On December 5, 2023; then-City of Aiken Economic Development Director Timothy O’Briant was terminated by City Manager Stuart Bedenbaugh. By day’s end the termination was classified as a voluntary resignation.

Six months after O’Briant’s abrupt departure, Aiken City Council approved a Fiscal Year 2024-2025 budget that defunded and disbanded the four-year old Economic Development department.

by Don Moniak
July 3, 2024
(updated July 26, 2024)

On December 5, 2023, former Aiken Economic Development Director Timothy O’Briant reportedly resigned, without notice, from his position with the City of Aiken. It was the City’s most notable high-level employee departure since City Manager John Klimm resigned in early 2018.

The resignation occurred nearly three years after the Aiken Standard had dubbed O’Briant as the “Economic Development Czar.” In his other capacity of Executive Director of the Aiken Municipal Development Commission, O’Briant was the primary orchestrator of Project Pascalis; perhaps the most controversial, and certainly the most ill-fated and expensive, economic redevelopment plan in City of Aiken history.

In a brief January 8, 2024, story on O’Briant’s new position as Administrator for the City of Pickens, SC, Aiken Standard reporter Matthew Hensley noted that “O’Briant didn’t discuss his abrupt departure from Aiken city government on Dec. 5 or some of the circumstances that preceded it, an arc that stretched from the controversy surrounding the failed Project Pascalis to the mayor he served, Rick Osbon, meeting his ouster in Teddy Milner.”

As explained in Much More than a Figurehead, city employees serve at the pleasure of the Aiken City Manager. Neither the Mayor nor the rest of City Council can legally interfere in personnel matters, except “for the purposes of investigation and inquiry.” Mr. O’Briant was not an exception to this aspect of Aiken Municipal Code; he did not answer directly to the Mayor of Aiken or to City Council as a whole.

Records obtained via Freedom of Information Act (FOIA) requests (1) to the City of Aiken provide insights into an eight-month chain of events in 2023 that led City Manager Stuart Bedenbaugh to compel Tim O’Briant to abruptly depart the City’s payroll.

The paper trail shows that, prior to submitting his resignation letter on December 5, 2023, Mr. O’Briant was asked to resign by City Manager Stuart Bedenbaugh. The justification for this action was that O’Briant had used the power of his official position to obtain city property, in this case a city security surveillance video, and then used it for personal use in a private lawsuit. Bedenbaugh alleged the video was obtained under false pretenses; an assertion that was vigorously challenged by O’Briant.

However, the mere use of a city record for personal gain is a violation of the City’s Employee Handbook; in which the Code of Ethics mandates that employees “refrain from using their positions for personal gain and keep confidential all information not available to all citizens that is acquired by virtue of their position.”

Furthermore, Section 2-3 of the Aiken Municipal Code states that:

It shall be unlawful for any person to take any record from any municipal office of the city, without the consent of the officer having control of such records.

When O’Briant failed to resign, Mr. Bedenbaugh, who is the officer with final say over city records, terminated him. Only five minutes after Bedenbaugh notified City Council of his termination decision, O’Briant submitted a resignation letter to Bedenbaugh. Later in the day, he emailed Bedenbaugh to dispute the claim that he’d surreptitiously obtained the confidential city property, and cc’ed that email to City Council. By the end of the day, Bedenbaugh had agreed to reclassify the departure as a voluntary resignation.

The next day, O’Briant wrote to Bedenbaugh to request a severance pay package. His email contained an implied threat of a lawsuit against the City for wrongful termination. Ultimately, a severance agreement was reached and a payout of up to $36,500 was made—although the final amount has not been confirmed.

Six months later, City Council approved the City’s Fiscal Year 2024-2025 budget. Other than carryover funds from the previous year, the Economic Development Department was defunded. The remaining staff of one was transferred back to the City Manager’s office, where economic development tasks originally were managed prior to the formation of the new department in January 2020.

The Paper Trail

The chain of events leading to Mr. O’Briant’s departure from the City payroll began on April 17, 2023. The information is presented in chronological order, but the full chronology—particularly the events prior to April 27, 2023—was not fully known until mid-May 2024.
(Updated July 26, 2024 with additional documentation obtained since Jun3 1, 2024.

April 17, 2023. After receiving an unwritten request, City of Aiken IT Director Robert Popenhagen provided O’Briant with security surveillance video footage of City Council chambers from Council’s April 10th meeting. The request was made in-house, not via a written FOIA request made as a private citizen.

(The South Carolina Freedom of Information Act (SC FOIA) specifically identifies such security surveillance video as not subject to public disclosure; it does not even qualify as a public record under FOIA:

“ Information relating to security plans and devices proposed, adopted, installed, or utilized by a public body, other than amounts expended for adoption, implementation, or installation of these plans and devices, is required to be closed to the public and is not considered to be made open to the public under the provisions of this act.” (SC 30-4-20(c))

Indeed, in response to FOIA requests, the City has at least twice cited this provision when denying public access to City Council Chambers surveillance videotapes.)

In a brief April 17th email exchange with O’Briant, Popenhagen also referred a second unwritten request from O’Briant for body camera footage of the post-adjournment period of the April 10th meeting to Aiken Public Safety (Figure 1).

Twenty minutes later (Figure 2, paragraph one), O’Briant filed a FOIA request to the City, from a private email account, for the body camera footage, asking that it be preserved “as potential evidence in pending or imminent civil litigation” (Figure 2, paragraph two).

April 21, 2023. Aiken City Solicitor Laura Jordan, who serves as the City’s FOIA Officer, denied the FOIA request. Since SC law only allows release of body camera footage by law enforcement agencies, she also referred O’Briant to the Aiken Department of Public Safety, (Figure 2, paragraph 3).

Figure 1. Email from IT Director Robert Popenhagen pertaining to the availability of body camera footage from the April 10th City Council meeting. Prior to this email, Popenhagen had provided O’Briant, in his official position, with security surveillance video footage of the meeting. There was no FOIA request filed. Six months later, Aiken City Manager would assert in a response to an actual FOIA request that city staff did not intend to convey the video for O’Briant’s personal use (see Figures 3 and 4).

Under SC FOIA, surveillance footage such as this is specifically “required to be closed.” Access to such video could provide parties with malicious intent with critical insights on security vulnerabilities. (click to enlarge)

Figure 2. Response to FOIA request made by Tim O’Briant, that includes the original request. SC Code 23-1-240(G)(1) states that “Data recorded by a body-worn camera is not a public record subject to disclosure under the Freedom of Information Act.” SC 23-1-240(G)(5) allows for certain private parties to obtain body camera footage, “pursuant to the South Carolina Rules of Criminal Procedure, the South Carolina Rules of Civil Procedure, or a court order.” These parties include “a person who is the subject of the recording,” and “a civil litigant if the recording is relevant to a pending civil action.”

The definition of a “pending” civil action is a lawsuit that has been filed, but is still in the litigation process. There is no mention of “imminent” civil action in the SC Code. As such, O’Briant arguably had no statutory right to the body camera footage, as there was no “pending” civil action, and he was not the subject of the footage. However, the law does provide some discretion to law enforcement agencies. (click to enlarge)

April 27, 2023. O’Briant vs Moniak and Eureka Research, LLC was filed in the Second Judicial Circuit’s Court of Common Pleas. The lawsuit alleged slander and libel, in part based on discussions made during the post-adjournment period of the April 10th meeting. City Manager Stuart Bedenbaugh assured City Council in an email that the lawsuit was filed as a private individual, and not as a city employee (The Complaint and subsequent filings are available at O’Briant vs Moniak et al).

(Updated, 7/26/24: In responses to two FOIA requests, City Solicitor Jordan acknowledged withholding emails between O’Briant and his personal attorney that involved the lawsuit; meaning that O’Briant was conducting personal business of a legal nature though his city email account—-see Footnote 1).

November 3, 2023. The surveillance video footage (3) of the April 10, 2023, Aiken City Council meeting was introduced and shown by the Plaintiff during the Defendant’s Deposition.

November 13, 2023. A Freedom of Information Act request was filed for the following city records:

“1. Copy or copies of the City of Aiken’s protocol, procedure, rule, or any other record that governs usage, distribution, availability, retention, and disposition of City of Aiken Municipal Building surveillance videos, including but not limited to Aiken City Council Chambers.

2. A copy of any subpoena, request for information , and/or FOIA request for all of, or part of, the surveillance video of Aiken City Council April 10, 2023 public meeting, taken from the back of near the back side of the room and facing Council.

3. A copy of the chain of custody record, letter of transfer, or any other record detailing the process by which the April 10, 2023 surveillance video of City Council Chambers, both during and/or after its public meeting, was provided to the law offices of John Harte.”

November 27, 2023. Aiken City Manager Stuart Bedenbaugh personally responded to the FOIA request by writing that O’Briant had obtained the video without divulging his intent to use it in a personal civil action (Figure 3).

Figure 3. Aiken City Manager Stuart Bedenbaugh’s official response to FOIA No. 374-2023. (click to enlarge)

Tuesday, December 5, 2024.

10:46 a.m. Bedenbaugh informed City Council members that he had terminated O’Briant’s employment, “effective immediately,” due to the procurement and use of the surveillance video for personal purposes (Figure 4).

Figure 4. The email from City Manager Bedenbaugh to Aiken City Council. (click to enlarge)

10:51 a.m. O’Briant emailed a resignation letter to Bedenbaugh. (Figure 5). The Aiken Standard quoted from the letter in a report published three days later.

Figure 5. The resignation without notice letter. The City of Aiken’s Employee Handbook states that, “Any City employee resigning from their position is expected to give at least a 2 week written notice to the Department Director. In addition, the employee is expected to complete an exit interview.” (click to enlarge)

1:34 p.m. Referring to Bedenbaugh’s email to Council, City Councilman Ed Girardeau wrote to O’Briant, in part, that “ Kay left a message that she was upset and Ed’s was what the F*** is going on?” (Figure 6).

Figure 6. Email from City Councilman Ed Girardeau. “This” referred to was the email conveying the termination, as seen in Figure 4. Kay appears to refer to Councilwoman Kay Brohl, and “Ed” to Councilman Ed Woltz. (click to enlarge)

2:52 p.m. O’Briant wrote to Bedenbaugh, cc’ed to all City Council, APS Chief Charles Barranco, assistant City Manager Mary Tilton, Human Resources Director Tracy Lott, and former Mayor Rick Osbon, disputing Bedenbaugh’s version of events (Figure 7).

(Update 7/26/24. In his letter, O’Briant alleged that Bedenbaugh was aware that the video had been obtained, and had been kept fully informed of the status of O’Briant vs Moniak. More emails recently obtained via FOIA do provide some support for the latter assertion. Three emails show that O’Briant was monitoring Moniak’s FOIA requests and forwarded via email three requests (See Footnote 4 for an example).

Figure 7. Letter from Tim O’Briant to Stuart Bedenbaugh. In the letter, Mr. O’Briant argued that the surveillance video was subject to release under SC FOIA rules, even though SC FOIA specifically states that security surveillance does not qualify as a public record subject to FOIA.

However, O’Briant never filed a FOIA request for the video, but instead obtained the video via his official city position, and for personal use. As such, the only issue is whether it was obtained under a surreptitious rationale. That issue remains in dispute; a case of “he said, he said.” (click to enlarge)

5:20 p.m. Mr. Bedenbaugh bcc’ed Council that:

“After I sent the below email, I received a follow up email from Tim requesting this matter classified as a resignation and I so accept that.”

Wednesday, December 6, 2024.

8:54 a.m. O’Briant emailed Bedenbaugh with a severance package request of $35,789 (Figure 8). The email also shows that a resignation was demanded prior to the termination (paragraph two) and subsequent reclassification as a resignation; O’Briant threatened a wrongful termination lawsuit, and Bedenbaugh’s termination email to City Council was twice referred to as “defamation.” Attached was a proposed Resignation Release and Covenant that eventually served as the basis for the final severance agreement.

Figure 8. Email requesting $35, 789 severance package, a threat to sue the City, and two allegations that Bedenbaugh had defamed O’Briant. (click to enlarge)

1:52 p.m. Bedenbaugh granted a portion of the severance package request while indicating approval of a sick leave payout and six week’s severance pay required Council approval (Figure 9).

Figure 9. The granting of part of the severance pay. (click to enlarge)

By the end of the day, Mr. O’Briant had provided a signed Covenant and Release that can be viewed here.

Friday, December 8, 2023. Bedenbaugh sent a severance package agreement to O’Briant and asked to concur. A request was made to first remove a clause barring future employment (Figure 10), which was later granted.

Figure 10. Emails indicating that the City had initially proposed a “no rehire” provision. (click to enlarge)

December 11, 2023. Following the end of its regular meeting, City Council met in closed-door Executive Session. The meeting minutes state that:

“Mayor Milner stated City Council will go into Executive Session pursuant to Section 30-4-70(a)(1) and (2) of the South Carolina Code for the discussion of employment, appointment, compensation, or promotion, of a person regulated by City Council and to receive legal advice where the legal advice relates to a pending, threatened, or potential claim or other matters covered by the attorney-client privilege, settlement of legal claims, or the position of the public agency in other adversary situations involving the assertion against the agency of a claim.

“Specifically, the City Council will receive legal advice regarding the possible settlement of a threatened claim against the City.”

Present at the meeting were:

City Manager Stuart Bedenbaugh
City Attorney Gary Smith
City Clerk Sara Ridout
Assistant City Manager Mary Tilton
Aiken Public Safety Director Charles Barranco
City Solicitor Laura Jordan,
IT Director Robert Popenhagen
Human Resources Director Tracy Lott.

The minutes of the meeting are sealed, as allowed by SC FOIA, but the subject was most likely the matter of O’Briant’s departure from the city payroll and the associated threat of a civil action or other legal claim against the City.

Defunding and Disbanding the Department

On June 10, 2024, Aiken City Council approved the City’s budget for Fiscal Year 2024-2025. The Economic Development Department budget showed only carryover funds from the previous year. No funds were allocated for salaries.

At City Council’s special May 5, 2024, budget work session, Councilman Ed Girardeau noted the proposed change in the City’s organizational structure (Figure 11 ). According to the meeting minutes:

“Councilman Girardeau noted the Economic Development funding over the years and the request for funding for FY 2024 – 25. He asked for an explanation of the funding for Economic Development. Mr. Bedenbaugh stated we have moved some of the expenses to the City Manager’s Office. Ms. Rooks pointed out that the $1.7 million in FY 2023-24 includes the $750, 000 for Kershaw and $400,000 for Williamsburg from Plutonium funds that was designated for Williamsburg and Kershaw Projects.”

No other Council members reportedly objected to the abrupt change in direction. There was never any subsequent discussion of the disbanding and defunding of the Economic Development Department during an additional Council work session, nor during the two public hearings leading up to Council’s approval of the budget on June 10th.

The decision to defund also meant the end of hospitality tax allocations to the Economic Development Department. The department had been entrusted with $323,458 in FY 2022-2023, and budgeted $244,955 in FY 2023-2024. (Figure 12)

Figure 11. The FY 2024-2025 approved by the Aiken City Council on June 10, 2024, showing the end of funding for the Economic Development Department. The budget can be found in the June 10, 2024 Council meeting agenda packet . (click to enlarge)

Figure 12. Portions of the Hospitality Tax budget data for the past three years. (click to enlarge)

Footnotes:

(1) This story remains incomplete due to the City’s classification of numerous emails as “exempt pursuant to S.C. Code 30-4-40(a)(7). Exemption seven pertains to “correspondence or work products of legal counsel for a public body and any other material that would violate attorney-client relationships.”

Among the email records that were exempted was correspondence, via his city email account, between “Mr. O’Briant and his personal legal counsel.” (Figure 13). (Update, 7/26/24: In the response to FOIA request 102-2024 for emails FROM O’Briant between May 1, 2023 and August 30, 2023, City Solicitor Jordan wrote that “There were 50 emails that were withheld as being exempt (due to attorney-client privilege) from disclosure. (Some) emails to and from personal counsel did involve O’Briant v. Moniak.”

Figure 13. Response to FOIA request 393-2023. Ms. Jordan would later state there were eight emails in total that were exempted from this FOIA response. The response shows that Mr. O’Briant was utilizing his city email account, and thus in his official capacity, to communicate with his attorney regarding a private lawsuit. (click to enlarge)

(2) Five FOIA requests in total were submitted in regard to, or related to, this issue; but also served as investigative material for other topics, such as the $20 million SRNL project. Links to the FOIA requests and records provided in the responses are as follows:

#373-2024

#393-2023

#403-2023.

#17-2024

#30-2024

#35-2024

#102-2024


Also, on March 5, 2024, the Author made a formal request to Aiken Public Safety, as well as questions regarding the tapes, for access to the body camera footage. Two months later the request was resubmitted and subsequently honored on May 13, 2024. The video, which did not validate any of the Plaintiff’s allegations, could be described as follows:

“A police officer is seen standing next to Moniak in a non-confrontational manner. The officer asked the City Manager and Mayor when the next meeting is scheduled. The answer was April 24, 2024. The officer advised Moniak that he could speak again at that time. Moniak responded, ‘sure, sure, you bet,’ and left the room peaceably.”

(3) The surveillance video could be described as:

“People milled about Council Chambers after adjournment. O’Briant and Moniak could be seen having a short discussion. Moniak approached City Council and entered into a discussion. At the same time, O’Briant departed Chambers through the private door leading to the room where Council holds Executive Sessions. Shortly thereafter, two Aiken Public Safety Officers entered the room and one approached Moniak. Another brief discussion ensued between city officials, the officer, and Moniak; who could then be seen leaving peaceably.”

(4) FOIA 181-2023 (Figure 14) was forwarded to Bedenbaugh one hour and seventeen minutes after it was filed.