by Don Moniak
September 17, 2022
On August 16, 2022, a Freedom of Information Act (FOIA) request* was submitted for information related to City of Aiken legal work conducted by the law firm of Smith, Massey, Brodie, Guynn, and Mayes. Gary H Smith III has been the City of Aiken’s Attorney** for 27 years; and members of his firm have also performed various work for the City. For example, on August 26, 2022, Aiken Economic Development Director Tim O’Briant wrote in an email:
The March 18, 2021 $173,047.51 wire transfer from the AMDC’s checking account to Smith, Massey, Brodie, Guynn, and Mayes was entirely unrelated to Pascalis. Attorney Mary Guynn has handled real estate closing for the City for several years. This was the balance due for the closing on the Jackson Petroleum/Williamsburg property closing.
The information request, based in part on this email, and involving the period since January 1, 2019, consisted of three parts:
1. Copies of all closing documents, settlement documents, or other real-estate related documents for all City of Aiken real estate transactions involving any member of the Smith, Massey, Brodie, Guynn, and Mayes law firm, for the period January 1, 2019 to present.
2. A copy of the contract for services, or any contract for services, with any member of the Smith, Massey, Brodie, Guynn, and Mayes law firm, including City Attorney Gary Smith; for the period January 1, 2019 to present.
3. A listing, if available, of all City of Aiken real estate transactions for the period January 1, 2019 to present.
The response to date was completed on Friday September 15, 2022. Twenty-three documents were found to be responsive, much of it already in the public record. The first part of the response, involving twenty-two records, is under review. The results of the other two portions of the request can be summarized as follows:
- The City of Aiken does not keep an accounting of its real estate transactions which range from a few thousand dollars to nearly $10 million dollars, in a simple, easy to retrieve format; and
- There are no contracts between the City of Aiken and members of the firm that conducts much of its real estate transactions; and the only record of any agreement is a letter from the City Attorney to the City Manager dated December 28, 2016.
No Tracking of Real Estate Transactions
As is the case with many FOIA responses, the most revealing information is the absence of information. In response to part three of the request for “a listing, if available, of all City of Aiken real estate transactions for the period January 1, 2019 to present,” Aiken City Solicitor responded:
With regards to No. 3, South Carolina’s FOIA statute obligates the City to disclose “public records” which by definition only includes items in the possession of, or retained by the City. Accordingly, to the extent the City does not have a record conforming to your request, the City is under no obligation to create a public record and has not done so with respect to this item in your FOIA Request.
There is no tracking of city real estate deals, no one document that specifies what was bought or sold, who was involved, and the purchase and sale costs.
No Attorney Contracts
Part two of the request was for:
A copy of the contract for services, or any contract for services, with any member of the Smith, Massey, Brodie, Guynn, and Mayes law firm, including City Attorney Gary Smith; for the period January 1, 2019 to present.
The only responsive record to this portion of the request is a December 28, 2016 letter from City Attorney Gary Smith to former City Manager John Klimm, titled a “Fee Arrangement Letter” in the city’s files.
Section 2-348 of Aiken’s Municipal Code pertains to professional services from a wide array of licensed professionals including law firms.
“Professional services shall be obtained through the process of requesting interested firms to submit their qualifications; reviewing the qualifications submitted and determining which firms are qualified; requesting the qualified firms to submit proposals; selecting the qualified firm with the best proposal; and negotiating the necessary contract. Except for agreements for less than $25,000.00 and that are provided for in the annual operating budget of a department, agreements for professional services shall state the terms and conditions and shall be approved by city council.”
No evidence of such a process or outcome for the City Attorney position has been provided in response to two FOIA requests.
The City Attorney is near the top of the city’s organizational chart, one of two most powerful unelected positions in local municipal government; and responsible for:
- providing advice on municipal matters of law and jurisprudence to City Council, the City Manager, and boards, commissions, and committees;
- serving as parliamentarian to the City Council; and
- ensuring city government operates lawfully.
Yet, for all this, the existing contract is a little more than a handshake, one that has lasted nearly six years.
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Footnotes:
*This is the second FOIA request for the City Attorney’s contract this year. Aiken area resident Kelly Cornelius requested City Attorney Gary Smith’s contract and received the same response: the December 28, 2016 letter.
** Aiken City Attorney Gary Smith is the defendant in three lawsuits (including one filed by Ms. Cornelius) regarding violations of state ethics law involving the Project Pascalis proceeedings. A detailed account of the record, including the City Attorney’s job description, is contained in “The Pascalis Attorneys,” which can be viewed at:
A review of Mr. Smith’s defense in one of these lawsuits can be viewed at:
Beyond Project Pascalis, two City of Aiken real estate transactions have been examined in The Aiken Chronicles:
“The City of Aiken’s Mattie C. Hall Property….”
https://aikenchronicles.com/2022/08/06/the-city-of-aikens-mattie-c-hall-property-another-curious-questionable-aiken-county-council-property-deal/
and
“The Cleaners…”
https://aikenchronicles.com/2022/07/21/the-cleaners-how-aiken-city-council-got-taken-to-the-cleaners-by-the-wyattfamily/
(Edit: The Orginal Title of this story was:
“City of Aiken’s Real Estate Deals: No Tracking and No Contracts.”
The title created confusion. The “tracking” referred to just that, a tracking system for real estate transactions. “No contracts” referred to contracts for professional legal services, not to real estate contracts.
My apologies for any confusion. Don Moniak, 9/18/22)
I suggest Dio
So according to Obriant,”Attorney Mary Guynn has handled real estate closing for the City for several years”.
Let’s review the SC Ethics Rules
ARTICLE 7
Rules of Conduct
SECTION 8-13-700. Use of official position or office for financial gain; disclosure of potential conflict of interest.
(A) No public official, public member, or public employee may knowingly use his official office, membership, or employment to obtain an economic interest for himself, a family member, an individual with whom he is associated, or a business with which he is associated.
You can see all of Article 7 here
https://www.scstatehouse.gov/code/t08c013.php
So it looks like one of Smith’s law partners at SMITH MASSEY BRODIE GUYNN and Mayes gets business from the City, one of his other lawyers gets a sweet land deal
https://aikenchronicles.com/2022/08/06/the-city-of-aikens-mattie-c-hall-property-another-curious-questionable-aiken-county-council-property-deal/
and another almost got away with Pigscalis but I guess that firewall AMDC Chair Mr. Wood wanted wasn’t quite NIMBY-proof.
Mr. Moniak, you are a gift to Aiken and all who love her.
From underneath every rock that is turned over in the City of Aiken’s government garden, another ugly creature crawls out. The arrogance on display, and disregard for City ordinances and procedures — as well as State statutes — by Aiken city officials is stunning and disgusting. Thanks to “The Aiken Chronicles” and Mr. Moniak for revealing to Aiken citizens what’s under the rocks.