A Massachusetts judge will decide Tuesday morning whether a meeting between suspended Cannabis Control Commission Chairwoman Shannon O'Brien and Treasurer Deborah Goldberg scheduled for 1 p.m. Tuesday can go forward as planned.
Superior Court Judge Debra Squires-Lee heard about 45 minutes of arguments Monday afternoon as the long-running drama unfolding between the former treasurer and current treasurer hit the courtroom for the first time. O'Brien, who has been suspended with pay for almost three months, asked the court late last week to bar Goldberg from holding the Tuesday meeting as planned and asked the court to dictate the ground rules Goldberg would have to follow to formally remove O'Brien from her job.
Squires-Lee said she would issue her decision on O'Brien's request for a temporary restraining order to block Tuesday's hearing "first thing" Tuesday morning.
Goldberg suspended O'Brien from the position of CCC chair in mid-September. O'Brien responded about two weeks later with a lawsuit charging that "Treasurer Goldberg removed Chair O'Brien without notice, without articulated reason, and without any opportunity to be heard, all of which is required by the clear and unambiguous provisions of Massachusetts law ... as well as basic norms of due process." O'Brien later said in a statement that she filed the suit "in order to force Treasurer Goldberg to follow the law and give me an opportunity to be heard."
The meeting was originally scheduled for early November and then delayed to Dec. 5. But O'Brien and her attorneys grew dissatisfied with the fact that the meeting would not be public and with the meeting procedures that Goldberg's office dictated. Her attorney, Max Stern, said during Monday's hearing that O'Brien's team is not prepared for a meeting Tuesday and argued for a postponement of "two weeks or so." If Tuesday's hearing happens as scheduled, he said, O'Brien's team would have to simply make a statement of its position and say they are not prepared to do anything further. And if O'Brien remains unsatisfied that she has been given due process, she could then return to the court to challenge it.
"That's what we would have to do, because we're not prepared," Stern said during the Monday hearing. "And I can tell them that that's what we would do."
Assistant Attorney General John Hitt said Monday that Goldberg's intention is for the hearing to go on as scheduled unless Squires-Lee issues a temporary restraining order, and the treasurer's office argued that it is in the public's interest that the meeting take place since the taxpayers are paying O'Brien's salary while she is suspended.
"The Treasurer takes these allegations very seriously, which is why she wants to provide Chair O’Brien with the opportunity to address them without further delay, and with a fair process that provides an opportunity for her to do that. In October, Chair O’Brien was so adamant about having this meeting that she went to court to demand it. Now, despite knowing about the allegations since September, she is asking to delay the meeting again," Andrew Napolitano, Goldberg's communications director, said Monday. "It is in the best interest of the taxpayers and the CCC that this meeting proceed."
When she suspended O'Brien from the position of CCC chair in September, Goldberg issued a statement saying she did so based on "[s]everal serious allegations" that were made by an unnamed commissioner and CCC staff about O'Brien's behavior. Goldberg further detailed those allegations in an Oct. 4 letter to O'Brien, which became public Friday when the suspended chair included as an exhibit in a court filing. Few details about O'Brien's suspension had been known until then.
"The investigator's report details conduct you acknowledged or volunteered to the investigator that is shocking, deeply disappointing, and unacceptable, especially from an individual charged with leading a Commonwealth agency. The report concluded that you made 'racially, ethnically, culturally insensitive statements,' including 'public statements that could reasonably be perceived as creating the impression that ... diverse candidates were not qualified for the CCC Chair role.' As just one example, in response to the allegation that in a meeting in the fall of 2022 you remarked, in reference to a person of Asian heritage, 'I guess you’re not allowed to say 'yellow' anymore," you did not deny doing so," Goldberg wrote.
The outside investigation was initiated by the CCC and the investigator's report, Goldberg wrote, also described O'Brien's conduct as "causing turmoil internally" and "creating a challenging environment in which to foster cohesion within the agency."
And Goldberg referenced a second outside investigation into O'Brien's conduct as CCC chair, this one focused on O'Brien's interactions with CCC Executive Director Shawn Collins and "statements [O'Brien] made in a public meeting that concerned Mr. Collins's employment and highly personal matters." In late July, O'Brien announced during a CCC meeting that Collins would be taking parental leave and then resigning from the CCC by the end of this year, saying the change was putting the agency "in crisis." He initially denied that was his plan, but last month resigned effective Monday.
"The context for your discussion of the matters includes your statement to the first investigator that, 'My only blunt instrument to fix this place is to fire [Executive Director] Shawn [Collins], bring people back to the office and create a culture of respect,' and your admission that you made such statements regularly in the presence of the Commission’s staff members," Goldberg wrote.
O'Brien said in her latest court filings that "none of the accusations have any merit" and is asking the court to issue a preliminary injunction order prohibiting Goldberg from holding a hearing regarding the removal of O’Brien as chair of the CCC unless Goldberg complies with procedures that O'Brien wants the court to outline.
The chairwoman filed a lawsuit in late September asking the court for a preliminary injunction to stop Goldberg "from continuing her unlawful removal of Chair O'Brien from her position." A key part of O'Brien's lawsuit against Goldberg is that the chairwoman has not been granted an opportunity to be heard. The state law that dictates how appointments to and removals from the CCC are made requires that the commissioner being removed first be given a chance to be heard, but it does not prescribe a method for them to be heard.
O'Brien's lawsuit was largely put on hold when Goldberg initially agreed to a meeting with O'Brien. That meeting was originally going to happen in November, but was delayed until Dec. 5 as the two sides haggled over whether it would be public, who would participate and other details. Now, O'Brien is asking the court to step in before Goldberg can call Tuesday's closed-door meeting to order.
"Chair O’Brien has strongly objected to the schedule and the decision to have the hearing in private. Under the circumstances the only likely outcome, unless relief is granted by this Court, is that she will not only lose her job, but will go down in history as the former Treasurer and Commissioner who was fired for making racist statements," a court filing in support of O'Brien's motion said. "And she will probably never work again."
Squires-Lee pushed back a bit during Monday's hearing on Stern's argument that O'Brien's suspension "accompanied by suggestive and harmful public justifications by the Treasurer" has done great harm to O'Brien's reputation, and therefore she is entitled to a "name clearing" hearing.
The judge pointed out that O'Brien and her legal team were the ones who put details of the allegations against her into the public domain by including them with last week's court filings.
"The treasurer did not make public the nature of the allegations, you did," Squires-Lee said.
Stern explained that he did so because he wanted Squires-Lee "to see how skimpy these allegations absolutely are. And the only way she could be found guilty of them is if she is found guilty by a completely biased person in a secret proceeding."
Court documents connected to the case indicate O'Brien was removed because of accusations of "gross misconduct," that she was "causing turmoil" and "creating a hostile work environment. The court documents also show O'Brien was accused of making "racially insensitive comments" in reference to a person of Asian heritage.
Goldberg wrote in a letter to O'Brien, "You did not deny doing so … You said, 'I should have cleaned it up. It's difficult sometimes to know how to say the right thing.'"
O'Brien's attorneys wrote that none of the accusations have any merit and that the comment in question lacks context — that she was just repeating the words of someone else. They argue O'Brien should have a fair hearing or else she "will go down in history as the commissioner who was fired for making racist statements. And she will probably never work again."
Helen Yang, vice president of the Massachusetts-based Asian Americans for Equal Rights, has told NBC10 Boston that the allegations in the court documents appear to be racially insensitive but not "an outrageous case of racial discrimination or racism."
"There are times I also feel like I don't know what is the perfectly politically correct thing to say so I can sympathize with that," she said.
