Redacted court filing adds some insight into state treasurer’s decision to fire former CCC chair
Photo | WBJ File
State Treasurer Deborah Goldberg.
A redacted copy of Treasurer Deborah Goldberg's decision to fire Shannon O'Brien as chair of the Cannabis Control Commission was filed in court this week, but the treasurer is asking a skeptical judge to keep troves of other information related to the long-running saga out of public view.
Goldberg fired O'Brien in September 2024 after considering about 19 hours of meetings held last summer as well as two outside investigations, various documents, case law and policies. The treasurer had not released any document outlining her decision, but said she fired O'Brien because she "committed gross misconduct and demonstrated she is unable to discharge the powers and duties of a CCC commissioner." O'Brien is contesting her firing and has appealed it through Suffolk Superior Court.
The treasurer laid out four instances of "conduct in which you engaged that may warrant your removal" in a letter to O'Brien last spring. That included claims that O'Brien "made rude and disrespectful comments, remarks, statements, and presumptions to Commission staff and colleagues that were or were perceived to be race-based or, at minimum, to be racially, ethnically, and culturally insensitive;" made comments about the parental leave of former CCC Executive Director Shawn Collins, a one-time Goldberg deputy, "that deprived him of assurances that he could exercise his rights to take additional job-protected parental leave, and those statements, combined with other conduct ... created a hostile work environment;" and "communicated with and about the Commission’s Executive Director in a threatening, abusive, and humiliating manner that, in combination with the totality of behavior described ... constituted bullying."
The redacted version of her removal decision shows that Goldberg found nearly all of the claims to be creditable and concerning.
"I am removing Chair O'Brien as a commissioner because the sum and totality of her conduct described below amounts to gross misconduct, and because many of the instances described below individually constitute gross misconduct," Goldberg wrote early in the decision. "Chair O'Brien also has demonstrated through her actions that she is unable to discharge the powers and duties of a commissioner."
It also details a pattern of O'Brien making indelicate comments, including some that some people present viewed as being based in ethnicity or demographic background. Goldberg's decision says those comments were made to members of the CCC, to one of the investigators interviewing O'Brien about a separate allegation of racial insensitivity, and during one of the hearings on her dismissal last year.
O'Brien is herself a former state treasurer and was the Democratic Party nominee for governor in 2002.
On Wednesday, the treasury filed a five-volume administrative record of the case with the court. The first volume consists of the redacted version of the 83-page explanation Goldberg wrote of her decision to fire O'Brien, a public document that the attorney general's office provided at the News Service's request Thursday morning. The treasurer asked the judge to impound the four remaining volumes, which are thought to contain transcripts of testimony given in closed-door hearings, investigative reports, emails detailing employee complaints at the CCC, written testimony submitted in connection with the hearings, and more.
A spokesman for O'Brien said Goldberg's attempt to keep thousands of pages of information related to O'Brien's firing private "is making a mockery of the public's right to know."
"When the Treasurer insisted on a secret hearing, Shannon O'Brien objected because she predicted that Treasurer Goldberg would make totally biased findings and conceal the evidence that proved the opposite. This is exactly what Treasurer Goldberg has done. She has released her partisan and unproven findings and concealed the evidence," Joe Baerlein said on O'Brien's behalf. He added, "While transparency is spoken of as a needed remedy for state government, the Treasurer continues to hide the facts, creating mischief and hoping no one will notice her behavior. The public should take notice of the State Treasurer’s proclivity to operate in the shadows of darkness."
Goldberg's office referred questions about the filing to Attorney General Andrea Campbell's office, which is representing Goldberg in the suit. Campbell's office said volumes two through five of the administrative record are subject to a provisional motion to impound and as such are not available to the public.
Assistant Attorney General John Hitt, who has argued on Goldberg's behalf in court, wrote in a filing late last year that Goldberg "acknowledges that this case ... is of great interest to the public, and the public has a right to know as many of the facts and circumstances regarding the Treasurer's decision as possible."
"The Treasurer supports public disclosure of as much as the underlying record of proceedings before her as is possible," Hitt wrote.
Judge Robert Gordon last month struck from the record the entirety of a 1,733-page appendix O'Brien filed alongside her appeal in an attempt to put information about her firing into the public realm. But the judge made clear in his ruling that he was skeptical the administrative record Goldberg was to file would contain large amounts of personal information that is protected under the "narrow definition" being used.
"Here, to the extent the Treasurer seeks to impound any portion of the administrative record, she must do so by accompanying motion in accordance with Standing Order 1-96. In such motion, the Treasurer must identify the specific information she seeks to withhold, and, as to each piece of information so referenced, she must cite the specific statutory or common law basis of the claim that the material is protected from public disclosure," the judge declared.
But the motion Goldberg filed to impound most of the administrative record instead seeks more of a blanket impoundment without specifying any specific information to be withheld.
"Significant portions of the administrative record here reference such protected information concerning Plaintiff and third parties. The confidential information cannot feasibly be segregated or redacted from the voluminous record without extraordinary effort. Doing so would render the administrative record confusing and unusable," the filing from Goldberg says. It adds, "Additionally, the effort and time that would be required to provide the notice to third-party data subjects identified in the administrative record and the opportunity for those third-party data subjects to potentially seek judicial relief ... would likely slow down prompt judicial review of the final decision at issue here."
An affidavit filed by Hitt this week said the administrative record is more than 2,940 pages long, plus audio and visual files.
"Attempting to do pinpoint redactions of the protected information is hampered by the fact that many of the references are not easily captured by PDF redaction software and would require hand review and re-review to ensure that all protected personal data had been removed from the record," Hitt wrote.
Baerlein said O'Brien "looks forward to her day in court and the opportunity to finally and publicly clear her good name." No future hearing had been scheduled as of Thursday afternoon.
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