Tag-Team Legal Research and the Do It Right! Alliance Petition

by Don Moniak
Updated February 25, 2023.

According to legal department invoices (1), in May of 2022 the City of Aiken spent at least $4,147.50 on legal fees to address the threat of a citizen-led petition aimed at defeating key elements of Project Pascalis. Two outside, contract lawyers from Columbia and the Upstate billed the city 16.5 hours to conduct research into the legal issues surrounding the Do It Right! Alliance petition drive that began on May 11, 2022.  When the attorneys were conferencing and comparing notes, the City of Aiken paid more than $500 per hour collectively on legal fees.

According to the legal invoices, attorney Jim Holly submitted a separate invoice for “Research SC Initiative and Referendum Laws on Pending Petition;” and attorney Daniel Plyler’s invoice for “City of Aiken Miscellaneous” was focused on separately investigating the issue and comparing his findings with Holly.

Table 1:  Attorney Fees to “Research SC Initiative and Referendum Laws on Pending Petition

Attorney	Hours Billed	Rate/Hour	Billing
Daniel Plyler	6.2	$250	$1550.00
Melissa Seagar (Paralegal)	1.5	$100	$150.00
James Holley	8.9	$275	$2447.50

Exerting “Political Clout”: The Petition Begins

On May 9, 2022, Aiken City Council voted 6-1 to approve privatizing a portion of publicly-owned Newberry Street. The recipient of Council’s largesse was the consortium known as RPM Development Partners, which at the time was the private half of the public-private partnership known as Project Pascalis. The official public half was the Aiken Municipal Development Commmission (AMDC).

The vote was a tipping point for the increasingly controversial downtown demolition and redevelopment effort. Two days later more than one hundred people gathered on the lawn of a private home in Aiken to attend the first organizing meeting of a grassroots group called the Do It Right! Alliance. “Charm, Not Chaos,” was announced that day as a slogan that would eventually find its way onto hundreds of protest signs around town.

The meeting was spread by word of mouth, but was open to all citizens and local media. A seven-page handout was openly available that succinctly presented the case that Project Pascalis was both the wrong approach for downtown Aiken, and was unlawful. In regard to the law, among the key points in support of litigation, and reiterated by Aiken resident and organizer Luis Rinaldini were that:

• RPM was not selected properly as a developer. 
• City Ordinance required the Design Review Board to deny the demolition request for the vacant Hotel Aiken and the occupied Beckman Building at 106 Laurens Street.
• The AMDC was not acting according to an approved plan. 
• Numerous conflicts of interest had not been addressed

While litigation was one goal, Rinaldini presented the newfound group’s three-prong strategy for defeating Project Pascalis. At the top of the list was a citizen petition, followed by “create good alternatives,” and litigation. A petition offering ordinances to “Overturn or Undo what the City is doing” was presented as the means to project “Political Clout.”

The Do It Right petition, complete and ready for signatures, was introduced and volunteer petitioners were sought. The basis for the petition was a seldom used state law titled “Initiative and Referendum.”

Section 5-17-10 of South Carolina State law permits the proposal of ordinances via petition of at least fifteen percent of the registered voters of any municipality:

“The electors of a municipality may propose any ordinance, except an ordinance appropriating money or authorizing the levy of taxes. Any initiated ordinance may be submitted to the council by a petition signed by qualified electors of the municipality equal in number to at least fifteen percent of the registered voters at the last regular municipal election and certified by the municipal election commission as being in accordance with the provisions of this section.”

If a City Council fails to act on a petition, or institutes an ordinance “substantially different from that set forth in the petition,” then Section 5-17-30 mandated a referendum within one year.

The Do It Right! Alliance petition (3) proposed not one ordinance, but four:

1. Prohibit the closing of any part of Newberry Street and any intrusion into Newberry Street/Parkways.
2. Require the city and its commissions and boards to “follow the requirements of the City’s Old Aiken Master Plan and the Old Aiken Design Guidelines.
3. Require the city to “take all necessary steps to grant landmark status to the Johnson Pharmacy, the Hotel Aiken, and the historic 19th century orginal street grid of the city.”
4. Abolish the AMDC and transfer its real property and any other assets to the City of Aiken.

In the next four months, volunteer petitioners would gather an estimated 3,000 signatures of City of Aiken registered voters; working through the heat of a typically hot, humid, sweltering South Carolina summer. The petitioners set up booths at events, outside of supporting businesses, and canvassed door-to-door.

As the petition gained steam, some downtown businesses began to host petitions as well, with nearly a dozen eventually keeping petitions on hand.

The City’s Response: Hire More Lawyers

The “political clout” message was prescient. Although conducted in secret at the time, the immediate unofficial response to the petition was to assign two contract lawyers to the case, Daniel Plyler and James Holly.

Coincidental with the May 11th Do It Right! meeting, the City of Aiken retained Columbia, SC based law firm Smith Robinson Holler DuBose and Morgan, LLC as a “Special Counsel,” with attorney Daniel Plyler named as the “primary” legal representation. Although the Smith Robinson et al agreement (1) did not specify Project Pascalis as Plyler’s primary role, the belated removal of City Attorney Gary Smith from all involvement in the project was obviously the key motivating factor for obtaining additional outside counsel.

James Holly, a former Aiken City Attorney who is now based in Landrum, had already been retained on April 27, 2022, to represent the city’s Design Review Board; a move also made in large part due to conflicts of interest held by City Attorney Smith. Holly’s agreement with the city also included other tasks as requested.

Smith Robinson et al and Holly collectively devoted 16.5 hours to the research effort, reviewing court decisions, attorney general opinions, and other relevant material. After a week of separate research, attorneys Plyler and Holly conferenced, compared notes, and eventually prepared their findings for City Manager Stuart Bedenbaugh.

The findings of the two attorneys have not been disclosed. But various opinions from the Attorney General’s office regarding the law have been issued in response to nervous municipal leaders since the late 1970’s. In general, the AG’s office has opined that the petition and referendum law cannot be used to override zoning ordinances, but other ordinances are fair game. For example, a 1978 opinion informed then City of Lancaster Councilwoman Sarah Rivelin that petitions are not “merely advisory.”

If the attorneys were scanning current and past events, they also would have learned the petition and referendum tactic is popular in Folly Beach, SC. For example a petition in 2006 residents petitioned to change the height ordinance, an effort that led to an AG opinion that such an action conflicted with state zoning laws. Most recently, a petition to cap short-term rental licenses achieved a 25 percent signature rate; and following a denial by Folly Beach City Council it will head to a referendum.

The Status of the Petition

According to petition organizers, the true number of necessary signatures for any petition is currently close to 4,000, signifcantly greater than the original 2500-3000 estimates. Even though the original goals were achieved but the count remained short, political clout was realized and strengthened after litigation was pursued nearly two months after the petition was launched and volunteers had laid foundational supports. The petition drive functioned as the alliance’s primary educational tool, and the lawsuit followed as another legal tool.

The effort to gain more signatures waned as the city began to cede ground. First, Project Pascalis was cancelled by the developers and the AMDC in September 2022, although some confusion over the real project status lingered. Then, Aiken City Council repealed the Newberry Street privatization ordinance in November 2022. In mid-January 2023, Council expressed its intent to transfer AMDC properties to the city and probably dissolve the commission. Finally, during the January 2023 “State of the City” address, Mayor Rick Osbon announced that an open, legal Request for Proposals for renovation or replacement of the Hotel Aiken would be forthcoming.

Since petition item number two is essentially an ordinance to require the city to obey its own ordinances, the only remaining proposed ordinance involves the landmark status for the historic grid, the CC Johnson Drug Store, and the Hotel Aiken. Whether the “political clout” achieved by the petition will compel city leaders to move forward on those demands remains an open question.

There is no plan to submit the petition to the city’s election commission. The Do It Right! Alliance, which was never formalized as an organization on paper, perserveres as an idea and a vision, with its most concrete representation being an open Facebook Group.

How Much is $4147.50?

During the summer of 2022, the city’s Smith-Hazel Park swimming pool suffered numerous shut downs to the lack of lifeguards. At the time, the city was paying its lifeguards $9.50 per hour, while other pools were paying their lifeguards $2 to $4 more per hour. If lifeguards were paid $15/hr, the minimum wage for city workers advocated by City Councilwoman Lessie Price, the legal fees could have covered seven weeks of a lifeguard’s wages, or nearly 280 hours.

The money spent left the Aiken area, and benefitted the economies of Columbia and Landrum, SC.

(Disclosure: Don Moniak is a frequent contributor to the Do It Right FB page and supported the informal group’s goals that helped contribute to the demise of Project Pascalis, Part II. )
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(Updated February 25th to identify the home base of the contract attorneys and to credit local businesses with hosting petitions).

Footnotes

(1) Legal invoices were obtained via a September 2022, Freedom of Information Act request for all City of Aiken legal department invoices submitted in Calendary Years 2021 and 20222.

The invoices were redacted under a claim of “attorney-client” privilege. The fallacy of the city’s claim is exposed in The AMDC’s Most Inane Legal Bill?

Jim Holly’s invoice can be seen here
Smith Morrison et al’s invoice can be seen here.

(2) The Daniel Plyler and James Holly agreements with the City of Aiken were obtained by Aiken area resident Kelly Cornelius via FOIA requests.

(3) The Do It Right Petition: