Federal employees are often subject to strict guidelines regarding outside employment, particularly when it comes to maintaining a security clearance. While outside employment can be an important source of income and professional development, it can also present significant risks for 
federal employees, especially those holding sensitive positions. Engaging in certain types of outside employment or business activities may raise concerns regarding conflicts of interest, loyalty, or national security, potentially leading to disciplinary action or even the loss of security clearance.
The Risks of Outside Employment for Federal Employees
Outside employment can present risks to federal employees, particularly those holding security clearances. When engaging in outside work, federal employees must ensure that their activities do not conflict with their primary duties, create ethical concerns, or jeopardize their security clearance. Several factors can raise red flags when it comes to outside employment, including:
- Conflict of Interest
A conflict of interest arises when an employee’s outside employment interferes with their official duties or compromises their impartiality in performing government work. For example, if a federal employee works for a private company that does business with the government or competes with their agency, it may create a situation where the employee’s judgment could be compromised. The Standards of Ethical Conduct for Employees of the Executive Branch (5 C.F.R. Part 2635) set forth by the Office of Government Ethics (OGE) prohibit federal employees from participating in matters where they have a financial interest or outside employment that conflicts with their official duties. Concerns in this area can lead to both security clearance and disciplinary concerns.
- National Security Concerns
For employees holding a security clearance, outside employment in areas related to national security, foreign governments, or private entities with sensitive business interests may raise national security concerns. This is particularly relevant for employees working in defense, intelligence, or law enforcement. For example:
- Foreign Influence: If an employee holds outside employment with a foreign government or company, there may be concerns about the employee’s loyalty to the U.S. government, and whether they could be influenced or coerced by foreign entities.
- Exposure to Sensitive Information: Federal employees working in jobs that involve classified information must be cautious about inadvertently sharing sensitive details with outside employers, even in unrelated fields.
- Foreign Financial Interests: Employees with outside business ventures in countries that may pose a national security risk could be perceived as vulnerable to exploitation or bribery.
- Time and Commitment Conflicts
Another concern for federal employees engaging in outside employment is whether it interferes with their primary duties. Federal employees are generally expected to devote their full attention to their government responsibilities, and outside employment that interferes with their job performance may lead to disciplinary action. For employees with security clearances, any appearance of negligence or divided loyalty can be problematic.
The Security Clearance Review Process: How Outside Employment Is Considered
Outisde employment can come up during the security clearance process at various times such as when an initial application for a clearance is submitted, during a reinvestigation, or based on the notification of a concern regarding outside employment by an Agency.
When determining whether a federal employee’s outside employment activities will affect their security clearance, the government looks at several factors. The Adjudicative Guidelines for Determining Eligibility for Access to Classified Information provide a framework for evaluating the security risks associated with outside activities. There are several security guidelines that may be at issue based on outside employment. Specifically, the guidelines under Guideline B (Foreign Influence), Guideline E (Personal Conduct), and Guideline L (Outside Activities) all may pose an issue for a clearance holder engaged in outside employment.
Factors Considered in the Security Clearance Process:
- Financial Interests: Whether the outside employment involves financial interests that conflict with the employee’s government position or present a risk of bribery or exploitation.
- Foreign Connections: Any financial, business, or familial connections to foreign governments or entities that could pose a conflict of interest or lead to susceptibility to foreign influence.
- Proper Disclosure: A failure to properly disclose outside employment to an Agency and during the clearance process can lead to security concerns about the outside activity and the individual’s integrity and trustworthiness. Proactive disclosure of such information can be afforded mitigating value during a security review of such outside employment.
Steps Federal Employees Can Take to Protect Their Security Clearance
Federal employees must be proactive when it comes to outside employment and take steps to ensure their security clearance remains intact. Here are some best practices for navigating outside employment without jeopardizing your security clearance:
- Seek Approval from Your Agency
Before engaging in outside employment, federal employees must often seek prior approval from their agency’s ethics office or security office. Many agencies require employees to submit a Request for Approval of Outside Employment (often as part of an annual financial disclosure process) to ensure there are no conflicts of interest or security concerns. Agencies may approve or deny outside employment based on the potential risks to national security or other ethical considerations.
Even if the outside job seems unrelated to the employee’s government duties, it is important to disclose it to avoid later complications. This step ensures transparency and can protect the employee if their outside employment is ever questioned.
- Review Agency Guidelines and Ethics Rules
Employees should familiarize themselves with their agency’s policies on outside employment. Federal agencies often have specific guidelines that govern permissible outside activities and require employees to adhere to ethical conduct standards. Understanding these rules can help prevent inadvertent violations that may affect their clearance.
- Avoid Conflicts of Interest
Federal employees must avoid engaging in outside employment that could create a conflict of interest with their official duties. This includes working for companies that do business with the government, having financial interests in entities that are regulated by the employee’s agency, or accepting positions that could impair the employee’s impartiality. Employees should also be cautious when engaging in business ventures or outside employment in industries that could pose national security risks, such as defense contracting or intelligence.
- Consider Consulting Legal Counsel
Given the complexity of rules surrounding outside employment and security clearances, it may be wise for federal employees to seek legal counsel before accepting outside employment. An attorney with experience in federal employment law or security clearance law can offer guidance on potential risks, assist with disclosure processes, and help craft a strategy to address any concerns raised by outside activities.
Other Consequences of Violating Outside Employment Rules
Failing to comply with agency guidelines regarding outside employment can lead to other severe consequences beyond security clearance actions. The most likely other consequence would be disciplinary action, including suspension, demotion, or termination, depending on the severity of the violation. While outside employment can provide federal employees with valuable opportunities, it comes with inherent risks, especially for those holding security clearances. Federal employees must be vigilant and aware of the potential for conflicts of interest and national security concerns. By seeking approval for outside employment, adhering to ethical guidelines, and consulting with legal counsel when necessary, federal employees can reduce the likelihood of disciplinary action and protect their security clearance from being jeopardized.
Contact Us
Berry & Berry, PLLC advises and represents individuals on issues involving the proper completion and submission of security clearance applications, background investigations, security clearance denials and revocations, and federal employee disciplinary matters. Please contact the firm at (703) 668-0070 or www.berrylegal.com to schedule an initial consultation with an experienced attorney who is familiar with the security clearance and disciplinary process.
One of the more frequent issues that arises in the context of security clearance investigations involves alcohol abuse or over-consumption of alcohol by federal employees, military employees and government contractors. This is regulated by Adjudicative Guideline G for those holding or seeking a security clearance. This article discusses the issues that many individuals face with respect to alcohol and their security clearance.
Alcohol Abuse or Overconsumption by Cleared Employees or Applicants
Alcohol over-consumption and abuse can be a major factor in maintaining or obtain a security clearance. Security concerns regarding this issue arise under Adjudicative Guideline G, Alcohol Consumption of Security Executive Agency Directive (SEAD) 4. Adjudicative Guideline G is the section of the Guidelines which involve a clearance holder or applicant’s use of alcohol and it’s impact on an individual’s ability to obtain or maintain a security clearance.
Guideline G issues usually come into play when a federal employee, military employee or government contractor have issues regarding the use of alcohol. The most obvious issue that begins this type of review is a recent alcohol-related traffic concern such as a DUI or other intoxication charge. If recent, these charges tend to require more investigation prior to the issuance of a security clearance or may require a clearance review. The clear concern for federal agencies that evaluate security clearances is that excessive alcohol consumption can lead to the use of questionable judgment or the failure to control impulses, both of which are not considered acceptable for purposes of access to classified information.
Security Concerns Raised by Alcohol Abuse or Consumption
When issues arise involving alcohol abuse or over-consumption, in the scope of a security clearance investigation or review, it is very important to take them seriously and to obtain legal representation experienced with these types of issues in order to minimize the potential damage to a security clearance or otherwise mitigate the security concerns. When alcohol issues are reviewed in regards to security clearances cases, they fall under Guideline G, Alcohol Consumption, SEAD 4, which reads as follows:
Guideline G: Alcohol Consumption under SEAD 4
The Concern. Excessive alcohol consumption often leads to the exercise of questionable judgment or the failure to control impulses, and can raise questions about an individual’s reliability and trustworthiness.
Conditions that could raise a security concern and may be disqualifying include:
(a) alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, disturbing the peace, or other incidents of concern, regardless of the frequency of the individual’s alcohol use or whether the individual has been diagnosed with alcohol use disorder;
(b) alcohol-related incidents at work, such as reporting for work or duty in an intoxicated or impaired condition, drinking on the job, or jeopardizing the welfare and safety of others, regardless of whether the individual is diagnosed with alcohol use disorder;
(c) habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed with alcohol use disorder;
(d) diagnosis by a duly qualified medical or mental health professional (e.g., physician, clinical psychologist, psychiatrist, or licensed clinical social worker) of alcohol use disorder;
(e) the failure to follow treatment advice once diagnosed;
(f) alcohol consumption, which is not in accordance with treatment recommendations, after a diagnosis of alcohol use disorder; and
(g) failure to follow any court order regarding alcohol education, evaluation, treatment, or abstinence.
Conditions that could mitigate security concerns include:
Under Paragraph 23 of SEAD 4, there are 4 mitigating factors provided to mitigate security concerns involving alcohol abuse. These are:
23. Conditions that could mitigate security concerns include:
(a) so much time has passed, or the behavior was so infrequent, or it happened under such unusual circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or judgment;
(b) the individual acknowledges his or her pattern of maladaptive alcohol use, provides evidence of actions taken to overcome this problem, and has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations;
(c) the individual is participating in counseling or a treatment program, has no previous history of treatment and relapse, and is making satisfactory progress in a treatment program; and
(d) the individual has successfully completed a treatment program along with any required aftercare, and has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations.
While many of the same principles have applied to alcohol usage cases under Guideline G in the past adjudicative guidelines, SEAD 4 recently changed some of the concerns and factors slightly as of June 8, 2017, so it is important to be familiar with them. The following case is a sample of the types of decisions made by security clearance adjudicators involving alcohol from March, 2023. Sample DOHA Case (Applicant was denied a clearance where he had not acknowledged that he had an alcohol problem, and continued to consume alcohol with regularity despite being advised during his treatment in 2013 to abstain. He was also not participating in treatment or attending AA).
Case Examples Involving Guideline G Cases where Clearance Was Denied
The following are 3 examples where individuals clearances were denied and 3 examples where the individual’s clearance was granted under Guideline G.
Example A: Security clearance applicant was convicted 3 times of Driving under the Influence of Alcohol (DUI) between a period of 8 years. The last alcohol-related DUI was 2 years prior to the Statement of Reasons being issued with response to Guideline G. He had recently began to abstain from consuming alcohol, but not enough time has passed to conclude alcohol is no longer a problem. Applicant’s security clearance was denied.
Example B: Security clearance applicant had a long history of alcohol abuse from 1991 to 2012 and was diagnosed with alcohol dependence. The applicant had participated several times in both inpatient and outpatient treatment programs, but had relapsed. He was alcohol free for 14 months prior to the hearing. The Administrative Judge found that his current period of sobriety was not sufficient to mitigate the security concerns under Guideline G, alcohol consumption. Applicant’s security clearance was denied.
Example C: While security clearance applicant had no alcohol-related incidents since 2014 (and the hearing was held in May of 2016) and had remained sober for more than a year still resulted in a denial of the security clearance by the Administrative Judge. On appeal, the DOHA Appeal Board found that the recency factor alone does not compel an Administrative Judge to make a favorable clearance decision. The Appeal Board held that it has never established a “bright line” rule as to the recency of conduct raising security concerns. The extent to which security concerns have become mitigated through the passage of time or recency is instead a question that must be resolved based on the evidence as a whole. As a result of these findings, the Applicant’s security clearance was denied.
Case Examples Involving Guideline G Cases where Clearance Was Granted
Example A: Security clearance applicant was 34 years old and had a history of alcohol-related incidents before being diagnosed with alcohol dependence in 2006. Following alcohol treatment in 2006, he abstained from alcohol consumption for 5 years before resuming infrequent use. The applicant was found to have recommitted himself to total abstinence, was found to attend Alcoholics Anonymous, and had a sponsor to help him work on alcohol issues. Applicant was found to have mitigated the security concerns under Guideline G, alcohol consumption and his security clearance was granted.
Example B: Security clearance applicant was 54 years old and had 3 alcohol-related incidents from 1984 to 2000. Following that time period, he had abstained from alcohol use from 2001 to 2009, a period of about 8 years. Subsequently, he had resumed responsible alcohol use without any problems, consisting of 1-2 beers after work, but not daily. Further, there was no evidence of any alcohol-related incident for the past 15 years. The Administrative Judge found that the individual had provided sufficient evidence to mitigate the security concerns under Guideline G and granted the security clearance.
Example C: Security clearance applicant was 45 years old and had issues with alcohol dependence over his life. Applicant was found to have taken seriously the fact that he was an alcoholic and had to completely abstain from alcohol. The individual also presented evidence that he regularly attended Alcoholics Anonymous and also that he had a strong support network. The Administrative Judge found that the applicant was earnest in his efforts at recovery and had mitigated the security concerns under Guideline G, alcohol consumption and granted the individual’s security clearance.
Things to Consider for Alcohol Cases Under Guideline G
In security clearance cases involving Guideline G, Alcohol Consumption, it is very important to understand just how important it is to demonstrate that the individual understands and acknowledges (where appropriate) their alcohol issues and concerns. Denying a known alcohol problem only makes mitigation more problematic. It cannot be overstated that security clearance adjudicators take alcohol concerns seriously. Absent significant evidence of rehabilitation or other efforts, it can be hard to keep or obtain a security clearance.
14 Considerations in Alcohol Cases
Here are 14 items (not a full list, which is too long to list here) that we often consider when handling Guideline G cases:
- How long ago was the last problem with alcohol use?
- How many incidents of alcohol abuse or alcohol-related traffic incidents are there?
- Has there been medical intervention?
- Has there been any alcohol treatment given or taken? Was such treatment voluntary or mandatory (i.e. part of a court resolution).
- Is it important to get an independent review by a physician regarding the likelihood of recurrence of alcohol issues? An expert physician may be needed.
- Has their been abstinence from alcohol (and for how long)?
- Has their been a change in alcohol usage?
- Who could potentially testify positively about the applicant’s alcohol usage and changed behavior?
- What kind of documentation can be used for exhibits to show abstinence from alcohol?
- What kind of documentation can be used to show a change in behavior and more limited alcohol usage?
- What types of organizations (Alcoholics Anonymous, Church, Treatment Programs, Physicians, other groups) can be used to support the applicant’s case?
- What types of evidence can be used to show how serious the applicant takes the alcohol use issues? i.e. letters of support, character letters, etc.
- Is a letter of proposed revocation of a security clearance appropriate to add as an exhibit should the alcohol issues recur.
- Is there medical or treatment documentation available to potentially use as exhibits during the clearance proceedings?
Alcohol consumption security clearance cases under Guideline G can involve many differing types of variables and a number of mitigating factors specific to each case so hiring experienced counsel to represent and advise the individual involved is critical because each case is different. The key for such security clearance proceedings in this type of case is to be prepared.
Contact Us
When facing alcohol-related or other security clearance issues, it is very important to have an experienced security clearance lawyer. If you need assistance with a security clearance case, please call us at (703) 668-0070 or contact us at www.berrylegal.com.
