Chuck McCullough, Partner with the firm, discusses the security clearance process and applicant’s prior history with drug use. To read the full article, click here or scroll down:
Why Sharing Adderall in College Could Cost You a Government Job
By David Brown / Jun 18, 2019
Prescription
drug problems are the number one thing flagging candidates during
polygraph examinations these days—and not for reasons you might think.
Trading prescription medications—think: sharing Adderall in college, or
offering a pain pill when a friend pulls her back—can disqualify you
from getting a security clearance because agencies consider that “intent
to distribute illegal narcotics.” Unlike, say, experimenting with
cocaine that one time several years ago—something adjudicators might
still rule favorably on—handing out your Adderall is an issue, and it is
snagging a lot of job candidates.
“The SF-86 covers it, but it seems like these things always come up in polygraphs,” says Charles McCullough, a partner with the Compass Rose Legal Group, and the former Inspector General of the Intelligence
Community. “It pops up with onboard people during their five-year
re-investigations, and it pops up with new applicants as well. If your
spouse has a painkiller prescription for a dental issue, and you can’t
sleep and decide to take some, that’s a problem from a clearance
standpoint.”
McCullough adds that for a one-off situation like that, an onboard
worker can expect disciplinary action, but his or her clearance probably
won’t be revoked. A clearance applicant who has done drugs within the
last twelve months, however, or who has a felony drug conviction, will
almost certainly be disqualified.
HONESTY ON THE FORM
“Minimizing” answers on the SF-86, or being somehow less than
truthful, is the worst thing you can do when filling out the form. It’s
never a bad idea to speak with an attorney before submitting the
application to find out when and how answers should be best explained.
Elisions of one’s personal history can come back to haunt an applicant
when he or she is strapped to a polygraph machine.
“The polygraph, whether or not it’s good science, is basically an
investigative and interviewing tool and it’s very effective,” says
McCullough. Examinations are high pressure situations, and when people
are hooked up to a polygraph, they tend quickly to become very, very
honest about themselves. “The polygraph examiner is going to sit there
with a yellow pad and pen and write everything down. The whole thing is
being recorded. It’s being videotaped. It’s being audiotaped. And
they’re going to say, ‘The needle isn’t bouncing your way. What’s wrong?
What is it you are not telling me?’ And people tend to start disclosing
everything over and over and over again, and if they haven’t already
disclosed it on the form—if they minimized it on the SF-86 when they
first applied—now we have an integrity issue. We’ve gone from just
having a drug issue to having a personal conduct issue as well.”
And that could be disqualifying. Another ghost that tends to haunt
people is the SF-86 that they completed many years earlier. When you are
young, you think: Well, I only need a secret clearance and I don’t have
to take a polygraph… so why complicate things with messy admissions
like sharing a few pills? A decade later, however, an older, wiser
cleared worker with three kids and a mortgage is offered a big promotion
or a job at a defense contractor… and suddenly they need a Top Secret/SCI
clearance with a poly. That SF-86 that was filled out ten years ago is
still around, and suddenly those minimizations years earlier are back in
a big way.
“When people fill out the SF-86, they really need to make sure they
get it all down,” says McCullough. Adjudicators aren’t robots; they
understand that life can be a little messy, and they use what is called a
“whole person assessment”
when deciding whether someone is eligible for a security clearance.
“Obviously someone who is trafficking in heroin is going to be
disqualified. But that’s not necessarily so for people who, say,
experimented with drugs in college. Adjudicators are going to ask: What
was the level of experimentation? Was it truly experimentation? Was
there a habit? Was there addiction involved? Did they sell it? If they
bought it, where did they get it from? Did they resell it to classmates?
There are all sorts of permutations that have to be looked at, and it
is looked at on a case-by-case basis. There is a contemplative process
that takes place.”
TRICKY LAWS ARE NO EXCUSE
Drug laws and prosecutions in general are complicated affairs, which
makes your SF-86 and subsequent polygraph even more of a minefield.
Steal a car from the BMW dealership, and you are probably going to be
arrested for stealing a car. Prescription drug crimes have a lot more
nuance.
“In the federal system, it depends entirely on the specific facts of the situation, and how it’s charged,” says Jessica Carmichael, a federal criminal defense lawyer with Ayotte, Carmichael, Ellis, & Brock, a law firm in Virginia.
“Giving prescription medication to your friend could create a number of
criminal liabilities, ranging from misdemeanor to felony charges.”
And the fact that you didn’t end up in a courtroom is no excuse to
conveniently forget to mention your drug arrest on the clearance
application. “If you are arrested and charged,” says Carmichael, “and
that charge is dismissed by the prosecutor—in other words, he or she
elected not to proceed with the prosecution—typically that charge is
still going to show up on your record.”
In any event, Carmichael says, almost any defense attorney will tell
you to never make statements without a lawyer present. “Always be polite
and respectful and at the first possible opportunity, ask to speak with
an attorney.”
