Obtaining And Maintaining A Security Clearance

As a federal employee, your security clearance is crucial to the performance of your job. If the agency suspends or revokes your security clearance, these actions will most likely impact your employment and may even result in your termination. The purpose of this newsletter is to provide some general information concerning the procedures for obtaining and maintaining a security clearance.

What is the process for getting a Security Clearance?

Many federal employees, especially law enforcement officers, need information that can only be shared at a classified level.A security clearance is appropriate when an individual needs to and is able to protect classified national security information. Usually, an agency hires a new employee, whose position duties and responsibilities require a security clearance for access to classified information. The duties and responsibilities of the position will dictate which type of security clearance the employee needs. The application process requires a completed application and a background investigation, including an in-person interview. The process becomes more extensive depending on the level of security clearance sought.

The agency should issue a decision within six months after the submission of the application. If the agency denies the security clearance after the application process, the applicant will receive a notice, i.e. Statement of Reasons, which details the specific disqualifiers or areas of concern that gave rise to the decision. The applicant will also receive information regarding the right to appeal and the procedures for an appeal. If the application is approved, the agency can still revoke or suspend the security clearance at any time, which the applicant could appeal for a hearing as well. The entire process can be much easier with assistance from counsel to ensure the security clearance is not denied or revoked due to minor procedural errors.

What are the different types of security clearances?

Different types of security clearances provide different levels of access to information. Moreover, higher types of security clearances require a more extensive application process and background investigation. Specifically, three levels of security clearances exist: confidential, secret and top secret.

Confidential security clearances are at the most basic level. Individuals apply for this type of security clearance when they need access to information that could be reasonably expected to cause measurable damage to national security if disclosed without authorization. During the application process, an investigator will examine the applicant’s foreign employment, credit history, criminal history, and close personal relationships, such as spouses and immediate relatives. Military personnel frequently need confidential security clearances. Theagency reinvestigates these clearances every fifteen years.

Secret security clearances are for individuals who need access to information that could be expected to cause a serious level of damage to national security if disclosed without authorization. For application purposes, an investigator will look at bankruptcy, credit history, criminal history, and foreign activities. A secret security clearance investigation also includes a national agency check, local agency check, and credit check. The agency will reinvestigate this type of clearance every ten years.

Top secret security clearances cover individuals who need access to information that could cause extremely severe damage to national security if disclosed without authorization. Military personnel and individuals in certain security agencies often hold these clearances. Because this level of security clearance is the highest, the application process and subsequent investigation is much more extensive. The background investigation will include additional record checks to verify citizenship of the applicant and family members, verification of birth, education, employment history, and military history. Investigators will examine an applicant’s close personal relationships, such as dependents, relatives, and friends, and any foreign activities or employment. In addition to the applicant’s interview with the investigator, the investigator may interview individuals who know the applicant and any spouse divorced within the past ten years. Some individuals the investigator may interview include current and former neighbors, supervisors, co-workers, classmates and character references provided by the applicant. The investigator will also confirm residences and check public records for information regarding bankruptcies, divorces and criminal or civil suits.

Top secret clearances include Sensitive Compartmentalized Information (SCI) and Special Access Program (SAP) clearances. These clearances are rarely granted and include an extensive application process and investigation. The applicant must undergo a single scope background investigation and a special adjudication process to evaluate the investigation. The government will closely and continually observe the actions and relationships of individuals with an SCI clearance.

The agency must reinvestigate top secret security clearances every five years. This review process can last from six months to one year, during which the agency can revoke the security clearance at any time. Revocation or suspension of the security clearance generally results in immediate job loss, removal or demotion. Reinvestigations of security clearances are often more important than the initial investigation during the application process because the individual has been exposed to vital confidential information.

What should I know about the security clearance interview process if I am a first-time applicant?

Prior to obtaining clearance, you will go through the application and background check process to determine whether you are suitable for clearance. The agency will ask you to fill out a number of forms. You should complete the forms in detail and truthfully to avoid complications in the process. In particular, the forms will require you to provide verification of U.S. citizenship, fingerprints, and information regarding personal, criminal, financial, educational, employment, military, drug/alcohol use, and computer/internet history. Make sure you answer all questions completely, accurately, and truthfully; mistakes in filling out the forms could give rise to an inference of dishonesty, which may become a basis for denying clearance.An investigator will verify the information in the application by conducting a complete background investigation.

As part of the background investigation, the agency will also require you to undergo an in-person interview with an investigator, who will explore any issues that may give rise to concern about your ability to hold a security clearance. The interview will usually occur within weeks of the application submission date. The investigator will likely ask detailed and extensive questions regarding your personal relationships, health, financial history, drug and alcohol use and abuse, and foreign activities. You also have the chance to explain questionable past actions or events. At this stage, you should continue to provide thoroughness and truthfulness in your responses. Never withhold information, stretch the truth, or answer dishonestly or inaccurately.

What criteria are used in determining whether to grant a security clearance?

The government has set forth a series of Adjudicative Guidelines in order to assist and govern agencies in making security clearance decisions. Security clearance adjudicators will review the results once an applicant’s background investigative report is complete. The adjudicators will apply “the whole person concept.” The whole person concept means that the agency will consider all available reliable information, favorable and unfavorable, regarding the applicant’s past and present and make a determination in light of the Adjudicative Guidelines. Ultimately, the agency’s decision rests on whether the adjudicators believe the applicant is trustworthy and reliable enough to safeguard classified information.

What happens after the security clearance is granted?

After the security clearance is granted, you will likely have routine, periodic background checks; the government will reexamine your recent history to ensure you continue to remain eligible to hold a security clearance. Reinvestigation is a vital, formal examination of any changes in behavior since the initial security clearance was granted. Typically, reinvestigations occur approximately every fifteen years for confidential security clearances, every ten years for secret security clearances, and every five years for top secret security clearance. However, an agency may decide to initiate a reinvestigation at any time after the security clearance is granted. Reinvestigation requires additional background questioning and investigation, as well asthe completion of forms to describe your activities for the past several years. Again, it is critical to be completely truthful and accurate. If anything has arisen in the last several years that may give rise to a security clearance concern, the agency will ask you to discuss it.

Are there any events or activities that may affect my ability to maintain or renew my security clearance?

Any of the following events or activities may affect your ability to maintain or renew your security clearance:

Any of these events may prompt the agency to affirmatively take action to investigate your ability to hold a security clearance, even if you are not due for a routine background investigation.

If I lose my security clearance – or if it is suspended – will it affect my job?

Most likely, yes. A suspended security clearance can result in anindefinite suspension from work, with or without pay, while the investigation takes place. Revocation of a security clearance can and often does lead to termination (e.g. the employer will claim the employee or contractor can no longer perform his or her job without the clearance).

If my security clearance is suspended or revoked, what can I do to get it back? Should I consider filing suit to get it back?

Depending on whether you are a federal employee or contractor, the process is slightly different. For federal employees, generally the agency has a process that allows employees to attend a hearing to present evidence that shows why they are able to hold a security clearance. For non-federal employees, the process is similar, but they will have the ability to argue to the Defense Office of Hearings and Appeals (OSDGC) why they are eligible and why they should be able to maintain the security clearance.

Once the security clearance is revoked, however, after some limited avenues of appeal, very few ways exist to successfully challenge the revocation of a security clearance, even if the employee believes they have been subject to discrimination or whistleblower retaliation. The law is clear that the government is the sole adjudicator of who can and cannot hold a clearance; the courts cannot interfere with the government’s decision to grant or deny a security clearance.

What would I need to prove my worthiness if my security clearance is in question?

You have to show that the circumstance or event in question does not make you susceptible to outside coercion. For example, if you have serious debt problems, the concern is that you may accept money in exchange for national security information. Similarly, if you are involved in an adulterous relationship, the concern is that you may be subject to blackmail or other types of coercion. You need to show that you are capable of maintaining secrets, despite the transgression. You may overcome a one-time lapse in judgment—particularly one that is not repeated and happened long ago— if the government is confident you will not repeat your mistakes. Setting forth all relevant mitigating factors is of paramount importance. Some mitigating factors include: infrequency of the conduct, completion of counseling programs related to the disqualifying factor, or length of time lapsed. Still, each employee’s circumstances can differ, so certain mitigating factors could be more important than others.

Sometimes, however, an employee’s single act of misconduct is so severe that the employee will never prevail; the act irreparably harms your ability to maintain a security clearance. Please take security clearance matters seriously. If you have concerns that your actions may give rise to a security clearance investigation or action, you should seek assistance.

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