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Federal Employees News Digest : Sep 30, 2013
September 30, 2013 Vol. 63, No. 11 5 Visit us on the Internet at www.FederalDaily.com The black sheep of the family can threaten fed employees' security clearance Rare is the family without the "crazy uncle" or some other rela- tive whom most would prefer to not invite to reunions. A 2010 study by an Australian researcher found that among 70 university respondents surveyed, 80 percent of them said there was a black sheep in their family. Thirteen percent of respondents said that black sheep was a brother, 16 percent said it was a sister, and 25 percent said it was an uncle or cousin-in-law. Survey respondents identified many reasons for shunning certain family members, such as their differences in appearance, personali- ties, talents, or interests. Federal employees, especially those who are applying for security clearance, also have reasons for wanting to disre- gard certain family members. Under the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, foreign family members could raise foreign influence or foreign preference concerns that can result in the denial of a security clearance. Familial conflicts over money can also raise financial consideration concerns. The recent Merit Systems Protection Board case, Cesar H. Figueroa v. Department of Homeland Security (2013), highlights the dangers of trying to conceal the truth about certain family members. This case involved an immigration and enforcement agent, whom the agency removed under a sole falsification charge, stemming from omissions in his Questionnaire for National Security Positions, Standard Form 86 (SF86). In the part of the SF86 requiring the employee to list all of his rela- tives, the employee failed to list two brothers who had been deported. Additionally, he omitted a third brother, who was adopted. The employee was concerned these brothers' criminal histories and immi- gration status would hurt his chances of landing the immigration and enforcement agent position. While the disinclination to identify embarrassing family members is understandable, federal employees must be completely honest when completing an SF86. Remember, just because a family member lives in another country, has a criminal background, or is owed money, does not mean an employee's chances of receiving a security clearance are shot. Yes, investigators will likely ask questions about family members living abroad or with blemished backgrounds. However, with the guidance of a security clearance representation lawyer, an employee can respond to those questions in ways that could mitigate concerns over his or her susceptibility to blackmail or coercion. For example, when questioned about certain family members, the employee can highlight his or her minimal contact with them. When possible, the employee will want to emphasize that although a family member lives abroad, he or she does not work for a foreign government. Additionally, the employee may want to highlight his or her public sector service or any group affiliations that would suggest an alle- giance to the United States. As for Figueroa, the employee in this case had challenged an administrative judge's affirmation of the sustained falsification charge and the reasonableness of the penalty of removal. The board found the employee acted in a way with an intent to deceive, which is "an ele- ment required to establish falsification that is not required to establish [the lesser offense of] lack of candor." However, the board found the administrative judge abused his discretion by denying the employee's request for the agency to provide documentation relating to how all immigration enforcement agents and deportation officers, including supervisors, were treated for simi- lar misconduct nationwide. The board ordered the agency to furnish the requested information. It said, "Specifically, if the appellant could show that supervisory employees -- who are held to a higher standard -- were treated less harshly by the agency than the agency treated the appellant for similar misconduct, the appellant would have met his disparate penalty burden and triggered the agency's burden to explain the difference in treatment." By Mathew B. Tully, Esq. Mathew B. Tully is the founding partner of Tully Rinckey PLLC. He concentrates his practice on representing military person- nel and federal employees and can be reached at email@example.com. To schedule a meeting with one of the firm's federal employment law attorneys, call 202-787-1900. The information in this column is not intended as legal advice.
Sep 23, 2013
Oct 7, 2013