Request for a public process “must await further briefing as necessary and a hearing”
For a broader, more contextualized account of the ongoing drama at the Cannabis Control Commission, check out our post from Monday which includes deep relevant surrounding details. But for a quick up-to-the-minute version of what’s bubbling in the battle between state Treasurer Deb Goldberg and suspended CCC Chair Shannon O’Brien, continue below …
In short, O’Brien got part of what her attorneys requested—a Temporary Restraining Order (TRO) to prevent a closed-door hearing scheduled for today, which could determine her future employment with the agency, from proceeding. As Suffolk Superior Court Justice Debra Squires-Lee wrote in the Dec. 5 order (first obtained by blogger Grant Smith Ellis and available here): “Accordingly, Deborah Goldberg, in her official capacity as Treasurer and Receiver General of the Commonwealth of Massachusetts, is hereby ENJOINED from holding the hearing scheduled for December 5, 2023 until the Court hears the Motion for Preliminary Injunction and until further order of the Court.”
The judge explained that there are still materials that need to be completed before O’Brien can have a fair hearing: “O’Brien was suspended as Chair of the Commission with pay on September 14, 2023. On October 4, 2023, Goldberg gave notice to O’Brien of two bases for O’Brien’s suspension and, if ultimately credited by the Treasurer, removal. The first stems from O’Brien’s allegedly racially insensitive conduct and statements which were investigated by an outside lawyer (Investigator 1) who issued a report. O’Brien has been provided with a copy of Investigator 1’s report. The second arises out of O’Brien’s conduct toward the Commission’s Executive Director including allegedly making public statements about the Executive Director’s employment and personal matters at a public meeting. The latter allegations are being investigated by another investigator (Investigator 2) whose report is not yet complete.”
Squires-Lee continued, “I am persuaded that, without Investigator 2’s report, O’Brien cannot meaningfully present her case or meaningfully challenge the allegations about her conduct toward and concerning the Executive Director, a wholly separate basis for her suspension. Absent the report, O’Brien does not have the requisite explanation of the evidence against her as gathered by the investigator.”
Furthermore, “The Treasurer’s response, that the two grounds for suspension and removal can be bifurcated and Goldberg can proceed piecemeal, ignores that O’Brien would be forced to do so without significant information, i.e, the results of the lengthy investigation detailing the facts as determined by Investigator 2, some of which may impact, contradict, or overlap with the results of Investigator 1’s investigation.”
As for what the proceedings will look like …
O’Brien was initially supposed to have her proverbial day in Suffolk County Superior Court. But after the treasurer agreed to hear the chair out in a less formal setting, that date was called off. In its place, Goldberg was scheduled to meet with O’Brien in early November. That gathering got pushed back to today, but even before this week’s court proceedings, it became clear that they were not heading toward agreement about the venue. The State House News Service noted that “while O’Brien seems to think the sit-down will be a public hearing … Goldberg’s office has more frequently referred to the huddle with O’Brien as a meeting and has said details on the format are not available.”
The venue issue will be discussed at a hearing on O’Brien’s Motion for Preliminary Injunction on Dec. 15. “Four days prior to the hearing, O’Brien may file a reply brief, limited to ten pages, addressing the arguments raised in Goldberg’s opposition.” At this point, though, the judge “reach[ed] no conclusion regarding O’Brien’s other due process arguments,” but wrote the following in her decision …
“O’Brien is unlikely to establish a right to discovery or the compulsory attendance of witnesses. I also note that the statute makes clear that the determination of whether O’Brien meets the criteria for removal is for Goldberg to make, and it is unlikely that O’Brien may persuade me that she has a likelihood of success on the merits on that issue.
“Those decisions, and others, such as the alleged right to a public process, must await further briefing as necessary and a hearing on O’Brien’s request for a preliminary injunction.”
