Judge reinstates O'Brien as cannabis commission chair
Image | Courtesy of State House News Service
Former Cannabis Control Commission Chairwoman Shannon O'Brien and her lawyer, Max Stern, spoke with reporters after a December 2023 hearing in Suffolk Superior Court.
The evidence that Treasurer Deborah Goldberg relied on does not remotely suffice to support her firing of Shannon O'Brien from the Cannabis Control Commission, a judge said Tuesday as he ordered O'Brien immediately reinstated as chairwoman of the agency.
Superior Court Judge Robert Gordon picked apart Goldberg's rationale for the September 2023 suspension and September 2024 firing of O'Brien, herself a former state treasurer and the Democratic Party's nominee for governor in 2002, in a 50-page ruling that also featured harsh characterizations by the judge of O'Brien's leadership.
The judge concluded that Goldberg had acted unlawfully and slammed the door on a court-ordered delay to O'Brien's return. But Gordon said the matter was not as simple as O'Brien's contention that she was "a blameless 'change agent' victimized by political chicanery -- a new chef brought in to rescue a failing restaurant, but then punished for breaking a few eggs."
"[T]o transpose the culinary metaphor, the Court simply observes that the Treasurer's Decision places a lot of pots on the stove; but when the lids are lifted, they are revealed to be largely empty," Gordon wrote. "Even when granting the Treasurer's fact-finding all the deference due it under the substantial evidence standard, and even considering the facts Goldberg found in their totality, her case for removal amounts to thin gruel."
The judge said O'Brien is "entitled to reinstatement for the remainder of her statutory appointment, and to an award of back pay and benefits running from the date of her unlawful termination."
O'Brien's term as chair of the CCC was set to run through Aug. 31, 2027 and her spokesman said she plans to return to her job at the CCC.
The CCC is headquartered in Worcester's Union Station.
"When Treasurer Goldberg first approached Shannon O’Brien about becoming Chair of the CCC, Goldberg directed O’Brien to clean up the mess at the CCC. O’Brien’s past history as State Treasurer in identifying and cleaning up the scandal in the state lottery commission in 1999 and then blowing the whistle on the Big Dig cost overruns in 2001 was evidence of her prior record as a dedicated and honest public official. Her work as Chair of the CCC has been focused on fixing the management problems of the agency, bringing opportunities to people of color and women in the cannabis industry, and restoring the integrity to the CCC for the benefit of the taxpayers," O'Brien spokesman Joe Baerlein said. "Acknowledging the challenges of that mission given the recent reports by the State Inspector General and State Auditor, Chair O’Brien is pleased to have her good name restored and looks forward to working with CCC Executive Director, Travis Ahearn, and her fellow CCC commissioners, in fulfilling the intent of the Legislature when it created the CCC."
The CCC did not respond to News Service questions about O'Brien's return as chairwoman and instead referred all questions about her to Goldberg's office. Gordon, in his ruling, acknowledged "that restoring O'Brien as Chair may cause some short-term disruption to the operations of the CCC" but determined that the "transitional harm to the CCC, however, pales in comparison to the more substantial harm to O'Brien and the public that would result from further delay."
In a statement, Goldberg said she thinks Gordon's ruling is wrong. Her office said early Tuesday afternoon it was reviewing the judge's decision and determining its next steps, and said late Tuesday afternoon that it had filed a notice of appeal with the Superior Court.
"I don't think, under any circumstance, the kind of behavior Chair O’Brien demonstrated should be tolerated. I do not accept that harassment and bullying are just trivial issues in the workplace. Frankly, we think this judge got it wrong," Goldberg said.
A Dickensian drama
When she fired her last September, Goldberg charged that O'Brien had "committed gross misconduct and demonstrated she is unable to discharge the powers and duties of a CCC commissioner." Goldberg said O'Brien "made rude and disrespectful comments, remarks, statements, and presumptions to Commission staff and colleagues that were or were perceived to be race-based or, at minimum, to be racially, ethnically, and culturally insensitive;" and that she contributed to "a hostile work environment" with the way she treated (or bullied, according to Goldberg) former CCC executive head Shawn Collins, a one-time Goldberg deputy.
Gordon brushed aside Goldberg's claim that O'Brien was unable to perform the duties of CCC chair because he said it required "a showing that O'Brien was unable to discharge the powers and duties of her office because of a physical or mental incapacity, an actual absence from the job, or the functional equivalent of either." No such evidence was presented, he said.
And as to Goldberg's claims that some of O'Brien's comments were at least racially insensitive, Gordon said that the treasurer had "disregarded unrefuted and critically contextualizing evidence" like the fact that O'Brien was relaying what another person has said when she made a much-discussed comment about people of Asian descent.
"[T]here is no evidence whatsoever, and no finding by the Treasurer, that O’Brien ever exhibited racial animus in her remarks much less in her decision making," Gordon wrote.
Gordon also determined that O'Brien's treatment of Collins did not rise to a fireable offense and that Goldberg's finding that O'Brien had interfered with Collins' parental leave rights "constituted a clear error of law."
O'Brien's "concededly ill-considered remarks and other putative failures of leadership reflect, at most, errors of judgment falling far below the statute's 'gross misconduct' threshold for removal. They do not approach -- singularly or collectively -- the kind of flagrant, outrageous or unconscionable acts that our case law has recognized as essential to a finding of gross misconduct," he concluded.
Republican Party Chair Amy Carnevale called Tuesday for Goldberg to resign, criticizing the treasurer for using taxpayer money in the legal fight around the attempted firing and for "insulating her politically-connected staffers."
"It's time for a Republican treasurer to take over this office and focus on what taxpayers care about, which is protecting state revenue, not friends," Carnevale said.
In 2022, before Carnevale took over as party chair, the MassGOP did not run a candidate for state treasurer. A party spokesman said talks are underway with potential candidates for 2026 and that at least one will be announced by the end of this year.
At the end of his ruling that vacated Goldberg's termination decision, Gordon emphasized that O'Brien is to be reinstated "effective immediately and without further delay," putting the last three words in bold and underlined text. He said the court generally waits until the losing party indicates it might appeal before deciding whether to temporarily delay a reinstatement. But in this case, he said, "the interests of justice compel the Court to address the futility of such a motion without delay." He said someone seeking a stay pending an appeal would have to demonstrate a likelihood of success and a likelihood of harm if there is no stay.
"As the case at bar does not present as a close one, the Court does not foresee that the Treasurer is reasonably likely to succeed on the merits of an appeal," Gordon wrote. He added, "Moreover, the public would be irreparably harmed if, regardless of the invalidity of a commissioner's removal, the law nonetheless permitted the Appointing Authorities simply to run out the clock on the commissioner's term, and thereby deprive the public of the independent leadership central to the CCC's design. There will be no stay, from this Court, of O'Brien's reinstatement to CCC leadership."
From the beginning, what Gordon described in his ruling as a "Dickensian drama" involving O'Brien has echoed that of Jordan Levy and Christy Mihos, the "Turnpike Twins" who were fired from the Massachusetts Turnpike Authority board by Acting Gov. Jane Swift in 2001. Both were reinstated when the Supreme Judicial Court ruled 4-3 in May 2002 that Swift did not have "cause" for the firings.
O'Brien lawyer Max Stern raised the Levy and Mihos cases in his closing argument at the final closed-door meeting between Goldberg and O'Brien last summer, according to a transcript. He also foreshadowed additional legal proceedings that he said could follow a ruling like the one that Gordon issued Tuesday.
"She will truly, in the court of public opinion, be restored, and have her reputation restored. And just like in the Mihos' case, after all that's done, we will also have the right to go to Federal Court and file the kind of [U.S. Code section] 1983 case that Mr. Mihos filed. And the Court found was a triable case which would give him the right to discovery," Stern said. "So, everything that was told -- that we were told that we can't subpoena or anything, all that will be out."
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