by Don Moniak
April 6, 2023

Two dissimilar cases with one lawyer in common are in the courts this month (1). The first involves actions by the City of Aiken during the Pascalis Project; and the culpability of the city attorney. The second involves a City of Aiken sanitation truck driver—although the city is not named as a party. The information in the court record on the latter case is very limited.

The Pascalis Lawsuit

A motion to dismiss Aiken City Attorney Gary Smith from the Blake et al vs City of Aiken et al lawsuit, aka the Pascalis lawsuit, is listed on today’s Second Judicial State District Court’s non-jury motions roster.

As detailed in The Pascalis Attorneys, Smith’s role in the Project Pascalis saga relates to his failure to recuse himself from the project proceedings due to conflicts of interest; as his legal partner Ray Massey was deeply involved with the $100 million plus downtown demolition and redevelopment project from its earliest stages through its cancellation in late September, 2022.

On March 13, 2023, Smith filed an answer to the First Amended Complaint that mostly reiterated his August 2022 answer to the original July 5, 2022 summons, an answer addressed in the article, The Gary Smith Defense.

In the the Plaintiff’s April Memorandum in Opposition to dismissing Smith, they argue that Smith is a “proper, if not necessary party,” because:

“In this case, the City and its boards have been alleged to have failed in properly recording a conflict of interest involving its City Attorney, Gary Smith. The duty to disclose is certainly the City’s, but Gary Smith is the subject of that alleged conflict of interest and so is affected by the declaration and should be joined, under the provisions of the Declaratory Judgment Act. In fact, if he was not named, one would think he would seek to intervene under Rule 24(a), SCRCP, so that he could protect his interests in this adjudication involving his alleged conflict of interest.”

Among the claims made in both answers, Smith denied involvement in the City of Aiken’s Design Review Board (DRB) process that led to the Board’s March 1, 2022, decision to permit the demolition of the Beckman Buiding at 106 Laurens Street, home to three existing businesses, and the vacant Hotel Aiken. Mr. Smith’s law partner Ray Massey was an investor in, and represented, the applicant, RPM Development Parters, LLC, for that demolition request. Both properties were owned by the Aiken Municipal Development Commission (AMDC).

In paragraph 56 of his latest answer, Mr. Smith’s counsel wrote: 

“This Defendant affirmatively states that he has not provided legal counseling to the DRB as part of its consideration of any aspect of the Project, and is without sufficient information or knowledge to admit or deny the specific allegations regarding any actions taken by the DRB with respect to the Project.” 

However, Mr. Smith’s billing invoice (below) to the City for work in February 2022 shows that on February 28, 2022, the day before the DRB approved demolition request for the Hotel Aiken “and associated shops,” Mr. Smith likely advised DRB Chair McDonald Law and then City Planner and DRB staff liason, Mary Tilton on the demolition request.

As reported in Why is the City of Aiken Toying with 113 Downtown Jobs, Mr. Law exchanged numerous ex-parte, back-channel communications with AMDC director Tim O’Briant regarding Project Pascalis, including one in which Chairman Law thanked Mr. O’Briant for guiding the process along. Ms. Tilton was cc’ed on most of those emails, none of which entered the “quasi-judicial” DRB public record.

Although redacted, the timing of the meeting strongly suggests research into the legality of the demolition request.

The meeting minutes for the March 1, 2022 DRB “work session” that preceded the Board’s public hearings include this exchange:

“Board Member Knowles expressed her concern that the application for demolition should come before the DRB along with an application for the final plan for replacing the structure to be in compliance with the Old Aiken Design Guidelines.

Planner Mary Tilton informed the Board that the Old Aiken Design Guidelines only require a plan to be presented. She read the Section on Demolition from Page 42 of the Old Aiken Design Guidelines: ‘Any application for a demolition shall include plans for the re-development of the site after demolition.’”

That legal interpretation was not introduced during the actual demolition hearing. This is typical protocol for City of Aiken “work sessions,” where important matters are often discussed without introducing the discussion into the formal, public, on-air record.

City Attorney Gary Smith was absent from both the work session and the meeting; and did not provide the Board any backup, conflict-free, legal counsel. Instead, Ms. Tilton presented the legal case; contrary to standard Planning Department practices of deferring legal questions to the legal department.

For example, on June 27, 2022, Planning Director Marya Moultrie expressed a need for a legal opinion during Aiken City Council’s public hearing on a rezoning request. Council then entered Executive Session to accept advice from City Attorney Smith. That discussion that led into  Executive Session is at 1:19 :00 of the meeting video. During that discussion, Planning Director Moultrie stated:

“I think we’re getting possibly a question for a legal question right yeah and I don’t want to get into that.”

The Regional Dump Case

On the jury roster for the week of April 17-21 is a case involving a plaintiff who suffered an injury while driving a City of Aiken garbage truck, the regional solid waste authority that serves Aiken County and its municipalities, and the law firm that routinely represents local government entities.

In Harris and Harris vs Three Rivers Solid Waste Authority, the plaintiffs alleged in their summons and complaint that “on or about February 19, 2020,” Plaintiff Michelle Harris had driven a City of Aiken sanitation truck to the regional Three Rivers Solid Waste Authority landfill within the Department of Energy’s Savannah River Site (SRS).

The 1400-acre dump has been operating since 1998, and accepts disposal of municipal solid waste, commercial waste, and industrial waste from nine member counties and SRS.

On the day in question, the plaintiffs allege that an unidentified driver of a large waste truck owned by the Defendant Three Rivers knocked the city’s truck on its side while it was the landfill, stating the landfill’s operator:

“ Without consent, directed and instructed Plaintiff Michelle Harris to keep her vehicle stopped as he unreasonably attempted to remove waste products from (her) vehicle causing her vehicle to capsize or tilt over on its side by striking her vehicle in the process and caused a collision that resulted in personal injuries.”

No exhibits such as an accident report are in the available court records.

The defense for Three Rivers, represented by professional government- defense lawyer David Morrison of Columbia (who also represents the AMDC in the Pascalis lawsuit) denied all allegations, but implicitly acknowledged harm by putting forth the standard argument that the plaintiff was more at fault than the defendant.

Morrison also argued that the City of Aiken employee was violating unspecified landfill rules:

“The Defendant was not negligent, not vicariously liable, and has no institutional liability because the Plaintiff’s wrongful actions in driving her truck improperly on the landfill created an emergency situation where she required emergency care from the Defendant’s employees at the landfill and the Plaintiff’s claim arises out of the emergency care the agents of the Defendant administered. As such the Defendant is protected from suit under the Good Samaritan defense pursuant to S.C. Code Ann. § 15-1-310.”

The case is on the Jury Roster for Judge Clyburn’s docket the week of April 17-21, 2021.

FOOTNOTE

(1) The jury roster docket for April 17-21 includes personal injury cases involving a local Dollar General and the Richland Avenue Walmart , a land dispute and breach of contract case involving a charity known as Double You Omen Living Trust Covenant.

Today’s motion roster included motions involving a breach of contract case at Todd’s Hill, a construction case at Three Runs Plantation, and a Motion to Compel discovery from the owners of the Kozy Kort Motel in Clearwater, SC; part of a convoluted and complex, three-year old personal injury/sex trafficking complaint brought by an anonymous plaintiff. The American Hearth Motel on Richland Avenue offered $100,000 to settle this past January to “avoid further litigation costs,” and is now listed as inactive in the court record. The Plaintiff’s identity remains sealed from public disclosure under a protective order.