Commissioner abstains on most pot license votes
Says ‘symbolic gesture’ reflects her belief that host agreements are illegal
THE MOST IMPORTANT ROLE for the state’s five-member Cannabis Control Commission is, arguably, its mandate to vote on granting recreational marijuana licenses, without which there can be no growing, manufacturing, or, most importantly, sales.
But Commissioner Shaleen Title has not cast a vote on the vast majority of final licenses issued by the board, the last procedural step before a recreational facility can begin operations. Title, who has been vocal in her criticism of host community agreements she claims violate the adult use law which she helped draw up, has abstained or recused herself from nearly 80 percent of the 77 roll calls the commission has taken on issuing final licenses.
Title, a lawyer and the only member with experience in the private marijuana industry, has recused herself on eight votes relating to two companies in which she had some dealings during her private practice. But she has opted to “abstain” on a whopping 52 of the other 69 final license votes because she believes their host community agreements violate the law.
All four of the other commissioners have recorded votes on every final license roll call. Title has been recorded on only 17 licenses, voting yes on all of those because she believes those agreements are in compliance.
Title, who has been present for every vote, says her abstentions are a matter of principle – a “symbolic gesture” based on her reading of those host community agreements she says exceed the 3 percent impact fee allowed by law. But, she says, her position reflects her “respect” for her colleagues’ vote that they are not authorized to review the pacts as part of the process, a decision she and others disagree with. Given the commission’s position, she said, she could not vote against a license if the majority agreed they could not review the agreements.
“I didn’t want to vote no and not respect the decision the commission made to not review them,” Title said in an interview. “And I can’t, on principle, vote yes.”
The issue first surfaced last year when advocates began complaining that some cities and towns were demanding payments in excess of the 3 percent the law allows to offset costs such as public safety, traffic, and other community impacts. The law also allows communities to add up to a 3 percent excise tax on the sale of marijuana.
Title is the only person of color on the commission and she has consistently advocated for equity in licensing, which is required by the statute.
The requirement for licensing includes certification that a host community agreement has been executed. But last August, the commission, relying on advice of its counsel, voted against including a review of the host agreements as a requirement for a license despite clear evidence that some agreements were outside the mandate. The four who voted against review the host agreements said they lack the authority to do so under the state’s cannabis law, a stance Title and the legislators who drew up the statute say is off-base.
“There is some tension there because not everyone agrees,” Title said when asked if her colleagues support her stance. “Given that tension, I feel that abstention is the right course of action.”
State Sen. Pat Jehlen of Somerville and Rep. Mark Cusack of Braintree, the former co-chairs of the Joint Committee on Cannabis Policy who drafted the bill passed by the Legislature that rewrote the voter-approved referendum, have said the law was clear in giving the commission the power to ensure host agreements are in compliance. Jehlen, in fact, said the commission’s position – that it can require the agreements as part of a license application but can’t review them – “defies logic.”
Title has voted to approve the provisional licenses, the penultimate step in the voting process, for nearly every applicant except those she has recused herself from reviewing. But she has balked on the final licenses even though the provisional license included the host community agreement.
Some of Title’s abstentions appear to run counter to her stance or at least send a mixed message. For instance, last month she voted to approve renewals for two of the first companies to get licenses – Cultivate of Leicester and New England Treatment Access in Northampton. But last October, she opted to abstain when the final licenses for those companies were first issued; the host community agreements for both stores had not changed in the meantime.
She also voted in favor of a final license for The Green Lady, the first retail marijuana store set to open on Nantucket. But the agreement requires a fee of 3 percent of gross revenues plus an annual $25,000 community benefit payment “for purposes of funding substance abuse and mental health services in the Town, including, but not limited to school substance abuse and counselling services.” The company is also required to make an annual $10,000 contribution to the island’s Scholarship Committee. While laudable, none of the additional payments are allowed by law.
Title has added to the confusion with her votes on two separate cultivation facilities in the western Massachusetts town of Sheffield. In May, she abstained on a final license vote for Attleboro-based BCWC LLC to site an 85,000-square-foot cultivation facility even though the community agreement only allows for a 3 percent community impact fee and requires any additional costs to be deducted from that.
Conversely, Title voted to approve a final license in July for Theory Wellness of Stoneham to have a 90,000-square-foot cultivation site in Sheffield. That agreement calls for a 1.5 percent community impact fee, or $15,000, whichever is greater, which hypothetically could exceed 3 percent if wholesale revenues do not hit $500,000.
Rene C. Wood, chair of the Sheffield Board of Selectmen, says some communities abuse the law around agreements. But she said the terms of the Sheffield pacts were made by the individual companies and were within the scope of what the statute mandates.
“I think some of these host agreements [with other towns] are onerous,” she said. “We are doing what we can to be welcoming. We’re not the problem.”
Wood said Title’s abstention didn’t affect the licenses, which were approved by the other four commissioners, but she questioned why Title doesn’t vote no if that’s how she feels.
“I’ve been in politics long enough to understand that sometimes you have to take a stand,” said Wood. “I understand the commissioner needs to do what she needs to do but I’m not sure it is the correct position… She may have wanted to make a point but an abstention to me is not a vote. It’s not an ordinary way to vote.”
Title said she has been consistent in her votes, her abstentions, and her rationale.
“I think I’ve been consistent. Voting on licenses is an integral part of my responsibilities, that’s why I take it so seriously. These agreements have been a major barrier to entry,” she said. “I don’t think the law has been enforced.”
Title is one of two joint appointees to the commission made by Gov. Charlie Baker, Attorney General Maura Healey, and state Treasurer Deb Goldberg. Title and the other joint appointee have a little more than a year left on their three-year-terms. The other two commissioners have four-year terms while the chairman is appointed to a five-year term. Goldberg’s office did not respond to a request for comment. A spokeswoman for Healey praised Title’s advocacy but did not weigh in on her abstentions. (Correction: An earlier version of this story incorrectly suggested all the commissioner have the same length of terms.)
Brendan Moss, a spokesman for Baker, said in a statement that the commission was set up to implement the law. “The administration believes commissioners should participate in discussions and votes, unless there is a potential conflict of interest,” he said.
Title said she had no end-date in sight when she first started abstaining. But she vows to continue until the law is clarified, either by the Legislature or the commission. That will likely not happen until at least next year, with lawmakers gone for the summer and typically little action taken in the fall and during the holidays.“I was expecting to still be abstaining until there was some action taken,” said Title. “In my own review [of agreements], I think in general they’ve gotten better. But until there are changes, I’ll continue to abstain.”
Jack Sullivan is a former reporter for CommonWealth, having retired the end of last year. He covered the marijuana referendum, the formation of the Cannabis Control Commission, and the launch of the industry for the magazine until the opening of the first retail stores in November. He can be reached at firstname.lastname@example.org.