By Colin A. Young | State House News Service
Lawyers for suspended Cannabis Control Commission Chairwoman Shannon O’Brien and an assistant attorney general representing Treasurer Deborah Goldberg tangled in Suffolk Superior Court on Thursday over what kind of a hearing O’Brien is entitled to before Goldberg decides whether to fire her.
Relying in part on what was required at the turn of the millennium when the governor attempted to remove two people from the Turnpike Authority, Goldberg’s side has proposed — and this week updated — a “protocol” for an eventual Goldberg-O’Brien sit-down. But O’Brien and her lawyers argued Thursday that Goldberg should not be allowed to determine the facts of the case, and that any meeting that could determine O’Brien’s fate should be open to the public.
“I believe that if I have a fair hearing and we have an unbiased finder of fact, that I will be successful. And that’s what we requested today, fair hearing to keep the public apprised of what has been going on, and to make sure that we have an independent finder of fact,” O’Brien told reporters outside the courtroom after Thursday’s hearing. “I think that we made our case that the treasurer is not an independent finder of fact. She may be a witness, her general counsel might be a witness. And so ultimately, you can’t allow the person who may be a witness to some of these allegations also be the judge and the jury.”
Judge Debra Squires-Lee, who heard Thursday’s arguments but put no timeline on her decision in the matter, previously enjoined Goldberg from holding the meeting that could lead to O’Brien’s firing until Thursday’s hearing “and until further order of the Court.”
Goldberg suspended O’Brien with pay in September and O’Brien sued claiming unlawful removal, requesting a preliminary injunction that seeks to have the court outline procedures for an eventual O’Brien-Goldberg meeting.
O’Brien’s lawyer Max Stern argued Thursday that Goldberg should not be the finder of fact because at least some of the reasons the treasurer has given for suspending O’Brien involve former CCC Executive Director Shawn Collins, who worked for Goldberg before being hired as the CCC’s inaugural director. In July, O’Brien stunned other members of the CCC when she announced during a public meeting that Collins would be taking parental leave and then leaving the CCC by the end of the year, a scenario that has come to fruition.
In her Oct. 4 notice to O’Brien detailing the rationale for her suspension, 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.”
Stern said that Goldberg has an “extremely close relationship with this person” and claimed that Goldberg “has in fact been immersed and intervening in personnel issues, and in particular in this case, with one particular employee of the Cannabis Control Commission and that was the person who is now the former executive director of the commission, Mr. Collins.” He said that close personal relationship should disqualify Goldberg from being the finder of fact in O’Brien’s situation and in at least one instance referred to Goldberg as “the accuser.”
“I don’t see how anybody this close, where this person is the so-called victim of an offense which she prosecuted, how can she sit on that case? I don’t understand how that can be,” Stern said during the court hearing.
Assistant Attorney General John Hitt, who is representing Goldberg in the case, argued that the revised meeting protocol — a document that spells out how the proceedings would go and provides deadlines for evidence or briefs to be shared — put forward this week provides “an even more generous process built in that goes above and beyond what was involved in either Levy decisions and has been revised to address concerns this court raised” when the case was before Squires-Lee earlier this month.
Hitt said the arguments Thursday from O’Brien’s side were “a little bit like Lucy moving the football around” because the only specific issues raised in her original complaint were that she wanted written notice of the allegations against her and that she wanted an opportunity to be heard. The written notice has been provided and the sides are now arguing over how that opportunity to be heard should actually take place.
“So we believe that all the tick-off points of due process have been met here,” Hitt said, adding that the issues being raised by O’Brien’s side would be best addressed on appeal “if there’s an adverse decision to the plaintiff, if they decided to take an appeal from that.”
Hitt also argued that Goldberg is not “the accuser” in the case and that her sending O’Brien the Oct. 4 notice of the allegations she was weighing was merely what is required by the statute that governs appointments to and removals from the CCC.
Even before Thursday’s hearing was called, Goldberg’s side moved to have Squires-Lee dissolve the temporary restraining order she issued earlier this month because the judge’s order “mistakenly presumes — no doubt based on the limited record before it at the time of the [temporary restraining order] hearing — that the Treasurer ‘solicited the investigations and hired the investigators'” who have looked into complaints involving O’Brien. The investigators were hired by the CCC, not Goldberg.
“The factual errors are harmful because the Court then relies on the mistaken presumption to make several erroneous legal decisions about the process to which Plaintiff is due,” Hitt wrote in the Tuesday filing.
Hanging over the O’Brien-Goldberg situation is the tale of Acting Gov. Jane Swift’s attempt to fire Jordan Levy and Christy Mihos from the Massachusetts Turnpike Authority board, which played out in late 2001 and early 2002.
And that’s why Goldberg’s office designed the ground rules for the tête-à-tête that was supposed to happen between the women earlier this month the way it did, Hitt wrote in a court filing. The original procedures Goldberg’s office planned to follow, Hitt wrote, “are fully consistent with, and indeed offer even more process than, those approved” by Supreme Judicial Court Justice John Greaney in the Levy v. Acting Governor case.
“The Treasurer has even gone so far as to retain the same presiding officer, Thomas Maffei, who served in Levy and whom Justice Greaney understandably lauded as ‘a lawyer of first rate ability and integrity,'” Hitt wrote.
Maffei, a former president of the Massachusetts Bar Association who is now senior counsel at Sherin and Lodgen, presided over two days of closed-door hearings in January 2002 as Swift sought to remove Levy and Mihos — the “Turnpike Twins” — from the three-member board for having voted to delay toll increases by six months, a move she called “fiscally irresponsible.” The toll hike was to pay for Big Dig bonds, though Levy and Mihos said they had a plan to raise revenue without raising tolls.
Swift fired both Levy and Mihos after the hearings. And while the SJC had ruled in late 2001 that the governor had the power to fire them, the high court ruled 4-3 in May 2002 that Swift did not have “cause” for the firings and both men were reinstated to the board.
But Stern said the Levy cases cannot be applied to the situation involving his client, O’Brien, because the CCC is structured in law as an independent agency whereas the Turnpike Authority board was not.
“The decision is a very straightforward question. Did [O’Brien] commit gross misconduct at all or not? That’s, you know, that’s what’s supposed to be decided,” Stern told reporters. “In a case where you’re not dealing with an independent entity, as the SJC said in the Levy case, the constitutional officer has a great deal of discretion and it is able to say, ‘I don’t like you because you I think you’re doing a lousy job.’ That’s it. You can’t do that here. And if you have to make just a factual decision, it has to be somebody who’s impartial.”