March 1, 2018

Drug trafficking conviction would bar employment in legal pot industry

WBJ File
If you've been convicted of trafficking a drug other than marijuana, you may not be able to get a job in the legal pot industry.

People with a prior conviction for trafficking in drugs other than marijuana will be barred from working in jobs that include access to the plant in the newly-legal marijuana industry, a decision made after about an hour of tense between state pot regulators.

The Cannabis Control Commission split 3-2 on Wednesday afternoon over whether to automatically disqualify people with trafficking convictions from working with marijuana, adding those convictions to a list of automatically-disqualifying issues like being registered as a sex offender, open or unresolved criminal proceedings, violent felony convictions and felony convictions involving drugs other than marijuana.

"The reason that I'm asking for this is that this is different than simple possession, it's different even than distribution. This is really talking about quantity and significant quantity of drugs like fentanyl, meth, cocaine -- drugs that kill people," Commissioner Britte McBride, who proposed the addition on Wednesday, said. "I firmly believe that someone who has that level of offense should be prohibited from operating as a marijuana establishment agent."

Commissioner Jennifer Flanagan agreed with McBride's proposal and said she thinks disqualifying people for trafficking in drugs other than marijuana does not run counter to the CCC's legal mandate to ensure that the marijuana industry is accessible to people from communities with disproportionate rates of drug crime arrests and incarceration.

"For me, trafficking is a non-starter. I think there is a very large difference between someone who had been arrested for possession and someone who has been actively trafficking in the commonwealth of Massachusetts," Flanagan said. "For me, if you're trafficking then you're in a whole different category and I don't feel bad about the disqualification."

Chairman Steven Hoffman and Commissioner Shaleen Title found themselves aligned in the minority on the issue and argued that the mandatory exclusion would create undue burdens for people who have served their time and now want to get their lives back on track.

"We're talking about employees, we're talking about people that have paid their debt to society, we are talking about people that will be hired because employers think they have skills and the character to do the job, and we're talking about people that might not be able to get any other job," Hoffman said. "One of the great parts of the legislation we're trying to enact and enable ... is to actually play a positive role in helping in that respect."

Title said the blanket exclusion would not be necessary because of the other layers of scrutiny a prospective employee will face before being hired.

First, the person would have to be hired by a licensed marijuana establishment and be deemed an acceptable employee by that business. Then they would be subject to the CCC's mandatory background check process, which could reveal potential issues and give an employer a chance to rescind a job offer. Finally, the CCC would have a chance to disqualify the applicant on the grounds of suitability under the terms of an agency discretion policy the CCC agreed to earlier Wednesday.

"We would already, under that process, be able to exclude someone," Title said. She added, "I have a deep concern about taking away our discretion with the mandatory exclusion."

Commissioner Kay Doyle joined McBride and Flanagan in voting in favor of the mandatory disqualification but said she favored the exclusion because the industry is new and would support a periodic review of the criteria for mandatory exclusions.

McBride also argued that adopting final regulations without a blanket exclusion for convicted drug traffickers will attract unwanted attention from the federal Department of Justice, which earlier this year rescinded an Obama-era policy that essentially directed federal prosecutors to look the other way in states that have established legal marijuana markets.

"We can't avoid the fact that since we drafted these regulations in December the enforcement landscape has shifted and we are dealing in a world where we no longer have the relative safety of the Cole Memorandum. We are dealing in a world where unwanted federal attention could lead to undermining the industry we're working really hard to establish," McBride said. "I think it is common sense to understand that the engagement of individuals with convictions for dangerous drug crimes could potentially bring the exact unwanted attention I think we're trying hard to avoid."

Debate on McBride's proposal was divided into two sections by a 75-minute lunch break. When McBride initially raised the idea of a mandatory exclusion for trafficking convictions, Title suggested she had been blindsided by the proposal at noon on the third of three days of policy debate.

"This is not new ... if people read the comments this was raised in the comments," McBride said, referring to comments received during the CCC's public comment period. "This is not a new topic that is coming out of the blue."

Hoffman called for a lunch break to allow commissioners to "think about this" and "reflect." The commissioner reconvened 75 minutes later and had about 45 minutes of debate before taking the 3-2 vote.

Wednesday concluded the CCC's three days of policy debate based on the feedback elected officials, interest groups and citizens had to the commission's draft regulations.

Among the changes agreed to by the CCC this week was the decision to delay licensing home delivery services and on-premises consumption establishments for about a year, bowing to pressure from Gov. Charlie Baker and others.

"I think the fact that the Cannabis Control Commission made the decision to go a little slower on its rollout and to focus on coming out of the gate strictly on dispensaries and limiting the activity to begin with to that is a good example of how we need to think about this," Baker said Wednesday.

The commission plans to meet again March 6 and 7 to approve the final language of the package of marijuana industry regulations. The final regulations must be filed with the secretary of state by March 15.


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