By John V. Berry, Esq., www.berrylegal.com
One of the most important considerations that our law firm evaluates in respect to our Security Clearance practice involves what is known as the Statement of Reasons. The Statement of Reasons or SOR is the centerpiece of a security clearance case for federal employees and contractors.
THE STATEMENT OF REASONS – GENERALLY
In essence, the Statement of Reasons is the core of the security clearance process for federal employees and contractors. The Statement of Reasons is the legal equivalent to the filing of a civil complaint in regards to civil issues; it is the center of the case prepared against an individual in regards to their security clearance.
Typically, for federal employees the SOR or Statement of Reasons is issued following the origination of the security clearance concern from the local security office. The Statement of Reasons, for federal employees, will then be issued, usually by the relevant agency’s central adjudication facility (CAF). The Statement of Reasons will usually be attached to a cover letter, referencing an agency’s intent to revoke eligibility for an individual’s security clearance. In contractor cases, the SOR is issued by DOHA.
The Statement of Reasons will then list the factual concerns upon which the security clearance issues have arisen and the security guidelines which are involved. The following is an example of a Statement of Reasons issued for a federal employee:
SAMPLE STATEMENT OF REASONS
Here is an example of the core substance of a sample Statement of Reasons, for a federal employee:
Subj: INTENT TO REVOKE ELIGIBILITY FOR SECURITY CLEARANCE AND ASSIGNMENT TO A SENSITIVE POSITION, MS. JOANNA JAMES,
STATEMENT OF REASONS
Security Guideline(s): FINANCIAL CONSIDERATIONS
2 Feb 11 You were issued a Letter of Intent to Suspend Access to Classified Information from DOD Installation ABC for alleged discrepancies with regards to allegations that you misused your government credit card to pay for personal expenses on 12 December 10.
Applicable Personnel Security Guidelines
The following are excerpts of the personnel security guidelines cited in reference (b), which are relevant to your case. Each guideline contains both disqualifying and mitigating factors.
The Concern. Failure or inability to live within one's means, satisfy debts, and meet financial obligations may indicate poor self-control, lack of judgment, or unwillingness to abide by rules and regulations, all of which can raise questions about an individual's reliability, trustworthiness and ability to protect classified information. An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds. Compulsive gambling is a concern as it may lead to financial crimes including espionage. Affluence that cannot be explained by known sources of income is also a security concern. It may indicate proceeds from financially profitable criminal acts.
RESPONDING TO THE STATEMENT OF REASONS
Once an individual receives a Statement of Reasons, the key for a successful defense involves being able to successfully refute the factual allegations or to mitigate them. That process begins with hiring an attorney to assist the individual in their response. In the example above, the first step as an attorney might be to determine from the individual whether the allegation itself was valid, i.e. that the government credit card was used for the personal expenses alleged (sometimes mistakes are made in prepare SORs).
Next, if it is determined that the individual’s government credit card was used by the individual employee for his/her personal expenses, the next question as an attorney might be to find out what mitigating factors could be helpful in explaining why the person involved should still be granted a security clearance. To do this, one must review the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information. For instance, there may be an argument that the expenses were really authorized by his agency, or that perhaps there was confusion about whether the expenses were in fact authorized which might serve mitigate the security concerns. Another potential helpful factor might be whether or not the employee immediately paid the government credit card right away, reported the charge to supervisors ahead of time, etc.
The key to responding to the Statement of Reasons or SOR is to start with the factual allegations, make a full synopsis of all facts involving the allegation and review the potential mitigating factors in such cases. It is at that point that the attorney can begin preparing an effective response to the SOR.
The SOR is the cornerstone of any security clearance case for a federal employee or contractor. Any security clearance defense case must begin with a comprehensive review of the SOR. From that point, an attorney can began to establish a strong defense for the client. Security clearance cases are unique and require the advice and assistance of an attorney.