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Citing potential health concerns, attorneys defending Michael F. Byrne, Arlington's former inspectional services director who stands accused of violating Massachusetts conflict-of-interest laws, requested May 16 during a state Ethics Commission hearing that further court proceedings be put on hold.

Byrne’s attorney, Daniel K. Gelb, of Gelb & Gelb LLP in Beverly, asked for a stay of proceedings pending results of a neurological evaluation of Byrne, which Gelb said he believes may indicate that Byrne is unfit to contribute to his own defense. Byrne was not at the hearing because of a medical appointment, Gelb said.

Toward the end of the hearing, the commissioner said he would decide what to do after reviewing additional documentation and relevant law.

As reported by YourArlington in January, the commission’s enforcement division has alleged that Byrne, who retired from town employment in 2021, created fraudulent permits for plumbing work his company performed without permits, inspected his own company’s work, issued certificates of occupancy for properties at which his company had performed work and issued a certificate of occupancy for a property owned by a developer who had lent him money.

Medical evaluation expected in June

The defense expects that the results of the evaluation, scheduled to take place at two appointments, June 7 and 14, will likely not be available until late June or early July. Therefore, the stay, if granted, would delay Byrne’s next court date, which had been set to occur from June 5 to June 8, by several weeks.

“This is not something that is being staged for the purposes of this proceeding,” Gelb said at the May 16 hearing. “[Byrne] has had brain surgery. This is not something that’s just coming out of the ether because he has a state Ethics Commission proceeding against him.”

According to medical documents that the defense submitted to the commission, Byrne suffers from hydrocephalus, a serious condition caused by the buildup of fluid in the brain. Gelb said May 16 that Byrne had undergone surgery at an unspecified date to attempt to treat the condition -- a procedure that Gelb said resulted in “complications,” on which he did not elaborate.

Damage to brain tissue as a result of hydrocephalus can cause memory loss or loss of reasoning skills. Given the potential for those symptoms, the defense argued that the results of Byrne’s planned evaluation in the first two weeks of June must be considered before he stands trial, to prevent the possibility of having to delay the trial further or to amend Byrne’s testimony after the fact.

Proceed without evaluation, commission attorney urges

Attorney Candies Pruitt, representing the commission in the case naming Byrne, argued that the commission should proceed without the results of the evaluation. She said that the defense has failed to provide sufficient evidence of Byrne’s inability to participate in court proceedings despite having had plenty of time to do so — at least since his initial prehearing, March 2.

“[Byrne] produced a doctor’s letter, and later he produced notes,” Pruitt said. “Those notes are based on his own self-serving statements, not based on disinterested, unbiased evidence.”

Pruitt pointed to a set of medical documents provided by Byrne’s attorneys April 6, which includes letters and notes describing the details of Byrne’s condition and his upcoming evaluation. However, the version of this 12-page document that the commission has access to starts only on page eight.

Pruitt suggested that the commission order the defense to hand over the first seven pages of the document, which she said contains correspondence between the defense and Byrne’s doctor as well as two different versions of the doctor’s letter.

The public version of pages eight through 12 of the document provided to YourArlington by Public Information Officer Gerry Tuoti is heavily redacted, as the filings are still under seal.

If the defense motion is granted and the case is paused, Pruitt said she wants additional tests run to ensure that Byrne is not "malingering" — pretending to be more impaired than he is in an attempt to escape summary judgment. She also requested that an additional competency hearing be scheduled to determine whether Byrne is fit to stand trial after receiving the test results and that this should include testimony from anyone involved in reporting those test results.

Defense agrees to provide pages

State Ethics Commissioner Eron L.A. Hackshaw, who presided over the hearing, ordered Gelb to provide the first seven pages of the medical documents detailing Byrne’s condition, which Gelb agreed to do by this coming Thursday, May 18. Gelb also agreed to pass along Pruitt’s request for any additional tests for "malingering" to the neurologist who will be conducting Byrne’s evaluation.

“We’re trying to be as transparent as we can possibly be. Whatever the commission would like to review, we’re happy to provide that,” Gelb said. “We have nothing to hide here.”

Hackshaw said at the May 16 hearing that he would make his decision on whether to halt proceedings after reviewing the additional documents and case precedent.

YourArlington's request to Pruitt for comment was forwarded to Tuoti, who stated that he was “unable to comment or speculate about an ongoing adjudicatory proceeding.” Gelb & Gelb LLP did not respond to YourArlington's request for comment. 

March 8, 2023: Hearing for accused former inspections chief set for June 


This news summary by YourArlington freelance writer Jake Bentzinger was published Wednesday, May 17, 2023.