By Matt Stout Globe Staff,Updated September 22, 2023
State Treasurer Deborah B. Goldberg’s suspension last week of Shannon O’Brien as the state’s top cannabis regulator was surprising and, for a six-year-old agency, unprecedented. It also may not be legal, experts say.
Goldberg has not publicly provided a reason why she put O’Brien on paid leave, and while the 2017 law creating the Cannabis Control Commission allows for a commissioner to be removed, it does not explicitly say the treasurercan suspend or put a commissioner on leave without reason.
Attorneys and legal observers said Goldberg’s actions, absent other information, appear to tread into questionable legal territory and could invite a lawsuit. Some also fear it could set a dangerous precedent that individuals named to a state commission or board could be sidelined without knowing why. O’Brien, the commission’s chair, has said Goldberg did not formally tell her why she was suspended.
The state law governing the Cannabis Control Commission requires specific reasons, and a process, for a commissioner to be removed. The language suggests that “that’s the exclusive way of relieving someone of their duties,” said Jay Wexler, a Boston University law professor who studies marijuana law.
To suspend someone, he said, “seems questionable.”
“That [law] does not seem to imply or allow a suspension without any process, for who knows what reason,” Wexler added. “I’d be concerned. I am concerned.”
Goldberg’s office did not make the Brookline Democrat available for an interview about O’Brien’s suspension, and a spokesperson declined to respond to a detailed list of questions from the Globe. Goldberg was scheduled to appear at an event Wednesday at the State House with Governor Maura Healey, but she did not attend.
“This remains a personnel matter, and we will not be providing any further comment,” said Andrew Napolitano, a Goldberg spokesperson.
O’Brien’s abrupt suspension a year into her five-year term shook the agency, with one commissioner saying it put the remaining commission members in a “pickle” as they began finalizing a raft of new regulations governing the state’s $5 billion industry. A group of lawmakers are simultaneously pressing for more oversight of an agency that’s been a magnet for drama, with one legislator saying it’s felt “like an endless stream of scandals.”
Lawmakers have criticized its approach to investigations as “overly aggressive.” They’ve likewise raised concerns over the agency’s unusual and prolonged use of closed-door mediation among commission members and staff leaders to establish what the commission has called a “durable and effective governance structure.”
When the mediation first began in April 2022, then-chair Steve Hoffman said the fledgling commission had been “flying a plane while we’re building it,” and that it needed to formally spell out the powers of the commissioners and staff, according to the State House News Service. Hoffman, also a Goldberg appointee, quietly resigned weeks later before his own term was finished, ultimately leading to O’Brien’s appointment.
Butthe mediation began nearly 18 months ago, andit’s unclear what, if any, progress the commission has made or what the private mediation could ultimately produce. Last year, the commission also sought a 23 percent budget increase, though it received far less.
“The CCC cannot continue to discuss its problems behind closed doors while simultaneously requesting a substantial increase in public funding,” a group of lawmakers wrote in a letter seeking an oversight hearing.
A commission spokesperson said it “remains confident in its policies, processes, and procedures.” The agency did not address the legality of O’Brien’s suspension, deferring questions to Goldberg.
O’Brien’sshort tenure has been marred by controversy. Weeks after her appointment, the commission took the unusual step of putting on hold an application from a proposed outdoor marijuana-growing operation that, months earlier, had counted O’Brien as its chief executive and 50 percent co-owner.
The commission eventually approved its license after the agency’s enforcement team filed a report that essentially cleared O’Brien — who has said she dropped out of the project entirely and assigned all her shares back to the company — of violating disclosure regulations in the episode.
Then, months later, O’Brien surprised even her fellow commissioners when she announced that the commission’s executive director, Shawn Collins, was planning to leave the agency by year’s end. O’Brien later apologized for “any confusion I created,” and Collins, who is currently on family leave, has said that he remains in his position.
Healey said she has “respect [for] the decisions that the treasurer has made,” but said as of Wednesday she had not spoken to Goldberg about O’Brien’s suspension.
“I’ll tell you, though, we’ll do whatever we can to support the CCC,” the governorsaid.
A commissioner can be removed from the panel under certain circumstances, including if he or she is convicted of a felony or is “guilty of malfeasance in office,” according to state law. It also allows for removal for more amorphous reasons, such as if a commissioner commits “gross misconduct,” is “unable to discharge the powers” of the office, or “substantially neglects” duties.
Before a commissioner is removed, the law mandates he or she receive notice, in writing, ofthe reason for removal and be given “an opportunity to be heard.”
Whether Goldberg can even suspend O’Brien “seems like an open question,” said Matthew Fogelman, an employment attorney at Fogelman Law.
“The statute doesn’t speak to that,” he said. “It speaks to removal. But it doesn’t speak to suspension.”
O’Brien — a former state treasurer herself and onetime Democratic nominee for governor — previously told the Globe that she was not formally given a reason why she was suspended; rather, she said,she had “a conversation [with Goldberg] about whether I could continue” in the role.
In a brief letter Goldberg’s office sent O’Brien last week informing her she was suspended, O’Brien was told not to do any work on behalf of the commission and to return “all Commission property, including laptop, cell phone, keys, ID badge, and any Commission documents or files.”
O’Brien is represented by attorneys from the high-powered Bostonfirm, Todd & Weld, including its founding partner, Howard Cooper.
“We are very hopeful of getting a meeting as soon as possible with Treasurer Goldberg to discuss this matter,” Cooper told the Globe.
Shaleen Title, an attorney and one of the state’s inaugural cannabis commissioners, said Goldberg’s move “could be an improper removal,” and at the least, demands more transparency.
“It would be a harmful precedent to set if any appointing authority could remove a commissioner and just call it a personnel matter and refuse to disclose why,” Title said. “It needs to be a transparent process so the commissioners can operate independently and serve the public, like they’re meant to.”
Some argue, however, that Goldberg is on solid legal footing. Julie Steiner, director of the Institute for Legislative and Government Affairs at the Western New England University School of Law, said the “very, very broad” process laid outin the law leaves discretion to the treasurer, or other appointing authorities, to investigate before moving to remove an appointee.
“There’s some sort of investigatory phase happening right now, and the way they decided to handle that is to suspend her with pay,” she said. “I think that would be a standard action.”
For the Cannabis Control Commission, O’Brien’s suspension complicated what was already an intense and uneasy time.
“This controversy needs to be resolved so that the Cannabis Control Commission can move forward with its mission to support cannabis commerce,” said Will Luzier, an attorney and the former campaign manager of the successful ballot initiative to legalize recreational cannabis. “Support for that mission by those who are regulated is eroded by this divisiveness.
“Unfortunately,” he added, “it may need to be resolved in court.”