May 09, 2017 When a security clearance/public trust holder is hit with a criminal or DWI charge
Repeatedly, I get clients who have — or want in the future to obtain — security clearances or public trusts (collectively “Security Clearances”). That is to be expected with so many people in the area working for the federal government and for federal government contractors, as well as with so many information technology professionals living in the area.
Those people having or wanting security clearances or public trusts are best advised to live squeaky clean lives in the first place, so that they do not need to consult with me after an arrest. This includes the importance of not driving within twenty-four hours of consuming beer, wine or liquor; staying away from people possessing or using marijuana or any other contraband; not using marijuana even if in a place where such use is not a crime under state law; and staying away from escorts and prostitutes, particularly with all the police prostitution stings happening in Fairfax County.
Repeatedly, my clients and I consult with a security clearance lawyer both so that my clients know the risks to their security clearances from their pending criminal cases, and sometimes also so that the security clearance lawyer will write an opinion letter for me to share with the prosecutor and judge about the importance of avoiding certain types of convictions and to avoid active jail time. Security clearance authorities will look at the alleged criminal incident, rather than only the outcome of the case. At the same time, a disorderly conduct or trespassing conviction is generally better than a prostitution solicitation conviction; a DWI conviction without active jail time is better than a DWI conviction with active jail; a repeat DWI conviction should be avoided; a misdemeanor hit and run conviction generally is better than a felony hit and run conviction; and acquittal or dismissal is better than a conviction; a finding of facts sufficient to find guilt is better than a conviction; and a dismissal after a general continuance is better than a conviction.
Passage of time can ameliorate damage from a conviction. For instance, a marijuana possession conviction that is five years old may not be seen as bad by security clearance authorities as a one-month-old marijuana conviction. If one loses a security clearance for a third DWI conviction, the person might or might not be eligible to reapply for a clearance in as short as a year.
If a person with a security clearance or who wants a security clearance gets a criminal conviction, s/he is wise to consult with a suitable security clearance lawyer before applying for a clearance or seeking a renewal of the clearance. With a security clearance lawyer, the applicant can prepare to answer how the applicant has put the matter behind him or her, how the matter is an aberration, and how s/he has taken proactive steps to address the matter (for instance attending alcohol education for a DWI case, and producing weekly clean urine drug tests soon after a drug arrest).
The risks to one’s security clearance can depend on the source of the security clearance (with the Defense Department, Homeland Security Department, CIA and State Department being among the common issuers of security clearances).
Security clearance authorities can get very humorless if a holder of a security clearance or public trust does not timely notify his or her field security officer (FSO) of the criminal charge. I tell my clients to come to me if the FSO asks for anything but public information about the criminal prosecution, for instance the name of the criminal charge, the incident date, the name of the court, and the court date.
Underlining the importance of timely notifying one’s FSO of a criminal charge are the following:
– See this favorable administrative security clearance decision, where the employee did not keep the fact of his arrest from his employer
– See pages 4/15 through 5/15 from the Center for Development of Security Excellence
– See this personnel website
– See page three from this law firm website’s guide to obtaining security clearances
My goal in representing my criminal defense clients is to fight not only for their liberty, but also to minimize the collateral damage that a conviction can cause to a my client’s representation, livelihood, and immigration status. If an arrested person has a security clearance of public trust, s/he has all the more riding on his or her criminal or DWI case.