A Brockton Plymouth County Superior Court judge has dismissed one of the seven counts against former Carver Health Agent Robert Tinkham, Jr. and one of those same seven counts against Diane Bondi-Pickles in the civil case against the two defendants plus current Marion Town Clerk Ray Pickles alleging the theft of $838,458.22.
Justice Robert Cosgrove has issued a decision on the two defendants’ motions for dismissal in the Carver, Marion, Wareham Regional Refuse Disposal District (CMWRRDD) versus Ray Pickles et al. lawsuit, saying in his February 7, 2019 memorandum of decision that he has partially allowed and partially denied the requests for dismissal submitted by Tinkham and Bondi-Pickles, two alleged accomplices who, along with Pickles, the former executive director of the regional trash district, are accused of defrauding the CMWRRDD of public funds between 2012-2018.
Bondi-Pickles is the wife of the former executive director whom the CMWRRDD’s board fired on January 20, 2018.
Tinkham and Bondi-Pickles both argued that the complaint should be dismissed because the CMWRRDD failed to join a necessary party – SEMASS. SEMASS, who oversees the CMW’s Rochester transfer station and also reimburses the district 100 percent for transfer station costs and 75 percent of full-time employee salaries, should have been named as a defendant as a necessary party to the alleged fraud and other claims, Tinkham and Bondi-Pickles argued, if the payments made to the defendants were improper. Justice Cosgrove, however, disagreed.
“Tinkham and Bondi-Pickles had no contact with SEMASS and did not make any false representations to SEMASS in order to procure those payments,” Cosgrove wrote. “Rather, after relying on [the defendants’] representations, [the CMWRRDD] made representations of its operating costs to SEMASS, for which SEMASS reimbursed [the CMWRRDD].” He continued, “…SEMASS would not have a cause of action for fraud against the defendants individually…”
Cosgrove reduced Count 1, Conversion and Civil Theft, to solely a conversion claim for both defendants because “a civil action for theft does not exist in Massachusetts,” Cosgrove explained.
Count 2, Breach of Fiduciary Duty, was dismissed only for Bondi-Pickles because she did not have a relationship with the district outside of the contract between Bondi-Pickles and Moss Hollow, the now defunct corporation under which Pickles was paid as executive director beginning in 2001, and of which Bondi-Pickles was listed as the president. Tinkham, however, did have a fiduciary duty as the former member and chairman of the board of the CMWRRDD.
Cosgrove found that Tinkham, as chairman of the board that entered into an agreement with Moss Hollow “that allowed Pickles to have signatory authority over the District’s accounts … [and] to make payments to himself that were not supported by any documentation,” did have a fiduciary duty to the CMWRRDD.
Count 6, Violations of G.L. c. 30B (Uniform Procurement Act) was dismissed for Tinkham because there is no private cause of action pursuant to that claim, Cosgrove states.
The other counts of Fraud, Money Had and Received, Civil Conspiracy, and Violations of G.L. c. 93A (deceptive acts relative to a business relationship) remain for both Tinkham and Bondi-Pickles.
According to the complaint that was amended August 31, 2018, the district became aware of suspicious financial dealings after each of the district’s three towns received assessments for disposal fees at the transfer stations after not having received assessments for the prior five years. Carver’s was for $59,000, Marion’s for $25,000, and Wareham’s was $89,000.
The district accused Pickles of withdrawing more than $294,548 of district funds for personal use, in addition to payments made to Pickles for his employment services, including $113,321 in unauthorized checks, $150,000 in cash withdrawals between 2016-2018, and $31,227 in mileage between 2012-2017, with no documentation to support the payments. The district also accused Pickles of fueling his private boat to the tune of $13,793 at the expense of the district.
Between July 1, 2012, and January 2018, Pickles allegedly authorized $281,909 in district funds to Moss Hollow in addition to payments made to Pickles as executive director.
Tinkham, between 1995 and 2018, received $85,990 in alleged unauthorized payments pertaining to a series of handwritten invoices for “landfill inspections, for which there is no proof of services rendered. Tinkham was also paid another $88,100 in payments labeled under “grant/recycling service” for which there is no documentation and for which Tinkham and the district had no contract for work. Between 2007-2012, Tinkham also received $45,103.82 from the district’s escrow account, and $41,600 from the district’s “recycling” account, totaling $86,703.82 in 82 payments with no supporting purchase orders, bills, receipts, or other documentation.
As the executive director of the district, Pickles was the authorized signatory on the district’s various bank accounts and maintained control, oversight, and authority over all district funds.
In his July 23, 2018 response to the complaint, Pickles, age 84, blamed his age and a lack of board oversight for discrepancies in financial records, stating in his response, “In recent years, due to my age and limited professional support, my record keeping has not been what it was during my time as Town Manager in Marion and during my early years with the CMWRRDD…. I may not have followed all of the technical procedures for approving contracts … but, I kept the District Committee informed of all business matters involving the CMWRRDD and I consistently provided valuable services to CMWRRDD. I do not believe that I have received any money that was not approved by the … Committee for services provided.”
The lawsuit is slated for a trial by jury in 2021.
By Jean Perry