaning that a huge number of clearances are issued, and we have seen cases where secrets come out due to this, in fact in many of the recent cases this could have been arguably something which happened.
Meanwhile, of course, security can be used as a means to cover government malfeasance, target genuine whistleblowers and so on, making the government dysfunctional.
These things are obviously now more of a Republican issue, with a Democrat president, but in the past under Republican administrations, I seem to recall Democrats voicing the same issues. Perhaps I am mistaken.
As a taxpayer something seems not quite right, or as a milder criticism at least some improvements could be possible. I think focusing on one specific case of this, is potentially useful, but it is part of a broader concern some people have. Those people do, at least in their own minds, have our best interests at heart, so it is something to consider.
Is alcohol really such a big problem at the DOE labs? I thought Los Alamos had tons of churches, and as I recall almost no bars or liquor stores. They also I thought, had a lot of police that would target any drunk driver, although I never heard of any at all there.
Livermore might be different perhaps, due to the large number of bars, restaurants, wineries and so forth in the local vicinity. Maybe they should make an arrangement to move anyone suspected of a problem to Los Alamos in exchange for a sober individual of equal qualifications.
To the OP. You understand it. If you have a Q-clearance, and your job depends upon you maintaining that clearance, you are over a barrel. You have zero defense against arbitrary and capricious behavior from anyone in your line management chain. Furthermore, should a court be involved you will not have access to information related to your defense, or to any sort of due process related to your clearance. Of course this system has next to nothing to do with national security and everything to do with control of free-thinking egg heads. Your country needs your brains and expertise, but not your ideas or equal treatment under the law.
Speaking of "free-thinking egg heads" isn't the case that Szilard ran into a bunch of problems. I am not sure the full story, but he upset a number of people at various times during the Manhattan project, and was somehow sidelined, or they tried to go after him -- maybe he was too good to get rid of, and it isn't clear what happened with his clearance.
As you know he evidently conceived the nuclear chain reaction, and with Fermi held the patent relating to the nuclear reactor, and wrote the Einstein-Szilard letter, and made other key technical contributions, in other words he was sort of the scientist whose ideas and work arguably created the entire Manhattan project, and without whom it would not have succeeded in time to end the war.
One key incident I think, was that towards the end of the project he circulated a petition with ideas similar to the Bard memorandum, to stage a demonstration of the bomb, I believe, rather than dropping it on a city. I think, he pointed out some belief that the bomb had originally been designed to target Germany, although it appears it might have been pretty ineffective against German cities I would guess, and as we know some Germans fought to the bitter end when it should have been pretty clear (after Kursk perhaps?) they had lost. No doubt a few bombs would not have caused a German surrender, or had much effect compared to the aerial attacks that did take place.
I've seen a number of things from Congress recently that might be relevant to this, as you know the House held hearings on the supposed "Weaponization of the Federal Government" as well as "Weaponization of FISA", I think there was also something dealing with censorship where RFK Jr. spoke.
It seems RFK Jr. has said a number of things against Israel, that can be taken as anti-Semitic as well, and the Democrats did not want him to speak. Of course, and I don't know if this true, Nixon reportedly held some anti-Semitic views but his policies were favorable to Israel as an ally, and he trusted Kissinger who was I believe, Jewish.
Also, I can recall statements made recently in Congress relating to the claim that too much information is kept secret by government, and this makes it difficult for voters to be informed about anything important. Obviously, there could be issues as well, where different parts of the government do not share information, which seems to have been an issue relating to September 11th as well as our COVID response, and the supposed cover up.
Yet another concern that was voiced, of course, was that with so much classified information, the number of people with access has vastly expanded. This could have led to relaxed standards in the process, as well as a backlog of clearances to be processed and a shortage of cleared personnel, and might be implicated in any number of cases such as Snowden or Wikileaks, and many others, in which important documents were compromised.
In terms of these so-called "weaponization" claims that could certainly be untrue or much exaggerated, I would admit, but the fact that so many people believe that, is having a negative impact I think. You are bringing up something perhaps unrelated to a political sort of weaponization, but related to the same issues in some sense of unfairness.
Having a reputation for being unfair whether or not it is true, would certainly harm the lab's recruiting, and with those ideas floating around, going after someone who actually is (perhaps) a problem also could be harmful as it becomes known to other scientists or the general public. This actually seems to have happened in the past, for example in the Wen Ho Lee prosecution.
When it is DOE contractor employee substance abuse, financial, sexual behavior, or other matters where the focus is squarely on the contractor employee, and not on the contractors conduct, the DOE OHA is fairly impartial, and gives the DOE contractor employee a reasonable opportunity to step up and address the identified issues through tangible and measured steps.
However, when the DOE contractor employee reaches out to the DOE OHA and points a finger at their DOE contractor employer, it becomes a purely political “family matter”. Without political support on par (like senator involvement) with DOE intervening, the DOE contractor employee gets hosed. Research it for yourself. The pattern is clear.
https://www.washingtonpost.com/news/powerpost/wp/2017/03/23/energy-department-whistleblower-finally-gets-justice-despite-agency-neglect/
I think "hosed" may be the wrong term, for the employee, in some of these cases the programs at the lab end up being hurt, and the former employee is better off in the outside world.
If you read the fine print, or in other words think about it, everyone at the lab is more or less an at-will employee as in any other employment contract. Yes, there are various protections and recourse options available, but also people end up no longer working there for various reasons, against what they might wish.
Since you agreed to this going in, the history of such things being known, and freely entered into an employment contract like any other, it should not seem unfair. Perhaps, though, the reason it seems unfair is that not everyone gets equal treatment, and this seems as if it is an injustice.
Also this is not (I would think) perhaps a good way to treat people, as it would seem, but isn't that the bottom line as it actually is, rather than as it perhaps should be?
I think it is a bit much to single out DOE or the lab as the source of all (supposed) problems. Ultimately, federal, state, and local governments have either jurisdiction or influence over the policies carried out by the laboratories, and also each of these contains a variety of checks and balances by design. There are of course, other influential actors, such as learned societies, any unions which might be in place or might want to establish membership, and of course, any one who might wish to petition the government for redress a right which is guaranteed in the constitution. As you might be aware, many wealthy individuals and organizations can and do avail themselves of their legal rights by doing this in various ways.
Ultimately, it could be untrue that there are many aspects of the current system which are counterproductive or unfair to various people or groups, but it might make sense to recognize that fairness does not exist automatically, and some sort of "deep state" is really not in any actual control of anything, despite some attribution of an illusory power, and perhaps (some would claim) contrary to their supposed wishes, as if everyone associated with the government somehow held the same views as part of a conspiracy.
I am not even sure of course, with all these considerations, whether all these complaints discussed here make sense in the big picture since they are the product of such a well-thought out and elaborate system, some would say of course, they are not justified, and things should be a certain way for a reason in terms of (say) how the lab treats employees or how it is managed, as in the big picture those were wise decisions although unfavorable to various people.
Maybe even in the big picture, it is just as well that things are dysfunctional at the labs, some people in Washington might feel there are enough things like weapons or whatever is going on, and as duly elected representatives with that view, they are entitled to do whatever they would do, however arbitrary, incorrect, and unreasonable it might appear.
I'm not sure if you would post my previous two comments, of course as a scientist I am inclined to say the truth as I see it, unless there is some reason not to. Certainly however it could be a digression from the main thread of discussion.
There was a lot of censorship I think, during the COVID pandemic, however that makes sense during an emergency such as a pandemic or war -- there was a signed declaration of emergency by Trump, and that is one of his express emergency powers. It might have been something which made the election less fair in some ways, one might imagine. We don't seem to be seeing much of that anymore, to the Democrats' credit, of course, and the state of emergency has ended.
It would be an interesting thing to figure out, how much the censorship was something Trump wanted or authorized, he seemed in many ways to be fighting his own policies, and engaging in wishful thinking the pandemic would end, while at the same time Democrats were opposed to anything Trump claimed.
I think it was known at the beginning for example, quite well that there would be recurrent waves of the virus, created by the so-called flatten the curve policy, and there would be repeated lockdowns until such time as a vaccine existed and could be distributed. The entire thing was viewed as a way of not having hospitals overwhelmed in particular, as would happen with no measures, I recall this clearly from near the start of the pandemic.
And well, perhaps that was too-much off topic too, but I would say in that regard now that there is a more open debate one might hope that we have more democratic governance than as happened during the chaos of the pandemic, and in particular any concerns someone might have would become known and addressed.
I think the article, GAO report and video links below make it clear how bold DOE contractors are when it comes to employee retaliation, and how DOE enables it to happen.
Sandra Black filed with the DOE OHA (a Kangaroo court system?) and it rejected her appeal. Sandra Black had a good attorney too. It took 3 senators, a GAO report, and the DOE Inspector General to get Poli A. Marmolejos, DOE OHA Chief Administrative Judge to walk back his earlier dismissal of Sandra Blacks case. The question is what has materially changed with DOE contractor employee retaliation since?
“When you retaliate against an employee for cooperating with an investigation about retaliation, it shows there is truly no limit to the lengths the department and its contractors will go to dodge accountability,”
https://www.wyden.senate.gov/news/press-releases/wyden-mccaskill-markey-new-report-finds-whistleblowers-at-risk-at-energy-department-sites
https://m.youtube.com/watch?v=J3BG4tDTYkU&pp=ygUUc2FuZHJhIGJsYWNrIGdhbyBkb2U%3D
How would one craft a legal remedy against retaliation he or she or they wanted to do so? If someone had a career type employment, does that mean the appropriate remedy is to employ them for life, or provide equivalent compensation? How would anyone know if retaliation occurred, in any situation where a great deal of information is for good reasons, exempt from disclosure? There have been other cases I believe where the governments case fell through as they did not want to disclose the real evidence, or things are settled through some plea bargain in such a way as nobody might know the details. Grand juries have also indicted people on false charges too, and as you know losing employment on a presumption of guilt limits someone's resources to mount a defense. In that regard, it is also (evidently) that imposing financial stress upon a defendant is often a chosen legal strategy, and also while that might be a useful legal tool, it can lead to injustices or pleas to lesser charges.
Many high profile cases seem to create a set of radically different narratives for these as well as other reasons, in my opinion, although I have no formal training in legal matters. My suspicion in fact, is that having a strict reading of the law, as the current supreme court does, overlooks the obvious facts that in many respects the system is unjust. On the other hand, the Democrats seem to be pushing a sort of arbitrary justice, that would serve only to make many of the issues I mentioned even worse.
That is, for me, it could be an issue with the various scandals surrounding Hunter Biden and Trump, the Clintons, or more minor players like Flynn, Manafort, Stone, or whatever there is some selectivity. In fact there a great number of laws that someone might break -- Stalin said show me the man and I'll show you the crime I think -- and there is even a book called Three Felonies a Day, claiming that a typical American professional actually commits inadvertently three felonies a day.
Assuming for the case of argument, that anything like that is remotely true, what is the actual situation with the lab? A bunch of stuff goes on there, I know, but they don't seem to forthcoming about what happened in any particular case, such as an employee who might no longer be there.
Virtue signaling vs the real deal at the DOE/NNSA labs, decide for yourself before accepting a job with one of them, especially the for-profit ones.
Frankly I think many people have attitudes that there are unspoken requirements to go along with normal practices or ways of doing things in a lot of these cases, not necessarily waste or fraud, and that whoever violates that is a problem, meaning that anything done by management might be reasonable.
Also often these end in an amicable way or have the appearance of that, since there are many jobs available, and having something on your record even when you win creates further problems.
Most people would look at things pragmatically, they would want to either maximize their scientific output, or how their career turns out, doing whatever might be advantageous to themselves. These other issues do not involve science in that self-centered view, which of course, is shared by university departments and managers too.
There are ways to exit bad situations, of course, available to very senior people such as just resigning and not being part of it, and this is sometimes part of exhibiting professional behavior.
Certainly with COVID a lot of questions have come up about all this, the censorship and suppression that went on of good science, the desire to deliberately publish false science which seems to have happened with the Proximal Origins paper and so on. There were other papers from foreign countries which went into many of the details early on, I recall a variety of reputable papers particularly from Germany that went into great deal, some in German language.
It should be disturbing to everyone I would think, that German publications are more reputable than our own, in fact some of the earliest articles about the pandemic, were in German and Swedish newspapers, as well as Hong Kong, while our mass media did not bother to cover it. I recall telling people, that the stories must be real if they're showing up in such reputable source, of course, rather than our own media.
Along with DOE OHA being a fake sanctuary from Lab retaliatory behavior, the OFCCP is now a false agency as well. Not kidding.
Lots of pushback here from lab management/employee work situations. Why and who would say so, and for what reasons?
1:24 the answer is very simple. A clearance, once granted, should not ever be rescinded without due process. While having a clearance isn’t a right, keeping one should be.
I don't think it should be read as a push back against management or the lab, rather many managers I know, are good scientists and good managers as well, and any issues that exist also impact their careers. The labs are certainly in some respects the best labs in the world, and have important missions people believe in, for oftentimes people would be better off personally if they left, but care about the mission.
Bringing up problems of course, can serve a constructive role if they are fixed or things are improved, and certainly one could imagine they are not really problems at all, since things are successful in many ways although perhaps frustrating to some people at some times.
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