Shannon O'Brien plans to appeal her firing as the chairwoman of the Cannabis Control Commission directly to the Supreme Judicial Court of Massachusetts, her lawyer said Tuesday, and one of her former CCC colleagues will take over as acting chair in the meantime.
Treasurer Deborah Goldberg fired O'Brien on Monday, citing unspecified "gross misconduct." On Tuesday, she announced that she had chosen Commissioner Bruce Stebbins to serve as acting chair of the CCC until a more permanent chairperson can be hired. The treasurer said the former gaming regulator, business development official, city councilor and White House aide "will ensure stability during this period and will continue to positively impact the important mission of the CCC."
Meanwhile, O'Brien and her legal team are preparing to appeal Goldberg's decision to the SJC.
William Gildea, one of O'Brien's lawyers from Todd & Weld, said state law gives O'Brien the option to go either to the Superior Court or the SJC. Based on "prior cases with generally similar facts about removing high-level official" that went directly to the SJC -- like the case of the fired Turnpike Authority Board members in the early 2000s -- "that would be the plan," Gildea told the News Service.
O'Brien's appeal could focus on Goldberg's grounds for the chairwoman's removal and the rationale behind the decision. It could also touch upon the procedures that Goldberg followed to arrive at the firing, which O'Brien's lawyers said were "well designed to reach a pre-ordained outcome, without supporting facts and without procedures which might have allowed fair consideration of any other conclusion."
A Superior Court judge late last year blessed a "protocol" that was used for the private hearings between Goldberg and O'Brien this spring and summer, but specifically noted that she made no determination as to O'Brien's claims that the reasons Goldberg has given for her suspension and potential firing "do not rise to the cause standard contained in the statute but reflect mere policy disagreements or disputes over personnel management or other operational matters."
It is not entirely clear what the rationale behind Goldberg's decision to fire O'Brien is. The treasurer did not provide specific examples of O'Brien's alleged misconduct or inability to discharge her duties as chair of the CCC in her statement on the firing Monday evening, and her office has declined to provide a copy of any letter, notice or report outlining the rationale for the axing.
Goldberg sent O'Brien an updated notice of the allegations against her in March, ahead of the start of the private hearings that were necessary to fire a commissioner, identifying four instances of "conduct in which you engaged that may warrant your removal." That letter cited the findings of two investigative reports and alleged that 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;"
- "Made comments about the parental leave of the Commission’s Executive Director that deprived him of assurances that he could exercise his rights to take additional job-protected parental leave, and those statements, combined with other conduct described in the Second Report, created a hostile work environment;"
- "Communicated with and about the Commission’s Executive Director in a threatening, abusive, and humiliating manner that, in combination with the totality of behavior described in the Second Report, constituted bullying;" and
- Was "evasive and not credible in some of your communications with the Investigators, including during a meeting at which your counsel was present."
The complaints related to insensitive comments started with "cross-complaints" filed by O'Brien and CCC Chief Communications Officer Cedric Sinclair "that each was subjected to harassment, bullying and discriminatory treatment, among other contentions, by the other individual," according to a copy of the report prepared by the outside investigator who looked into the matter for the CCC. While the investigation was ongoing, Commissioner Nurys Camargo and agency staffers also filed complaints "that raised similar concerns," the report said.
That report concluded that neither O'Brien nor Sinclair had been bullied by the other, but that O'Brien "repeatedly made inappropriate remarks regarding the professional work relationship between Commissioner Camargo and the Chief Communications Officer." That investigator also deemed credible Camargo's allegation that O'Brien suggested she knew Sen. Lydia Edwards based on "an assumption motivated by racial bias (assuming all people of color know one another)."
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"Chair O'Brien engaged in similar conduct with the undersigned investigator during her interview, often referencing high visibility politicians, business leaders and other influential individuals the Chair perceived to share the same demographic background as this investigator," the investigator wrote.
Thomas Maffei, the lawyer chosen by Goldberg to serve as the officiant for the private hearings at which the claims against O'Brien were aired, ruled that Goldberg could only rely on some of that investigator's report. Maffei said that anonymous statements were the basis for the report's conclusion that O'Brien made racially, ethnically, and culturally insensitive statements, and "raise serious due process issues, including that the evidence should consist of facts that are trustworthy and reliable and that the person against whom they are made should have a meaningful opportunity to challenge them."
"I am striking the statements in the First Report attributed to anonymous sources and ruling that those statements cannot be relied on by the Treasurer in reaching her decision," Maffei wrote in a ruling shared by O'Brien's legal team.
The other complaints relate to the relationship between O'Brien and former CCC Executive Director Shawn Collins, a former top aide to Goldberg who was hired as the inaugural director of the CCC. The investigator who looked into those claims said the complaint from Collins was that O'Brien "interfered with Shawn’s parental leave rights, berated and threatened to fire him and interfered with his management authority, tried to force him to resign, and publicly revealed his personal and confidential information."
O'Brien's legal team contends that Goldberg picked her to chair the CCC to be a change agent at an agency that was loaded with internal strife and ineffective management. But things began to sour when O'Brien "warned Collins that if he could not effectively lead the staff to right a foundering ship, he would have to be replaced," they said.
"Not surprisingly, given the fraught environment, those who felt threatened by the new broom fought back, weaponizing complaints against Chair O’Brien and marshalling their allies and, as for Collins, his friend and sponsor, the Treasurer," O'Brien's lawyers wrote in a summary of the hearing and process that led to the firing.
Goldberg appears to have the support of Gov. Maura Healey as she girds for what could become a messy court fight.
"I respect the decision made by the treasurer. I hope we can all move on from this," Healey said Tuesday when asked about O'Brien's firing. "As I've said in the past, I will do whatever I can as governor and working with my administration to support the ongoing work of the Cannabis Commission. It's an important industry for our state."
If or when O'Brien does appeal to the SJC, her case will continue to echo 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.
Swift held two days of closed-door meetings -- also presided over by Maffei using a similar protocol -- and then fired both men from the three-member board for having voted to delay toll increases by six months, a move she called "fiscally irresponsible."
But while the SJC had ruled in late 2001 that the governor had the power to fire Levy and Mihos, the high court ruled 4-3 in May 2002 that Swift did not have "cause" for the firings and both men were reinstated to the board.
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, according to a transcript provided by his office.
"So we are at what I would call an inflection point, a cross-roads. As I said before, you have all the power today. You can say whatever you want about what you find. And then you'll release it. But don't forget that at the end of this, your power is gone. Your power to keep this private is gone," Stern told Goldberg.
He said that "everything will be out there" as O'Brien's team works to clear her name and predicted that the courts would reinstate O'Brien to the job of CCC chair.
"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 1983 case that Mr. Mihos filed. And the Court found was a triable case which would give him the right to discovery. So, everything that was told -- that we were told that we can't subpoena or anything, all that will be out," Stern foreshadowed. "Or you can do the right thing."
