City Government, Money Trails, November 2023, Pascalis 2023 - SRNL Lab

Project Pascalis Legal Costs

November 21, 2023 donaldmoniak 4 Comments

Known Project Pascalis legal costs to-date range between $300,000 to $350,000. Approximately two-thirds of the costs were for general counsel, and one-third for litigation.

By Don Moniak
November 21, 2023

A review of City of Aiken legal department invoices (1) from January 2021 to August 2023 shows known costs to-date for legal counsel related to Project Pascalis to be approximately $349,110 (Table 1). If only half of the legal costs incurred by the Design Review Board are estimated to be indirectly related to the project, then known directly related costs still exceed $300,000.

The greatest legal costs were incurred through general counsel work unrelated to any litigation. In total, approximately $256,775 in general counsel and document preparation costs were incurred by the Aiken Municipal Development Commission (AMDC), the city’s Design Review Board (DRB), the City of Aiken (COA), and paid for with taxpayer funds.

Legal costs to defend City of Aiken parties in the Blake et al vs City of Aiken et al lawsuit have been lower. The lawsuit was filed on July 5 , 2022 in an effort to stop the project and hold the City of Aiken, AMDC, and DRB accountable for alleged violations of state and local laws. The City’s known costs to date are estimated at $91,883. Once all invoices are submitted, the costs are expected to exceed $100,000.

These figures are estimates, as not all invoices are available and the estimates are hindered by excessive redactions of basic, often innocuous, information under the pretense of “attorney-client privilege.” Only the City of Aiken can compile a precise and full accounting of legal costs.

Law Firm	Invoices Dates	Total Billings	Client
Davidson, Wren*	Finance records	$7,649+	AMDC Ex. Dir.
Jim Holly	4/22 to 7/23	$91,025	DRB**
Hull Barrett	January 2023	$36,800	Newberry Hall
Lindemann…**	Finance Records	$4,946+	DRB
Morrisson	7/22 to 3/23	$24,440+	AMDC
McCants…	5/22 to 10/22	$1,200	COA
Pope-Flynn	2/21 to 1/23	$146,867	AMDC/COA
Smith, Robinson…	5/22 to 8/23	$30,923	COA
Smith, Massey…	5/21 to 3/22	$5,260	COA/AMDC
Known Totals	2/21 to 8/23	$349,110

Table 1: Known Project Pascalis-related legal costs paid by the City of Aiken .
DRB = Design Review Board. AMDC = Aiken Municipal Development Commission.
COA = City of Aiken. “+” = higher costs due to unavailable invoices
*The City of Aiken has yet to provided invoices for the Lindemann Law Firm and Davidson and Wren Law Firm. Estimates are derived from city finance records.
**Not all DRB non-litigation costs are directly related to Project Pascalis. Some DRB legal costs involved other cases before the Board. However, the Pascalis project itself triggered the hiring of independent outside counsel. Prior to May 2022, the DRB rarely had legal counsel present. Beginning in May 2022, legal counsel became involved on a monthly basis. Therefore , all of the DRB’s costs are considered to be Pascalis-related, whether directly or indirectly.

Summary of Key Legal Moments During Project Pascalis

Project Pascalis originated as a $75-100 million public-private endeavor led by the Aiken Municipal Development Commission (AMDC), which proposed the demolition and redevelopment of half a block of downtown Aiken. The project designers originally envisioned a new five-story hotel, a five-story apartment complex, city-owned parking garage and conference center, and ground floor retail space. Funding was to be provided by a variety of sources, including hospitality taxes and upwards of $25 million of state of South Carolina plutonium settlement funds.

The project occurred in two parts. The initial phase, from March to May of 2021, involved two major steps. First, WTC Investments (Agent Ray Massey) procured the rights to purchase seven downtown properties from two property owners, the Shah family and the Anderson family for a total sum of $9.5 million. Those Purchase and Sale Agreements (PSA) were signed by WTC partner Weldon Wyatt.

Second, the AMDC signed a predevelopment Cost Sharing Agreement with GAC LLC (Agent Weldon Wyatt), and design work began. As described in Project Pascalis Includes the Alley, the original conceptual design was more ambitious, and actually included the construction of multi-story apartments sandwiching The Alley, in part on properties purchased in March 2021 by Aiken Alley Holdings (Agent Ray Massey).

Page five of the cost sharing agreement contained a provision allowing the AMDC to take assignment of any “property interest” owned or controlled by the developer if the developer “determined to cease development prior to May 17, 2021.”

This first project phase ended abruptly the first week in May of 2021, after GAC withdrew from the project. A series of meetings occurred between members of GAC/WTC and AMDC and City Council representatives to negotiate the future of the project and its properties. By May 3rd the conceptual plans were revised to reflect a less ambitious project involving only the Shah and Anderson properties. (Figure 1)

The final, hours-long (2) meeting held on May 6th is believed to be when the decision was made to move forward on exercising the assignment rights in the cost sharing agreement.

Figure 1. “Massing Model” of downsized Project Pascalis. From: Project Pascalis Conceptual Plans, May 3, 2021 Revision.

The second phase and most familiar phase of the project then began, with an AMDC, City of Aiken, and Aiken Chamber of Commerce collaborative effort to obtain the purchase rights to the properties held by WTC. On May 22nd, the Chamber of Commerce and the Shah family inked the Assignment contract; and on May 25th the two entities inked the PSA. On June 3rd, the assignment process was repeated for the Anderson family’s Newberry Hall property.

Prior to the signings, the AMDC began to solicit proposals from select developers to replace GAC, but without publishing a public Request for Proposals as required by South Carolina Community Development Law. By mid-June of 2021, the AMDC had selected an unidentified developer with whom to pursue further negotiations.

The assignments, purchase and sale agreements, and project reorganization were not publicly disclosed, and project planning continued in secrecy until November of 2021.

From March of 2021 to September of 2021, the AMDC had no attorney under contract specifically for general counsel. It obtained advice as needed, primarily from Attorney Gary Pope Jr of the Pope-Flynn Law Group. Important, decisional AMDC meetings involving the $100 million project without any general counsel attorneys listed as attendees include the following:

March 17, 2021, special-called meeting to discuss and improve a resolution authorizing the negotiation and execution of the GAC cost sharing agreement.
June 8, 2021, regular meeting where AMDC Chair Keith Wood was authorized to enter into negotiations with a “potential Project Pascalis developer. “
April 18, 2022, special-called meeting to discuss and approve
a resolution in support of the “conveyance” of a portion of Newberry Street to Pascalis project developer RPM Development Partners.

Not until early October of 2021, when the Pope-Flynn Law Group signed a Dual Engagement Letter, did the AMDC have its first official attorney.

In early November of 2021, the AMDC used $9.6 million in city funds to take assignment of, and purchase, the seven Pascalis properties. Pope-Flynn prepared the general obligation bond issuance that enabled the purchase.

One month later the AMDC announced the selection of RPM Development Partners as its “preferred developer;” and the signing of a $5 million Purchase and Sale Agreement (PSA) with RPM for the same Pascalis properties purchased one month earlier for $9.6 million.

Ten days after the PSA was signed, a Request for Proposals (RFP) seeking Pascalis project developers was belatedly published in the Aiken Standard. As reported in The Project Pascalis RFP, a proof of the RFP public notice was prepared by AMDC Attorney Gary Pope, Jr. in early November, but a revised proof was submitted by Mr. Pope on December 9, 2021, for publication on December 13th and 20th—well after RPM was chosen as the preferred developer.

Over the next six months, the AMDC and City of Aiken vigorously pursued the project, a pursuit supplemented by strong support from the DRB. But the further along the project progressed, the more citizen opposition widened and intensified. By early May numerous legal issues had been raised, a petition to change city code emerged from a movement called the Do It Right Alliance, and the threat of a lawsuit loomed.

By late April of 2022, the increased public scrutiny, ethics concerns related to the Aiken City Attorney, and the increases in project complexity prompted city officials to retain more outside legal counsel for the Design Review Board (DRB) and Aiken City Council—though not for the AMDC.

“*The process looks to be deeply flawed. It looks to be on the way to a failed project*.” Aiken resident Gilbert Kennedy, at April 20, 2022 AMDC public forum, afternoon session. 1:33 to 1:36 of meeting mark on You Tube video.

First, Attorney Jim Holly signed an agreement in late April of 2022 to represent the DRB during its regular deliberations and in any future litigation. Holly’s agreement included the stipulation that additional legal assistance would be provided in the case of any litigation.

Then, on May 12th Attorney Daniel Plyler of Smith-Robinson Law Firm signed a contract to act as “special counsel and/or City Attorney on an as-needed basis.”

In late June of 2022, the AMDC decided to reorganize the project by means of amending the obsolete redevelopment plan that provided part of the project basis, holding an overdue public hearing on that plan, and issuing a new Request for Proposals. A Draft Public Notice of the changes was prepared, but never released.

One week later, before the planned change in course could be publicly announced, the Blake et al vs City of Aiken lawsuit was filed. The Plaintiffs sought “declaratory relief” to determine City Council, the AMDC, and the DRB had violated various state and local laws, an injunction to halt the project, and a finding of FOIA violations.

Following the lawsuit, the number of legal firms actively representing city interests doubled. The Morrison Law Firm and Davidson, Wren, and Demasters Law Firm (3) were retained to defend AMDC-related issues; and the Lindemann Law Firm was chosen to join Attorney Jim Holley on the DRB’s defense team.

In mid-September of 2022, as the deadline for closing on the PSA loomed, RPM chose to terminate its involvement. Two weeks later, the AMDC followed suit at its September 29th meeting. In personal public statements made after the meeting, Chairman Keith Wood and Vice-Chairman Chris Verenes cited the belated publication of the Pascalis RFP in December 2021 as a key issue leading to the project cancellation.

Even after the cancellation, the Pascalis lawsuit continued in the courts for another year, marked by a long series of Motions for Summary Judgement, Protection from Discovery, and More Definitive Statements.
On September 19th, a hearing was held on the Defense Motion for Summary Judgement to render the case moot due to the project cancellation, repeal of the Newberry Street partial privatization ordinance, and dissolution of the AMDC between September 2022 and May of 2023.

This past week, two of the three Plaintiff causes of action were dismissed in a brief decisional notification that stated:

“On September 19, 2023, Defendant’s motion for summary judgement came before the Court. After carefully considering the memoranda submitted by counsel, case law, and other relevant filings, the Court GRANTS Defendant’s motion for summary judgement with respect to Plaintiffs’ first and second causes of action–declaratory judgement and permanent injunction (as well as other equitable relief sought)–but the Court DENIES Defendant’s motion for summary judgement with regard to Plaintiffs’ third cause of action for violations of S.C. Freedom of Information Act.”

The Judge’s order justifying the decision has yet to be released. The case remains open, but only the merits of alleged FOIA violations will be heard.

(More complete timelines for the Pascalis project can be found at A Project Pascalis Timeline (2019 to June 2022), and Project Pascalis Timeline Update: June 2022 to August 2022. The progression of various project designs can be viewed at The Changing Views of Project Pascalis.)

Informational Limitations on Legal Costs

Total costs remain unknown for four reasons:

1. The data is incomplete, with the last available invoice from August 2023. There is a complete absence of invoices for all or parts of 2023 from the Lindemann and Morrison Law Firms. City records do show a December 2022 payments to Lindemann Law Firm, and Davidson and Wren; and to Davidson and Wren in September 2022. As the payment totals are similar to those paid to the other Pascalis lawsuit defense firms, and are used in these estimates.

2. The invoices from Attorney Jim Holly for his counsel to the Design Review Board (DRB) mix both litigation costs and costs related to the normal operations of the DRB.

3. Invoices contain extensive redactions made by the City of Aiken under a Freedom of Information Act (FOIA) exemption for records that qualify under the broad category of attorney client-privilege. Many of these redactions for non-litigation services have been shown to involve innocuous information. However, there is generally enough information available, such as the names defendants and Plaintiff attorneys, to easily determine which invoices are project related (Figure 2)

Figure 2: December 2022 to March 2023 invoice from Morrison Law Firm for Pascalis lawsuit defense of the AMDC. The name of the case is inexplicably redacted. The one-hour call with David Jameson occurred the day before he resigned from the AMDC. Morrisons and Smith-Robison’s invoices all contain references to Plaintiffs’ attorneys. Obtained via FOIA request.

4. It is unknown whether the city’s insurance and risk provider has, or will, reimburse any legal costs. On July 5, 2022, the city submitted a claim to its insurance provider, the South Carolina Municipal Insurance and Risk Fund (SCMIRF). As of January 2022, that claim remained open. (Table 2).

Table 2: Excerpt from City of Aiken 2022 Insurance Claims. Claim for Pascalis lawsuit filed July 5, 2022 and remained open and under review as of January 1, 2023. Obtained via FOIA request.

Law Firms and Total Costs

The legal services to date can be delineated into two broad categories: general counsel unassociated with the Pascalis lawsuit, and actual litigation. A third category is indirect costs of DRB outside counsel—representation deemed as unnecessary prior to Pascalis. A two-to-one ratio of general counsel (Table 3) to litigation costs (Table 4) is estimated; and indirect costs are estimated to be less than $50,000.

Legal costs have been lower than expected for the Pascalis lawsuit litigation due the relatively low hourly billing of City of Aiken and AMDC defense attorneys—which are close to half the hourly rate charged by the Pope-Flynn Law Group. Another cost reduction factor was the mutual decision in February of 2023 to remove individuals from the list of defendants.

In total, thirteen attorneys from nine law firms have provided various Pascalis project-related legal services to the City of Aiken, the AMDC, and the DRB. This list consists of:

Landrum-based Jim Holly has represented the Design Review Board (DRB) during its public hearing process, and in the lawsuit. He signed a Letter of Engagement on April 25, 2022. In the absence of the project, his services would likely have been unnecessary.
Aiken-based Hull-Barrett of Aiken represented Newberry Hall in negotiations with the AMDC regarding its lease with the AMDC and future management and ownership of the Pascalis project’s proposed conference center. As described in Project Pascalis Conference Center Costs, the AMDC reimbursed Hull Barrett this past January for Newberry Hall’s legal costs associated with those negotiations.
Columbia-based Lindemann Law Firm has represented the Design Review Board (DRB) in the Pascalis litigation. Its invoices have yet to be provided by the City of Aiken.
Aiken-based McCants and Nance represented the City of Aiken and Attorney Gary Smith in two smaller, earlier lawsuits, both of which dismissed over a jurisdictional issue. McCants also represents City Attorney Gary Smith in the Pascalis lawsuit—but since Smith is an independent contractor and McCants did not submit an invoice for that defense in 2022, it is assumed here that the city is not funding Mr. Smith’s defense.
Columbia-based Morrison Law Firm provided the AMDC with its legal defense in the Pascalis lawsuit, while Attorney Michael Wren of Columbia-based Davidson and Wren represented the AMDC’s Executive Director.
Columbia and Spartanburg-based Pope-Flynn provided intermittent legal services to the AMDC between February and October of 2021, before signing the agreement to officially represent the commission.
Attorney Daniel Plyler of Columbia-based Smith-Robinson was retained by the City of Aiken in mid-May of 2022 for “General Counsel and acting City Attorney” in Pascalis-related matters. Smith-Robinson then represented Aiken City Council in the lawsuit.
Smith, Massey, Brodie, Guynn, and Mayes (SMBGM) provided intermittent and limited services. Most notable were $3,150 worth of billings in May of 2021 for “Title Searches of the Hotel Aiken and Anderson Properties,” and document preparation believed to be the Pascalis properties assignments.

Firm	Client	Cost
Holly	Design Review Board	$68,268*
Pope-Flynn	AMDC	$141,673
Smith Robinson	City of Aiken	$4,775
Smith Massey et al	City of Aiken	$5,220+
Hull Barrett	Newberry Hall	$36,800
Total		$256,776

Table 3: Known Pascalis project general counsel legal fees.
* Jim Holly’s fees related to Pascalis are intermixed with fees related to the normal DRB hearing process. However, the DRB had always functioned with in-house counsel prior to Pascalis. Three-quarters of his total fees are estimated to be for non-litigation.

Law Firm	Client	Cost
Davidson, Wren	AMDC Staff	$7,649
Holly	DRB	$22,756*
Lindemann	DRB	$4,496
McCants	City of Aiken	$1,200
Morrison	AMDC	$24,440+
Pope-Flynn*	AMDC	$5,194
Smith, Robinson	City of Aiken	$26,148+
	Totals	$91,883

Table 4: Known Pascalis project litigation costs. fees..
*One-quarter of Jim Holley’s total fees are estimated for litigation, which is similar to the billings from the other two major litigation firms. ** Pope-Flynn did not directly represent the AMDC during litigation. Its role was as an intermediary between the commission and its attorneys.

Law Firms

Pope-Flynn Law Group

At $300-350 per hour, the Columbia and Spartanburg-based Pope-Flynn Law Group was the highest-priced of the project’s legal advisors. In total, Pope-Flynn earned $146,960 (Table 5), the most among all project law firms, of which approximately $5,145 was litigation related.

Pope-Flynn’s involvement in began in Feburary 2021, at the onset of the first project phase; previously it was retained as a bond counsel. Attorney Gary Pope, Jr. drafted the GAC/AMDC Predevelopment Cost-Sharing Agreement, and was working on an incentive agreeement for GAC before the project collapsed.

According to its May 2021 invoice, Pope-Flynn was noticeably absent after Mr. Pope attended the May 6th meeting to chart the project’s future. The firm was uninvolved in the property assignments and recruitment of potential developers that revived the project.

Pope-Flynn resumed intermittent legal services in June of 2021, and in early October signed its agreement to officially represent the commission.

The firm immediately assisted in unsuccessful negotiations with RPM to reach project Master Development and Purchase and Sale agreements; and with Newberry Hall towards an agreement on the future operations of the proposed conference center.

Other notable aspects of the Pope-Flynn representation included:

A marked rise in billable hours after citizen challenges and objections mounted. After billing an average of only 4 hours per month from December 2021 to February 2022, Pope-Flynn’s billings averaged 34 hours a month through June of 2022. The firm’s legal advice included responding to “overly broad FOIA requests” in March of 2022, and ethics concerns in May of 2022.
An alleged lack of advice regarding SC Community Development law. (4) According to former AMDC Chairman Keith Wood’s September 29, 2022, public statement, the commission was “first informed of the detailed requirements of the Community Development Act by the staff and the AMDC attorney on June 23, 2022; the same day that “staff and the AMDC attorney recommended the AMDC start the process over.”
Responsibility for preparing and publishing the Pascalis project Request for Proposals. Gary Pope, Jr. sent the RFP announcement to the Aiken Standard on December 9, 2021 for publication on December 13th and 20th—more than a week after the AMDC had selected RPM Development Partners, LLC as its “preferred developer,” and signed the $5.0 million PSA.
A. $34,500 service fee for processing the $9.6 million municipal bond issuance that allowed the AMDC to purchase the Pascalis properties in November, 2021. More detailed information on that bond issuance is
available in Keeping Up Appearances…
Representation of the AMDC at its April 20, 2022, public forums. Pope-Flynn billed the commission 11.4 hours and $3,990 for Mr. Pope’s presence at these events; which included the round trip drive from Columbia to Aiken, lunch at the Brew Pub, and $124.02 for mileage. The total cost for the two meetings, during which Mr. Pope only spoke once, was $4150.72
Mr. Pope billed the city two hours and $700 after being asked to redact billing invoices that were already in the public domain in the commission’s “Financial Binder.” (Figure 3)

Figure 3: Redacted Pope-Flynn Invoice for April 2022. When compared to the unredacted version, “Project Pascalis” is redacted from the heading but remains in the expense column, and “Community Meetings” is redacted in the 4/18/22 entry but not in the 4/20 entry. This invoice illustrates how much of the redaction process involves information that is not confidential or privileged.

Employee	Role	Hourly Rate
Gary Pope, Jr.	Attorney	$325-350
CD Rhodes	Attorney	$300
	Paralegals	$120-175/hr

Month / Year	Hours	$ Billing	Miles	Expenses
February 2021	0.5	$162
March 2021	18.5	$ 5923	216	$121.00
April 2021	4.5	$ 1462.50
May 2021	8.2	$ 2784.84
June 2021	6.8	$ 2269.36	106	$ 59.36
July 2021	None	Reported
August/September 2021	15.7	$ 5102.50
October 2021	50.1	$15812.50	162	$ 91.84
November 2021**	Fee	$34500.00		$700.00
November 2021	62.8	$19495.00	384	$654.58***
December 2021***	3.4	$ 1022.08
January 2022	1.7	$ 595.00
February 2022	5.7	$ 1970.00
March 2022	23.1	$ 8084.51	106	$. 62.01
April 2022	22.0	$ 7690.00	424	$284.74
May 2022	31.0	$10850.00	386	$219.96
June 2022	59.0	$20360.00	318	$186.03
July 2022	7.7	$ 2670.00
August 2022	5.3	$ 1855.00
September 2022	4.7	$ 1620.00
December 2022	0	0
January 2023	2.0	$700
Totals	332.7	$145,628	2102	$2379.52***

Table 5: Pope-Flynn billings by month.
*Service Fee for $9.6 million bond Issuance for purchase of Pascalis Properties.
**$654.50 in expenses including $430 for the legal notice for Request for Proposals publication in Aiken Standard, which was published ten days after AMDC signed a contract with RPM Development Partners, LLC.
***Total expenses includes $1,239.04 for mileage reimbursement

Holly Law Firm.

Attorney Jim Holly, who operates a sole-proprietorship law practice, has been the second largest recipient of project-related legal fees. Mr. Holly was retained to advise the DRB after City Attorney Gary Smith ended all involvement in the project sometime in April 2022. Mr. Holly’s fee is $275 per hour.

Mr. Holly has deep and broad experience with local government legal issues. He counseled the City of Aiken from 1985-1995, when he was the last in-house City Attorney; and served as Aiken County Attorney for a total of 8 years (2007-2009 and 2014-2020). In the past two years, Mr. Holly has also guided the City Council redistricting process and other matters.

Much, but not all, of his general counsel work on behalf of the DRB was directly related to the Pascalis project. That work included the DRB’s preparation to hear the second round of proposed demolitions, the request to declare a state of “Demolition by Neglect,” of the Hotel Aiken and other Pascalis properties, and the litigation itself.

Indirect fees are considered here for the simple reason that the the DRB routinely operated without outside counsel prior to Pascalis. Most of its work involves the more mundane issues of replacing gutters, windows, stone walls, fences, mailboxes, roofs, etc on historic district structures; and not reviewing major projects.

Month	Hours	$Billing	Task
May 2022	8.90	$2,447	Petition *
May 2022	29.40	$8,095	DRB management
June 2022	25.05	$6,889	DRB management
July 2022	27.6	$7,590	DRB Mgmt and Lawsuit
August 2022	14.8	$4,070	DRB Mgmt and Lawsuit
September 2022	8.1	$2,727	DRB Mgmt and Lawsuit
October 2022	20.4	$5,610	DRB Mgmt and Lawsuit
November 2022	35.1	$9,652	DRB Mgmt and Lawsuit
December 2022	19.95	$5,486	DRB Mgmt and Lawsuit
January 2023	14.10	$3,887	DRB Mgmt and Lawsuit
Feburary 2023	20.10	$5,527	DRB Mgmt and Lawsuit
March 2023	13.85	$3,808	DRB Mgmt and Lawsuit
April 2023	11.00	$3,025	DRB Mgmt and Lawsuit
May 2023	25.15	$6,916	DRB Mgmt and Lawsuit
June 2023	28.15	$7,500	DRB Mgmt and Lawsuit
July 2023	28.35	$7,796	DRB Mgmt and Lawsuit
Totals	331	$91,025

Table 6: Jim Holley’s monthly billings since April 2022.
* As reported in The Pascalis Attorneys, Part 2, Mr. Holly was assigned the task of reviewing the statute cited in the Do It Right! petition to repeal or add City ordinances.

Morrison Law Firm

The Morrison Law Firm, which has defended the AMDC in the Pascalis lawsuit, has earned $24,440 and been reimbursed for $595 in costs as of March 2022. (Tables 7 and 8)

Employee	Position	Hourly Rate
David Morrison	Attorney	$180.00
Victor Seeger	Attorney	$135.00
	Paralegal	$80.00

Table 7: Morrison Law Firm Hourly Rates

Billing Period	Hrs Billed	Billing $	Other Costs
7/8/22 to 12/7/22	128.5	$21,110	$585
12/13/22 to 3/28/23	21.4	$3,330	$10
Totals	149.5	$24,440	$595

Table 8: Morrison Law Firm Pascalis Lawsuit Billing as of 3/31/23

One of Morrison’s most notable tasks involved preparation, along with City of Aiken defense counsel Daniel Plyler, with a Joint Defense Agreement (JDA) between the AMDC and City Council. In his December 9, 2022, resignation letter, Chairman Keith Wood wrote that the JDA “reads as a non-disclosure statement which restricts information to the public.” The JDA was also described in a November 21, 2022, email from Wood and Vice-Chair Chris Verenes to City Council as an impediment to “open, frank, and complete information,” and thus a disservice of to the Citizens of Aiken. (Figure 4)

Figure 4: Excerpt from Morrison Law Firm November 2022 Pascalis lawsuit legal fees invoice. The probably redactions are in red. The November 2022 invoice from Smith Robinson law firm shows a similar level of correspondence and phone calls with Morrison Law Firm.

Smith-Robinson Law Firm,.

Attorney Daniel Plyler of the The Smith-Robinson Law firm worked on a variety of tasks, earning $30,923 as of September 1, 2023 (Table 10). In May of 2022 he reviewed of the law governing the Do It Right Alliance petition to amend or add four City of Aiken ordinances. The results of that review, conducted in tandem with AttorneyJim Holly, are unknown.

Mr. Plyler also served as City Attorney at City Council Executive Sessions and Meetings in June and July 2022 where Pascalis issues were on the agenda. Beginning in July 2022 his primary role was as the City of Aiken and Aiken City Council defense attorney.

Individual	Position	Hourly Rate
Daniel Plyler	Partner	$180-250
Rachel Lee	Associate Attorney	$135-150
	Paralegal	$80

Table 9: Smith Robinson legal staff assigned to City of Aiken Pascalis project counsel . The hourly rates for the Pascalis litigation are lower than the rates charged for General Counsel and City Attorney roles.

Month	Hours	Billing $	Tasks
May 2022	7.7	$1,700	Review Petition Law
June 2022	12.3	$3,075	AMDC/City Council
July 2022	12.4	$2,122	Lawsuit and Council Meetings
July 2022	11.7	$2,895	Lawsuit
August 2022	22.3	$3,619	Lawsuit
Sept 2022	16.1	$2,818	Lawsuit
Oct 2022	17.8	$3,210	Lawsuit and Council Meetings
Nov 2022	16.4	$2,967	Lawsuit and Council Meetings
Dec 2022	11.7	$2,079	Lawsuit
Jan 2023	3.8	$600	Lawsuit
Feb 2023	10.3	$1,790	Lawsuit
March 2023 2023	10.0	$1,491	Lawsuit
April 2023	4.0	$680	Lawsuit
May 2023	1.1	$154	Lawsuit
June 2023	5.0	$841	Lawsuit
June 2023	4.9	$882	Ethics Complaint with Ethics Commmission
Totals	160.3	$30,923

Table 10: Smith-Robinson legal fees

Smith Massey Brodie Guynn and Mayes.

Due to redactions in the firm’s invoices and the myriad of monthly issues addressed by City Attorney Gary Smith, the costs associated with his law firm are the most difficult to determine.

The largest fees involved “Title Searches for Hotel Aiken and Anderson property” and “document review,” which totaled $3,840 (Figure 6). Between May 15th and May 25th of 2021, City Attorney Smith billed for nearly two hours of work involving “document review” at the same time another member of his firm prepared an unidentified document and conducted the title searches and document preparation.

Since no other law firm billed for services between May 12 and June 1, 2021; the period when the property assignments were completed, SMBGM is believed to be the firm that completed the assignment and purchase and sale contracts. In response to two emails, City Manager Stuart Bedenbaugh has neither denied nor confirmed this assessement.

City Attorney Smith had very limited involvement with Project Pascalis, with an estimated total of only about ten hours. However, his invoices and attendance at project-related City Council meetingindicate involvement at several key junctures, including:

The March 22, 2022 Joint Executive Session with the AMDC to discuss Project Pascalis.
Reviewing and signing the $9.6 million general obligation bond issuance for the purchase of the Pascalis properties.
Participating in the March 28, 2022 Newberry Street privatization ordinance public hearing; and same-day review of a letter from Attorney Dione Carroll—which she presented and read that evening.
Research into issues on behalf of DRB Chairman McDonald Law and DRB staff liaison Mary Tilton on the eve of the DRB’s Hotel Aiken/Beckman Building demolition hearing. (Figure 5). During the work session preceding the hearing, Ms. Tilton reportedly “Informed the Board 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.’” (DRB Meeting Minutes, 3/1/22)

Figure 5:SMBGM Invoice entry for the day before the DRB demolition hearing.

Figure 6: SMBGM supplemental invoice for May 2021 showing Pascalis-related legal service; submitted in July 2021.

Commentary

Whether the total to-date is $300K or $350K, the Pascalis project legal costs have been very high and absorbed funds that were obviously better suited for more meaningful city operations and projects.

As a point of reference, on September 11, 2023, Aiken City Council debated whether to devote part of a budget surplus to giving Aiken Public Safety fire engine operators a four-percent or eight-percent raise, ultimately settling on the eight-percent. The eight-percent raise cost $64,000.

The true Pascalis project costs, legal and otherwise, are still unknown; in large part because throughout the project the city has been transparently opaque. A full and open accounting would be more possible by eliminating the excessive redactions of legal invoices, releasing all AMDC books and records, and placing all the information in the public domain.

Claiming FOIA exemptions for information that can be released is the surest path towards avoiding any lessons learned.

Or, as Aiken resident Rose Hayes wrote in a March 27, 2023 letter to the editor:

“Questions also remain about the tax and private interest dollars that have already been sunk into the failed Pascalis project. In order to have a clear understanding of the city’s $9.6 million debt for that cancelled plan, and why it was necessary, an audit should be conducted by an outside firm. Trying to follow the twists and turns the Pascalis planning took is like trying to chase a snake through brush. An audit would be in keeping with the mayor’s commitment to transparency and helpful in future planning as ‘lessons learned.’”

Figure 5: Full version of featured photo, showing an assemblage of redacted legal invoice entries and known or estimated redacted information in red.

Footnotes

(1). A majority of the Invoices used in this article can be found at:

Invoices submitted since January 1, 2023 for Holly, Morrison, Smith-Robinson, Smith Massey Brodie Guynn and Mayes (SMBGM), and Pope-Flynn law firms.

2021 Invoices for SMBGM
2022 Invoices for SMBGM

Most of the 2021-2022 Invoices for Pope-Flynn begin on Page 154 in the AMDC Financial Binder.

Morrison Law firm invoice for 2022.

All invoices were obtained through several FOIA requests.

(2) Attorney Gary Pope, Jr. of the Pope-Flynn Law Group billed the AMDC 7.2 hours for the meeting. The billing included the 214 mile round from Spartanburg to Aiken, which is approximately 3.5 to 4.0 hours.

(3) Davidson, Wren, and DeMasters is one of two law firms credited with assisting SC Attorney General Alan Wilson with reaching the $600 million plutonium settlement. The other firm is Willoughby and Hoefer. AG Wilson awarded the two firms a combined $75 million in legal fees. The award met with an immediate objection from Governor Henry McMaster.

A lawsuit was filed by Attorney Jim Griffin on behalf of the S.C. Public Interest Foundation and John Crangle. On October 23, 2023, State judge Daniel Coble dismissed the suit, claiming that as an Executive Officer of the state, AG Wilson is entitled to issue such awards. Coble had been assigned the case by the State Supreme Court, where an appeal is again likely.

(4) On October 28, 2021, Pope-Flynn associate CD Rhodes billed the AMDC two hours to “Review Community Development Act. Review records related to AMDC re the same. Exchange emails and confer with G. Pope re the same.” There is no record of the firm briefing the AMDC on SC Community Development Law.

Aiken County, City Government, Development Issues, November 2023, Stormwater and Flooding, Traffic & Safety, Trees and Deforestation

New Shopping Opportunity and Tiny Lots.

November 14, 2023 donaldmoniak 6 Comments

Plans for another dollar store and suburban-style, high-density housing development along the Highway One gateway corridor.

by Don Moniak
November 14, 2023
Updated November 15, 2023.

Tonight’s City of Aiken Planning Commission meeting agenda includes two proposed new developments along U.S. Hwy 1 North: a request for city water and sewer service for a new dollar store across from Aiken Regional Airport, and a ninety-acre, 333-home subdivision with a typical lot size of 0.14 acres.

The two projects are likely to further stir ongoing debate and discussion over both the proliferation of dollar chain stores, suburban-style development, and how Whiskey Road-style sprawl occurs incrementally.

New Shopping Opportunity

Visitors flying into Aiken Regional Airport for the Master’s Tournament and other local pleasure and business activities will likely soon have a new shopping opportunity only one-third of a mile from the airport exit; and local residents will likely have an alternative to the nearby Dollar General.

Agenda item D on the Planning Commission’s agenda is a “City Services Request for Family Dollar Tree, 2530 Columbia Highway North, by Runway FDT.” Since Dollar Trees and Family Dollars have the same corporate owner, whether a Family Dollar or a Dollar Tree store is en route remains unknown.

(Update: The dollar store proposal passed without comment, and the future store was identified as a combined Family Dollar and Dollar Tree).

The proliferation of chain dollar stores across Aiken County is a source of both local amusement and disgruntlement. Contrary to popular perception, many of these newer stores are in the unincorporated lands in Aiken County, not within Aiken City limits.

For example, the new Dollar General stores on Hampton Avenue, at the corner of Chukker Creek Road and Whiskey Road, and on East Pine Log Road all enjoy city services but are situated just outside of city limits. One benefit to DG of these locations is the avoidance of paying city business license taxes—at least until the properties are annexed.

This latest dollar store, located on the northern edge of an established commercial stretch zoned as Urban Development by Aiken County, will be just under four miles north of the City of Aiken’s Generations Park. The property is directly across from Aiken Regional Airport, and within the airport’s restrictive noise and height zones. (Figure 1) While the most recent Aiken County market value appraisal of the 1.8 acre property was for only $35,110, it was sold this past March for $250,000.

The City of Aiken envisions the Highway One corridor as an attractive gateway into Aiken. While the airport provides a broad, pleasant vista, the presence of another dollar store 0.4 miles south of a Dollar General could add to the perception that the Highway One corridor, where locally owned businesses once prevailed, is becoming increasingly generic in nature.

Scene of proposed new Dollar General or Dollar Tree store.

A 2021 Consumer Reports article on the massive growth and presence of the two dollar store chains across the country also describes how some local governments have put a pause on these developments, or otherwise placed restrictions on dollar store densities and locations. At the same time, the authors reiterate the case that, in many areas there are few other choices as the prospects for locally owned general stores continues to grow dimmer.

Aiken County has minimal restrictions; and the one-two punch of lax restrictions and easy access to the Aiken water district’s water and sewer infrastructure further enables the corporate giants to expand their presence.

A Northside Annexation with Tiny Lots

Just under five miles along Highway One, a much more significant proposed development will be heard by the Planning Commission. Midland Valley Developers, LLC, a Fayetteville, Georgia based firm which incorporated in March 2023, is proposing to annex 90.45 acres of unincorporated lands classed as forestry and agricultural into the City of Aiken; and redevelop it into a 333-home subdivision. Two tracts totaling almost three acres and fronting Hwy 1 are proposed for commercial use.

The annexation involves five property owners whose parcels will be purchased and consolidated by Midland Valley Developers if the rezoning and concept plan is forwarded to, and approved by, Aiken City Council.

The subdivision will border Crosland Park, Osbon Drive, and Mayfield Drive. The latter two roads are flanked by 0.7 to 1.5 acre lots described by the Planning Department’s (PD) memo as “rural residential,” and are situated outside of city limits. Crosland Park is dominated by lots ranging from a quarter to one-third of an acre, and is entirely within city limits.

The design and engineering firm is Hussey Gay Bell, a regional engineering and architectural firm that boasts of “impactful projects” across the Southeast “that are the antithesis of mundane.” The company conducted a community meeting on November 9th in Crosland Park. Also attending was Midland Valley Developers representative Chad Gibson.

Tiny Lots

The Aiken Planning Department’s project description (Page 47) asserts a subdivision density of 3.68 homes per acre. However subtracting the minimum open space requirements of twenty percent (18.1 acres), and 2.7 acres of proposed commercial tracts, results in a density of 4.78 homes per acre for the remaining 69.6 acres. Subtract the land necessary for new roads and the lot sizes decrease further.

Concept Plan map for the new “May Royal Subdivision.” (Pages 47-78) The areas in light green represent proposed “open space,” which includes five stormwater management ponds (areas with black boundaries).

The density is closer to 7.1 homes per acre, since the concept plan map notes a “typical lot size” of 0.14 acres—about half the size of the typical Crosland Park parcel, and one-fifth to one-tenth the size of the parcels on Osbon and May Royal Drives. According to the community meeting notes, average home prices of $270,000 are anticipated, and neighbors were told that, “due to land costs and the current market and average demand, the smaller lots are needed.” (Page 78) .

In spite of the tiny lot size, the Planning Department (PD) contends in its memo that, due to the “more compatible” density found in Crosland Park, the proposed density provides an “appropriate transition” to the Osbon and Mayfield Drive neighborhoods it describes as “rural residential.”

In terms of housing density, the PD memo also describes Aiken County zoning rules as being more restrictive:

“The existing County’ s Rural Development ( RUD) zoning would allow for a single- family subdivision, but with a 30′ greater lot width than the proposed typical lot size denoted on the concept plan.”

Access Questions

The Planning Department’s memo and the developer’s application both identify three access points for the subdivision: one off Highway 1 North, and two off Osbon Drive. No traffic light is planned at the subdivision’s junction with the five-lanes wide Hwy 1.

Osbon Drive residents are, quite predictably, not excited about a major increase in traffic. One resident wrote to Hussey Gay Bell representative Keith Utheim that access should be off May Royal Drive, and not Osbon Drive:

“Osbon is a quiet, more narrow, less traveled street, and we would like to keep it that way. May Royal, however, is well-traveled seven days a week and is already equipped to handle this type of traffic. The residents are used to 24/ 7 365 traffic. We request that at least one of the entrances/ exits be placed on May Royal leaving only one on Osbon should this project come to fruition.”

Access off May Royal Drive might be hindered by the holdout by a single property owner of a 0.69 acre parcel with a 20-foot wide, 500-foot long access easement. (Figure 3). The property in the northwest quadrant of the proposed development is crossed off from the October 10, 2023, Hussey Gay Bell rezoning request (Figure 4).

Figure 3: Map showing subdivision boundary and inholding. (From Aiken County land database).

Figure 4: Listing of properties in rezoning request, with inholding deleted.

Forestland Buffers

Another key issue raised at the community meeting was that of existing and future forested buffers. Residents along both May Royal and Osbon generally back up to the forested lands proposed for clearcutting (Figures 5 and 6). The developer has offered a forested buffer of twenty-five feet, which is actually fifteen feet more than the “undisturbed buffer” required by the city’s zoning ordinance.

Figure 5: View into future development area from part of Osbon Drive. (Photo: Laura Lance)

Figure 6: View into development area from property along May Royal Drive. (Photo by Laura Lance).

Topography and Storm Water

Missing from the developer’s application is topographical information; a factor identified as a shortcoming during the Planning Commission’s review in October of the latest Old Aiken Hospital redevelopment proposal. (That proposal was unanimously approved by City Council last night.)

The prospect of the threat from increased stormwater runoff has been raised by at least one neighbor whose property is in the “downstream” portion of the drainage area that currently has a protective forest cover.
(Figure 7).

According to the PD’s memo to the Planning Commission, “ downstream stormwater analysis will be required,” but not until the permitting phase; and the same holds true for a probable sewer capacity review.

(Update: The proposal was tabled on Tuesday night by the Planning Commission and a summary of the issues are provided here.)

Figure 7: Topography of proposed subdivision. The property highlighted in red is downstream is one of several in the stormwater runoff path. The developer proposes to mitigate the expected increase in runoff with five stormwater management ponds; which will also double as “open space.”

The Family Dollar/Dollar Tree utility request is likely to be recommended to City Council, as the Planning Commission generally chooses to honor such requests. Residents of Aiken County can then joke about the latest profitable dollar store.

But the commission has recently shown a propensity for increased scrutiny of larger proposals, especially high-density residential plans with limited access.

In September the commission voted unanimously to deny recommending a high-density housing proposal with only one access point on East Richland Avenue. That proposal was strongly opposed by neighbors that included the Aiken Steeplechase Foundation.

In October the commission conducted a lengthy debate over parking, housing density, and affordable housing, among other factors, for the latest Old Aiken County Hospital property concept plan. As described in “What is Reasonable,” the plan was eventually recommended by a vote of 3-2; but the debate sparked a discussion over whether there is a new standard of review, or a double-standard of review. Residents along Mayfield and Osbon Drives, and other area residents who are discontent with the rapid rate of development without adequate infrastructure and conservation of natural areas, are hoping for the former.

Next: Dissent and Confusion in Aiken’s Land Planning Process.

Another example of the backyard views of Osbon Drive residents. (Photo by Laura Lance)

Nature News, November 2023, Trees and Deforestation

Snowbirds

November 12, 2023 Laura Lance 12 Comments

My grandparents were snowbirds. Every year in late October, they departed from their home in New York, ahead of snow season, and drove south. During the earlier years, they stayed with us in our newly-purchased home, Whitehall, whose overgrown grounds kept my grandfather busy doing what he loved most — gardening. After we moved from Whitehall, my grandparents rented furnished cottages along South Boundary and Colleton Avenue and the streets in-between, which contained a number of seasonal rentals.

They stayed until April, which coincided with the end of polo season. My grandfather was an avid polo fan, and the Whitney polo field was about a block’s distance from home so, most Sundays, I walked over and visited with them during the game or, as was sometimes the case, amused myself while they visited with friends. My grandfather was a gregarious man with a wide circle of friends and acquaintances. Sometimes I got lucky and caught an out-of-bounds polo ball. These dented-up specimens were eagerly bought up by spectators, selling for fifty cents. Autographed balls commanded a higher price. Either way, there was usually enough to buy a hotdog, an orange Fanta, and a Reese’s cup from the concession stand. Two of my brothers also spent Sunday afternoons at the polo game. One walked the ponies to cool them down after chukkers; the other worked with setting up the ropes before the game and helping the scorekeeper.

During the week, my grandmother busied herself with her bridge club and garden tea room events. In between, she knitted sweaters for me and my brothers. My grandfather spent his days gardening, visiting with friends, going on long walks in Hitchcock Woods, and feeding the ducks at Aiken State Park. Some Saturdays, we all went to the woods. My grandfather was retired, but he worked as a gardener on a number of the winter estates. I never knew when I might happen upon him working in one of the yards while I was out walking with friends. He was ever amenable to setting aside his work and visiting with me for a while. In parting, he always gave me a lifesaver — either licorice or butter rum.

Autumn

Autumn in 1960s Aiken was a vividly-felt, sensory feast between the arrivals of the snowbirds, the horses, and “the horse people,” as we called the Winter Colony residents, and the sight of winter residences coming to life with their indescribably green rye-grass lawns; of neatly-raked sidewalks lined in purple and yellow pansies; of white doves, pink sasanquas and golden afternoons scented with tea olive. Stirred into the cooler nights and changing leaves was the the excitement over the annual Halloween Carnival at Eustis Park and entering the poster contest that preceded it. Among my favorite autumn memories was the precise moment my grandparents’ arrived from the north. My brothers and I, after hours of anticipation, would race to the driveway to greet them. My grandfather always brought bags upon bags of apples — Northern Spies, his favorite — and my grandmother always brought us a batch of her sugar and nutmeg tea cakes. When the car door was flung open, we were greeted by this wondrous bouquet of scents, backdropped by just a hint of mothballs — woolen clothes being, to us, a northern peculiarity.

Recently, I found myself recalling all of this, and more, while I was sitting on the back porch. I kept hearing this persistent chirping coming from the Rose of Sharon. It took me a minute, but I finally located the source — a single sparrow, visible only as a silhouette in the branches. “The first sparrow of the season!” I declared to my eldest brother, who was on the step visiting.

I explained how the white-throated sparrows arrive like clockwork every year on Halloween or November 1st. But this was November 2, a little later than usual. I watched the bird as it continued to chirp, its tone almost urgent. After a minute or so, it flew over to a bush near the stump of a maple tree that we’d been compelled to cut down this summer. More plaintive chirping. Then the bird flitted to another bush, its urgent chirping directed toward the empty space where the maple tree once stood.

The Maple Tree

The decision to cut down that tree was a difficult one. We struggled over it for years after the tree developed an enormous hollow in the center of its trunk. The rest of the tree was full and leafy — a veritable mother tree for resident birds and migrating passers-through, along with skinks, black racers, wrens and warblers that summered in the branches.

The last photos of the maple tree, taken the morning the tree was cut down. Top: The tallest tree is the maple. To its left is the Rose of Sharon in full bloom. The stump of the tulip poplar, taken a few years earlier, is visible in the lower right corner. Below: Two views of the tree hollow with pokeweed growing out of it.

While my brother and I mused over the lost maple and the chirping sparrow, a large flock of sparrows arrived to the Rose of Sharon, chattering and fluttering about. There must have been about three dozen of them. It was difficult to identify them among the leaves, but it looked to be a mix of several different species of sparrow. You could feel it in their chattering, this palpable sense of relief — something with which most long-distance travelers can probably relate. I expected the birds, hungry from their long journey, to mob the feeders but, oddly, they didn’t. Nor did they settle into the inner thickets of the pittosporum bush under the kitchen window, as is their custom every year. They just disappeared. I didn’t see them again for three days.

Among our many deliberations before taking down the maple tree, we had considered an elaborate cabling of the tree so that, if it failed, it wouldn’t crash onto the house. Ultimately, the idea was so impractical as to be impossible. The loss of that tree was made more painful arriving on the heels of another loss — a nearby giant tulip poplar a few years earlier — the first tree my father planted on this property nearly 50 years earlier. With these two trees fell entire constellations of habitat for birds, with the sudden disappearance of beetles, caterpillars, spiders and seeds for eating; leaves, sticks and webs for nest building; nooks and crevices filled with secret pools of water; leafy boughs for exploring, shelter, rest and safe haven.

The species and habits of birds in the backyard have noticeably changed since we lost the maple. For one, the Coopers Hawk spends a lot more time on the premises, his coming and goings marked by scatterings of feathers, usually from a dove. For another, the feeders, usually bustling with activity, are utterly still for much of the day. The former variety of birds at the feeders has been replaced primarily by cardinals, which live as a colony of 16 or more on our property. It hadn’t occurred to me, until the arrival of that chirping sparrow, the maple’s importance for the arrival of these migrating birds. For three days, I listened for the first strains of that plaintive song that white-throated sparrows bring to the autumn landscape — but there was just the silence.

Most of us keep busy enough that the arrivals and departures of migrating birds are not on our radar. Once we do notice, however, the arrivals of the hummingbirds, painted buntings, wood thrushes, and redstarts in the springtime and — in autumn — the arrivals of the sparrows, juncos, and other snowbirds become special occasions to look forward to every year.

White throated sparrow.

Grow or Die

Our “normal” white-throated sparrow population is about two dozen birds, most of them roosting in the pittosporum thicket. This, in addition to at least one song sparrow, a scattering of chipping sparrows, and the occasional fox sparrow that visit the feeders. I spent the three days from November 2nd through the 5th watching the backyard for the sparrows. Their absence made me wonder: Where do birds go when they arrive in spring or autumn and discover their home places have disappeared? How do they find food when they arrive to find only asphalt and rooftops where once stood canopies of trees, leafy thickets, and wild fields edged in autumn flowers, grasses, berries, and seeds?

Even I, a wingless being in this changing landscape, understand how it feels to watch your homeplace disappear plot by plot, leaf by leaf, ant by ant, year by year. The impact from the loss of a single tree is profound and impossible to fully calculate in terms of the affected moths, beetles, spiders, butterflies, bats, flying squirrels, owls, lizards, snakes, mice and birds, not to mention the larger animals, including us humans. Expand this equation to a small parcel of woods, or a forest, or an entire landscape reduced to a patchwork of subdivisions, urban sprawl, clear-cuts, and pine plantations.

Considering the impact from the destruction of single maple, it is not difficult to grasp the role of habitat loss and fragmentation in the decline of so many species. Here in South Carolina, where the rate of deforestation rivals that of the Amazon rainforest, we have front-row seats to the consequences of the runaway development and industry. Newcomers may not be cognizant of the losses, but those of us who spent our lives traveling the back roads by heart to the mountains and the coast increasingly find ourselves in terra incognita. Real estate developers have a sales pitch they use to justify transitioning a landscape from woods and fields to strip malls, high-density housing, and traffic gridlock: “We must keep growing or we’ll die.”

These words came to mind as I watched the sparrow hopping from bush to bush chirping at the empty space where the maple tree once stood. Were it possible to translate the persistent chirping of a single sparrow, we might better hear the folly of the developers’ mantra.

The white-throated sparrows reappeared after three days. The first one arrived to the jasmine thicket, then another to the grassy weeds near the feeders. Another joined, and then another. There are maybe five in all. They’ve since settled in. Even when out of sight, I can see their presence in the tips of the pittosporum branches, which stir and tremble as the birds hop about below. It’s now mid-November. The nights have grown cooler and the days shorter. The skies are bluer now, and leaves on the trees are turning color and falling. To borrow from Robert Browning, “All’s right with the world.”

Almost, anyway. I’m still left to wonder at the ongoing silence.

__________________

Below: A small sampling of songs from our local migratory birds.

City Government, Elections, November 2023

Election Night: Teddy Milner is Next Mayor of Aiken, No Party at Democratic Party HQ, and the Future of Aiken Brown Water

November 8, 2023 donaldmoniak 4 Comments

by Don Moniak
November 8, 2023

Yesterday, Ms Teddy Milner (R) was elected as Mayor of the City of Aiken by more than a two to one margin, becoming the first woman Mayor of Aiken and ending her long-shot bid to defeat incumbent Mayor Rick Osbon.

Milner was the only Mayoral candidate on the ballot, but was challenged by a strong, stealth write-in campaign on behalf of defeated Mayor Rick Osbon. Mr. Osbon, who lost to by only 14 votes to Milner in the August 22nd Republican Primary runoff election, denied any involvement in the write-in effort, and chose not to publicly discourage it.

Gail Diggs (D, District 1) and Kay Brohl (R, District 3) were easily reelected. Ms. Brohl was unopposed throughout the election cycle.

The results for competitive races were:

City of Aiken Mayor

Teddy Milner (R): 2,748 (70%)
Write In: 1,162. (30%)
(names currently unknown)

Aiken City Council District 1.

Incumbent Gail Diggs (D): 233 (75%)
DeMarcus Sullivan. (R): 78 (25%)

Figure 1: AIken County Democratic Party Headquarters was dark and empty on election night.

No Party at Democratic Party Headquarters

The most overlooked but second biggest news of the night was the absence of an opposition party, also known as the Democrats. At 7 p.m., the Aiken County Democratic Party headquarters stood silent and dark, with opaque shades covering second-floor windows, and a singular campaign sign for Ms. Diggs plopped in front of the porch.(Figure 1).

For the second time in four years, Democrats failed to put forth a Mayoral candidate, not even a low-budget candidate for the sake of debate. Dems also failed to mount a challenge to District 3 Councilwoman Kay Brohl.

Only 233 voters turned out for incumbent Democrat Councilwoman Gail Diggs, a decline of 157 votes from 2019, when she handily defeated Jeremy Stevens (R) by a margin of 390 (87%) to 59 (13%).

While only 19 more voters opted for Republican DeMarcus Sullivan in 2023 over Mr. Stevens’s anemic showing in 2018, the party can take solace in the fact it gained twelve percentage points in one of the only two Democratic strongholds in the City of Aiken.

(To her credit, Ms. Diggs took the time to answer a long series of questions posed by the Aiken Chronicles, becoming the first member of Aiken City Council to recognize the existence of this information outlet.)

Figure 2: One of many robotexts sent to an unknown number of Aiken voters from the stealth Osbon for Mayor write-in campaign.

Transparency, Transparent, and Brown Water

Between the Primary election and the Primary runoff, the Osbon for Mayor campaign promised “government transparency” on its “Outsiders and Special Interests Continue to Attack Mayor Osbon” campaign flyer that an unknown number of Aiken voters found in their mailboxes.

Likewise, the Milner for Mayor campaign promised transparency, in addition to accountability and integrity, to voters.

Figure 3: Brittanica Dictionary’s clear example of the several, sometimes conflicting, meaning
of transparent.

In comparison, the stealth Osbon for Mayor write-in campaign opted to describe Mr. Osbon with the more ambiguous term “transparent,” which arguably is the most symbolic word for this Mayoral election cycle.(Figure 3)

This is because “brown water” problems, referred to as “discolored water” in the city’s categorization of water system complaints, was at or near the top of many voters’ minds this year. Drinking water customers lodged 31 official discolored water complaints to the City in July; and brown water complaints were one of the top issues raised at City Council meetings this past year during public comment periods.

Brown water, or any other shade of discolored water, can range from moderately transparent to opaque, depending upon the level of turbidity—a measurement how well light passes through a liquid. (Figure 4)

Figure 4: Turbidity illustration, from westlab.com

Mayoral candidates addressed the brown water problem in different ways:

Candidate Kathryn Wade, who was narrowly defeated for second place by Ms. Milner in the Primary, made the brown water issue one of the centerpieces of her campaign.
Ms. Milner acknowledged after the runoff that brown water was the top concern among constituents she met.
Mr. Osbon touted the planned new Shaw Creek water treatment plant north of the city as the solution to the water quality problem.

Long-time Aiken resident Dr. Robert Leishear has contended to City Council and staff for several years that the decline of water quality is a direct function of the high rate of water main breaks across the city. Leishear is a former research scientist at Savannah River National Laboratory, has a PhD in Mechanical Engineering, is a registered professional engineer, and now works as a private consultant.

He describes the problem as:

“Incorporating decades of scientific research, and multi-million-dollar cost savings from the prevention of piping failures, I conclude that the Aiken City government chooses to destroy our water system. Water main breaks can be stopped, or the onslaught of Aiken water main breaks slams forward into our future . (http://www.leishearengineeringllc.com/).

Accordingly, my hometown water system will be needlessly, expensively, and completely destroyed. As this destruction progresses, rusting of pipes will needlessly accelerate to discolor our drinking water, and intestinal illnesses will occur as well. These problems are preventable, but the city fails to act successfully.”

In his comments to Aiken City Council on January 9, 2023, he described telling city staff several years prior that the city’s $13 million program to fix water main breaks would not work, and that “if they keep doing what they are doing, they are going to break all the water mains in Aiken.”

While there were some gestures at the meeting by Mayor Osbon to invite him to assist the city, two months later Dr. Leishear expressed deep frustration with the Mayor’s actual post-meeting response in a letter to the Aiken Standard, stating in part:

”I sent the following email to Rick Osbon, the mayor of Aiken. He and his staff have chosen to let the Aiken water main breaks continue. We could have stopped Aiken water main breaks; Aiken chooses to have water main breaks….

Four years ago, I met with the Aiken city manager and the Aiken director of engineering to discuss my recommendations to prevent Aiken water main breaks. The engineering director for Aiken stated that he would wait and see. We have waited. We have seen. Aiken projects failed to stop water main breaks. During this year alone, boil water advisories were reported on Jan. 13, Jan. 23, Jan. 31, Feb. 6 and Feb. 17. Since I have seen water main beaks that do not appear on the city’s website, there are certainly other water main breaks in Aiken as well.

Following a January City Council meeting and follow-up meeting with Aiken staff, I offered to work with Aiken staff to stop water main breaks. I even offered to apply for a U.S. grant to defray costs to fix most water main breaks. I have received no response from the mayor’s office.”

Newly elected Mayor Teddy Milner has stated that, if elected, water quality will be her top quality. While she will have only one vote on City Council, she can request an information gathering public hearing(s) to hear the extent of water issues and better understand them; and also request that city staff begin to work with volunteer experts like Dr. Leishear to address the problem. Any resistance from other council members would appear to be inexplicable to most citizens.

City Government, Legal, November 2023

“Not Subject” to Ethics Laws

November 6, 2023 donaldmoniak 8 Comments

The South Carolina Ethics Commission recently ruled that the Aiken City Attorney is “not subject” to state ethics law because he is an “independent contractor” and not an employee.

by Don Moniak
November 5, 2023

Introduction

The South Carolina Ethics Commission is charged with enforcing the state’s ethics laws. The agency’s website home page features its slogan:

“Restoring Public Trust in Government.”

A recent ruling by commission reaffirmed an obscure commission position and legal loophole: the state’s conflict of interest rules do not apply to independent government contractors, even contractors who write, review, and sign local laws.

City, County, and Town Attorneys who work under contract in their respective jurisdictions are exempt from accountability to the state agency responsible for enforcing state ethics laws. Those who receive a W-2 tax form can be sanctioned, those who receive a 1099 tax form are exempted.

For example, Aiken City Attorney Gary Smith works under contract and receives a 1099. Aiken City Solicitor Laura Jordan is an employee and receives a W-2. The City Attorney, whose primary roles include preparing laws that impact residents, nonresidents, and visitors, is not accountable to the Ethics Commission. The City Solicitor, whose primary role is working with public safety to enforce the law— but who can also act as City Attorney—is most certainly accountable to the Ethics Commission.

City and County Attorneys play a vital and important role, but one that arguably makes them the most powerful unelected authority in their jurisdiction. They are responsible for preparing new or amended local laws or ordinances, guiding City Council through the legislative process, and ultimately signing ordinances once they are approved. The City Attorney is also responsible for providing other legal advice to city officials, and ensuring that elected officials and employees undergo training and review of ethics and other pertinent state laws.

Unless City Council chooses to replace the present system via its current legal option to hire a City Attorney as bonafide employee; or to combine the City Solicitor and City Attorney positions into a single employee position, this lack of ethical accountability to the public agency charged with enforcing ethics laws will remain.

This situation is not endemic to Aiken, it is ubiquitious across the State of South Carolina, a quirk in the intepretation of state ethics law; an interpretation tolerated by the State Legislature and Governor’s office. For its part, Aiken City Council has no formal contract with City Attorney Gary Smith that could require strict adherence to state ethics law.

South Carolina Ethics Commission home page

The Ethics Commission Ruling:

On October 27, 2023, the South Carolina Ethics Commission dismissed ethics complaints filed against Aiken City Attorney Gary Smith. The complaints alleged that Mr. Smith had violated state conflict of interest laws governing public officers, members, and employees by not recusing himself from:

1. The proceedings of an ordinance allowing the sale of city assets, known as the Mattie Hall properties, to an associate in his law firm; a process in which Mr. Smith represented the seller.
2. The Project Pascalis proceedings involving a partner in his law firm who represented the Pascalis developer RPM Development Partners, LLC.

After an investigation of unknown time and costs by its staff, the Commission opted to not rule on the merits of the complaints, or even address them. While the Commission wrote in its four-page Order of Dismissal that the case was dismissed due to “no probable cause,” the commission’s definition of probable cause in this case is that City Attorney Smith is not subject to the law because he is not a city employee, concluding that:

“…the Commission finds Respondent is not a public employee and is therefore not subject to the Ethics Act. Rather, Respondent is an independent contractor.”

Figure 1: Excerpt from South Carolina Ethics Commission ruling.

Neither the complainants nor Mr. Smith were vindicated by the commissions decision to punt.

The Law.

Section 8-13-700(A) and (B) of South Carolina’s Code of Laws addresses conflict of interest in public bodies. Part (A) prohibits public officials from using their position to outright obtain “an economic interest” for themselves or their family, associates, and business interests. The threshold for an economic interest is an “economic benefit of $50 or more.”

Part (B) prohibits officials from even influencing a decision which might yield an economic interest, and requires a recusal if the bar for a potential conflict is breached:

“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. A public official, public member, or public employee who, in the discharge of his official responsibilities, is required to take an action or make a decision which affects an economic interest of himself, a family member, an individual with whom he is associated, or a business with which he is associated shall:

(1)prepare a written statement describing the matter requiring action or decisions and the nature of his potential conflict of interest with respect to the action or decision.”

Part (B) is what was cited in complaints.

The Precedent

In 2014, the Ethics Commission ruled, in a case involving the Town of Chapin, that its Town Attorney was not subject to ethics law because he was an independent contractor and not an employee. That complaint was made by the Town of Chapin itself, and was dismissed without addressing its merits.

The Ethics Commission relied upon the Town of Chapin vs David Knight ruling to dismiss the complaints made against Aiken City Attorney Gary Smith.

The Investigation

An inquiry into whether Mr. Smith violated state ethics laws was conducted by the Ethics Commission staff. The extent and cost of that investigation is unknown. An email from City Councilman Ed Girardeau to City Manager Stuart Bedenbaugh, obtained via the Freedom of Information Act (FOIA), indicates that the Ethics Commission staff was scheduled to interview City Council members during the last week of May 2022.

The results of any commission inquiry beyond Mr. Smith’s employment are unknown because the commission itself only applied its “independent contractor” precedent, one that was already known to exist. The commission took at least six months to reach a foregone conclusion.

This is the third time an ethics complaint filed against Mr. Smith has been dismissed due to a technicality. In October 2022, Second District Court Judge Walton McLeod dismissed Complaints made by Aiken County residents Kelly Cornelius and Drew Johnson. The dismissal was not also based on the merits of the Complaint, but a jurisdictional technicality:

“The Appeal in its current procedural status cannot be maintained for lack of subject matter jurisdiction.”

It is notable that Defense counsel argued that allegations of state ethics laws violations should be heard by the state Ethics Commission and not the courts. The same argument has also been made twice in responses to the Blake vs City of Aiken et al lawsuit involving the entirety of Project Pascalis. That case remains under consideration by the court.

As reported in Keeping up Appearances, there is no dispute that Mr. Smith failed to recuse himself from the Pascalis process. His defense in the Pascalis lawsuit even included admitted to being present during the hearing of an ordinance to privatize part of Newberry Street and transfer ownership of it to RPM Development Partners. His first response to the lawsuit includes the following:

“With respect to the allegations set forth in Paragraph 165 of the Complaint this Defendant admits that he was present at the meeting of City Council held on March 28, 2022, but denies that he provided any specific legal advice to City Council regarding the Project given the fact that he believes that Mr. (Ray) Massey did possess an economic interest in the Project; this Defendant further states that if he did provide any such advice, such advice was offered innocently and by mistake, and without any intent on his part to create and / or violate any conflict of interest he may have had in his role as serving as the attorney for the City of Aiken.”

What is in dispute is whether his lack of recusals constituted a violation of ethics law. The merits of that issue have now yet to be addressed by the state Ethics Commission responsible for enforcing the law, nor by the courts that defer complaints to the Ethics Commission.

Public Officer, Member, or Employee: Differences in interpretation.

In the course of reaching its finding that state ethics laws do not apply to City Attorney Gary Smith— nor any other contract government attorney—the Ethics Commission cited the law, but then only applied one variable within it, the employee vs non-employee dichotomy. The commission did not address whether the City Attorney is a public officer.

In 2003, the Attorney General’s office had a different view of the City Attorney’s position. In a September 8, 2003, ruling, they issued an opinion that Mr. Smith’s role as City Attorney meets the criteria of a “public officer.” The AG’s office then opined that, as a public officer, Mr. Smith was ineligible to serve in a dual public office position:

“rather than as a public contractor or city employee, it appears to us that the City Attorney is a public officer.” (Figure 2)

**Figure 2: Excerpt from South Carolina Attorney General’s office opinion in 2003.** **Since that time, the City’s organizational structure has changed, and does not show the City Solicitor**

The Power of the City Attorney.

As described in The Pascalis Attorneys, the City Attorney has an important, necessary, and powerful role in the legislative and legal processes of city government. (Figure 3) In any given month, the City Attorney undertakes a wide variety of tasks ranging from department level advice and document review to civil litigation to advising City Council at their meetings. The range of tasks can be seen in this series of redacted invoices from March to July of 2023.

An equally important factor is that the City Attorney is generally the only person providing legal advice during a public hearing where ordinances are discussed and approve or disapproved. City Council meetings are one of the few settings where a lawyer can enjoy the luxury of not being heard by a judge or be formally challenged by another lawyer.

Figure 3: Section 2-285 of Aiken Municipal Code defines the powerful and influential role of the City Attorney.

In Aiken, the City Attorney is also the City Council’s parliamentarian, meaning they enforce Roberts Rules of Order at public meetings and public hearings. It is incumbent upon the parliamentarian to ensure that motions are made correctly, that all discussions are on the record, that closed-door meetings are conducted within the law, and that any question about a rule of order is addressed correctly.

An Inconsistency with City Ordinance: No Contract.

The Ethics Commission’s employee vs independent contractor position is compounded by another oversight in local law enjoyed by the City Attorney. As reported in The Aiken City Attorney: No Contract, as of October 2022, City Attorney Smith’s “contract” with the City consisted of a one-page letter dated December 28, 2016, to then City Manager John Klimm. That status appears to remain, as the issue has not been placed on City Council’s agenda in the past year.

However, City of Aiken’s Municipal Code states that a detailed contract between Council and the City Attorney is required:

“All appointments for city attorney and city solicitor shall require the execution of a contract which shall be prepared by the city manager’s office and must set forth the terms of the appointment to include compensation details, malpractice insurance coverage requirements, worker’s compensation insurance requirements, and other details which may be deemed important by the city manager and city council.”
(Section 2-81(c))

In response to FOIA requests, no such contract has been produced by the City of Aiken.

In comparison, City Manager Stuart Bedenbaugh also serves at the discretion of City Council, and is an employee under contract with them. His contract is renegotiated every three to five years, and he undergoes an annual performance evaluation.

The Legal Department Situations across Aiken County

The Ethics Commission’s October 27th ruling and its 2014 precedent create a double standard: state ethics laws apply to in-house counsel such as the City Solicitor and the Aiken County Attorney, but not for counsel in private practice who contract with a public body, such as the present City of Aiken Attorney.

The City of Aiken Municipal Code does allow for options in the structure of the City’s Legal Department, including:

1. A division of legal labor between a City Solicitor and a City Attorney, as is presently the case, or
2. Combining the City Attorney and City Solicitor’s position:

“The city attorney shall be appointed by, serve at the pleasure of, and be subject to removal by the city council. The city council, with the advice and consent of the city manager, may appoint one person to serve as the city attorney/city solicitor, and in the event of such appointment, it shall be considered one position or office.” (Section 2-281(a).

This combined position was in effect in the early 1990’s, when Attorney Jim Holly served as an in-house City Attorney. Mr. Holley then served in other government agency legal departments, before returning to Aiken County to serve as the in-house Aiken County Attorney from 2007-2009, and again from 2014 -2020.

Presently, he works in private practice, which includes a $275 per-hour contract with the City of Aiken to represent the city’s autonomous Design Review Board (DRB), legal counsel during the City Council redistricting process, and as co-counsel for the DRB in the Pascalis lawsuit. Yet, in these influential and important roles, Mr. Holly is also not accountable to the Ethics Commission, according to its ruling.

Another independent contractor, the Pope-Flynn law firm, acted as legal counsel to the Aiken Municipal Development Commission (AMDC).
According to invoices obtained through the public record and supplemented with FOIA requests, the law firm of Pope-Flynn billed the Aiken Municipal Development Commission (AMDC) and City of Aiken a combined ~$144,000 for Project Pascalis work completed between February 2021 and September 2022.

According to the Ethics Commission, their attorneys were also not subject to state ethics law in their capacity as independent contractors.

What could a change in legal department structure cost?

The current City Solicitor, Laura Jordan, oversees a very large department. She is responsible for supervising the Municipal Court, prosecuting crimes deemed within the jurisdiction of that court, and enforcing the Freedom of Information Act. Any City Solicitor is qualified to act as City Attorney because they must be in good standing with the bar to be qualified for either position. Good standing is the only legal qualification for the City Attorney.

In spite of this large responsibility, the City Solicitor’s salary is 20-30 percent less than the Directors of the Departments of Risk Management, Public Works, Planning, Parks and Recreation, IT, Engineering and Utilities, and Economic Development. The only Department heads who make less are responsible for maintaining the natural beauty of the city and insuring that large city contracts are executed in a proper fashion.

The City Attorney’s “agreement” calls for a monthly retainer of $4,000 per months for thirty hours of service, or $133 per hour. Beyond the thirty hours, the billable rate is $150/hour. This hourly rate is four times greater than that of the City Solicitor, although the latter does receive City employee benefits. The base “salary” for the City Attorney is $48,000 a year for thirty hours of work per month.

Mr. Smith does not always bill for thirty hours per month. In 2021 his firm, Smith Massey Brodie Guynn and Mayes (SMBGM) billed the City a total of $48,903 for his work. The firm also billed the city another $3,810.00 for Project Pascalis related work, including a $3,150 title search on the Hotel Aiken and Anderson (Newberry Hall) properties. (Figure 4)

Figure 4: Redacted invoice from SMBGM for Project Pascalis related work. Obtained via a FOIA request. The $690.00 cost was likely for the preparation of the assignment of Pascalis properties purchase and sale contracts from WTC Investment Partners to The Aiken Chamber of Commerce. The City Manager’s office did not respond to the question as to whether SMBGM prepared the assignment contract.

Costs that are more difficult to measure involve the presence or absence of litigation related to legal counsel, such as the Pascalis lawsuit, and public trust in city governance. In the aftermath of the Project Pascalis failure, Councilwoman Lessie Price spoke of the cost of losing the public trust, stating on January 13, 2023 that:

“I am in agony sitting here, for many reasons. One reason is that I cannot let the AMDC take the full blame for what has transpired. Council shares in that blame…there is nothing worse than losing the trust of your spouse, your children, and especially this community. We do not want to do that. We want to build trust. As one Council member, I want to apologize to the community. (51:40 mark of meeting)

Aiken City Councilwoman Lessie Price speaking on the issue of public trust in the Pascalis lawsuit. She was the only council member to formally apologize for role of City Council in the failure of the Pascalis project.

Will There Be Change?

In early August, the Aiken Chronicles asked all three Mayoral candidates a series of questions. Candidates Teddy Milner and Kathryn Wade answered the questions. Mayor Rick Osbon chose not to answer the questions.

One of the questions pertained to the City Attorney’s position:

“To avoid future conflicts of interest, should the City hire an attorney on staff, (as is the case with the Aiken County Government), whose only client would be the City of Aiken?”

The candidates answered as follows:

KATHRYN WADE: I do believe the city should have their own attorney on staff. Aiken is a growing city and our issues are becoming more complex. I think having someone who is single-mindedly devoted to the best interests of our city is a key to our strong future.

TEDDY MILNER: Yes! In addition to a dedicated City attorney, the City Finance Department also needs an auditor.

During the Primary election, 58 percent of voters approved a change in the Mayor’s office by voting for either Ms. Milner or Ms. Wade.

Ms. Milner is presently the only candidate on the ballot for the November 7th General Election. However, the race is not decided, as there is a stealth campaign ongoing to write in lame-duck Mayor Rick Osbon; a campaign Mr. Osbon denies any involvement with.

Summary

Because he is an independent contractor and not an employee, Aiken City Attorney Gary Smith is presently not subject to state ethics laws enforced by the from the South Carolina Ethics Commission. Any replacement independent contract City Attorney will also be accountable to the agency.

There are two issues at stake. First, did City Attorney Gary Smith violate state ethics law? The SC Ethics Commission will not rule on that matter, and the courts are wary of hearing the case in their jurisdiction and tend to defer to the Ethics Commission.

Second, should the City Attorney’s position, regardless of the outcome of question #1, be an in-house position requiring full-time devotion to City legal matters?

No matter who wins the Mayoral election, those two issues will remain.

In any scenario, citizens have already sent a message that the City’s legal department needs a thorough review and a change in structure.

Many citizens have called for City Council to replace City Attorney Gary Smith. On April 24, 2023 Aiken resident Luis Rinaldini went even further, arguing to City Council that the law office of Smith, Massey, Brodie, Guynn, and Mayes should be banned from doing business with the city:

“I just can’t help but saying that Mr Smith’s and Mr Smith’s Law Firm has a terrible record of property deals with the City of Aiken. Some of them are highly questionable. I’ve spoken to the city about it numerous times. We still haven’t heard back (to a request) to try to rescind the Mattie Hall property sales. There were other questionable deals on the SRP property, and the questionable deal in the middle of Project Pascalis to sell the L-shaped portion of the Municipal Building and the parking lot across from the hotel to another LLC sponsored by Mr Massey. This is not a good record. I am on the record saying that I don’t think the firm of Smith Massey should be doing anything with the city. It probably should be banned from doing business with the city for 10 years.” (2:35 of meeting)

Aiken City Council has, as a whole, publicly ignored these issues. Whether the latest accountability punt by the South Carolina Ethics Commission incites City Council to better perform its statutory duties in its supervision of the City Attorney’s office remains to be seen.

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The Aiken Chronicles

Monthly Archives: November 2023

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