Ongoing second investigation clouds timeline for O'Brien suspension hearing
Image | Courtesy of State House News Service
Former Cannabis Control Commission Chairwoman Shannon O'Brien and her lawyer, Max Stern, spoke with reporters after a Dec. 14 hearing in Suffolk Superior Court.
A judge late last week cleared the way for Treasurer Deborah Goldberg to hold a hearing on the potential termination of Cannabis Control Commission Chair Shannon O'Brien, but the scheduling of that meeting is now tied to an open investigation that O'Brien thinks was "going well for her" when the treasurer's team started downplaying its significance.
Goldberg suspended O'Brien with pay in September after having appointed her to chair the CCC a year prior. Goldberg gave O'Brien two justifications for her suspension and possible firing in an Oct. 4 letter: that the chairwoman is alleged to have made racially insensitive remarks and that she mistreated former CCC Executive Director Shawn Collins, a former Goldberg lieutenant.
The racial insensitivity allegations were the subject of a probe completed by an outside investigator brought in by the CCC. O'Brien has been given the results of that report.
The claims that O'Brien mistreated Collins, including by publicly announcing his plan to take parental leave and then resign from the CCC, are the basis of a second, seemingly ongoing, investigation.
O'Brien said the CCC initiated the second investigation in August based on complaints that Collins made about her, including one she says was emailed to a human resources official just hours before her public discussion of his plans.
In the Oct. 4 letter, Goldberg wrote that her decision to suspend the chairwoman "was based in part on the facts that are not in dispute on this issue. Principal among these facts are the statements you made in a public meeting that concerned Mr. Collins's employment and highly personal matters."
That investigation has not yet produced a report, but there is intense interest in it among people involved in the ongoing O'Brien-Goldberg saga. The first question Judge Debra Squires-Lee asked during a Dec. 14 hearing in the case was what the status of the second investigator's report was.
"We have had no update on the status of the second investigative report," Assistant Attorney General John Hitt, who represents Goldberg in the lawsuit that O'Brien brought against her, told the judge.
In a court filing that week, Hitt wrote that "[o]f course, a scenario could unfold in which the second investigator's report is not transmitted to the Treasurer" since it was commissioned by the CCC and not by Goldberg's office.
O'Brien said in an affidavit that the second investigation began in August based on complaints Collins made about her. Collins "sent a lengthy written complaint to Justin Shrader, the CCC’s acting CPO, 'to document his concerns,' accusing me of having pressured him to resign and adding a litany of supposed 'hostile, toxic, and coercive behavior'," O'Brien wrote.
That complaint was lodged on July 28, a day after O'Brien prodded Collins to disclose his plan to resign and just hours before O'Brien publicly discussed Collins' future without his assent. It was also two days after O'Brien had been interviewed by the first investigator, who was looking into her alleged racially insensitive remarks.
O'Brien's lawyer thinks that Goldberg and her people "don't want this [second] report anymore" because it might include information that would help O'Brien's case or undermine Goldberg's attempts to fire her. That's why, O'Brien attorney Max Stern wrote in a Dec. 1 filing, Goldberg's team had proposed to move forward with an early December meeting based solely on the racial insensitivity allegations that were the foundation of the first investigator's report.
"The Treasurer's counsel has declined to ask for Investigator 2's report; and counsel for the CCC has forbidden Chair O'Brien's attorneys to ask Investigator 2 directly when her report will be issued. Chair O'Brien believes that the second investigation was going well for her and would provide exculpatory information to her, and that the only plausible explanation for the convoluted new schedule is to achieve a strategic advantage over Chair O'Brien," Stern wrote.
When she gave Goldberg the green light on Friday to move ahead with a meeting that could result in O'Brien's firing, Squires-Lee made clear that the meeting could only be held after the second investigator's report has been shared among the parties or after Goldberg notifies O'Brien that the claims being reviewed by the second investigator are "no longer at issue" and will not be used as a basis for her termination. O'Brien's attorneys are considering an appeal of Friday's ruling in the new year.
Squires-Lee specifically asked Stern on Dec. 14 about the possibility that Goldberg could determine that the second investigation is no longer relevant and that she has enough justification to move to fire O'Brien based only on the first investigation. She asked, would the treasurer be entitled to go forward with the hearing on potential termination based solely on the results of the first investigation?
"Well, she could, but we would still need to have access to whatever evidence was turned up by that investigator," Stern replied. He then added, "If it turned out that the reason she decided not to go [forward with the second investigation] is that the evidence was completely exculpatory to our client, we should understand that."
Stern said that Goldberg deciding to disregard the second investigation and press ahead with O'Brien's possible firing based only on the first investigation could "show her bias and lack of impartiality." Squires-Lee did not buy Stern's argument and instead suggested it might be a "wise decision" if the treasurer decided that whatever the second investigation turned up did not support the allegations against O'Brien and therefore would not be a basis for her termination.
"We'd love to know if it doesn't support the allegations. It really has to do with how thin these allegations really are, that we think these allegations are spurious. And we think that it very well might be true -- and I think it is true -- that that would be supported by a real, competent investigation," Stern said.
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