By Deborah J. Hopkins, August 14, 2023
Misconceptions abound when it comes to the world of security clearances. The news media and the movies don’t always get it right. An employee can be denied a clearance for a lot more than selling national secrets to a foreign country. Below are three things you should know:
- There are guidelines to help determine if a clearance should be granted, suspended or revoked. A set of 13 guidelines help the government determine if a clearance is warranted, and also if a clearance should be suspended or ultimately revoked. The guidelines vary from sexual behavior to alcohol or drug use, from personal conduct to financial considerations, and more. With clearance issues, national security remains the key interest, and according to the United States Supreme Court, “determinations should err … on the side of denials.” Egan v. Navy, 484 US 518 (1988).
- The MSPB does not have the authority to review the merits of a security clearance revocation. According to Egan, the Board has no authority to review the merits of an agency’s underlying security clearance determination. The Court stressed that clearance determinations should be made by those with “necessary expertise in protecting classified information.” That job belongs to the agency experts, not the MSPB. The MSPB can only ensure the employee received due process if the agency proposed removal for failing to maintain a security clearance.
- If an agency removes an employee who has lost his clearance, the agency must show the clearance was actually required. According to Egan, there are four elements required for an agency to remove an employee for failing to maintain a security clearance:
- The agency determined that the position required a security clearance,
- The agency revoked or denied the clearance,
- The agency provided the employee adverse action rights, and
- The Deciding Official considered reassignment to a non-sensitive position.
Almost a decade ago, the Board reversed an agency’s removal. The agency did not annotate the PD to show that a security clearance was necessary, did not annotate the SF-50 to show that a security clearance was necessary, and allowed the employee to remain on the job until adjudication of his clearance was completed. Gamboa v. Air Force, 2014 MSPB 13 (2014).
If your agency has employees with security clearances, you shouldn’t miss FELTG’s upcoming two-hour program on Aug. 24 — All Clear? When Employee Security Clearances are Revoked or Suspended. Hopkins@FELTG.com