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February 7, 2024

Judge rejects suspended cannabis chair’s appeal

A large white building with two spires. Photo | Grant Welker Worcester's Union Station, home of the state's Cannabis Control Commission

An Appeals Court judge on Tuesday rejected suspended Cannabis Control Chairwoman Shannon O'Brien's petition, once again clearing the way for Treasurer Deborah Goldberg to schedule the meeting that could lead to O'Brien's firing.

Superior Court Judge Debra Squires-Lee in December rejected process guardrails that O'Brien sought and ruled that Goldberg could consider O'Brien's firing under certain circumstances. O'Brien filed a petition last month seeking to have an Appeals Court judge vacate the lower court decision, and issue a new order meeting O'Brien's demands.

Appeals Court Judge Rachel Hershfang said in an order late Tuesday that the arguments O'Brien presented in her appeal do not meet the "high standard" necessary to overturn a Superior Court ruling.

"My review of the record reveals no error of law or abuse of discretion in the motion judge's ruling that the Supreme Judicial Court's various decisions in the Levy cases govern the analysis of the process due to the plaintiff ... and that the procedural protections described in the revised protocol are adequate to satisfy those requirements," Hershfang wrote.

Joe Baerlein, a spokesman for O'Brien, said Tuesday night that the chairwoman "looks forward to the truth coming out of this hearing process."

"The legal efforts to date have been about ensuring that Chair O’Brien has the opportunity for an open and impartial hearing and an opportunity to defend her reputation," Baerlein said.

Under the "protocol" for the eventual O'Brien-Goldberg meeting, which Goldberg's office proposed and the Superior Court judge blessed, the meeting that could result in O'Brien's firing cannot take place until at least 15 business days after a second investigatory report, this one related O'Brien's conduct towards former CCC Executive Director Shawn Collins, is shared with O'Brien's side along with an updated rationale for her suspension and potential termination. That exchange had not happened as of Tuesday night.

"We are grateful that the Appeals Court has made a decision that allows the process to go forward," Andrew Napolitano, a spokesman for Goldberg, said.

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 Collins, a former Goldberg deputy. O'Brien has denied the allegations against her.

Similar to Superior Court Judge Debra Squires-Lee, the Appeals Court judge on Tuesday suggested that O'Brien's next course of legal action may be to contest the validity of the rationale Goldberg relies on if she does fire O'Brien after the eventual meeting takes place. Squires-Lee wrote in December that it would be premature for the court to resolve "whether the bases for removal ... satisfy the statute as the Treasurer has yet to take final action."

"To the extent that the plaintiff challenges the adequacy of the bases claimed for her removal, I echo the conclusion of the Superior Court judge, following Levy I, that consideration of that issue would be premature," Hershfang wrote Tuesday.

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