WHITMAN — An Open Meeting concern has prompted Whitman Selectmen on Tuesday, Aug. 15 to continue a public hearing considering allegations about the alcoholic beverage license issued to O’Toole’s Pub.
The hearing will resume on Tuesday, Sept. 19 — to be the sole item on that agenda — as town officials inform two people involved in a fight at the 24 Raynor Ave. pub on Jan. 6, 2017 that discussions of the event could make them identifiable, even if their names are not mentioned.
A criminal investigation of the incident is still pending.
Pub owner Tom O’Toole has not yet had the opportunity to address the incident, but his lawyer David Flanagan said “we’re here, we’d like the hearing tonight.”
Flanagan had asked that witnesses not use names of those involved in the incident.
“They were redacted from the exhibits,” he said. “I don’t know any of the names — I haven’t received one name on a police report.”
Selectmen Chairman Dr. Carl Kowalski asked if there was any way viewers of the cable broadcast of the meeting would be able to identify those involved from witness testimony.
“If it becomes clear to anyone watching this [meeting] video that he or she is being spoken about, whether names are mentioned or not, then that person had the right to have notice and to be here,” Kowalski said. “It’s not enough to not say the names.”
Town Attorney Matthew Tobin said the Open Meeting Law requires a board to provide notice. Any testimony those persons may give, if they opt to attend a hearing could be done in executive session, Kowalski said.
“That’s the issue, the right to be in executive session,” said Town Administrator Frank Lynam.
Tobin said that right could be waived, but it is the right of those people whose identity or reputation is at stake to make, not the board’s.
“The fact that a meeting is publicly posted does not eliminate a necessity to provide notice to someone who may be discussed.” he said.
Flanagan said he understands the privacy issue, but said he and his client had no standing on the issue.
“This is between you two,” he said of discussions between Kowalski and Tobin on how the involved parties would be notified.
Tobin had outlined the timeline of the investigation and hearing postponements made to ensure a more definite statement of the allegations against him was provided to O’Toole so he could prepare his defense.
Lynam explained the hearing had been postponed more than once “due to a number of issues.”
An individual involved in the fight was injured.
“The board is now hearing from the licensee as to what occurred and why the event should or should not have been found in violation of his all-alcohol license,” Lynam said.
Tobin said the original hearing notice letter was dated March 31 and the board voted on March 28 to notify O’Toole of the alleged violations of his liquor license.
“It has been rescheduled a number of times, most recently by a notice dated July 31,” Tobin said. “A supplemental notice was issued Mr. O’Toole at the request of his counsel … in response to a request for additional information.”
That request provided O’Toole and his attorney with a list of exhibits as well as copies of them, audiotapes and a copy of a videotape that was provided by the pub to Whitman Police. They have also been provided a list of potential witnesses to the incident prepared to testify at the hearing.
Flanagan had advised Tobin that he would stipulate to Whitman Fire-Rescue documents and that Fire Chief Timothy Grenno was not required to testify at the hearing. Selectmen excused Grenno from the hearing.
During an executive session at the Aug. 15 meeting, Selectmen viewed a video of the fight, asking police officials including Chief Scott Benton and Deputy Chief Timothy Hanlon and a detective into that session, presumably to answer questions.
“We have concerns that, displaying that video in open session would likely offend the privacy interests of those parties affected by that video,” Flanagan said in requesting it be viewed in executive session and the board agreed.
Kowalski’s concern about supporting witness testimony was raised when, back in open session, Flanagan asked that witnesses attending to offer testimony not mention the names of those in the fight.
Tobin agreed that Kowalski’s concern over adequate notification was valid and that the records produced to Flanagan had been redacted.
“That’s what was a red flag to me, because I’m not sure,” Kowalski said. “It is possible that people can figure it out if they know of the events.”
Tobin also said the persons involved in the fight, and subject to testimony even if unnamed, are entitled to receive advance notice of their right to attend such a meeting.
“I can’t anticipate what their response would be,” Tobin said, adding that the issue had not been directly encountered in the case to this point.
“I’m simply asking the witnesses not to use any names,” Flanagan said. He said it would protect those involved in the fight, the police department and the district attorney’s office.
O’Toole’s had been disciplined once within the last four years for license violations and has been advised of the town’s liquor license regulations, according to Tobin.
“Prior discipline within that four-year window is something that may be considered by this board, consistent with the rules and regs, consistent with the board’s authority … in determining what, if any, discipline is appropriate based upon the incident that occurred on Jan. 6.”
Flanagan provided Selectmen with an information packet, including the 2015 disciplinary decision in which he highlighted areas that will be part of his argument in the present matter.