Facing Facts About Adjudicative Guideline F (Financial Considerations)

NCMS Bulletin
January/February 2018 Publications

Lawyers like me deal in facts. We investigate facts, we argue about facts, and we try to prove facts. As an industrial security lawyer, let me give you a fact that would be very easy to prove:  thousands of security clearance holders have financial problems. Experienced Facility Security Officers (FSOs) have known this fact for many years. New FSOs learn this fact every day. Only the most stubborn among us refuse to accept the fact that year after year, in facilities of all sizes, and at all levels of companies, cleared employees are experiencing financial problems, not all of which are disclosed.

According to the U.S. Government’s 2017 Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (the “Adjudicative Guidelines”), certain financial problems can raise questions about a security clearance holder’s reliability, trustworthiness, and ability to protect classified information. The law of security clearances presumes a “nexus” (connection) between the financial problems described in Adjudicative Guideline F, titled “Financial Considerations,” and an employee’s eligibility for classified access.

It’s not that cleared employees are worse with their finances than other employees. In fact, evidence suggests that the typical clearance holder is more conscientious about finances than the average citizen. However, years of security clearance cases plainly demonstrate that clearance holders routinely suffer the same financial problems that plague the American public:  bills are paid late, credit card debt goes into collections, mortgages are foreclosed, medical expenses pile up, pink slips show up unexpectedly, divorces deplete savings, tax obligations get out of hand, and bankruptcies are declared.

The Adjudicative Guidelines teach us that financial problems can indicate that a cleared employee has developed poor self-control, a lack of good judgment, or an unwillingness to follow rules and regulations. All FSOs know that a cleared employee possessing these attributes is an elevated security risk. After an FSO properly reports any relevant financial problems “coming to their attention concerning any of their cleared employees” (NISPOM 1-302(a)), how can a dedicated FSO continue to mitigate (reduce) the security risks caused by otherwise trustworthy cleared employees experiencing undisclosed financial problems?

Luckily, the Adjudicative Guidelines provide an easy way for FSOs to potentially reduce security risks associated with financial problems. The second half of Adjudicative Guideline F contains what could be considered a to-do list for security clearance holders experiencing or anticipating financial problems. Many of the “mitigating conditions” listed in Adjudicative Guideline F are proactive, achievable steps a security clearance holder can take to help mitigate security concerns presented by certain financial problems. The best FSOs know that annual training on these mitigating conditions gives an employee who is experiencing or anticipating financial problems the opportunity to potentially mitigate the associated security risks. Of course this type of training does not change any applicable reporting obligations. Also, no training will be a substitute for the requirements of security clearance “due process.” However, training on the Adjudicative Guideline F mitigating conditions is an easy, additional method the best FSOs use to help reduce security risks among their cleared employees.

Here is an example: Adjudicative Guideline F states that security concerns related to financial problems can potentially be mitigated if the security clearance holder has “initiated and is adhering to a good-faith effort to repay overdue creditors.” If that information were included in a cleared employee’s annual refresher training (NISPOM 3-108), perhaps with an example from an actual security clearance case, would that employee be more likely to contact overdue creditors and enter into repayment plans, thereby reducing the employee’s security risk? As another example, Adjudicative Guideline F lists legitimate and credible financial counseling as something a cleared employee can complete to potentially mitigate security concerns. Upon learning this information during a security training session, would a cleared employee whose finances are starting to fall into distress be more likely to seek proper counseling and regain control of their financial life, thereby reducing their security risk?

Surely, nothing can guarantee that cleared employees will take proactive measures to reduce the security risks associated with their financial problems. Also, nothing can guarantee that any security clearance is safe from revocation or denial. However, training employees on the methods by which they could mitigate the security concerns of Adjudicative Guideline F can help dedicated FSOs reduce security risks at their companies. That’s a fact I’d be happy to prove.

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