INSIDE THE 
NEWS + ADVICE
New State Marijuana Laws and Your Security Clearance
Legalization of Recreational Marijuana Use
In May 2013, Colorado passed laws regulating and taxing the recreational use of marijuana by adults age twenty-one and older. Once retail stores start selling marijuana openly, Colorado residents age 21 and older can:
- Purchase up to 1 ounce of marijuana, while non-residents age 21 and older will be able to purchase ¼ of an ounce.
- Adults twenty-one and older can grow up to six marijuana plants in an enclosed locked space, in addition to possessing up to one ounce of marijuana.
- Colorado residents age twenty-one and older may smoke marijuana in their homes, but not in public.
- If you are age twenty-one or older, you may give, without compensation, up to one ounce of marijuana to another adult age twenty-one or older.
Similarly, Washington State has passed laws legalizing the possession and recreational use of marijuana by individuals age twenty-one and older.
Use of Marijuana in These States and the Effect on Security Clearance Eligibility
Those of you with (or planning to obtain) security clearances who have an interest in adding marijuana use to your recreational pastime may think, “Great! If I’m ever in Colorado or Washington State, I can smoke pot without any ramifications!” Unfortunately, you are wrong!
Using and possessing marijuana is still a federal crime, and when it comes to ascertaining whether or not someone has engaged in criminal conduct, the adjudicators will follow federal law. Therefore, if you use marijuana in Colorado, Washington State, or anywhere else for that matter, you will be flagged as having engaged in criminal conduct.
So, what does it mean for those of you who have already engaged in this activity without realizing the consequences? When you come across the question on the SF86 questionnaire which asks, “Have you illegally used a controlled substance in the last seven years,” your response will be “Yes.” The bad news is your background now reflects derogatory information that an adjudicator will have to evaluate to determine if you are qualified for security clearance eligibility. Depending on the recency, frequency, and amount of drug used, this could result in a denial or revocation of your clearance.
When making a determination regarding an applicant’s security clearance eligibility, adjudicators refer to what is called, Adjudicative Guidelines. The Adjudicative Guidelines provide a list of areas of concern, as well as circumstances that can mitigate those areas of concern. During your subject interview with an investigator, you will be provided the opportunity to explain the circumstances surrounding your drug use. This is your attempt to mitigate the drug use. When making a security clearance determination with respect to drug use, adjudicators will examine the recency, circumstances surrounding the use, amount of drug used, and likelihood of continued conduct. The passage of time, infrequency of use, and change in life circumstances, just to name a few, are all conditions that can help mitigate drug use.
Medicinal Marijuana Use
So, what about the use of medicinal marijuana? Eighteen states including the District of Columbia have legalized the use of medicinal marijuana. Unfortunately, though, medicinal marijuana use has not been legalized under federal law. Additionally, the Adjudicative Guidelines do not currently provide that the use of marijuana for medical purposes is a mitigating condition which would alleviate any concerns that an adjudicator may have with respect to granting a security clearance. Again, if you’ve already engaged in this conduct, you would want to fully explain the circumstances surrounding your use of marijuana so as to mitigate the use as much as possible.
Lesson
The lesson to be learned is that if you currently hold or plan to seek a security clearance, any drug use which is illegal under federal law can detrimentally affect your eligibility to hold a security clearance.
Greg Rinckey is the Managing Partner of Tully Rinckey PLLC, one of the largest federal sector employment law firms in the country. Greg is a recognized leader in the military and federal employment law sectors. Tully Rinckey has over 20 attorneys dedicated to federal employment, military law and security clearance work including a former Department of Defense Office of Hearings & Appeals (DOHA) judge. Follow Tully Rinckey on Twitter @FedLawSource.
Did the National Organization Reforming Marijuana Laws (NORML) supporters seize control of Washington and Colorado law makers? Fed policy will soberly keep NORML supporters mistrusted for cleared Fed work. Keep up your good work.
The feds are missing out on a large talent pool. The public has spoken, let people smoke dope. Reform your criminal justice system and get with the times!
Amen! Speaking as a current clearance holder and resident of Washington State, I voted Yes on this measure and was pleased to see it enacted by the citizens of my great state. As long as it’s regulated like alcohol, the feds should follow suit and decriminalize marijuana. Not only are they missing out on a big pool of talent as you state, but the potential savings at DEA and the Bureau of Prisons would be quite welcome I’m sure. As a clearance holder I wouldn’t use marijuana on any kind of regular basis, but once or twice a year while I’m on vacation might be nice if it was federally decriminalized.
What do you think about the spouses of security clearance holders opening marijuana businesses in Washington and Colorado? If the security clearance holder is not involved and is perhaps even unaware of the actions of their spouse?
Sorry for the delayed response. Since this specific circumstance has never been previously addressed or adjudicated by any agencies, this response is purely my opinion based on trends I’ve seen in security clearance adjudications.
It is still against federal law to sell marijuana. Agencies follow federal law when making determinations about criminal conduct. Therefore, if you are a security clearance holder and have a spouse who sells marijuana, the agency may view you as someone who has close contact with a person involved in criminal conduct. As such, there is a strong likelihood that your contact with your spouse will result in you being denied for a continued security clearance.
Even if you claim that you were unaware of your spouse’s business, there is no guarantee that the agency will believe you. More than likely, the agency will err on the side of caution, presume that you were aware of the conduct (unless your truthfulness is shown in a polygraph examination), and deny you a security clearance. This response is not intended as legal advice.
Question: If marijuana were removed from the list of Controlled Substances, would DOE still be able (constitutionally) to disallow those holding a security clearance from any use in their personal time?
John, sorry for the delayed response. The Controlled Substance Act classifies licit and illicit drugs. Therefore, if marijuana is either reclassified or removed from the CSA, it will presumptively no longer be classified as an illegal drug. With respect to granting security clearances, the agencies will follow federal law. If federal law changes and makes marijuana use legal, then presumptively, an agency cannot deny an applicant a security clearance on the basis of marijuana use. This response is not intended as legal advice.