A lawyer for Robert Tinkham, Jr. in Brockton Superior Court Monday, Jan. 14, 2019 argues for several civil charges against the Plympton Health Agent to be dismissed. (Photo by Abram Neal)

BROCKTON — Robert Tinkham, Jr., the current Plympton Health Agent, was in Brockton Superior Court Monday, Jan. 14, with his Plymouth and Brockton-based attorney, John Fink, of Sims & Sims, LLP, fighting to have five of nine counts of a civil lawsuit brought against him for an alleged 20-year fraud dismissed.  He also filed a request to dismiss a motion to compel turning over financial documents related to the lawsuit, citing the high cost of making copies.

Superior Court Judge Robert Cosgrove, who stood at the elevated dais throughout most of the proceedings and frequently asked questions of the four attorneys present, heard the motions and took them under advisement.

Fink’s arguments suggested that the complaint, which had been amended, was not properly filed and failed to state a claim. He also argued that SEMASS, a waste-to-energy recycling company that contracted with the district should have been named as a party in the lawsuit. Lawyers for the district, represented by public sector law firm KP Law, disagreed.

The attorneys also disagreed about the manner in which district financial records could be made available to Fink. Fink said he wanted the records delivered to his office as the cost, which he said was in the thousands of dollars for copying the five large “responsive” documents he seeks would be prohibitive to Tinkham.

Waste district attorneys argued that handing over the documents in this manner would be unprecedented, as they are public documents and need to be maintained in a “chain of custody.”

The waste district’s attorneys said they offered to make the documents available to Fink for his review at a public office so that he would not have to have them copied at great expense, something they say they offered as early as Sept. 14, 2018.

Cosgrove even hypothetically suggested ordering a copier to be “shipped down” to the public office for Fink’s use, as Fink argued that one wasn’t available for him to use. This did not satisfy Fink.

Tinkham, of Carver, is accused of misappropriating $838,458.22 from the Carver, Marion and Wareham Regional Refuse Disposal District along with two alleged co-conspirators, Ray Pickles, the former Executive Director of the district, and his wife Diane Bondi-Pickles, a licensed real-estate agent. Of that amount, the district accuses Tinkham individually of converting over $260,000 for personal use.

Tinkham, previously worked as the Carver Health Agent, and, in that capacity, served as Carver’s representative to, and, at times, chairman of the committee overseeing the waste district, according to court records.

“Defendant Robert Tinkham, former chairman of the District’s governing committee and duly appointed representative of the Town of Carver, participated in this scheme by conspiring with the other defendants to install co-defendant Ray E. Pickles as the District’s executive director and then by presenting Pickles with numerous fake-claims over many years for payment under the guise of providing landfill inspection and other services. Notwithstanding these claims, Defendant Tinkham did not provide any services to the District and instead he abused his position of trust and confidence to defraud the District, a public entity, of more than $260,000,” court records said.

While the matter is currently a civil action in which the waste district is attempting to recover money allegedly defrauded from the taxpayers of Carver, Marion and Wareham, the Massachusetts Office of the Inspector General, an agency which investigates suspected fraud, waste and abuse in the use of public funds and public property is investigating, according to records previously obtained by the Express.

The OIG is a non-prosecutorial agency that refers investigations to prosecutorial agencies at the state and federal level.

An attorney for Bondi-Pickles, who was not present, also argued a motion against her to dismiss the lawsuit in its entirety at the same hearing. Cosgrove took that motion under advisement, as well.

Russell Keirstead was before the Plympton Board of Selectmen attempting to sell property that the town has a right-of-first-refusal to. (Photo by Abram Neal)

PLYMPTON — Selectman Chairman John Traynor said he thinks that the town is operating too many vehicles and Town Administrator Elizabeth Dennehy disagreed. The at times tense discussion came up at the Monday, Jan. 7, Plympton Board of Selectmen’s meeting.

Two vehicles too many?

Two vehicles operated by the town, a 2011 Ford Taurus and a 2012 SUV, shared between the Town Administrator, Assessors and even at times the Police and Fire Departments are getting older and have significant number of miles on them, said Dennehy.

“I don’t see the need for the Taurus … two cars to repair, register, insure, it doesn’t make sense to me,” said Traynor.

At the times when there are competing needs for a vehicle, Traynor suggested employees put in for mileage on personal vehicles, a solution that Dennehy didn’t find tenable.

“I’m not going to nickel-and-dime the town [for miles],” she said, noting that putting in for mileage is an involved process involving filling out vendor forms, and expensive to the town.”

Traynor insisted that he sees the vehicles remain parked in front of the Town House, while Dennehy argued that they are in heavy use.

Dennehy explained that she did not believe that selling a vehicle, possibly the older Ford Taurus, would create much savings for the town, either through insurance because of the way rates are set for the town, or because the procurement process would take up so much time and the older vehicles would have such little value.

“So if we deleted that from our insurance policy the insurance policy wouldn’t go down one iota?” asked Traynor. The answer from Dennehy was no.

“So that’s where you and I have a difference of opinion,” said Dennehy. She added that all things considered, the town might get a few hundred dollars for working vehicles that are being used by the town.

“I don’t think that two vehicles are too many for a town the size of Plympton,” said Dennehy.

Russel Keirstead Right of First Refusal

The board, despite their best efforts to move the process along for Russell Keirstead, of Crescent Street, could not accommodate a Friday closing date on a parcel of his Chapter 61A property that he is attempting to sell as a 1.5-acre buildable lot. The town has the right of first refusal on the property because in order to be sold it must come out of the tax-saving state program.

Keirstead said he thought this would be a “three-minute” process before the board, but because of a strict protocol set up by the board for “chapter property,” a public hearing has to be advertised and scheduled so that the public has an opportunity to comment on the land sale. The hearing was set for the next Selectmen’s meeting, Jan. 28.

Keirstead was visibly disappointed that his deadlines would not be met, although he said he was eager to take whatever steps were necessary to properly sell the lot.

Budget Discussions

The board began to discuss their requests for the upcoming FY’20 budget, and Dennehy noted that the Finance Committee was asking boards and departments to estimate their budgetary needs very accurately, and not allow excess for unexpected items.  She said that the FinCom would rather deal with unexpected extras that come up on a case by case basis via the transfer request process.

Selectmen are asking for a legal budget of over $10,000 more than last year, citing ongoing litigation the town is engaged in, including at least one case in federal court where a Marshfield cellphone infrastructure company is suing the Zoning Board of Appeals for refusing them variances to build a cellphone tower on a parcel that is not zoned for the purpose.

In Other News

• Scott Varley was appointed Wiring Inspector to replace the late Robert Karling.

• The board will next meet Monday, Jan. 28, 2019, at 6 p.m. in the Large Meeting Room of Town House.

Supreme Judicial Court Justice Kimberly Budd (Courtesy photo)

Halifax attorney Thomas J. Yelverton was suspended from the practice of law for three months Nov. 5, 2018, by the Supreme Judicial Court for Suffolk County after a lengthy investigation by the Office of Bar Counsel (OBC), according to a summary of the order of the court available from the Board of Bar Overseers (BBO) of the Supreme Judicial Court and the order of the court itself.

The suspension stems from when Yelverton was retained in November 2016 to handle the estate of a client’s mother. The client provided Yelverton with a copy of a will and other information needed to handle the estate. In November or December 2016, the client wrote a check to Yelverton for $1,000 as a retainer. On Feb. 27, 2017, the client met with Yelverton, signed forms at his request, and gave the attorney an original will and a replacement check for $1,000, the report stated.

Yelverton never provided his client with a written contract for representing the client and for the fees and expenses the client would be responsible for, according to the BBO.

In early March 2017, Yelverton stopped communicating with the client despite receiving repeated requests for information, according to court documents. On April 18, 2017, the client requested an update and the return of all files if the attorney was unable to move forward with handling the estate.

Yelverton never responded and did not complete the work for which he was hired in any substantive way. When he was notified that the OBC was investigating in November 2017, Yelverton returned the original will to the client, stated the report.

Yelverton failed to respond to bar counsel’s requests for information in the matter.

On Jan. 29, 2018, Yelverton was served with a subpoena issued by the BBO requiring him to appear, testify and produce records at the OBC concerning the matter. He never appeared, according to the board.

Yelverton was administratively suspended from the practice of law Feb. 26, 2018, for his failure to cooperate with the investigation. He also failed to comply with the provisions of the administrative suspension.

The BBO asserted that Yelverton broke the rules of professional conduct for attorneys through his actions.

On May 29, 2018, an attorney for the OBC began disciplinary proceedings by filing a petition for discipline with BBO. Yelverton did not participate in the disciplinary proceedings and was defaulted.

Then, on Oct. 11, 2018, the BBO voted to recommend that Yelverton be suspended from the practice of law for three months, the report stated.

Finally, Judge Kimberly Budd, Associate Justice of the Supreme Judicial Court, agreed, ordering the three-month suspension.

According to her order, he is required to file notice of his suspension with each court he has a matter before, inform all clients he has been suspended, refund any unearned fees and resign appointments with which he has a fiduciary role (such as a guardian or executor).

The OBC, an independent administrative body, investigates reports of attorney misconduct. When the OBC concludes that an attorney has engaged in unethical conduct under the Massachusetts Rules of Professional Conduct, the office will bring charges before the BBO, another independent administrative body, for adjudication. When misconduct is found, the board either imposes discipline or, as in this case, recommends to the Supreme Judicial Court that it impose discipline.

Yelverton had no prior misconduct, stated the report. His suspension ends in February, and his return to the practice of law is conditional, according to the court order.

Matthew Will stands before the court in Wareham at a previous hearing. (Photo by Abram Neal)

PLYMOUTH — A pretrial conference for roofer Matthew Will, 37, of Halifax, owner of Five Star Discount Roofing, scheduled Friday, Dec. 21 for two of five known open larceny-related cases in Plymouth County, has been delayed.

Will last appeared in Wareham District Court Dec. 7 on three other cases. A new alleged victim has come forward first to the Express and later to local authorities with a similar story to those of other alleged victims.

Will’s Plymouth-based attorney, Jack Atwood, delayed the two hearings because he was busy with another case in Quincy, according to court records. The proceedings were canceled at the last minute, on Thursday, Dec. 20, although Will’s cases still appeared on the court’s daily logs as late as Friday morning.

Will is currently facing a total of one count of larceny over $1,200 by false pretense, two counts of larceny over $1,200, 19 counts of larceny over $250 by false pretense, one count of larceny under $250 by false pretense and one count of forgery of a document.

There were 23 area households in three communities claiming they have been victimized to date, who have lost a combined $153,197.34 in monies allegedly given for work not done, with individual losses ranging from $695 to $15,569. Most of these victims are over age 55, and many are elderly, according to police reports. The alleged victim who lost the most money is 78 years old.

These totals do not include the newest alleged victim, who is from Wareham.

Will had done work for him in 2017, before moving to Wareham, he said, with no issue. He appeared to have a good reputation at the time, the semi-retired man stated in an email and a later phone interview with the Express.

Previous work

Based on his previous positive experience with Will, when his daughter and son-in-law had major roof and chimney issues at their East Bridgewater home, he said he chose to help them out financially and reached out to the roofer, calling it a big mistake not to recheck his licenses.

Checking Will’s licenses, though, may not have shown anything as his CSSL-Roofing and HIC licenses are currently active, although he does have several pending arbitrations before the Office of Consumer Affairs and Business Regulation, according to state records.

The Wareham alleged victim said he paid $14,000 for a roof that never vented properly, and waste shingles and trash are still on-site, weeks after work began on the home. He also said he paid $6,047 for chimney work that was never started, and siding was stripped on one section of the house, which is still bare. He estimates that there is $7,000 of outstanding work to be done.

The Wareham man reached out to local authorities, he said in a Wednesday, Dec. 19, email, who alerted Will to another complaint against him.

This prompted a phone conversation between the man and Will, who promised to come Dec. 27 to finish everything except the chimney.

“I don’t hold much hope but if by chance I can get any work completed I would like to try first before I move ahead [to press charges],” he wrote.

Will’s next court appearance, should no new charges be filed, will be on Monday, February 11, 2019, at 9 a.m. in Plymouth District Court for pre-trial hearings. The three Wareham District Court cases have been continued to March 4, 2019, at 9 a.m. also for pre-trial hearings.

Will could not be reached by email or phone for comment as of press time.

BOSTON —Attorneys Jeffrey Angley and Robert Hopkins, representing Industrial Tower and Wireless, LLC., of Marshfield, squared off against Plympton Town Counsel Robin Stein and her co-counsel, Jackie Cowin, representing the Town of Plympton Zoning Board of Appeals before US District Judge Denise J. Casper – possibly best known for presiding over the infamous James “Whitey” Bulger case – in courtroom 11 of the John Joseph Moakley United States Courthouse in the Seaport District of Boston Monday, Nov. 26.

ITW is suing the Plympton ZBA, alleging their right to build a 120-foot, lattice-style cellphone tower at 0 Palmer Road.

According to public records, the roughly four-acre lot was recently sold by Lawrence Marble, Jr. and Joy Marble, both of Halifax, trustees of ELBRAM Realty Trust, to Michael Umano, trustee of ITW Realty Trust, 40 Lone St., Marshfield, for $235,000. The sale was recorded with the Plymouth County Registry of Deeds Nov. 9.

The court proceedings were brief.

Casper held a commanding presence over the courtroom. Angley appeared at ease before the court and spoke more than the other three attorneys present. Stein was not as vocal as Angley. Neither of the co-counsels addressed the court directly.

The event, a scheduling conference, informed the court of the parties’ proposed schedule for discovery, disclosure and depositions. Casper worked amicably with the lawyers to finalize the schedule they had jointly submitted.

The lawsuit, filed in early September, will likely continue on through at least next summer, according to court documents.

Casper asked if there were any settlement prospects.

Angley replied that there were not. He said that most of these types of cases were disposed of by a judge with a summary judgement – an order ruling that no factual issues remain, and a complaint can be decided upon the facts by a judge without a trial.

ITW has a history of suing local government boards in federal court who have opposed them, according to court records. They have some history in Plympton, as well, as the ZBA decision denying them a permit to build their cellphone tower took several months to arrive at and they have had their eye on Plympton for “years,” according to testimony at the hearing in Plympton.

The communications company first came before the ZBA seeking zoning relief under the federal Telecommunications Act of 1996, which, according to Stein, was created to help build telecommunications infrastructure because most cell towers do not conform to local zoning bylaws in cities and towns across the nation.

According to Stein, the TCA of 1996 requires local zoning ordinances to be waived for a cellphone tower should a ZBA find that there is both a significant gap in cellphone coverage and that there are no alternate sites to locate it.

Stein warned the board that this type of case has been well litigated in the federal courts, in this circuit and others. However, there are examples where localities have prevailed against telecommunications companies in federal court on certain grounds, including aesthetics, such as the T-Mobile Northeast v. Town of Islip ruling of 2012 in the Eastern District of New York.

ITW made claims that 7,000 to 8,000 vehicles a day pass through an alleged 2.5 by 1.5-mile coverage gap. This was never independently verified, according to both ITW and town officials. ITW claims that it had been looking for “years” for a location to locate a cellphone tower and this one site was the only one of 36 they had exhaustively identified as suitable.

On Aug. 31, the ZBA voted down ITW’s application, 2-1, to build a tower on the business-zoned lot, surrounded by residential/agricultural zoned land, after multiple contentious hearings on the matter were held over the course of last summer.

Board members Dave Alberti and Harry Weikel voted against the tower, despite warnings by Stein that they were opening Plympton up to a federal lawsuit.

Board Chairman Ken Thompson voted for the project, with little visible enthusiasm, noting after that because the vote had to be unanimous, and he voted last, his vote didn’t matter.

During final deliberations, Weikel noted what he counted as 17 “significant” variances, not just the four in the application, that he believed the applicant required for the construction of a cell-tower. He listed other possible locations he found suitable, including town-owned parcels of land.

The lawsuit takes special note of Weikel’s objections, stating in a document filed Nov. 16 that, “[a]fter the close of the hearing and during the Board’s deliberations, one Board member then recounted a series of properties that ITW allegedly should have considered but as to which ITW was given no advance notice nor opportunity to respond. The exercise establishes the hostility of the Board to ITW’s application and the utter bad faith tactics of the Board.”

Weikel, at a hearing in August, stated as previously reported by the Express, “I’m here to protect the people … that’s the only reason I accepted this appointment.”

From left, SLRSD Superintendent Joy Blackwood, HES School Committee Chair Summer Schmaling, members Alex Meade, Gordon Andrews, Allison Vance and Robert Johnson. Photo by Abram Neal.

HALIFAX — Marie Grable, Director of Special Education for the Silver Lake Regional School District, made a presentation about the state of her department and how it affects the Town of Halifax to the Halifax Elementary School Committee on Monday, Dec. 3. Throughout, she put an emphasis on equal access and equity as a means to achieve equality for all students, something she said she wanted to highlight.

But by the end, Grable said she was at the “mercy” of the board. In apparent reaction to interruptions and vocal frustration from three of the five school committee members during her presentation, notably from chair Summer Schmaling, and members Alex Meade and Gordon Andrews, she said she would be happy to provide statistics presented a different way or change the direction of the program if the board wanted her to.

Very early on, during the first slide with significant information, the interruptions and questions began. School committee members appeared to be trying to get a better handle on how to predict the numbers being presented to them.

“We’re here for 100 percent of the students but 20 percent of the students are affecting the budget this much, and there’s nothing we can do about it, frankly,” said Meade.

Grable noted that special education is required by law, and is a “means of specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability.” The SLRSD is also responsible for transportation costs for students receiving services outside of Halifax, she said.

This access to education for some students is met in-house, for other students requires placement in programs at other schools in the district or programs out-of-district, including collaboratives and alternative schools. Tuition for these programs can be quite costly, according to Grable’s presentation.

Special education budgets are notoriously difficult to anticipate because special education is mandatory, can be costly, and the cost is subject to the needs of the students currently in the district.

She discussed certain disability types that Massachusetts regulations require educators provide modifications for, including: autism, developmental delay, intellectual impairment, sensory impairment, neurological impairment, emotional impairment, communication impairment, physical impairment, health impairment and specific learning disability.

But Schmaling stated that she didn’t think that emotional impairment belonged on the list of disability classifications, and Meade agreed.

Both indicated they did not think that the public’s perception of disability included “emotional impairment.”

Emotional impairment includes, according to state and federal law, such disabilites as, “an inability to learn that cannot be explained by intellectual, sensory or health factors; an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; inappropriate types of behavior or feelings under normal circumstances; a general pervasive mood of unhappiness or depression; or a tendency to develop physical symptoms or fears associated with personal or school problems.”

There are 128 students from Halifax, aged 3-22, receiving special education services this year, stated Grable, up from 118 in 2015. For those students receiving services at HES, that represents close to 20 percent of the school’s student population, according to some quick math done by the board (the state average is about 17 percent, said SLRSD Superintendent Joy Blackwood). But, out-of-district placements are down from 26 to 16 from 2016.

“We’re moving in the right direction,” said Grable. “My goal is to have the most students receiving their education in the least restrictive setting.”

The board wanted more historical data to help better budget for special education. But Grable said she didn’t think that would help much.

“It’s hard [to predict funding] because it’s such a moving target,” said Blackwood.

Schmaling and Blackwood pointed out that just one student moving into the district could cost $100,000 or one moving out could save the district $100,000 (hypothetically).

But in the end, the board appeared glad to hear Grable’s report, however they felt about it. “It’s super awesome that you came in,” said Schmaling.