DNI Updates Marijuana-Related Security Clearance Guidance
This case law update was written by James P. Garay Heelan, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2012. Mr. Heelan represents federal personnel across the Executive Branch, including career senior executives, law enforcement officers, foreign service officers, intelligence officers, and agencies in matters of federal personnel and employment law.
Agencies received additional adjudicative guidance on three marijuana-related issues recently from the Director of National Intelligence (DNI), in its capacity as the Security Executive Agent with authority to set standards for security clearance adjudications across the Executive Branch.
In its December 21, 2021, memo, DNI addressed three topics “that have generated ongoing inquiries from federal agencies: 1) recency of recreational marijuana use; 2) use of cannabidiol (CBD) products such as CBD oils; and 3) investment by persons in marijuana-related businesses.”
On recreational drug use, DNI reiterated that prior recreational marijuana use may be “relevant” to security clearance adjudications without being “determinative.” Adjudicators are required to consider relevant “mitigating factors” including frequency of use and whether the individual can demonstrate that they are unlikely to use again in the future. DNI encourages agencies to advise prospective security clearance candidates that they should stop all marijuana use upon signing their SF-86.
DNI next advised agencies that CBD use may be relevant to adjudications. The memo acknowledged that the Agricultural Improvement Act of 2018 distinguished hemp from marijuana for the purposes of the Controlled Substances Act, but emphasized that if a hemp product is more than 0.3 percent THC (the psychoactive ingredient in marijuana) its use is prohibited under federal law. Because studies have shown that some CBD produce exceed the 0.3 percent hemp/marijuana threshold, people who use those products are at risk for testing positive for marijuana use and then being subjected to an agency-conducted security clearance investigation.
Finally, DNI wrote that adjudications “may be impacted negatively” should the subject person “knowingly and directly invest in stocks or business ventures that specifically pertain to marijuana growers and retailers” in light of current federal prohibitions against cultivation and distribution.
Investing in marijuana-relates businesses “could reflect questionable judgment and an unwillingness to comply with laws, rules, and regulations.” For that reason, adjudicators may consider whether a person “is knowingly facilitating violations of the Controlled Substances Act by engaging in such investments.” If a security clearance applicant directly holds stock pertaining to growers and retailers, DNI advises that divestment or dissociation from that activity should be considered a mitigating factor in their adjudication.
Conversely, DNI wrote that adjudicators should “presume” that people do not “knowingly” invest in marijuana-related businesses when those investments indirect, such as through “a diversified mutual fund that is publicly-traded on a United States exchange.” On that basis, indirect investment “should not be considered relevant” to a security clearance adjudication.
DNI ended its memo reminding agency heads they are “expected to advise their prospective and current workforce to adhere to federal laws prohibiting marijuana use.”
Read DNI’s full December 21, 2021 memo.
For over thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.