Kathleen Smith 00:22
Good day to all of our listeners. This is Kathleen. We're glad you're here for a special edition of the podcast to learn five common security clearance misconceptions. Rachel, are you ready to clear up these clearance misconceptions?
Rachel Bozeman 00:37
Put me in coach, I am ready to clear up some misconceptions. And hello to all you lovely listeners out there. I hope you are equally as excited to learn a little bit more about security clearances as I am.
Kathleen Smith 00:52
So joining us today to clear up these misconceptions is our dear friend Tony Kuhn, Managing Partner at Tully Rinckey PLLC. Tony is our security clearance expert and he has been on the show several times and we love having him on the show every time. Tony has a world of experience helping cleared professionals navigate the security clearance suspensions and revocations among many other issues. Welcome back, Tony.
Anthony Kuhn 01:20
Thank you. And thank you for having me. Always a pleasure.
Rachel Bozeman 01:23
Let's kick it off with the first misconception, which has to do with continuous vetting. We had an in-depth discussion about the continuous vetting program on our show with Ryan at DCSA. And you can get the link to that episode in the show notes. Ryan had something that I think surprised a lot of listeners, and we'd love to hear your take on it too. So our first misconception is, "With continuous vetting, the government is looking to catch you in making a mistake and just snatch that clearance away." Tell us why this might not be the case.
Anthony Kuhn 02:00
Sure. So think of the time that it took to get a security clearance, all of the different people that were involved, all the different resources that were invested -- from the initial reviewer of the application, and then that application was assigned out to an investigator, that investigator had to spend time investigating, and then putting together notes, and then it went forward to be adjudicated. So you've got all these resources that go into a security clearance. So it wouldn't make good sense for the government to just look for a reason to pull that security clearance from an employee or a cleared individual. So it's actually the opposite. The government doesn't want to unnecessarily waste resources on processing more people for security clearances, if somebody's already in that position. What the government's really trying to do is just get ahead of any potential issues that might be out there. So in the past, an individual might have, for example, financial problems. We know that's one of the leading causes for that Statement of Reasons (SOR) to be issued. Say an individual has some financial issues, they're falling behind on payments, they file bankruptcy - which we'll talk about things of that nature. And that could be an indicator of a risk. It could be that somebody is now at a heightened risk for exploitation, or coercion. The government doesn't want to have to wait 10 years to know that, and have that risk in place for 10 years. The government wants to know as quickly as possible. And then it gives the government an opportunity to reach out to that individual and say, "We see these issues. You're not fired, your clearance isn't automatically stripped, but we see this issue that came up and we'd like to talk to you about it. We want to ask you some questions and see if we can mitigate these concerns. Or is this something we should really be concerned about?" And many of those cases, we're able to respond to those questions. This is before a Statement of Reasons is ever issued. That's not generally the first step. When an issue is identified, we can respond, we can work with the government and try to mitigate those concerns. And a lot of times those individuals will go on to continue their clearance, to continue their employment, and there won't be any issues at all. It's just the government trying to get ahead of an issue.
Kathleen Smith 04:08
That's great. The one thing that I've always loved about our conversations is that you always say, "Hey, let's get ahead of the problem." So our next misconception is a very common one. The one is, "If I've used drugs, while I've had my security clearance, I'm going to lose it immediately." And I know that this has been a very big issue, especially since many of the states have passed that marijuana use is okay. I don't like it because I'm allergic. So let's talk about if you've used drugs while you had your security clearance, are you going to automatically lose your clearance? What should someone be doing?
Anthony Kuhn 04:50
So being allergic is really good mitigation, just in case you ever find yourself in that situation, ha! But there's multiple guidelines at play when somebody admits to drug use. What's important is that the individual comes forward, admits to the mistake, and then explains the circumstances. Because there could be a lot of different things at play here. We know the federal government doesn't recognize any type of legal marijuana use, but it is possible that the circumstances will help mitigate any potential concerns that the government might have. So for example, individuals will use marijuana for medicinal purposes, maybe even prescribed by a doctor on a medical marijuana card. A lot of those individuals don't understand that they're breaking the law at the time - many do, but most don't. And some people just want to look out for their health over anything else, and they'll use medical marijuana. Well, what's important is, you disclose that use. Otherwise, you could potentially be looking at a Guideline E violation, which is a Personal Conduct violation for intentionally omitting information. So if you have drug use in your past, even if it was before you got the clearance, and maybe you didn't fully disclose it, or it happened after you got the clearance and you want to disclose it now, you want to clear the air, you want to get the record right, and you want to move forward from there -- because there's a potential that in the future, you're going to take a polygraph, or you're going to be in a position where you need a higher level clearance to take a promotion or move on to a position that you really want. And you could be torpedoing your chances now, if you're not honest with the security clearance process. So it's not an automatic revocation if a person uses marijuana or another drug. Another common one that we see is maybe a college student used Adderall. It wasn't their Adderall, so it technically is illegal, because it's a prescription medication. Something like that happens, you hold a security clearance, we will talk about the recency of use. We will talk about the frequency of use. We will talk about the purpose and the factors. Are you still associating with the individuals that you used marijuana or another drug with? Have you gone through drug and alcohol counseling? There's a lot of different types of mitigation that come into play. But what's important is that you are open and honest and that you disclose the information. Now, don't just call your security officer and say, "Hey, I smoked a joint this weekend." That's probably going to result in you having your clearance stripped. You want to be careful about it. You want to do a written response. If you do a written response, you get to control the narrative, and you get to provide the facts that you want to provide, and do what we call providing the facts in the light most favorable to you. If you provide the facts in the light most favorable to you, then there's a good chance that you can mitigate the concerns. If you just make a phone call, you haven't created a record of the actual disclosure. So if the security officer, whomever you're speaking with, just says, "don't worry about it," and it comes up later, you have no proof that you have already self-reported. So that's one of the issues. And then the other one is you can control the narrative. It's very important to control the narrative, because if you call somebody and tell them that you smoked a joint this weekend, they're going to impose their own beliefs and their own life experiences on that self-report. And they might interpret it to be really negative. And they might initiate an incident report and include additional derogatory information or not present those facts in the way that you would have presented them if you did it yourself. So it's not an automatic revocation, you might be looking at a suspended clearance, depending on what you do with that security clearance. But there's a really good chance you're going to be able to work through the adjudication process, and you've got many steps in the process to be able to mitigate those concerns.
Rachel Bozeman 08:27
So I think I heard you say, honesty is the best policy.
Anthony Kuhn 08:31
Always.
Kathleen Smith 08:32
Another misconception is around polygraphs. So a lot of our listeners are saying, "I want to take that next step. I want to go for my polygraph." What are sort of the kickoffs for getting a polygraph. You can't just walk into an office and say, "Hey, I want to finally do this." And how long does it last?
Anthony Kuhn 08:53
Yeah, so you're right. I mean, much like a security clearance, we get calls all the time, "Hey, can you help me get a security clearance?" I can't help you if you don't have a sponsor who's willing to sponsor you for a security clearance. I can help you complete an application, but you have to have a sponsor who's willing to allow you to complete an application, and they're willing to sponsor you for that security clearance, and polygraphs are similar. Polygraphs can happen for a number of different reasons. Some of them are associated specifically with a job. Some of them are associated specifically with an agency. And you might only take one polygraph as part of the hiring process for that agency. And then some of them are going to be associated with your security clearance. Something in the intelligence community, you hear terms you have a TS/SCI Full Scope Poly. There are different types of polygraphs that are done for different reasons. But generally, if it's a polygraph to get through the hiring process, then that's most often just a one-time polygraph. And if there are promotions or things that happen within that period of employment, you might have to take one again, if it is related to a security clearance or a position within the intelligence community. Those are generally only accepted for a period of five years. And that can change. If you leave an assignment, you leave a job, you leave somewhere where you took a polygraph, they might read you off of that, debrief you, and then you go into a new position or a new assignment, you might have to take one again. Just because you took one for one location doesn't mean it was the same type of polygraph or that those results are going to be carried over. Some agencies like to do their own. So there is a possibility that just transferring from one position or agency to another would result in you having to take another polygraph as well.
Kathleen Smith 10:31
So let's just do a quick refresher for our listeners. What's the difference between a Full Scope Poly and a CI Poly?
Anthony Kuhn 10:36
So Full Scope is going to look at different things, including your lifestyle, where CI Poly is not going to go that deep into details. That's really the easiest way to explain the two. There are lifestyle questions that will come up in a Full Scope Polygraph that aren't supposed to come up in a CI Polygraph, but often they will if the investigator wants to dig a little deeper or make the individual uncomfortable during the polygraph, which happens sometimes when they want to shake up the person. They might think they're not being honest. Or they might be getting some results that are inconclusive, and maybe they want to ask some additional questions. But the CI is just basically an abbreviated Full Scope Poly that removes some questions that would come in during the Full Scope.
Rachel Bozeman 11:17
Awesome. And our final misconception is probably one that definitely resonates with a lot of the listeners today, or anyone out there, and it's around those financial issues. So help us understand a little bit better, should someone never file for bankruptcy? Does that mean, they're going to immediately lose that clearance?
Anthony Kuhn 11:36
We get this a lot. I'll talk with individuals and they'll say, "I'm in trouble. I'm behind on my mortgage. I've had cars repossessed. I've had all these different things happen..." And then we start talking, and we're always looking for mitigation. We always want to mitigate the concerns. We want to find reasons or explanations that would help us mitigate the concerns so that the individual can keep their clearance. And in many Guideline F, the financial consideration cases, we find that there are reasons, there are mitigating circumstances. An individual might have gone through a period of unemployment, their spouse might have lost their job, they might have gotten divorced. And during a divorce, nobody wins. You're splitting marital assets, you're spending money on legal fees, you're fighting over custody, and all these other things come into play. And it's very difficult for married couples to go through a divorce without some significant financial drawbacks. And another one is health issues. So sometimes the breadwinner has health issues or a family member has health issues, which keep that individual home, he or she home, taking care of the spouse, or just results in really large expenses that have to be paid for those health conditions. So all of these different things help to mitigate the concerns. And if you have a good reason for falling behind, that's what's important. And that's what needs to be talked about. And one of the main things that's going to be asked is whether you acted responsibly given the circumstances. Paying your bills is obviously the responsible thing to do, but if you went through a period of unemployment, if you had really large medical bills that you had to keep up with, if you had these different things happen to you, then there's no way to pay those bills. So what did you do to act responsibly given the circumstances? And filing for bankruptcy protection is actually one of the things you can do to act responsibly given those circumstances. A lot of people think that if I file for bankruptcy protection, then there's no way I'm going to keep my clearance. And that's not true. There are many people right now who hold security clearances who have filed for bankruptcy protection before and/or during the time when they were cleared and held an active security clearance. There are different types of protection you can file for. The most common that we deal with are Chapter 13 and Chapter Seven. Chapter Seven is where they basically just wipe away all of your debts. That is one that you can use. And that's one that might help to mitigate the concerns and we might be able to work through. But Chapter 13 is where you get put on a structured repayment and you pay back those debts on a structured payment plan. That's obviously going to be the best one because we're able to show that you didn't just wipe away your debts and not keep up with your financial responsibilities. But you actually got on a structured payment plan, you established a pattern of timely payments, which is what's looked for in Guideline F cases. And you've complied with that and you have essentially repaid all of your debts. You just did it through filing for Chapter 13 bankruptcy protection. That's fairly common in serious Guideline F cases. And we are often able to mitigate that concern and keep those individuals' security clearances.
Kathleen Smith 14:48
Wonderful. Tony, as always, a very enlightening episode. Thank you for dispelling many of the misconceptions that our listeners have and we look forward to seeing and hearing you again.
Anthony Kuhn 15:00
My pleasure.
Kathleen Smith 15:01
Tony does such a great job speaking in layman's terms about security clearance issues. I so enjoyed hearing more about the drug use. I'm really glad he laid that out for everyone like, if you used a joint over the weekend, control the narrative. Write the story, don't call your security officer. Control the narrative. I always love those catch lines. Rachel, what did you enjoy about our special episode with Tony?
Rachel Bozeman 15:31
Well, I would agree first and foremost that he puts it in such a way that's understandable. It can be so tricky, but really just making it very understandable and really putting the onus back on the owner of that clearance so that they're doing the right thing. So I really appreciated the sensitivity around the financial information, because that's such a personal thing and sometimes bad decisions are made or bad decisions are made on their behalf. And he just put it in a way that's easy to understand and not beat someone over the head with it, but just tell them some of the best ways to remedy through that. So I thought that was pretty awesome. And you know what else I think is pretty awesome? I think you're pretty awesome for listening today. And you really cannot afford to miss any episodes when Tony's here or any episode. So make sure you tell your friends. Get out there and listen, follow our show, and we'll see you next time. Bye!