“Everything that we’ve seen and everything that’s been made public, I don’t understand why this has been going on as long as it has.”
By Bhaamati Borkhetaria, CommonWealth Beacon
State Treasurer Deborah Goldberg (D) finds herself in a very difficult position.
Goldberg suspended Shannon O’Brien as chair of the Cannabis Control Commission last September amid allegations she had made “racially, ethnically and culturally insensitive statements.”
O’Brien, who was appointed originally by Goldberg, didn’t go quietly into the night. She hired lawyers and fought the suspension, first in court and then in a series of four closed-door hearings that wrapped up at the start of July. Since the meetings concluded, Goldberg has taken no action for nearly two months, leaving the commission leaderless at a time when the agency has become a poster child for bureaucratic dysfunction.
It’s an unprecedented situation. Goldberg has spent close to $750,000 in taxpayer dollars on legal fees during the fight with O’Brien, and O’Brien has probably spent a similar amount or more on private attorneys. O’Brien has also continued to collect her $196,551 annual salary during her suspension.
Meanwhile, the agency O’Brien used to lead is barely functioning, with employees jumping ship, policy initiatives on hold, money missing and commissioners at odds. At a recent meeting, it took nearly an hour for the commissioners to agree on who should serve as acting chair—and that was just for two meetings.
Sen. Michael Moore, a Democrat from Millbury, implored the treasurer to make a decision. “What else do we have to wait for to get this staffing back up to where it should be?” he asked. “As we’re waiting for this decision, we continue to see the deterioration of the Cannabis Control Commission.”
Goldberg spokesman Andrew Napolitano says the treasurer “is taking the necessary time to review all of the information before her to make an informed decision.” But many observers think Goldberg is caught between a rock and a hard place. If she returns O’Brien to her position as chair of the commission, Goldberg will face enormous criticism for having left the Cannabis Control Commission without a chair for close to a year. If she fires O’Brien, she is likely to be sued by O’Brien, which means the case is likely to drag on even longer and all the documents and materials that have been kept out of the public eye so far are likely to come into the public domain.
Under state law, O’Brien can be removed from her position if she is guilty of malfeasance or gross misconduct, convicted of a felony or unable to do or neglecting her job. What is known of the charges against O’Brien has come largely from O’Brien herself, who summarized them when she was initially suspended and went to court seeking a way to defend herself.
According to O’Brien, the charges consist mostly of alleged racially charged comments O’Brien made that offended some of her coworkers. For example, she used the word “yellow”—a racial slur—to refer to Asian Americans (O’Brien said she was just repeating a story told by an African-American developer) and she presumed that a fellow commissioner of color knew Sen. Lydia Edwards (D) on the basis of their race. There were also allegations that O’Brien mistreated the former executive director of the agency, who was formerly a close aide of Goldberg.
Whether the charges rise to the level of firing offense is unclear, but past precedent would suggest the bar to remove an official at an independent state agency is fairly high. The Supreme Judicial Court ruled in 2022 that former acting governor Jane Swift (R) could not legally remove Jordan Levy and Christy Mihos from the Massachusetts Turnpike Authority board for failing to raise tolls as Swift had directed.
The Levy-Mihos case has some parallels to the dispute between Goldberg and O’Brien. For example, Suffolk Superior Court Judge Debra Squires-Lee cited the Levy case and the protocols Swift followed when she allowed Goldberg to proceed with hearings on O’Brien. Goldberg even named as her presiding officer Thomas Maffei, who played the same role during the Levy and Mihos hearings.
The Levy-Mihos decision may also be instructive for the O’Brien case. The SJC held that Swift could not fire Levy and Mihos without cause because the two commissioners worked for an independent authority not subject to the governor’s day-to-day direct supervision. The same would seem to apply to O’Brien at the Cannabis Control Commission.
The court also held that the actions of Levy and Mihos did not rise to the level of “malfeasance, misfeasance or wilful neglect of duty” needed for dismissal. “This case boils down to a difference of opinion between the Governor and two members of the Authority over the policy of the Authority and the ability of the members to fix tolls,” the court held. “That difference of opinion does not constitute substantial evidence that Levy or Mihos acted in a manner that warrants removal by the Governor for cause.”
When Squires-Lee allowed Goldberg to move ahead with the dismissal hearings targeting O’Brien, she made no ruling on O’Brien’s claim that the allegations against her reflect 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 injunction,” Squires-Lee wrote.
As Goldberg weighs the legalities, pressure is building on her to act.
Rep. Michael Soter, a Republican from Bellingham who sits on the Legislature’s Joint Committee on Cannabis Policy, said Goldberg needs to resolve the situation quickly.
“We can’t waste anymore time with this childish behavior,” he said. “It’s childish. It’s nonsense. You don’t [run] a billion dollar operation like this.”
Soter believes Goldberg should reinstate O’Brien as chair of the Cannabis Control Commission. “There’s nothing there,” he said. “Everything that we’ve seen and everything that’s been made public, I don’t understand why this has been going on as long as it has.”
Moore said firing O’Brien is likely to prolong the void in leadership at the top of the Cannabis Control Commission. “If she does terminate the current chair, is that going to result in some sort of appeal or court action?” asked Moore. “If that does happen, there are additional legal expenses that will have to be paid. But I definitely think a decision has to be made. We can’t have a $7 billion industry in limbo.”
People in the cannabis industry are watching the drama play out with increasing frustration.
“At some level, the industry doesn’t really care [about who is chair],” said Jeffrey Harold, CEO of Garden Remedies, a vertically integrated cannabis company with three dispensaries in the state. “We need somebody selected, through the treasurer, to be the chair of the CCC. The industry looks at that as all of the tax dollars and all of the money that we are generating just being wasted on an ongoing battle.”
Ryan Dominguez, the head of the Massachusetts Cannabis Coalition and a member of the Cannabis Social Equity Advisory Board, said that the lack of leadership consistency at the CCC has impacted the industry negatively.
“The industry right now is discouraged,” said Dominguez. “My members have shared that they have a lack of confidence that changes needed for the industry can happen in an efficient or timely fashion. I’ve been hearing a lot, right now, that we don’t have a voice in terms of who is leading us and making the changes that we need on a regulatory front.”
There is frustration that regulations—like the long-awaited change in the two-driver rule—are not worked on in a timely manner and implemented quickly enough to respond to the industry’s needs because the commission is so focused on its own leadership challenges. Cannabis business owners have said repeatedly that the industry is in crisis and that they need regulatory changes to even stay afloat.
The state inspector general called the agency “rudderless” and urged the Legislature to put it under receivership. Lawmakers decided not to take that step but have said they will be holding hearings on the commission this fall.
This article first appeared on CommonWealth Beacon and is republished here under a Creative Commons license.
Massachusetts Cannabis Commissioner Pushes For Forensic Audit Of The Marijuana Regulatory Agency
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“Everything that we’ve seen and everything that’s been made public, I don’t understand why this has been going on as long as it has.” By Bhaamati Borkhetaria, CommonWealth Beacon State Treasurer Deborah Goldberg (D) finds herself in a very difficult position. Goldberg suspended Shannon O’Brien as chair of the Cannabis Control Commission last September amid Read More