“There is no evidence whatsoever … that O’Brien ever exhibited racial animus in her remarks much less in her decision making.
There are probably going to be many awkward interactions at the Massachusetts Cannabis Control Commission over the next few weeks.
A decision issued today by a Suffolk County Superior Court judge found that actions by CCC Chair Shannon O’Brien which led to her ouster “did not constitute ‘gross misconduct.’” “Accordingly, [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.”
Going back to fall of 2023 when she was first suspended from her chair seat at the CCC for (what were still at the time) unspecified offenses, O’Brien claimed the backstory and details of her time at the agency would contradict allegations against her. From her suspension on through her subsequent firing in September 2024, the former state rep, senator, and treasurer (who was appointed to the CCC by current state Treasurer Deb Goldberg) said through lawyers that confidential documents would at least add context around claims that she behaved in ways that warranted removal.
In July, O’Brien’s legal team released those liberated documents in seven files totaling in excess of 3,000 pages. Ahead of that drop, they also filed a final petition with the court, arguing that the fired chair “contends that she was not given a meaningful opportunity to be heard, that her hearing did not comport with constitutional or statutory due process requirements, and that Goldberg’s Decision is not supported by substantial evidence.”
The embattled CCC chair’s lawyers also wrote: “The case against O’Brien was based on the complaints of two persons, each of whom held grudges against O’Brien.” With this week’s ruling, those claims appear to have been largely validated.
The long battle between the treasurer and the ousted CCC chair
The fate of O’Brien and anticipation of today’s final decision has loomed over the commission for years. Goldberg appointed O’Brien to the top spot in 2022, only to suspend the chair in September 2023, setting off a firestorm of frustration and speculation. This all happened shortly after an embarrassing rift between O’Brien and then-CCC Executive Director Shawn Collins during a public meeting, and amidst calls by state lawmakers for increased oversight of the “dysfunctional” agency.
Following the excommunication which required O’Brien to hand over her laptop, the chair sought an injunction barring Goldberg “from continuing her unlawful removal of O’Brien from her position at the CCC.” The back and forth has continued since then, with the warring legal teams meeting behind closed doors as well as in open court for procedural matters, and with CCC members meeting in multiple private executive sessions to discuss related matters.
More specific allegations against O’Brien that emerged in her feud with Goldberg involved the former allegedly making comments that were perceived as “racially, ethnically, and culturally insensitive,” as well as bullying and creating a hostile work environment.
In O’Brien’s absence, Commissioner Ava Callender Concepcion was first tapped by colleagues to fill the chair position on an interim basis. Following some embarrassing public disagreements about who would lead, members later installed Commissioner Bruce Stebbins as acting chair in September 2024, and last month, Gov. Maura Healey, along with Treasurer Goldberg and Attorney General Andrea Campbell, reappointed Stebbins, starting Sept. 1, to continue serving in that role “until a permanent chair is appointed.”
With Tuesday’s court decision ordering O’Brien back to her old job, Stebbins may return to his regular seat on the body sooner than expected. According to the decision, O’Brien is “not entitled to reinstatement beyond an established end date of term employment.” “O’Brien assumed her duties on September 1, 2022. She was placed on a paid suspension on September 14, 2023, and then removed entirely from office on September 9, 2024.” Therefore, “O’Brien is thus entitled to reinstatement to complete the unexpired remainder of her term, through August 31, 2027, and to back pay and benefits running from the date of her wrongful removal from office.”
O’Brien’s legal team reacts to favorable court decision
In a media release sent out after the ruling came down today, O’Brien’s legal team highlighted some standout sections of the 50-page decision. Among them: “Judge [Robert] Gordon held that the case against O’Brien was built on … ‘blinkered reasoning[.]’”
The rest of their statement can be found below:
Judge Gordon stated that the Treasurer’s conclusions that O’Brien committed gross misconduct ‘must be viewed in its totality rather than in episodic isolation. The Treasurer thus argues that individual bricks of misconduct can together build a wall of misconduct. But to extend this metaphor with a homage to the courtroom of cinema, the Treasurer’s grounds for misconduct may look like bricks in shape, and edges and surface appearance. But viewed from any other perspective, than the Treasurer’s, these bricks are as thin as playing cards. Resting on walls constructed of the same, the Treasurer’s case for gross misconduct against O’Brien turn out to be just that: a house of cards.”
Judge Gordon also stated that “shorn of rhetoric and hyperbole, the Treasurer’s decision attempts to stretch a modest number of unexceptional facts into a Procrustean bed of gross misconduct……. the record in this case does not remotely suffice… The Treasurer’s decision removing O’Brien was not supported by substantial evidence, and reflects material errors of law that are apparent on the record.”
Specific to the allegations that O’Brien made racially insensitive comments, Judge Gordon stated, “[t]he Treasurer… disregarded unrefuted and critically contextualizing evidence” and “[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.”
Judge Gordon stated, “To the contrary, the undisputed evidence is that O’Brien was fully committed to the CCC’s social equity mission—indeed O’Brien’s most notorious offense in this regard (her references to persons of Asian national origin as ‘yellow’ occurred while she was advocating for greater efforts to advance the CCC’s social equity mission.” Notably the Court stated that “there was no finding or evidence that O’Brien uttered the term with any racial animus or hostility, either toward a specific individual or toward Asian-Americans collectively.”
Regarding the Treasurer’s other argument for removal that O’Brien was unable to discharge her duties of Office, Judge Gordon ruled, “the Treasurer’s analysis (ignoring the 25th Amendment altogether) reflects the very type of blinkered reasoning that our appellate courts have repeatedly denounced” and “the Treasurer’s interpretation of § 76(d)(3) does not comport with any fair reading of the statute and, therefore, constituted a clear error of law.”
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.
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 [sic], and her fellow CCC commissioners, in fulfilling the intent of the Legislature when it created the CCC.”
To be continued …
