UPDATED Sept. 19: A settlement may be forthcoming as soon as this week in the case of Michael F. Byrne, a former inspectional services director for the Town of Arlington who retired in 2021 -- and who early this year was accused of conflict of interest due to some alleged actions while still a public employee.
A multiday hearing originally had been expected to take place earlier this month at the state Ethics Commission but likely will not, as the situation has changed, a commission spokesperson said.
"The previously scheduled hearing was not held today [Monday, Sept. 11] because the parties are jointly requesting that the adjudicatory proceeding be dismissed and that the commission instead approve a disposition agreement, or settlement," Gerry Tuoti, senior public information officer for the state Ethics Commission, said Sept. 11 via email in response to a YourArlington inquiry. "The next meeting of the commission is scheduled for 9:30 a.m. next Thursday, Sept. 21."
The agenda, posted in amended form Monday afternoon including information on how anyone may view the open portions of the meeting, is here>> However, the Byrne matter is expected to be handled behind closed doors later in the meeting, with any decisions announced later.
Tuoti noted Sept. 11 that "Any deliberations by the commission would be held in executive [closed] session. Whenever an adjudicatory proceeding is concluded or a settlement is approved, [news releases related to such cases typically] are published on the commission's website." Tuoti added that any such statements usually are posted to the "recent news and announcements" portion of the website.
Recent history of the case
As early as late May, it was suggested that the two sides consider by early June the possibility of attempting to reach a settlement.
The commission case alleging that the former managerial-level Town of Arlington official was involved in conflicts of interest was recently expected to be argued in September, and, prior to that, in August, and prior to that, in June.
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.
In May, Eron L.A. Hackshaw, presiding officer in the case involving Byrne, denied a defense motion seeking an indefinite stay. "However, under the circumstances," the May 23 order says, "a reasonable continuance of the proceedings is warranted to accommodate respondent’s scheduled neuropsychological evaluation."
Order issued
At the May 16 hearing, Byrne’s attorney, Daniel K. Gelb, of Gelb & Gelb LLP in Beverly, asked for a stay pending results of a neurological evaluation of Byrne, which Gelb said he believed could indicate that Byrne is unfit to contribute to his own defense.
Two days later, commission attorney Candies Pruitt filed supplemental documentation, as agreed at the hearing.
After review, Hackshaw denied the defense motion and issued this order May 23:
1. All outstanding discovery responses are to be filed on or before July 12.
2. The adjudicatory hearing previously scheduled for June 5-8 shall be held Aug. 21-25.
3. The parties are to consult with each other to submit a proposed protective order to Hackshaw as it relates to the respondent’s May 18 supplemental filing.
4. The parties are to consult with each other as to whether they wish to participate in the commission’s mediation program and report their intentions at their earliest opportunity.
5. On or before June 6, the parties are to submit to Hackshaw a status report regarding the possibility of a settlement. The deadlines in this order can be rescheduled only after a written motion for good cause.
“This [request for an indefinite stay] 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 condition caused by the buildup of fluid in the brain. Gelb said May 16 that Byrne had undergone surgery at an unspecified earlier 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 would have to 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.
May 31, 2023: Case of ex-inspections chief delayed until August
May 17, 2023:Defense requests delay in case of ex-inspections chief, citing brain ailment
Jan. 12, 2023: Ex-inspectional chief violated conflict law, ethics commission alleges
This account was published Monday, Sept. 11, 2023, based on information from Gerry Tuoti, senior public information officer of the state Ethics Commission, and updated Sept. 19, with links to information about the agenda for the Sept. 21, meeting, much of which may be viewed online.
