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Submitted by the Bond & Botes Law Offices - Tuesday, January 25, 2022
By Ronald C. Sykstus
One of the issues that I have seen lately is individuals with clearances getting criminally charged with federal or state offenses. What should you do if you hold a security clearance and find that you are charged or have pending criminal charges in federal or state court?
First and foremost, collect yourself and try to relax. Don’t talk to ANYONE about your situation. Coupled with that, find a good lawyer to represent you. That is the ONLY person you should be talking to about the charges or issues you are facing. Consult with your lawyer and devise the best approach to your situation to try and get the best possible outcome. At the same time, since you hold a security clearance, you’ll want to analyze that angle and what impact it will have on your access to classified information and your job.
Since the security clearance system is predicated upon self-reporting, you need to let your facility security officer (FSO) know what is going on. This is a nuanced approach and you’ll want to get assistance on how to do this properly without implicating yourself any further in light of the pending criminal charges against you. Discuss this approach with your counsel and get their advice before approaching your FSO.
Once you properly and carefully self-report the charges, you will continue forward defending yourself against the charges you are facing. Once those charges and the situation is resolved in the best possible and most favorable manner to you that you can get, you will then need to follow up the initial self-reporting with a report of the final disposition of the charges. Please note that, if you don’t self-report all of this, it will become an issue for your clearance when the government finds out about the charges in light of the “continuance evaluation” and monitoring of criminal federal and state court databases on you. It will be a big deal and held against you if you have not timely reported this information. Remember, though, that you will want to be thoughtful and careful on how you self-report this information. In discussions with your lawyer, you will want to make sure you have a plan of attack so you can assure the government that this type of behavior is now resolved and will not happen again in the future. Even if you are acquitted entirely of the charges against you, I think this part of the approach is important. I have had judges at security clearance hearings ask, a clearance holder under oath point blank, even though a DUI charge was dismissed at trial, “were you drinking or not?” For a lot of folks, the answer will be yes even though the charge was dismissed. The judge will then want some information on how the situation is being handled, whether through sobriety, AA attendance or the fact that nothing like this has ever happened to you in your lifetime. It is very important to have the underlying conduct addressed. Another example could be a charge of domestic violence. In those types of situations, if the couple has reconciled, many times I will have the spouse come in to testify how the relationship has improved and maybe the person who was charged has gone through anger management, couples counseling, etc. There must be some affirmative action to show how the underlying behavior that is concerning to the government regarding a clearance is being addressed.
Once the final disposition is reported, in all likelihood, a clearance holder will be asked to complete a new SF 86 through the e-Qip site. It is very important that thoughtful and detailed answers are provided on this new SF 86. Please note that it will be a requirement in most cases, even though you may not yet be up for your 10 year secret renewal or five year top secret renewal. I cannot stress enough how important it is to be thorough and make sure your answers are detailed and considered. I have seen a lot of people do this in a sloppy and hurried manner which then results in an immediate move by the government to revoke a security clearance. The government may still move to revoke a security clearance, given the underlying charges, by issuing a statement of reasons (SOR) but at least you have given thought and consideration to your approach on how to address the government’s concerns and you have created a good and strong narrative for yourself.
Again, if you are criminally charged and you hold a security clearance, take a breath and try to relax and collect yourself. You’ll want to protect yourself, your family and your clearance (and job) on both fronts. If you are charged with a criminal offense of any type and would like to consult with me, I always advise people to do so at the earliest possible time, preferably immediately after you are charged or arrested and before you self-report anything while keeping in mind this must be done quickly. Please feel free to contact me by phone or text at 256-713-0221 or email at rsykstus@bondnbotes.com if you would like to discuss any concerns that you have regarding your security clearance. I am available at all times if you need my assistance. My goal is to put any security clearance issues and concerns that you may have to rest at the earliest and lowest possible level.
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