The Cannabis Control Commission is waiting for word from the attorney general’s office on whether commission votes taken during the two years that Chairwoman Shannon O’Brien was deposed are valid, including the approvals of licenses and two rounds of regulation refinement.
The request for legal clarity stems from concerns O’Brien raised about the process by which other commissioners were named acting chair of the CCC after she was unlawfully suspended and then fired by Treasurer Deborah Goldberg in September 2023. When O’Brien was first removed from the CCC, Commissioner Kimberly Roy chaired the next meeting and said she had been “designated as chair.” At subsequent meetings, commissioners voted to make others the acting chair. O’Brien contended that only the chair can designate an acting chair.
“My concern is that because we have not, for two years, had an appropriately delegated acting chair, some of the votes that took place may not be valid,” she said.
Citing the CCC’s enabling law, she continued, “The authority of the chair runs through the term of the person so designated to be chair. Once you — and I use the term power baton — once you place the power baton in the hand of whatever commissioner … so once I had the power baton, I’m the only one who can hand it off. But the other thing is, no one, no staff person, can pull that baton away from the chair and make a determination where it goes. So that’s why this is going to be providing clarity. This will be providing consistency.”
O’Brien said she wanted to make “sure the public knows that we will also be looking at the legal implications of that withdrawal of the power baton inappropriately on September 18, 2023,” the day when the acting chair designation was revoked from Roy. O’Brien also said last week that she was formally designating Roy as the commissioner who would assume the chair’s duties “in the sort of hit-by-the-bus scenario.”
CCC Executive Director Travis Ahern, who was hired by a vote of commissioners during O’Brien’s exile, said in a statement that he and O’Brien would “consult with the state Attorney General’s office to confirm previous Commissioner votes were taken in line with the law.”
“Our agency has advanced many important issues since 2023, including executing the agency’s first governance charter, completing a nationwide executive director search, and the near finalization of social consumption regulations that will create three new license types for Massachusetts equity participants and small businesses,” he said. “We look forward to obtaining final clarity regarding this question about delegating an Acting Chair.”
The issue is poised to resurface when the CCC meets Thursday. The agenda includes a discussion of a “standing delegation of acting chair.”
O’Brien and Roy both mentioned the possibility that the CCC would have to take a vote or votes to reconfirm the actions taken during O’Brien’s absence. O’Brien said of the process, “it’ll literally [be] endorsing all the votes that took place to make sure that we don’t leave anything up to question in the future.”
Ahern said “any action to re-affirm the Commission’s work over the last two years—including the approval of hundreds of licenses and two regulatory reform packages” would wait until after the CCC gets clarity from Attorney General Andrea Campbell’s office. Roy said it would not be a big deal for the CCC to take those votes.
“I think Boston City Council had a revote on some things, right? It’s happened before. It’ll happen again, and that’s OK. But we just want to make sure that we are by the letter of the law in the enabling statute,” she said.
O’Brien announced last week that she is also tapping into power granted to the chair by the CCC’s enabling statute and directing a commission lawyer “to conduct an investigation into certain policies and procedures that I would like to have examined.” She did not specify which policies and procedures she is interested in and declined to let Commissioner Bruce Stebbins weigh in on the matter, but she made clear to reporters after the meeting that the issues relate to her statutory role as chair.
“There might be some questions about the statutory authority of the chair to undertake certain policies and procedures,” she said. “And so that’s what I’m trying to do, to have an attorney directly report to me so that I can actually review some of the policies and procedures that have happened over the course of the past couple of years, and to make sure that it comports with my position as chair.”
O’Brien pointed to the “tension” created by the CCC’s enabling statute, which in one paragraph says that “the chair shall have and exercise supervision and control over all the affairs of the commission,” but two paragraphs later declares that “the executive director… shall be the executive and administrative head of the commission and shall be responsible for administering and enforcing the law relative to the commission and to each administrative unit thereof.”
“The executive director hires the attorneys, you know, and so there’s this kind of differing level of both authority, but also confidentiality, also loyalty, in terms of the kinds of advice that you’re going to get. So I want to make sure that I am working as chair to get answers to some of the questions I have,” she said. “This is not to disparage the work that anybody is doing … but it’s making sure that I understand that it is coming, any advice I’m getting is coming in relationship to the chair’s statutory role, because I play a different role than the staff and the executive director does.”
