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The word “secret” triggers hold on medical cannabis: Who’s to blame?

A judge issued a temporary restraining order against the commission for potentially violating the Open Meetings Act.


Secrecy, needless complexity, and a willful desire to control what commissioners see and hear seem to be a few of the stumbling blocks on which the Alabama Medical Cannabis Commission has faltered.

Facing an onslaught of litigation and continued mistrust of the commission’s actions, multiple people believe it’s time for Director John McMillan to clean house, beginning with his legal team.

In the latest round of court appearances before Montgomery County Circuit Judge James Anderson, the commission’s outside counsel, William Webster, in an explosive outburst threatened to expose “dirty laundry” when challenged about the possibility that the commission violated the state’s Open Meetings Act when it awarded cannabis licenses earlier the month.

During the same hearing, Webster’s use of the word “secret” to describe the closed-door nomination process led Judge Anderson to issue a temporary restraining order against the commission for potentially violating the Open Meetings Act.

This is not the first time the commission’s lawyers Webster and staff attorney Jason Aday have been criticized for advising commissioners to conduct business outside of public scrutiny or be assailed with accusations of withholding information from the commissioners.

At a July 14 commission meeting, Commissioner Loree Skelton, a health care lawyer, issued some critical words and warnings about the commission’s process as being dictated by staff saying the process lacked transparency and that vital information was being withheld from the commissioners.

“When we are not given the opportunity to do our job,” Skelton said. “[T]o receive the information that we need and we are told, no, you may not have that information, because we have to protect the integrity of the process — it is my understanding that us sitting here casting our vote — that is our job to protect the integrity of the process, to get this product to the people of this state that need it as quickly as possible, that have needed it desperately for years.”

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Skelton also predicted in July that “[W]hat is currently a process today is a mechanism that has been set up to cause us to continue in litigation for years to come.” 

Skelton’s statement about litigation was not just crystal-gazing but a forth-telling that has become a reality. The current number of litigants waging legal battles with the commission is growing daily and has been described in court as “quite onerous.”

Webster and Aday appear to shoulder most of the blame for the AMCC’s failings — at least according to court documents and those who have observed the process closely. From the curious decisions to allow only certain, favored applicants a so-called “workaround” to file size limitations to withholding information from committee members and allegedly advising the commission to violate the Open Meetings Act it is the commission’s lawyers who appear to sit at the center of the commission’s whirlwind of troubles.

There have also been questions about temperament, especially after a particularly heated exchange between Webster and Judge Anderson.

THE COURT: Well, I think it’s –we’ve got a factual dispute. They say you violated the Open Meetings Act. You say you didn’t. So I think everybody has a right to make these complaints about that, you know. And I — that’s just kind of where we are. And that’s what we’re here for. And the courts are open, and we’ll take up these controversies.

MR. WEBSTER: Well, I’ll tell you what we’re planning to do, Judge, if this has to go back one more time. We are done protecting anyone’s reputation or character.

THE COURT: You certainly —

MR. WEBSTER: We don’t have to go into executive session, and we won’t. We will put forth everyone’s dirty laundry, and everyone will hear about it.

THE COURT: Well, you don’t have to go into executive session. That’s something that y’all can choose to do or not do. And I don’t know if it needs to be done in a vindictive way, but that’s —

MR. WEBSTER: That’s just what’s going to happen.

Court observers called the exchange, at best, a tantrum and, at worst, a threat to potential litigants, which would be tested in court.

Plaintiffs at the most recent hearing before Judge Anderson faulted Webster for giving bad advice on the commission’s use of the Open Meetings Act.

The plaintiffs questioned the legality of the commissioners voting in executive session to nominate applicants for medical cannabis licenses outside of a public hearing. Webster claimed that the secret ballots were not a vote. However, in a back and forth with Judge Anderson, it seems Webster was at a loss to defend the actions taken by the commission in the executive session.

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THE COURT: So the filling out of those forms happened in the open meeting?

MR. WEBSTER: No, sir, Your Honor. Just as if they would have taken out a piece of paper and done it themselves on their own, everybody — there’s six categories —

THE COURT: The filling out of the forms happened in the open part of the meeting or in —

MR. WEBSTER: No, sir.

THE COURT: Why wasn’t this done in the open part of the meeting?

MR. WEBSTER: Because it was impractical to do so.

Webster’s response to Judge Anderson’s inquiry was enough to trigger an immediate temporary restraining order over a potential violation of state law.

Privately, people are concerned that Webster and Aday are at the heart of the licensing process’s failings and that their advice to McMillan and the commission has been suspect.

However, insiders say McMillan is hesitant to make changes. Still, some fear a growing chorus for changes could turn its sights on McMillan — a man who is almost universally admired at the State Capitol.

Commissioner Skelton, in July, perhaps best summarized the commission’s duty by saying, “We owe responsibility and transparency to the people of this state.” She also recognized that every delay prevents individuals who are suffering from receiving treatment with medical cannabis, as the legislature and Gov. Kay Ivey intended when they passed the Medical Cannabis Act years ago.

Bill Britt is editor-in-chief at the Alabama Political Reporter and host of The Voice of Alabama Politics. You can email him at [email protected] or follow him on Twitter.

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