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Ray, Lawyer
Category: Legal
Satisfied Customers: 42835
Experience:  30 years in civil, probate, real estate, elder law
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If someone 1) lost a public trust clearance over eight

Customer Question

If someone 1) lost a public trust clearance over eight years ago, 2) over five years ago received probation before judgment for driving while impaired (<0.08%) and resisting arrest, and 3) takes a drag of marijuana a few times/year, how likely is it they can attain another public trust clearance at this time? If it is likely, what steps should be taken to attain the public trust clearance either before or after completing the Questionnaire for Public Trust (SF-85P)?
Submitted: 9 years ago.
Category: Legal
Expert:  Ray replied 9 years ago.

First let's deal with the marijuana issue. That should not be something one would disclose, it will not help your case. The fact that you lost it once is probably still in the records somewhere. IT won't help but it depends what it was for.Assuming you were clean since then it depends on what level you seek clearance and then it will be close. The best thing you have going for you is time, five years is a pretty good distance this should be favorable to you. Please review the attached materials. There are also lawyers who specialize in clearance issues you might want to consider at least talking to one to see if they could in some ways clean up or put your record in its best light. I have seen them work some magic in these type of situations. Thanks for the question and I hope this gives you some information in this matter..

The Office of Personnel Management (OPM) has provided the following information to give a broad overview of the Federal employment suitability program and processes to our industry partners. It is excerpted from current guidance distributed by OPM to Executive Agencies. Although not mandated by formal policy, agencies often apply similar requirements for suitability to contractors who have staff-like access.*

The civil service requires high standards of integrity and trust to promote the interests of the public. OPM established a suitability program in the Federal competitive service to reduce the potential for abuse of the public trust, to ensure government-wide uniformity and fairness for applicants, appointees, and employees, and to determine suitability for employment. The requirements of this program apply to applicants for employment and to individuals already employed.

Suitability refers to identifiable character traits and conduct sufficient to decide whether an individual is likely or not likely to be able to carry out the duties of a Federal job with appropriate integrity, efficiency, and effectiveness. Suitability is distinguishable from a person's ability to fulfill the qualification requirements of a job, as measured by experience, education, knowledge, and skills. Suitability actions include the following:

  • Cancellation of eligibilities

  • Debarment

  • Removal

A non-selection for a specific position is not a suitability action unless one or more of the above actions is taken.

Appointments Subject to Investigation

As required in 5 CFR 731, persons appointed in the competitive service must undergo an investigation by OPM or by an agency conducting investigations under delegated authority from OPM. Except when required because of risk level changes, a person in the competitive service who has undergone a suitability investigation need not undergo another investigation simply because the person has been:

  • Promoted;

  • Demoted;

  • Reassigned;

  • Converted from career-conditional to career tenure;

  • Appointed (or converted to an appointment) when that employee has been serving with that agency for at least one year in one or more positions under an appointment subject to investigation; or,

  • Transferred, provided the individual has served continuously for at least one year in a position subject to investigation.


Reemployment is not one of the general exceptions listed above. When individuals are reemployed in Federal service, they should complete a new Declaration for Federal Employment (OF 306). They should also complete new investigative questionnaires (or update their prior form if the public trust or sensitivity level of their new position is the same as their previous one). If suitability issues are admitted on the OF 306 or investigative questionnaire, or if they are otherwise developed, they should be investigated and adjudicated.

If there are no suitability issues, and there has not been a break in service of longer than 24 months, a new investigation is not necessary unless it is required under 5 CFR 732, or other authority, or because of a higher public trust risk level. The adjudicative guidelines established by 5 CFR 731 will be used for all reemployments that are subject to investigation and adjudication.

Adjudicative Standards

The objective in adjudicating national security is to establish a reasonable expectation that employment or continued employment of the person would or would not be clearly consistent with the interests of national security. This security determination is an individual agency responsibility that is made in addition to the suitability determination and is separate and distinct from the suitability determination.

A major difference between suitability adjudication and security adjudication is that suitability adjudication considers only an individual's personal conduct while security concerns may go beyond the individual's conduct to that of (for example) their associates or relatives, or the influence of foreign contacts. (5 CFR 732, EO 10450, EO 12968, and related authorities provide more detailed guidance on adjudicating for national security.)

Many security issues may also be disqualifying under suitability. OPM recommends that each case be adjudicated under suitability criteria prior to adjudication under security criteria. An adverse suitability determination may result in a decision that a period of debarment for up to three years from all positions in the competitive Federal service is warranted. An agency may deny a security clearance based in part on the presence of a previous negative determination, but there is no administrative procedure mandating automatic government-wide debarment for security clearance determinations.

Public Trust

Designation of Public Trust Positions Agencies are responsible for designating each competitive service position within the agency based on the documented duties and responsibilities of the position. Each position will be designated at the High, Moderate, or Low risk level depending on the position's potential for adverse impact to the integrity and efficiency of the service (5 CFR 731.106). Positions at the High and Moderate risk levels are referred to as "Public Trust" positions. These positions generally involve the

following duties

Ray and 3 other Legal Specialists are ready to help you
Customer: replied 9 years ago.
Reply to RayAnswers's Post: May I ask how much direct experience you have with federal clearance matters?
Expert:  Ray replied 9 years ago.
I have assisted two clients in this area, one had credit/bankruptcy issues, the other had criminal conviction for a bad check he had written along time ago. Another direction I failed to point you in is to apply for a pardon, it costs you little but they are granted and they have the effect of removing the crime from your record. The hot check guy was successful by this method. He had written a bad check in the 60s as a young adult for like $15 to a seven-eleven. It kept hurting his professional career, so it worked out for him but it took awhile....
Customer: replied 9 years ago.
I would have liked to have received an answer from someone with considerably more experience, but the initial lawyer had neglected to answer within two days and I feel you have tried to be diligent; so I will accept your answer. Thanks.
Expert:  Ray replied 9 years ago.
Thanks again and good luck..