Judge blocks treasurer’s hearing on pot panel chair O’Brien

Shannon O’Brien

Shannon O’Brien FILE PHOTO

By COLIN A. YOUNG

State House News

Published: 12-05-2023 6:34 PM

BOSTON — A Superior Court judge agreed with suspended Cannabis Control Commission Chairwoman Shannon O’Brien on Tuesday and blocked Treasurer Deborah Goldberg from holding a Tuesday afternoon meeting that could have led to O’Brien’s firing.

The meeting had been scheduled for 1 p.m. Tuesday in the Treasury offices on the 12th floor of One Ashburton Place.

Goldberg is enjoined from holding the meeting until the court holds a hearing on O’Brien’s separate motion for a preliminary injunction that seeks to have the court outline procedures for an eventual O’Brien-Goldberg meeting, “and until further order of the Court.” Judge Debra Squires-Lee requested that the clerk schedule a hearing on the injunction motion in 10 days.

“The ruling by the court today is the first step in getting my good reputation back after ten weeks of being smeared by the actions of Treasurer Goldberg in suspending me with no process in place for a fair and impartial hearing,” O’Brien said in a statement Tuesday. “The Treasurer wanted a private meeting with little or no procedural safeguards where she would be the judge, jury and executioner. The Treasurer, in her own words to me in a private meeting before nominating me as Chair, told me I needed to clean up the mess and dysfunction of the Cannabis Control Commission (CCC). Instead, the Treasurer has plunged the CCC into even more chaos.”

O’Brien, an Easthampton native, is a former state lawmaker and state treasurer herself who was the Democratic nominee for governor in 2002. She lost the general election to Mitt Romney.

Goldberg appointed O’Brien to chair the Cannabis Control Commission in August 2022.

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Goldberg communications director Andrew Napolitano said Tuesday that the Treasury was “prepared to begin the process today to address the serious issues raised by Chair O’Brien’s colleagues at the Cannabis Control Commission” and that the office “respect[s] the court’s ruling, and the Treasurer remains ready to hear from Chair O’Brien on these issues as soon as possible.”

Goldberg’s office argued Monday that it was in the public’s interest for the meeting take place as planned Tuesday since the taxpayers are paying O’Brien’s $181,722 annual salary while she is suspended. But Squires-Lee was not swayed by that argument, saying in her ruling that Goldberg’s office conceded that Tuesday could be the first of multiple hearings and that no decision regarding O’Brien’s removal would be rendered at that meeting.

“Put elsewise, O’Brien will continue to receive her pay even if the December 5 hearing went forward. The public interest is not harmed by a slight delay in the proceeding,” the judge said. “Moreover, there is a strong public interest in ensuring due process and fairness.”

When she suspended O’Brien from the position of CCC chair in September, Goldberg issued a statement saying she did so based on “[s]everal serious allegations” that were made by an unnamed commissioner and CCC staff about O’Brien’s behavior.

In an Oct. 4 letter that O’Brien included as an exhibit to her latest court filings, Goldberg told O’Brien that an investigator brought in by the CCC “concluded that you made ‘racially, ethnically, culturally insensitive statements,’ including ‘public statements that could reasonably be perceived as creating the impression that ... diverse candidates were not qualified for the CCC Chair role.’ As just one example, in response to the allegation that in a meeting in the fall of 2022 you remarked, in reference to a person of Asian heritage, ‘I guess you’re not allowed to say ‘yellow’ anymore,” you did not deny doing so.”

After Monday’s hearing on O’Brien’s motion for a restraining order, her attorney Max Stern called the allegations against O’Brien “laughable,” according to video of the interview from WCVB.

“We could not disagree more with the statement of the Chair’s lawyer that there is anything laughable about these types of allegations,” Napolitano, Goldberg’s spokesman, said Tuesday.

O’Brien said after Monday’s hearing that “there are problems inside the Cannabis Control Commission” and that she was doing her job by trying to address them.

“And as a result, I find myself being removed. The fact is, we need to have a transparent process, fair process and it needs to be open to the public so that people can see the truth of what has been happening and the job that I tried to do,” she said, according to video of the interview tweeted by independent journalist Grant Smith Ellis.

There are two separate threads that combine to form the basis of Goldberg’s consideration of firing O’Brien. First is the completed investigation into racially, ethnically, culturally insensitive statements that O’Brien is alleged to have made. The second is an incomplete investigation focused on O’Brien’s interactions with CCC Executive Director Shawn Collins and statements she made in a public meeting about his employment and personal matters.

The first investigation is done and O’Brien has a copy of that report, but that investigator is out of the country and was not going to be present at Tuesday’s meeting. The second investigator has not yet issued a report.

In her decision handed down Tuesday morning, Squires-Lee wrote that going forward with the meeting Tuesday would have required “O’Brien to present her case without having first heard from and cross-examined Investigator 1 regarding the allegations of O’Brien’s racially insensitive conduct – a scenario that also significantly impinges on O’Brien’s ability to present her case.”

The judge also said that she was “persuaded that, without Investigator 2’s report, O’Brien cannot meaningfully present her case or meaningfully challenge the allegations about her conduct toward and concerning the Executive Director, a wholly separate basis for her suspension. Absent that report, O’Brien does not have the requisite explanation of the evidence against her as gathered by the investigator.”

“Put simply, a meaningful opportunity to be heard requires understanding the full extent of the allegations you face and their factual underpinning,” Squires-Lee wrote. “Being forced to defend oneself with partial information does not comport with basic due process.”

The judge said she is unlikely to agree with O’Brien’s arguments that she should have the right to discovery during the meeting process or that she should be able to compel witness testimony. Squires-Lee also said that she thinks the law is clear that “the determination of whether O’Brien meets the criteria for removal is for Goldberg to make” and that she is unlikely to agree with O’Brien that Goldberg should not be the ultimate decisionmaker.

But her final decisions on those issues – as well as the question of whether the meeting should be public as O’Brien wants or private as Goldberg has planned it – “must await further briefing as necessary and a hearing on O’Brien’s request for a preliminary injunction.”