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

            The Rochester Conservation Commission issued an Enforcement Order to Jose Araujo, 15 Elizabeth Drive, for unpermitted and unauthorized tree cutting within a 25-foot no disturb zone and a 100-foot buffer zone of the wetlands bank at the site of the former Boy Scout Camp adjacent to Leonard Pond. The commission on February 19 was in no mood to compromise.

            Representing Araujo was engineer Rick Charon and wetlands scientist Robert Gray. Before Charon could begin his presentation on behalf of Araujo, Commission Chairman Mike Conway asked, “Can you get a letter that confirms you represent Mr. Araujo?”

            Conway would ask the same question of several other engineers during the meeting, a formality he said he intends to institute moving forward.

            Charon then presented preliminary engineered drawings of the massive site and began to discuss a restoration plan. But those efforts were truncated when commissioner Daniel Gagne wondered aloud if Charon was going to talk about the Enforcement Order.

            The Enforcement Order provided dates for the completion of wetlands replication planning and other restorative measures such as erosion controls, all of which Charon acknowledged had passed without submitting anything to the Conservation Office.

            Charon said he had meet with Conservation Agent Laurell Farinon over the weekend, at which time various measures were discussed. But failing to meet the deadlines, as far as the commissioners were concerned, tantamounted to ignoring the order on the part of the property owner.

            Charon and Gray tried several times to ask the commission’s assistance in understanding what exactly they wanted in the restoration plan. Conway met those requests with, “Talk to the agent.”

            Frustration mounted between Araujo’s representatives and Conway and Gagne, but Charon and Gray were able to garner some direction for the proposed plantings and site plan drawings needed by the commission.

            Regarding the issue of fines, Farinon said that town counsel had indicated that the commission could not impose fines without a court order, but that they could issue a ticket for each day the enforcement order had been violated to the tune of $300 per day. The commissioners moved to impose the tickets dating back to January 25. No further action was taken during the meeting.

            Another Enforcement Order was discussed late in the meeting when Farinon asked the commission to ratify one issued to Liam Delowery, South Coast Creations, 68 Bowen Lane. She said that the former farm was now the site for Delowery’s business and that heavy vehicles had disturbed jurisdictional areas, while a large pile of manure was leaching into wetlands. The Delowery Enforcement Order requires him to file a Notice of Intent, a restoration plan, and a topological survey by April 1.

            Also coming before the commission for review of unpermitted activities was Richard Tabaczynski, representing Mathew Demanche, for property located at 4 Sparrow Lane. Tabaczynski pointed out that although there had been deviation to an Order of Conditions previously granted, Demanche’s request for a Certificate of Conformance was in order. Conway did not agree.

            Conway questioned how Tabaczyski’s characterization of “substantial compliance” could have been achieved when the property had a 900 square-foot basketball court and a play area with swing set, which was not part of the original plan of record. 

            Conway said that clearing and lawn encroachment came within 18 feet in some locations of protected areas. Tabaczynski said that while that was true, other permitted features such as an in-ground swimming pool had not been constructed.

            Demanche said that no trees had been cleared from the property in the 20 years he owned the property, but that he wished to work with the commission to resolve problems.

            It was determined that Demanche would file a Request for Determination of Applicability, and that the offending play area and swing set would be removed. He will return to the commission on April 16 to discuss the new application.

            Earlier in the evening, Bob Rogers of G.A.F. Engineering represented Schoen and Bonnie Morrison, 15 Cranberry Highway, with a Notice of Intent that has seen several continuances. Rogers attempted to convince the commission that his stormwater calculations were on point and therefore the need for another peer review consultant was an unnecessary expense to his clients.

            Gagne had submitted a letter listing several inconsistencies he believed put Rogers’ stormwater calculations and stormwater management plans in question. Time and again, Gagne pushed that if he found problems with Rogers’ work, a peer review consultant might find even more oversights. He lobbied for a separate peer review consultant, even though Ken Motta of Field Engineering was the peer review consultant for the Planning Board and had reviewed Rogers’ documents.

            Rogers explained that his design included one-third less impervious area then the location’s original 1997 plan of record when it was strictly office spaces. The Morrisons wish to buy the property in question from Decas Real Estate Trust for renovation into a daycare center.

            Gagne held fast that, without another engineer’s peer review, something might get overlooked and that Motta wasn’t working exclusively for the commission, but for the Planning Board. He motioned for the hiring of a peer review consultant for the project. It was seconded by Conway, but failed to achieve a majority. The hearing was continued until March 5.

            Also continued: a Request for Certificate of Compliance, 15 Cranberry Highway, Decas Real Estate Trust; an Abbreviated Notice of Resource Area Delineation filed by Steve Long, Borrego Solar Systems, 75 Vaughan Hill Road; Notice of Intent filed by T-Mobile, 98 Bowen Lane; and a Notice of Intent filed by Sofia Darras, 565 Rounseville Road.

            The next meeting of the Rochester Conservation Commission is scheduled for March 5 at 7:00 pm at the Rochester Town Hall.

Rochester Conservation Commission

By Marilou Newell

            The Marion Board of Selectmen on February 19 signed a letter ordering its contracted engineering firm to suspend its ongoing work for the Town after a recent miscalculation of the cost estimate for the wastewater treatment plant upgrades project.

            CDM Smith had estimated that the wastewater facility project, which includes the lining of one of the lagoons, would cost the Town about $2.5 million, but when bids on the project closed last month, the lowest bid offered was for $4.7 million.

            The board was stunned by the discrepancy and, in the letter, described the serious consequences the Town now faces because of such a significant shortfall in funds to complete the project by the EPA’s deadline of December 1, 2019.

            “A missed estimate of this magnitude will cause serious issues as we try to secure additional debt authorization from ratepayers,” the letter reads. “In addition, securing this additional debt will almost certainly result in the need for the Town to request … additional time to complete the lagoon lining as we now will be unable to meet the mandated completion date. … [T]his complication will severely impact, and likely delay, our ongoing negotiations with state regulators.”

            The selectmen ordered CDM Smith to immediately suspend its current work on “I&I” (inflow and infiltration related to wastewater) and the Town’s Pavement Management Plan.

            “The Town intends to explore other avenues to complete these tasks,” the letter reads.

            Selectmen also want CDM Smith to update its cost estimates for all of its other ongoing projects for which it has a contract with the Town, and include detailed explanations of how those costs were reached. They also want a full cost breakdown of estimates the engineering firm provided for the Spring Street Phase 4 project (estimated at $432,000), and the so-called “dust-off” of the costs estimates for Phase 1B (estimated at $25,000).

            Furthermore, the selectmen want CDM Smith to provide them with written, detailed accounts of how such an error could have occurred in its cost estimate.

            The board believes that [these] actions are reasonable, measured and appropriate to the unfortunate position the Town now finds itself in,” reads the letter.

            Town Administrator Paul Dawson said it is also possible that the Town will revisit its contract language with CDM Smith as it pertains to providing cost estimates, but discussion is ongoing.

            “This is a reasonable measure and an appropriate response to the position that we find ourselves in at this point,” Dawson said.

            In other matters, the selectmen are leaning towards attempting to fund one last major repair on the old trash collector truck that has repeatedly failed over the past year, leaving the Town at a loss of what to do in order to make it to Town Meeting without financial appropriation for either an outsourced contract or a new truck.

            “Without the truck, we have no options,” said Selectman John Waterman.

            “Without it, we’re really hurting,” said Interim DPW Superintendent Jon Henry.

            However, the board will not hold a Special Town Meeting to appropriate funds for any other option, so the selectmen are hopeful that they could get Finance Committee approval to use the remaining Reserve Fund balance to pay the $52,000 in repairs.

            According to Finance Director Judy Mooney, there should be about $81,000 remaining in the Reserve Fund.

            “We’re really in a precarious situation here because the truck that we are using goes out with the Saint Christopher medal,” said Henry.

            The board will discuss the matter with the Finance Committee during a joint meeting on March 6. Waterman suggested inviting Henry to speak as well, while Dawson suggested inviting everyone, including the National Guard.

            Henry has been tasked with getting an “ironclad estimate” from the mechanic, but was not authorized to allow repairs to begin without funding secured first.

            Also during the meeting, the board discussed a proposed balanced budget for fiscal year 2020 with Mooney and Dawson, reviewing the highlights, increases and decreases, and new line items. Dawson called it a “sensible operating budget,” and asked the board for its “blessing” to pass it over to the Finance Committee for consideration. With the preliminary budgets from ORR and Sippican School included, the draft FY20 budget totals $23,768,210.

            The board also approved sending letters about televising meetings to the Zoning Board of Appeals and the Marion Open Space Acquisition Commission as an effort to “try to improve the transparency and the availability of the activities of these rather important committees,” as Dawson put it.

            “This is in no way critical of their past practice,” said Waterman. “The more open we can be with the public about what’s happening in the community, the better.”

            In other matters, the board approved a plan to replace the four electric vehicles. The Town will buy two 2019 Nissan Leafs – one for the Recreation Department and one for the Department of Public Works, and will lease two Mitsubishi Outbacks – one for the building commissioner and one for the Council on Aging. The total is estimated at $45,000, under the $55,000 Town Meeting approved.

            The candidate the board chose as the next treasurer/collector, Susan Laak, has declined to take the job after several attempts at contract negotiations, so the position has now been offered to the second runner up, Katherine Milligan.

            “I feel good about that we’ll be able to get a deal done,” said Dawson.

            The next regular meeting of the Marion Board of Selectmen is scheduled for March 5 at 7:00 pm at the Marion Town House.

Marion Board of Selectmen

By Jean Perry