Employment – Cannabis Control Commission – Removal

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Where a plaintiff brought an action in the nature of certiorari after she was removed as chair of the Cannabis Control Commission, the plaintiff is entitled to reinstatement because her actions did not constitute “gross misconduct,” nor was she unable to discharge the powers and duties of her office because of a physical or mental incapacity, an actual absence from the job or the functional equivalent of either.

“Plaintiff Shannon O’Brien (‘O’Brien’ or ‘Plaintiff’) brought this action in the nature of certiorari under G.L.c. 249, §4, challenging the decision of Defendant Deborah Goldberg, Treasurer and Receiver General of the Commonwealth of Massachusetts (‘Defendant’ or the ‘Treasurer’), to remove O’Brien as Chair of the Cannabis Control Commission (the ‘CСС’). Before the Court is Plaintiff’s Motion for Judgment on the Pleadings and the Treasurer’s Cross-Motion for Judgment on the Pleadings. After a hearing and review of the nearly 3,000-page Administrative Record, and for the reasons which follow, Plaintiff’s Motion shall be allowed and Defendant’s Motion shall be denied.

“The Legislature established the CCC, reasoning that the public interest would be best served by placing the administration and regulation of the Commonwealth’s legalized cannabis industry in the hands of an independent commission. To preserve this independence, the Legislature enumerated limited grounds upon which the Chair (and other commissioners) of the CCC may be removed from office. … The question before the Court is not whether the Plaintiff was abrasive, boorish, inconsiderate, ill-tempered, imprudent and/or otherwise unreasonable — either in actuality or in the reasonable estimation of the Treasurer. Those are simply not grounds that clear the high bar for removal set by the terms of the statute. Rather, the question presented is whether the Treasurer’s removal decision (the ‘Decision’) — which concluded that O’Brien both committed ‘gross misconduct’ and was ‘unable to discharge the powers and duties’ of the Chair — properly applied those statutory terms and was supported by substantial evidence on the record. On any fair reading of the facts, and any proper application of the law, the Decision fails on both counts.

“First, O’Brien’s actions did not constitute ‘gross misconduct’ under G.L.c. 10, §76(d)(4) or any heretofore recognized construction of the term. Second, and contrary to the Treasurer’s interpretation, removal under G.L.c. 10, §76(d)(3) required a showing that O’Brien was unable to discharge the powers and duties of her office because of a physical or mental incapacity, an actual absence from the job, or the functional equivalent of either. No such evidence was presented to the Treasurer or this Court. Accordingly, Plaintiff is entitled to reinstatement for the remainder of her statutory appointment, and to an award of back pay and benefits running from the date of her unlawful termination.”

O’Brien v. Goldberg (Lawyers Weekly No. 12-036-25) (50 pages) (Gordon, J.) (Suffolk Superior Court) (Docket No. 2484CV03009-С) (Sept. 2, 2025).

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