When Judge Robert Gordon ruled Tuesday that Shannon O’Brien should be immediately reinstated as chair of the state’s Cannabis Control Commission, or CCC, with back pay, he included a closing footnote arguing that any attempt to overturn his ruling would be unlikely to succeed. “As the case at the bar does not present as a close one,” Gordon wrote, “the Court does not foresee that the Treasurer is reasonably likely to succeed on the merits of an appeal.”
But Massachusetts State Treasurer Deborah Goldberg — who fired O’Brien last year following a yearlong suspension over allegations of gross misconduct that O’Brien has repeatedly and strenuously denied — is trying anyway. On Wednesday, her office filed paperwork seeking to immediately stay the implementation of the judge’s ruling as Goldberg appeals it. Goldberg’s attorneys argue in her filings that failure to do so would cause “serious disruption to the ongoing work of the Cannabis Control Commission.”
The treasurer notes, in her request for a stay, that the judge bluntly wrote he would refuse to issue one if asked; because of this, she’s seeking a stay from the Massachusetts Appeals Court instead. Her filing effectively says that Gordon — who referred to Goldberg’s rationale for dismissing O’Brien as a “house of cards” in his exceedingly pointed ruling — simply got the case wrong. Goldberg reasserts, for example, that she was justified in removing O’Brien for “gross misconduct,” something Gordon explicitly found never actually occurred.
Goldberg’s appeal seemed to come as a disappointment to industry leaders who’d viewed Gordon’s decision as a chance to impose order on a regulatory body in deep disarray.
“It’s total dysfunction,” said Steve Reilly with the cannabis operator INSA, which originated in Massachusetts and now operates in several states.
“One of the most important things is having reliable and consistent regulation — it’s important for attracting capital to the market,” Reilly added. “And Massachusetts already, the way the laws are set up here, it’s not particularly appealing as a place to invest in cannabis. So when you layer the dysfunction at the CCC on top of that, it really just leads to a market that doesn’t operate in the way it’s intended to.”
Reilly cited laws that he says dissuade cannabis investment in Massachusetts, like capping the number of licenses that any entity can hold at three.
David O’Brien, the head of the Massachusetts Cannabis Business Association, is more bullish than Reilly on the current health of the state’s cannabis market. But he says Shannon O’Brien’s suspension, termination and now reinstatement have created a deeply negative public perception that the local cannabis industry is off the rails.
“The news that anyone in sort of regular everyday life hears about in Massachusetts is the commission has made negative news, and people assume that the whole industry’s in crisis,” said O’Brien, who is not related to Shannon O’Brien. “There’s a lot good happening in the industry, but nothing like a negative news story to have people say, ‘Well, that must be the whole industry.’ And it’s just not.
“I just want it to be done, whatever done looks like,” David O’Brien added. “I want it to be done so we can move on. And I thought the court put a ruling out that said, ‘OK, let’s move on.’ But courts allow for appeals and that sort of thing, so we’ll see where it all lands.”
In a statement, Shannon O’Brien’s spokesperson Joe Baerlein called Goldberg’s appeal “unfortunate” and said pursuing an appeal is “a further waste and misuse of taxpayer dollars.”
