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What You Need to Know About Continuous Monitoring and Self-Reporting

Anthony Kuhn, Managing Partner with Tully Rinckey PLLC and specialist in Military and Security Clearance Law, shares insights to help you protect your security clearance, whether you’ve run into financial concerns or smoked marijuana.

How does continuous monitoring impact cleared professionals and self-reporting?

The big difference is, under the periodic reinvestigations, individuals knew how long they had between investigations. So if you have a secret clearance, you’re usually good for 10 years before you get reinvestigated, and a top secret is five years, etc. What’s changed with the new continuous evaluations, or continuous monitoring, is that individuals are being pulled back in for reinvestigations much earlier, because some type of flag was raised.

Most commonly we see financial considerations and criminal conduct – things that can be caught through continuously monitoring individuals that hold security clearances. So when that happens, an individual might get interrogatories, and they might have to answer questions about something that came up. Or they might just get a Statement of Reasons (SOR) and have to do a response to an SOR.

And usually, along with whatever guideline the investigator thinks was violated, they’ll additionally get hit with guideline E for personal conduct, for not reporting the information. It really makes it necessary for individuals to proactively self-report any potential guideline violations instead of just waiting the five or 10 years, which is what used to happen a lot.

Does that mean you need to self-report if a police officer is asking you questions about something? No, you don’t necessarily have to report that information. But if you’re charged, arrested, or detained you should report that information, because there’s going to be a record of it. Then they’re going to come and find you for not self-reporting that information. The same goes for financial concerns, and anything that could trigger a violation.

What kind of problems do cleared professionals often run into?

The most common guideline concerns usually involve financial considerations, spanning anything from student loans, taxes, credit card debt, and things of that nature. But we also commonly see drug use violations – and I think the reason for that is twofold. Number one, about 43 of 50 states have legalized marijuana in some way or another at this point. We’ve also recently seen a really big uptick in individuals that use Adderall in college. Their friend has Adderall and they want to study for an exam. They tell them it works really great, and then they take Adderall, which is illegal if you don’t have a prescription for it. So those individuals will get into trouble or have to at least report drug use concerns.

What method should I use to self-report?

It’s always a great idea to self-report in writing. You never want to call and say, “Hey, I used marijuana,” or “Hey, I fell behind on my student loans.” If you’re just having a conversation with someone about that, what’s going to get reported is their perception about your actions, not what you’re actually reporting. So the best bet is to have a well written self-report. And you’re creating a record of the self-report so they can never come back with a guideline E saying that you intentionally omitted that information. You’re creating the record that you provided that information, and you’re creating a record that says exactly what you want it to say.

How would you counsel someone from a reporting perspective if they smoked marijuana?

If you hold a security clearance, you should know that marijuana use is illegal as far as the federal government is concerned. The best way to disclose and attempt to mitigate that type of situation is to show that an individual is remorseful. You might explain it was under unique circumstances and is unlikely to ever reoccur. Maybe it was around individuals that you’ve disassociated yourself from, or it was in a setting that you’re not normally in and wouldn’t be expected to be in in the future.

We look for ways to try to mitigate the government’s concern and make it believable that you’re not ever going to use marijuana again. Another thing we can do is submit a statement of intent, along with a self-report or a response to an SOR. The individual says, I don’t ever intend to use marijuana again, and if I do, I expect my security clearance will be revoked. So the goal is to show that you’re remorseful and prove that you don’t ever intend to use marijuana or any other illegal substance again.

Also consider that you can trigger the guideline by investing in marijuana. Intentionally buying stocks and investing in marijuana is enough for you to potentially get your clearance revoked. Investing in marijuana, buying and selling marijuana, and using marijuana are all concerns if you hold a security clearance.

If I’m having financial issues, at what point do I need report to protect my clearance?

If you missed a payment on a credit card, you probably don’t have to report that. People miss payments occasionally – it’s not that big of a deal. It becomes an issue when you get into multiple missed payments, or you’re behind maybe 90 days on a credit card, or something like that. I know it’s kind of gray area, but once you get to where you think you’re living outside of your means, or getting into a little bit of trouble, that’s when you have to report the information.

But before reporting it, you should take steps to protect your security clearance. Go get credit counseling or talk to a debt attorney. Bankruptcy may be the responsible thing to do given the circumstances. That doesn’t mean you’re automatically going to get your security clearance yanked. Maybe somebody in the family was sick or you lost your job. We’ve represented individuals through bankruptcy before and they were able to maintain their security clearance, because they did what was right when they needed to do it.

Another thing to always report is student loan debt, taxes, and anything where you’re taking money from the federal government. If you’re not making those payments on time, you’re going to want to report those right away, because those are going to be a serious problem for you. Don’t file taxes late. If you can’t pay your taxes immediately, the first thing you need to do is set up payment arrangements. Then, report not only that you’re behind on your taxes, but that you’ve already established a payment plan, so you can show a pattern of on time payments. That’s how you’re going to mitigate the concerns.

Find more articles about safeguarding your security clearance here.

Hear more of what Anthony discussed in a recent livestream here.

As a Managing Partner at Tully Rinckey PLLC, Anthony Kuhn focuses much of his time on the representation of military personnel and members of the intelligence community. He has extensive experience assisting clients in navigating matters involving security clearance suspensions and revocations, appeals to the Discharge Review Boards and Boards for Correction of Military Records, UCMJ violations and non-judicial punishment. He can be reached at [email protected].