November 14, 2022 Aiken City Council Meeting 

by Don Moniak

November 15, 2022

South Carolina’s ethics law states: 

“No public official, public member, or public employee may make, participate in making, or in any way attempt to use his office, membership, or employment to influence a governmental decision in which he, a family member, an individual with whom he is associated, or a business with which he is associated has an economic interest.”
(SC 8-13-700(B))

Towards the end of their half hour meeting on October 11, 2021,  Aiken City Council members enjoyed a lighthearted moment at the expense of this fundamental anti-corruption statute. 

Mayor Osbon: Item number one is a request from the Kiwanis Club  to hang banners in the downtown to  promote Aiken’s Bacon and Brews event. I don’t know that we need any comment from staff…so at this time I would entertain a motion.” 

Councilman Ed Girardeau: Question, I’m a member of Kiwanis, and should I recuse myself?

City Attorney Gary Smith: Are you gonna profit from the banners being raised up? I guess it wouldn’t hurt to recuse just to make sure you’re not having any impropriety.” 

“Ed Girardeau: “Ok, yeah, recuse me.” 

The exchange was followed by a round of laughter from Council members, as seen in this video. 

Any casual observer was unaware this was an inside joke. Earlier in the meeting, City Attorney Gary Smith had recused himself, in writing, from an Executive Session legal discussion regarding property whose owners had employed a partner in his law firm. The recusal was not noted in the meeting minutes (1), and it is unknown who provided the legal advice in Smith’s absence. It is the only known written recusal by Smith in 2021 or 2022.

There were no such insider jokes or chuckling during Council’s recent two-hour plus meeting on November 14, 2022. The meeting featured a serious discussion about conflicts of interest rules in the Equine Committee’s bylaws, and City Attorney Gary Smith formally recusing himself twice as many times as he had between January 1, 2021 and October 1, 2022.

Smith recused himself for the second reading of the repeal of the Newberry Street privatization ordinance, and again during discussion and voting on a resolution regarding a property negotiation involving his business partner Mary Guynn. As reported in The Pascalis Attorneys, Smith has been more notable for a lack of recusals in the past two years, which have been cited in three lawsuits alleging violations of South Carolina ethics laws. 

The absence of recusals by the City Attorney also reflected poorly on City Council. No members recognized a conflict of interest during multiple potential and probable conflict of interest circumstances; such as when Smith was present and acting in his official capacity during discussions and/or votes to: 

• Pass a $10 million municipal bond for the Aiken Municipal Development Commission (AMDC) to purchase properties associated with the secretive Project Pascalis demolition and redevelopment effort. Smith’s law partner Ray Massey was deeply involved in the project as an investor, and signed a contract to purchase the properties at half the price paid for by the AMDC a month prior. The contract was eventually terminated two months after a major lawsuit was filed seeking an injunction against the project. 
• Sell city-owned property bequested by the estate of Mattie C. Hall in the early 1970’s to his law firm associate Scott Patterson for the deeply discounted price of $150,000, as reported in The City of Aiken’s Mattie C. Hall Property.
• Propose the sale of city-owned downtown property to another Ray Massey firm at a deeply discounted price. 

The more direct discussion on ethics occurred shortly after Smith’s second recusal, during approval of the Equine Committee’s bylaws. Councilwoman Kay Brohl raised a question regarding the following clause: 

“To avoid a conflict of interest, which occurs when an individual uses his or her committee position for personal economic benefit, a member may recuse themselves from the topic discussion and vote. In the case of recusal, the member does not count for establishing a quorum. All members of the Committee are considered to be ‘public members’ under state law, and therefore subject to the Ethics Act and other applicable conduct requirements established in the Code of Laws of South Carolina.”

At issue was whether the word “subsequent” should be inserted before the word “vote,” but the larger issue was addressed by Aiken resident and attorney Lucy Knowles, who stated: 

“My suggestion is while you’re changing it you should change ‘may” to ‘must’. That is because that’s a requirement of state law that they have to recuse.” 

The Equine Committee may not seem like a potential hotbed for conflict of interests, but local equestrian non-profits routinely receive funding from city accomodations tax revenues to help market their events. The city also contributed a million dollars in 2020 from hospitality and capital projects sales tax revenues to the Aiken Steeplechase Foundation for the purchase of its new venue. 

The entire exchange solidified a subsequent contention, made by Aiken resident Luis Rinaldini, that the city needs to change the current relationship with its attorneys.  Rinaldini, who helped found the Do It Right! Alliance and is a plaintiff in the Blake et al vs City of Aiken et al lawsuit, made the case against “continuing with the same cast of characters” in the wake of the failure of Project Pascalis: 

“The City of Aiken has just witnessed the cancellation of the 100 million dollar Pascalis project.  It’s undoubtedly maybe the largest in its history….yet here were are two months after cancellation and Council hasn’t said anything. I just don’t think that’s smart or a good idea. I think the public wants to know what council feels about this process, and unfortunately your silence isn’t helpful.

”You must  see that saying nothing and pursuing business as usual isn’t going to work and it’s just going to make you look arrogant and tone deaf. Citizens want to reasonable change from Council. They want transparency, good governance and fiscal responsibility. 

“And there are three other things citizens are looking for. They want a change in the composition and functioning of the Design Review Board, a change in the composition and functioning of the AMDC if it is not going to be abolished, and a change in the city’s relationship with its attorneys.” 

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FOOTNOTES:

(1) Reference to the October 11, 2021, closed-door Executive Session are on Page 5 of the Workshop minutes at https://edoc.cityofaikensc.gov/WebLink/DocView.aspx?id=1824708&dbid=0&repo=City-of-Aiken-LF . 

Further reference to municipal ethics rules can be found on pages 18-20 of the City of Aiken Handbook For Boards and Committees.