Judge: Goldberg may pursue disciplinary meeting with suspended CCC chair O’Brien

Cannabis Control Commission Chairwoman Shannon O’Brien

Cannabis Control Commission Chairwoman Shannon O’Brien STATE HOUSE NEWS SERVICE

By COLIN A. YOUNG

State House News Service

Published: 12-26-2023 11:58 AM

BOSTON — A Superior Court judge ruled Friday that Treasurer Deborah Goldberg can go ahead with the meeting that could lead to the firing of suspended Cannabis Control Commission Chairwoman Shannon O’Brien and also cautioned the parties that “political theater should be avoided” as the heavyweight fight extends into the new year.

More than a week after hearing arguments in the case, Judge Debra Squires-Lee denied O’Brien’s motion for a preliminary injunction seeking to have the court mandate rules for the meeting and approved Goldberg’s motion to dissolve the temporary restraining order that had been in place since earlier this month. O’Brien had asked the court to require that the meeting be held in public and to bar Goldberg from being the ultimate fact-finder in the case.

Unsatisfied with the ruling, O’Brien’s legal team said Friday afternoon that it is “carefully examining an appeal to a higher court after the holidays.”

Goldberg suspended O’Brien, a former state treasurer herself and the Democratic Party’s 2002 nominee for governor, with pay in September after having appointed her to chair the CCC a year prior. Goldberg has given two justifications for O’Brien’s suspension and possible firing: that the chairwoman is alleged to have made racially insensitive remarks and that she mistreated former CCC Executive Director Shawn Collins, a former Goldberg deputy.

O’Brien has denied the allegations against her and sued Goldberg, claiming unlawful removal.

A hearing is not yet scheduled, Goldberg’s office said Friday afternoon, and Squires-Lee ordered Friday that it should only happen under the recently revised “protocol” that Goldberg’s office has prepared. That includes a requirement that O’Brien be given an updated statement of the reasons for her suspension and possible removal at least 15 business days ahead of time.

“We are very pleased with the court’s decision. The treasurer is looking forward to having this meeting with Chair O’Brien,” Goldberg spokesman Andrew Napolitano said.

In her ruling Friday, Squires-Lee wrote that the removal of a commissioner of an independent commission like the CCC “is a serious proposition that must be done with due regard for the commissioner’s rights, as well as the political independence of the Commission.”

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“I am persuaded that the Treasurer understands her obligations and has put together a protocol for the hearing that recognizes the importance of the decision to be made and affords O’Brien a full, fair, and meaningful opportunity to be heard consistent with the statute and her Constitutional rights,” Squires-Lee wrote. “I am not persuaded by O’Brien’s arguments to the contrary.”

The meeting protocol that Squires-Lee blessed Friday calls for the hearing to be held in two, four-hour sessions (though the meeting officiant can prolong the proceedings if there is cause shown), for O’Brien and her lawyers to cross-examine the investigators hired by the CCC to look into complaints against the chairwoman, and for O’Brien to have access to an outstanding investigative report about her dealings with Collins for at least 15 business days before the meeting. If the report is not provided to the treasurer or Goldberg “determines that the results of that investigation do not support removal,” she must tell O’Brien at least 15 business days before any meeting.

“Chair O’Brien remains deeply concerned about Treasurer Goldberg’s ability to be unbiased in this matter. Chair O’Brien does not believe the Treasurer’s recently updated hearing framework provides Chair O’Brien a fair hearing consistent with due process. Elementary fairness calls for a finder of fact who is neutral — not one, who along with her senior staff, was immersed in the underlying events or closely associated with the complainant, and not one who acts as prosecutor, witness, judge, jury and executioner,” O’Brien’s lawyers at Todd & Weld said.

The judge noted that “public interest in this matter is high” and urged both sides to avoid political theater. And she specifically left open the possibility that O’Brien’s arguments could be further debated in court if she is indeed fired.

“The hearing should be held as promptly as possible, and a decision rendered. If necessary, O’Brien can then seek certiorari review of the Treasurer’s final decision ...,” Squires-Lee wrote.

At another point in the ruling Friday, Squires-Lee specifically points out that she has made no determination as to O’Brien’s claims that the reasons Goldberg has given for her suspension and potential firing “do not rise to the cause standard contained in the statute but reflect mere policy disagreements or disputes over personnel management or other operational matters.”

“I reach no conclusion on that argument as it is premature and cannot be resolved at this time on this record on a request for an injunction. Rather, the arguments must be pressed and resolved first by the Treasurer and then, if O’Brien is unsuccessful, in an action for certiorari review,” the judge wrote. “Put elsewise, it is premature and inappropriate for this Court to resolve on this record whether the bases for removal ... satisfy the statute as the Treasurer has yet to take final action.”