The “Atrocious” Farmers Market Project, Revisited

A Two-Part Update on The Farmers Market Fiasco

One year ago the failure of the City of Aiken’s Farmers Market streetscape redevelopment project contributed to the defeat of then-incumbent Mayor Rick Osbon, and a further erosion of trust in city government that had lingered in the wake of Project Pascalis.

The project was envisioned as a remake of that part of the Williamsburg Street Parkway surrounding the Market area, and as such was misleadingly called the Williamsburg Street Project.  But only a rough concept plan, and not the details, was ever publicly divulged; the thin veneer of public involvement included Community Development Committee meetings that lacked a quorum of members.

The project is funded in part by a $990,000 Community Development Block Grant (CDBG) loan from the U.S. Department of Housing and Urban Development (HUD).


Because bidding for the project came in nearly half a million dollars over budget, the City allocated an additional $400,000 from SRS plutonium settlement funds to compensate for the shortfall.

The HUD loan application included language implying the vibrancy of the Farmers Market and surrounding commercial establishments—-the popular Little Howie’s restaurant and Charlie’s Fish Market—-was a thing of the past, stating:

“This section of Williamsburg St has become distressed over the years with vacant, dilapidated commercial buildings and housing. This area once flourished with patrons shopping at the Aiken Farmer’s Market, a restaurant and a fish market on the same block of Williamsburg St.”

The project began just after Memorial Day weekend when ten trees, six of which qualified as “grand trees,” that provided a shaded, comfortable experience at the Market were cut down. Enough public outcry ensued to compel a “pause” the project, a delay that continues to this day.  

One result of the public outcry was an internal investigation ordered by City Manager Stuart Bedenbaugh that led to a new, internal policy stating that city projects must be subjected to the same processes as the City requires for private developers.


The policy falls well short of that goal. City projects are still only subject to the level of staff review required for private developments, but not to the level of public scrutiny that private developers must face. The gauntlet for developers includes a public hearing by the City of Aiken Planning Commission, followed by two public hearings before City Council—and developments within the historic and Old Aiken Overlay districts must also endure a hearing before the Design Review Board.

As a result of this minimalist approach to reforming the review process for city projects, not a single public hearing has yet to be held on the actual plan or set of plans for the Farmers Market Parkway project and the adjacent Jackson Petroleum property that is also owned by the City.

Figure 1; clockwise from upper left: 1a. Looking South towards Farmers Market (2022); 1b. Conceptual view of post-redevelopment Farmers Market; 1c. September 2022 sign announcing redevelopment project—with no contact information or visuals; 1d. Two of the three remaining trees after ~70 pct of the tree canopy was removed from the Market area. The oak tree in the center of the photo stood in the shelter of larger dominant oak trees and is now more vulnerable to wind and other adverse weather.

Part 1: The Internal Policy

by Don Moniak
August 13, 2024

On May 30, 2023, a City of Aiken contractor began the process of redeveloping the block of the Williamsburg Street Parkway that surrounds the Aiken County Farmers Market (Figure 1a).  

The City’s plan was to convert a well-shaded, park-like stand of trees into a generic landscape of clay pavers, irrigated lawns, and a high-density stand of nursery-stock trees and shrubs (Figure 1b).

The project began with the removal of three-quarters of the trees on the block—nearly seventy percent of the towering tree canopy that once shaded and cooled denizens of the Market was gone in a day. 

Ten of thirteen trees along the Parkway were removed, including a specimen of a rare Slash Pine subspecies that was part of the local Arboretum collection. Two of the three remaining trees were visibly weaker specimens that are now more susceptible to adverse weather after the dominant trees that sheltered them were removed (Figure 1d).

Two weeks later, during a City Council meeting, City Manager Stuart Bedenbaugh would tell the citizens of Aiken that the beginning of the $1.4 million streetscape project—which was already $0.5 million over budget—should have been a “joyous occasion.” 

Yet, unlike most “joyous occasions,” the start of work was never accompanied by a ribbon-cutting ceremony. Nor was it ever publicly announced. 

Despite an Aiken Municipal Development Commission (AMDC) sign (Figure 1c), implanted eight months earlier, that announced an impending redevelopment project, very few people had been made aware of the impending wholesale remake of the Parkway—from a natural parklike setting to a generic, cookie-cutter landscape.

Unlike most signage advertising a promising future, the landscape vision was absent from the AMDC sign. People were informed that something was coming, but not of what was to come. 

Despite the project vision being two years old, and City Council having given the green light to procuring funding for a redevelopment project, not a single public hearing or even informational meeting revealing the details had ever been held. That remains true to this day. 

While the project was not a secret, it was probably the least publicized of impending joyous occasions in the local history of million dollar projects. Whereas Project Pascalis was rightfully criticized for its fragmented and often minimalist approach to the citizen input process, the Farmers Market project was almost entirely devoid of public involvement—it was almost purely a city staff concoction that moved forward with an indirect nod from City Council, while ignoring Farmers Market customers and vendors as well as the broader taxpaying public. 

The combined lack of public notice and citizen involvement was a strong contributing cause of the outcry to the hacking of the Farmers Market Parkway’s stand of trees. Antonyms of joy ranging from anger and anguish to discontent, exasperation, and vexation characterized the dominant emotions of the following weeks. 

Those sentiments incited a maelstrom at City Hall. One employee described the external uproar as requiring “triage.” (Figure 2)

Figure 2: Reaction of one city employee to public outrage at the near-total removal of the stand of trees surrounding Farmers Market.

On June 2nd, City Manager Stuart Bedenbaugh wrote to his various responsible department heads—planning, economic development, public works, engineering and utilities—-to order an investigation into the “subpar” project beginning and an internal policy to prevent “such an atrocious” event from ever happening again (Figure 3).

Figure 3: Memorandum from City Manager Stuart Bedenbaugh to five of his department heads, representing Economic Development (Tim O’Briant), Planning (Marya Moultrie), Engineering and Utilities (Michael Przbylowicz), Public Works (Lex Kirkland), and Parks, Recreation, and Tourism (Jessica Cambpbell). Documents obtained via FOIA show that, in the aftermath of the “atrocious” event, there was very little internal finger-pointing, a good deal of blame avoidance, and a near absence of genuine root cause analysis-=-one that would have found that the internal review process was not the problem, the problem was the complete lack of external review in the form of public review and input of the Farmers Market project—and to a similar extent all city projects.


When Mr. Bedenbaugh addressed the situation at the next City Council meeting on June 12th, his words were more constrained, stating that he shared the community’s “indignation.”

Council members followed suit, with Mayor Rick Osbon stating the “trees should not have been cut down;” although in reality the trees that were cut down, with the exception of one smaller maple in the midcanopy cut for utilities access, were the exact trees that the year-old plan identified for cutting and removal.

But for some reason, Bedenbaugh did not disclose his strong and succinct memo that called for a new internal policy. Instead, he described any internal review as a “staff matter;” while stating “the review process for our (city) projects must conform to the same process as a private developer.”

The Internal Project Review determined that “it has not been common practice for city projects to be processed through the typical development review process that commercial developments are required to complete. Consensus was that all future City projects must undergo this same review process.” 

The end result was an internal policy (Figure 4) that mirrored the internal review findings; one that mandates the City follow the same procedures on City projects as it requires of developers on private projects; and also placed more oversight power with the City Manager’s office.

Figure 4: New Internal Policy for City Projects. (Click to enlarge).

However, the “do our projects like we require developers to do theirs” policy has one glaring omission—the presence of public input and hearings. The new policy only mandates internal staff review akin to that of private developments.

Private developers have to go above and beyond mere staff review—they are subjected to a more rigorous public review process that involves at least three public hearings—one before the semi-autonomous Planning Commission, and two before City Council. In some instances the Design Review Board requires a hearing.

While most commercial developments sail through the public review process, without some citizen scrutiny every development would get a much easier pass.

In the past 18 months, one residential development (Henderson Downs) did not even make it past the Planning Commission level; two others (Mayfield Drive Estates and Sundy Street Apartments) stalled while compromises were made with residents of older, well-established neighborhoods; Parker’s Kitchen at Whiskey Road died during the second public hearing before City Council; and the 
Silver Bluff Overlay District plan died after City Council removed it from the agenda—a direct result of strong discontent from county residents who want less, not more, intrusion by the City into the unincorporated county. 

Finally, the House of Raeford chicken slaughterhouse and processing plant, after receiving one approval by both City Council and County Council, withered on the development vine after City Council opted to avoid further controversy; with County Council citing a very real sewage capacity shortfall for their decision. 

In short, citizen involvement and review at multiple levels is a proven remedy for stifling misguided projects or for making other developments more compatible with existing neighborhoods. 

Why does the City of Aiken refuse to allow the same process for projects on public property, especially after the Farmer’s Market fiasco? 

The Farmer’s Market streetscape project is hardly the only one on City property to avoid public scrutiny in the form of Public Hearings, with the City opting instead for a fragmented and incomplete system of scattered meetings at best. Other examples include the proposed Greenway Trail, Smith-Hazel Park redevelopment, Generations Park expansion, management of the Brunswick Tract, and the fate of the City’s remaining property in The Alley.

When will the City of Aiken relearn that area residents are there to contribute in meaningful ways that make developments of all stripes more compatible with their surroundings; or in the worst of circumstances there to provide the gut check to just say no to a bad idea? 

Seeking early and meaningful citizen input and scrutiny on city projects and new major ordinances has to be a better idea than cutting and removing public involvement like a grand Farmer’s Market tree.


Coming Next: Farmer’s Market Project: What Went Wrong?

References:

FOIA #235-2024 files: New Internal Policy for city projects and 5-page Internal Review of Williamsburg Street Project.

Bibliography of Past Stories

Farmer’s Market Revitilization Project Underway was the first area news story on the near-total removal of the Farmer’s Market stand of trees. .

The Williamsburg 10 provided the precise details of the near-total removal of the Farmer’s Market stand of trees.

Four Well Lit Trees and Plan A and Amended Plan A examined what the real plan was versus the perceived plans.

Poised for the Next Phase of the Farmers Market-Williamsburg Streeet Demolition exposed how city officials were poised to continue the project with little to no public notice.

Whose Project is it Again…Bueller highlighted the bureaucratic football of blame surrounding the controversy.

Divesting of Parks and Open Space, from September 2022, detailed how the City of Aiken was preparing to close neighborhood parks and possibly privatize Farmers Market.

The City of Aiken’s Law Firm: More Than The City Attorney.

Alongside City Managers, City Attorneys are among two of the most powerful unelected officials in most municipalities. The Aiken City Attorney has served at the pleasure of Aiken City Council since the Council-Manager form of government was adopted in the mid-1950s.

Since 2012, Aiken’s Municipal Code has dictated that the City Manager is responsible for preparing the City Attorney’s contract, which Council must then approve.

Attorney Gary Smith III has served as the City Attorney since 1995. No formal contract, as defined by city code, exists between him and the City Council.

According to City of Aiken records, the City Attorney’s office is composed not only of Mr. Smith, but the entire law firm of Smith Massey Brodie Guynn and Mayes (SMBGM); some of whose members perform city work under his direction on an as-needed basis. One prominent example from May 2021 involved a title search and document preparation directly related to Project Pascalis.


By Don Moniak
August 10, 2024

Local governments employ legal counsel that provide a variety of legal services, including preparation of ordinances, contracts, and leases; providing legal representation and advice; filing court actions against nuisance properties; acting as the Parliamentarian during public meetings and hearings; and recommending other attorneys for more time-consuming, specialized, and complex legal matters.

South Carolina towns, cities, and counties can hire full-time, in-house attorneys whose only client is the government body; or independent contractors that may be part-time and have private clients. Independent contractors are also not subject to the state’s ethics laws.

Aiken County employs the in-house approach, with Attorney Brad Farrar occupying the position. The Cities of Aiken and North Augusta both employ independent contractors—Gary Smith III and Kelly Zier, respectively. (In most situations, the prosecution of criminal cases is tasked to the Solicitor’s offices).

Aiken City Attorney’s Office: 1958-1994

In 1958 Aiken City Council approved its first City Code of Ordinances after the formal adoption in 1955 of a Council-Manager form of government. Section 4.01 stated that the City Attorney “shall be appointed by and subject to removal by the City Council.”

By the time the City Code was revised in 1980, both changes in wording and structure had occurred.

First, a Department of Legal Services had been established that included both a City Attorney and a City Solicitor; with the latter representing the city in all “criminal and related proceedings” and the former representing the City in other matters.

Second, the new code stated that “The city attorney and city solicitor shall be appointed by, and serve at the pleasure of, and be subject to removal by the city council. The city council at its discretion 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.”

From 1985 to 1993, the late Attorney Jim Holly was the last City Attorney to hold this in-house, dual role.

In October 1993, Mr. Holly requested that Council convert him to a part-time status as City Attorney, with a “full-time staff attorney that will also serve as the City Solicitor.” In February 1994, this arrangement was formally approved when Council appointed Paul Anderson as City Solicitor.

After converting to part-time status, Mr. Holly became a concurrent partner in the law firm of (Robin) Braithwaite, (Clark) McCants III, (James) Holly, and (Gary) Smith III. The firm’s specialty was representation of insurance firms. The only local clients were SRP Credit Union and the City of Aiken.

Figure 1. Colony Park Drive offices of SMBGM.

The Gary Smith III Era: 1995 to Present. 

After City Attorney Holly resigned in early 1995, attorney Gary Smith III, who had also joined Braithwaite et al as a partner in 1992, submitted a proposal to City Council to become the next part-time City Attorney, again operating as an independent contractor. The proposal implied that the entire law firm was also under retainer: 

“We would like to propose offering our firm’s services to the City of Aiken in the following manner. The City would pay a monthly retainer of $2,500 at the beginning of the month. The present retainer is $3,000. In return for this retainer, the City would receive up to 30 hours of billable time. Any hours over this 30-hour minimum would be billed to the City at the rate of $80 per hour—the present billing rate is $90 per hour.” (emphasis added in italics). (Pages 7-11) 

On July 24, 1995, after receiving several other resumes during the search for Holly’s replacement, Aiken City Council held a Special-Called Meeting to discuss appointing Mr. Smith. At the end of the meeting, he was approved by a unanimous vote. The meeting minutes read: 

“Councilman Radford moved, seconded by Councilman Perry and unanimously approved, that Gary H. Smith III, of Braithwaite, McCants Holly & Smith Attorneys, be appointed to serve as part-time City Attorney on a monthly retainer basis.”

Braithwaite, McCants, and Holley all moved on to different practices, and Braithwaite et al was gradually supplanted as the City’s law firm by Smith, Massey, Brodie, Guynn and Mayes (SMBGM); whose website lists a founding date of 1992–the same year Smith became a partner in Braithwaite et al. 

Unlike Braithwaite et al, SMBGM specialized in different areas of the law. No longer was the city employing a firm whose clients were predominantly distant insurance companies; it was employing a firm that also eventually specialized in real estate law—much of which involved local cases.

In 2001, City Council adopted another updated Code of Ordinances, but not until 2012 did the Ordinance governing the Department of Legal Services change. 

That change came in March of 2012, when City Council amended that part of the city code, Section 2-281, pertaining to the legal department. The amendment (Figure 2) involved three substantive changes that all increased the power of the City Manager over the legal department.

First, the City Manager was granted the power of consent to combine or dissolve a combined City Attorney/City Solicitor position.

Second, in the absence of a combined position, the City Manager was granted the power to appoint, and terminate, the City Solicitor, giving them full authority over the position.

Then-City Manager Richard Pearce explained that it was already the practice for the City Manager to supervise, and evaluate the performance of, the City Solicitor. He rationalized that the practice was at odds with City Code, and the code needed to be consistent with the practice.

However, the power to appoint the Solicitor had not been the practice prior to the amendment. As it was written, the City Council relinquished power in a manner that provided the City Manager veto power over any decision by Council to restore a combined City Attorney/City Solicitor position.

The amendment also mandated that a contract for both offices “be prepared by the city manager’s office;” with contract terms 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.”

Figure 2: 2012 Amendment to City Code of Ordinances pertaining to the Department of Legal Services.


No such contract has ever been produced for the City Attorney position. In neither of the meeting minutes for 3/12/12 and 3/26/12 were there discussions of a grandfather clause for Mr. Smith; nor were there any indications of when or if Council expected a contract to be produced and executed for the City Attorney position.

On December 28, 2016, Mr. Smith wrote to then City-manager John Klimm to ask for an increase in his firm’s retainer fee, indicating again that it was the firm being hired, not just himself, and that the firm’s other attorneys could work on city business “when their services may be needed.” This ultimately meant that the fees charged by the firm were in fact variable.

The letter read, in part:

“Currently, the City pays my firm a monthly retainer of $3,000.00. In return, the City receives 30 hours of legal services. Additional hours are charged at the rate of $110.00. This rate schedule has been in effect since 2002. I am aware that my firm receives a substantial amount of fees from the City each year. I do want you to be aware that this hourly rate is substantially lower than my usual hourly rate of $400.00 that I charge my private clients.

I would propose to modify my firm’s fee agreement as follows. The monthly retainer would be increased to $4,000.00 with the City still receiving 30 hours worth of service. The City would be billed for hours in excess of the 30 hours at the rate of $150.00 per hour. When services may be needed from other lawyers in my firm, those services will be billed to the City at their normal billing rate. I know this is a significant increase, however, it is the first time I have asked for a modification of the fee arrangement since 2002.” (emphasis in italics added).

Mr. Klimm did not prepare a contract for City Council review. Meeting agendas for both of Council’s January of 2017 meetings do not indicate that he informed Council of the pay increase. The 2016 fee arrangement, coupled with the 1995 proposal, continues to function as a contract—one which only identifies compensation but no other elements of the city code’s requirements.

(The current legal requirements for the Department of Legal Services remain defined by Section 2-281 of City Code.)

The Firm’s City Workload

Section 2-285(9) of the Aiken Municipal Code allows for the City Attorney to “assign any of his duties “to another attorney retained or employed by the city.”

Those attorneys, as inferred in Mr. Smith’s 1995 letter and described more directly in his 2016 letter, can include his law firm partners and associates. The 1995 and 2016 letters apparently provide that engagement commitment.

It is difficult to gauge what percentage of the City Attorney’s office workload is completed by other members of the SMBGM law firm. The firm’s invoices to the City for the period between January 2021 to May 2023 show at least 53 billing entries involving Gary Smith’s partners or associates (Table 1).

SMBGM Law PartnerNumber of Interactions
Brad Brodie4
Mary Guynn46
Ray Massey2
Scott Patterson1
Table 1: Number of billing entries for interactions involving SMBGM partners or associates; based on invoices obtained via Freedom of Information Act requests. The invoices provided have enough redactions, under the guise of attorney-client privilege, to shroud the purpose of any billing that involved his partners or associates. In other words, it is difficult to decide whether the billings were for city business, private business, and/or an adversarial situation. Only unredacted invoices would set the record straight.


Only three separate invoices from an SMBGM partner were included in the billing invoices obtained via FOIA requests. All three were from Attorney Mary Guynn. One involved a Smith-Hazel Park matter, but two other matters were redacted.

The Project Pascalis Job

Up until Project Pascalis, complaints of real or perceived conflicts of interest involving the City Attorney’s office were absent from the public record (2); and any ethics concerns would probably have remained under the radar, if they even existed, if not for SMBGM partner Ray Massey’s involvement in the Pascalis project.

Figure 3: April 30, 2021 meetings between City Attorney Gary Smith and two of his partners. The redacted lines are believed to say “status of the Shah and Anderson property,” and “status of Project Pascalis.”

As explained in The Pascalis Attorneys and The AECOM Plan, the first rendition of Project Pascalis began to quickly unravel on April 30, 2021. That day Smith had separate meetings, of which the subject is redacted, with partners Mary Guynn and Ray Massey. (The subject of the Guynn meeting appears to end with “property.”)

After May 6, 2021, the AMDC, City of Aiken, and the Aiken Chamber of Commerce scrambled to salvage the Project Pascalis property acquisition contracts held by WTC Investments LLC (Agent: Ray Massey). The process involved a title search and preparation of an “assignment” contract to transfer $9.5 million worth of Purchase and Sales Agreements (PSAs) from WTC to the Chamber of Commerce in what functioned to be a property holding contract for the City.

As a result of the transfer of control of the Pascalis properties, WTC Investments did not lose $135,000 in earnest monies.

The legal agent for WTC Investments LLC was, and remains, SMGBM partner Ray Massey; who in part represented WTC during the purchase negotiations for the Pascalis properties, and assisted with the contract preparations. And, as explained in the Project Pascalis Includes the Alley series, Massey was the leader of the investment group Aiken Alley Holdings, which owned a key property in the first version of the Pascalis project (3).

An SMBGM invoice for June 30, 2021, submitted under Ms. Guynn’s company email account, involves work completed by Guynn towards transferring control of the Pascalis properties to the Aiken Municipal Development Commission (AMDC) and City of Aiken via the Chamber of Commerce.

The invoice was broken down into two billings for May 17, 2021—document preparation and a title search (Figure 4).

Figure 4: Invoice from Mary Guynn for work related to Project Pascalis. The title searches are obviously related to the project, as they were required for the transfer, or “assignment” of the Purchase and Sale Agreements (PSAs) held by WTC Investments to the Aiken Chamber of Commerce. The 2.3 hours, upon information and belief, involved the preparation of the Assignment documents. The May 2021 invoice from the only other attorney to work on the project, Gary Pope Jr of the Pope-Flynn law firm, billed no work for the period May 6 to May 31st. This left only the City Attorney’s law firm as the best and only available candidate to prepare an Assignment of a Purchase and Sale Agreement—as Ms. Guynn is a prolific and highly competent real estate attorney. City Manager Stuart Bedenbaugh, who is known to quickly deny allegations, has twice refused to confirm or deny that SMBGM prepared the Assignments of the Pascalis properties to the Chamber of Commerce, an action that saved WTC Investments $135,000 in earnest monies. In other words, it makes good sense for Guynn to have prepared the contracts—-except for the fact that the original contracts were prepared by members of SMBGM and the contracts involved the city obtaining commercial properties at a cost of $9.6 million.

SMGBM partner Ray Massey is the registered agent for WTC, represented the firm in negotiations for the Pascalis properties, and led an investment group whose property was within the original Project Pascalis footprint. Unless the City of Aiken provides an unredacted version of this invoice and discloses its contents, there is no way of knowing whether or not it states “Assignment of Shah and Anderson properties to Aiken Chamber of Commerce.” But, based on all available information, the wording in red is considered accurate.


According to SMBGM’s May of 2021 invoices, Smith communicated with Guynn via email twice and in a meeting once on May 17th. Two of the billings involved document reviews, while another involved a meeting. Another billing entry on May 14th names both Guynn and AMDC Executive Director and Pascalis project organizer Tim O’Briant. That was the day that WTC and the Chamber almost consummated the sale of property that WTC did not own. (4)

One week later the Pascalis properties were assigned to the Aiken Chamber of Commerce; meaning that at least some of real estate legal work—that was technically conducted on behalf of the Chamber, and which saved Ray Massey’s client and investment partner WTC Investments, LLC, $135,000 in earnest monies—was billed to the City of Aiken.

Figure 5. Screenshot of the part of the May 2021 SMBGM invoice with billing information from City Attorney Gary Smith.

_______________

Coming Next: The City of Aiken’s Alley Project is Another Long Mismanaged Situation.

Footnotes:

(1) Photo of the 1980 City of Aiken Code governing the qualifications and many of the duties of the City Attorney position. The current qualifications and job requirements are in Section 2-281 of the city code.


(2) Up until the late 2010s, it does not appear that any SMBGM partner was involved with city-related business that involved city property or the potential expenditure of city funds to subsidize a public-private partnership project.

Although SMBGM partner Ray Massey was involved with WTC Investments LLC in the failed effort to redevelop the Old Hospital property on Richland Avenue, no issue was raised regarding Gary Smith’s lack of a recusal.

Nor was the issue raised in 2021 when two parcels of city property were sold to an associate in SMBGM, Scott Patterson, for $150,000. Although the sale was approved in September 2021, a title dispute created by a “scrivener’s error” prevented the closing until June 2022. During that time, Mr. Patterson represented the City of Aiken in court proceedings to rectify the title situation. In June 2023, half of the property was sold for $280,000; yielding a $130,000 profit in one year; with two more acres still on the market.

Smith did on occasion properly recuse himself when his partners were involved, even peripherally, in any city-related business; a practice that increased after ethics issues were raised during Project Pascalis and in the Blake et al vs City of Aiken et al lawsuit where Smith was named as a defendant. He was also named as a defendant in two appeals of the Newberry Street privatization ordinance.

All those cases were dismissed due to jurisdictional issues—the SC Ethics Commission, and not State District Courts, are considered the arbiter for all ethics complaints involving public officials.

Smith is not considered a public officer or member by the Commission, and instead is considered an independent contractor. As such, he falls under the Commission’s precedent-setting ruling in 2014 that independent contractors are not subject to state ethics law.

(3) In the May 4, 2021, memorandum to the AMDC Executive Committee, AMDC Executive Director Tim O’Briant described an offer from Weldon Wyatt:

“(Wyatt) asked about our interest in the Alley fronting properties (likely $3 million) and the Harrison insurance parcel ($700,000 +). He would very much like those included in any deal. I told him we had no interest and could complete a slimmed project on solely the Shah and Anderson parcels.”

The “Alley fronting properties” had been purchased by Aiken Alley Holdings LLC on March 15, 2021. At the time of the memo, WTC Investments, LLC had a contract to purchase the adjacent Harrison insurance building on Newberry Street. Sometime after May 6th that contract was assigned to Aiken Alley Holdings, which bought the property on June 6, 2021.

(4) On May 14, 2021, WTC and the Chamber were prepared to sign a Purchase and Sale Agreement (Figure 6) for the “Shah Property”—but WTC only owned the right to buy the property, not the right to sell it.

Thus, an assignment of the property contract from WTC to the Chamber had to first occur. It is believed to have been prepared by the City Attorney’s law firm, and then passed on to the involved parties.

A document titled “HotelAiken.doc” was forwarded by Tim O’Briant to Ray Massey on May 18th; with O’Briant writing “Does this suit you all?”

Massey replied, “Let me get with Chip (Goforth);” a partner in WTC Investments (“the “C” in WTC).

The date of the final transactions was May 25, 2021. First, the assignment was signed (Figure 7). Then, a newly prepared PSA between the Shah family’s entities and the Chamber was signed (Figure 8). The latter PSA included the provision that the Chamber could make a future assigment to the City of Aiken or the AMDC. (Figure 9). The same process occurred with the Anderson Property (Newberry Hall) on June 3, 2021.

Six months later, the AMDC would acquire the properties for the original collective price of $9.6 million, thus formally initiating the second version of Project Pascalis; and eventually kicking off perhaps the most contentious debates ever over the future of downtown Aiken. A month after the AMDC acquired the properties, a Purchase and Sale Agreement was signed with RPM Development Partners. RPM, which stands for Raines, Purser, and Massey, had Ray Massey sign that contract to purchase the Pascalis properties for $5 million—a nearly fifty percent reduction in the price paid by the AMDC.

Figure 6: The legally invalid May 14th PSA between WTC and Chamber of Commerce.

Figure 7: Signatures for the Assignment document between WTC and the Chamber, which was necessary prior to the Chamber signing a PSA with the various Shah entities.
Figure 8: PSA signatures of Chamber of Commerce and the various Shah family enterprises.

Figure 9: Assignment language in the May 25, 2021, Shah-Chamber PSA.


The Citizens’ Voice at City Council Meetings (Part Two)

Second in a two-part series by Laura Lance
August 6, 2024

Citizens Speak

In 1842, a citizen spoke to the Aiken Town Council, urging “immediate repairs” for the “dangerous condition” of the Laurens Street railroad bridge. History repeated some 180 years later, in 2022, when citizen Beatrice McGhee, speaking in the non-agenda portion of the meeting, spoke before City Council, urging the repairs or replacement necessary to get the long-neglected Fairfield Street bridge reopened. Soon after, the City Manager proposed using $3 million of the plutonium money for that purpose.

Since 2022, when Council reimplemented the non-agenda comment period in City Council meetings1, there have been numerous other important, and often impactful, non-agenda comments brought to Council. Here are but a few, in no particular order:

  • Laverne Justice brought Council’s attention to the $2 fee being charged to children to go inside Smith Hazel Recreation Center to play a pick-up game of basketball. The fee was later removed. 2
  • Julie Briggs Worley suggested that City Council consider hiring a City Attorney to be on staff, as many other cities do; a staff attorney who would avoid conflicts of interest and ensure all city and state laws are followed.
  • Robert Leishear, PhD,  a registered professional engineer and former research scientist at Savannah River National Laboratory, brought to Council an explanation of the root causes of the water main breaks. Mr. Leishear introduced innovative methods for addressing these causes toward the goal of reducing water main breaks and boil-water advisories. This history and the City’s lack of response are covered the post-election story, “Election Night: Teddy Milner is Next Mayor… and the Future of Brown Aiken Brown Water.”
  • Jacob Ellis pointed out the lack of a public restroom in The Alley, to which he was advised that the City is studying options to address the matter.
  • Tarsha Howell, actively involved in clean-up efforts on Aiken’s northside, brought to Council attention the numerous potholes on Union Street. The next day, SC-DOT was seen repairing the potholes.
  • Becky Phillips, an Aiken citizen who is without a home, brought to Council a firsthand account of what it was like, the night before, to sleep outdoors in 15-degree weather; her plea, one of many made by Ms. Phillips, was for Council to address the issue of homelessness in Aiken.
  • Jenn Stoker and a number of other citizens raised concerns about the City’s August 2022 decision to close 6 parks in the City. The City later gave verbal agreement to keeping these parks open, although the intention to close still exists on paper.3
  • Luis Rinaldini brought Council’s attention to a stream of “mismanaged” property deals by the City and cited the City’s then-recent sale, without pubic bid and auction, of four properties which sold for $150k to an employee of the City Attorney’s office, and which afterward went on the market for $700k.4
  • Bill McGhee brought the issue of the City’s DEMO 200 program that has been responsible for the destruction of historic homes on Aiken’s northside; the program is now on hold and being re-evaluated by the City. 
  • Jacob Ellis urged City Council to address the hazardous sidewalk conditions along the Richland Avenue corridor downtown, which are cracking and buckling up, and to urge SCDOT to address similar, hazardous conditions with the crosswalks.
  • Don Moniak recently obtained answers pertaining to the status of two projects — Project Unicorn and the proposed Greenway trail from Generations Park to the City’s 2,500-acre watershed protection “Brunswick Tract” north of I-20. The latter is currently on hold due to difficulties in obtaining easements from some private property owners. The former appears to be on hold or canceled. 
  • Debbie Brown challenged City Council’s assertion that the opposition to Project Pascalis was “insignificant” and produced numbers from both the citizen’s “Do it Right” petition and from the City’s own comment cards to show that two-thirds of citizen comments expressed serious concerns or opposition to Project Pascalis and the demolition of the Hotel Aiken and the McGhee block. 
  • Williamsburg St/Farmers Market: Valerie Wrobel’s persistent questioning about the Farmer’s Market tree-cutting fiasco5 flushed out a new official response that it was not the contractor’s fault, but the conveyance of the wrong set of plans to the contractor. (The city later backtracked and claimed it was the overall plan that was the problem). 
  • LaShaun Ryans raised the issue of the hazardous design of the Hampton Avenue-Laurens Street intersection; the intersection is now on the list for a rework. 
  • Teresa Callahan spoke to City Council about the plight of northside neighborhoods, describing the conditions of litter, drug activity, senior citizens afraid to leave their homes, and people with no place to live. She felt the City was neglecting them and asked for help. The City has since worked with Ms. Callahan and the group “Eyes on Aiken” that she and LaShaun Ryans helped organize to empower positive change in northside neighborhoods.
The Invisible Author

Given what seems to be a history of constructive, impactful nonagenda public comments, who in our City government thought to put pen to paper to propose the following changes to the non-agenda comment period in the City Code?

  1. Reduce by half the amount of time allotted for non-agenda citizen comments.
  2. Relegate non-agenda comments period to the end of the meeting.
  3. Limit the content of citizen input to the subjective “matters within the scope of the city’s business.”
  4. Require citizens to pre-register to speak.

After listening to the entirety of the hearing in the video, below, the question begs answering: Who put pen to paper?

And why?

BELOW: The entirety of the June 24, 2024 public hearing on Item #5 under New Business, “First Reading of an Ordinance to Amend Section 2-64 of the Aiken City Code,” can be heard in the video starting at approx. minute 2:43:37.

Council Speaks

During Council’s June 24, 2024 public hearing on Item #5 under New Business, “First Reading of an Ordinance to Amend Section 2-64 of the Aiken City Code,” two schools of thought emerged among the council members. One school recognized the value of the non-agenda comment period and of listening to what citizens have to say. The other seemed to, at best, tolerate non-agenda comments and, at worst, spoke of a need to “police” the process. One wanted to keep the comment period at the beginning of the meeting. The other wanted to remove the first comment period. One wanted to require pre-registration. The other did not.

The content of the statements made by Councilwoman Andrea Gregory, who was the sixth council member to speak, provided a clear contrast to some of the earlier speakers:

“When public comment started, at the beginning, I’ll be honest with you, at first I was like, oh my gosh, this is pretty brutal. It was during Pascalis. I mean, we got beat up to a pulp. Was it my favorite? No. Was it an avenue to give us perspective? Absolutely. Did I learn a lot of things? Yes. I was able to really gauge and understand my community a little bit better. And I think that’s evolved to such an asset in our community, to have that opportunity for the public to come up and, you know, give us a piece of their mind. It’s so important, I think, for all of us. “

At the same time, Gregory agreed with the other five council members that one of the comment periods should be dropped. She advocated for keeping the comment period near the start of the meeting. She was opposed to the signup sheet requiring citizens to pre-register to speak:

“If you came [to the meeting], you made the effort. You should be entitled to speak.” 

Gregory’s comments more or less echoed those of Councilwomen Price and Diggs and stood in contrast to statements by Councilman Ed Woltz, who said, “Anybody that doesn’t want a sign-up sheet must have a reason,” while advocating for a signup sheet to prioritize those who live within the City limits and to ensure that the same person wasn’t coming in meeting after meeting and signing up. “We could police that and say ‘Hey, you can’t just come in every meeting just to sign up,”

Gregory’s statements also stood in contrast to Councilwoman Kay Brohl’s earlier statement that “The state law does not require there to be a public comment period in Council meetings.” According to Councilwoman Gregory:

“I now view public comment as a right. It’s our right as constituents. If I were out there, I would want to have that opportunity. We are doing the business of the city, but we are your messengers.”

Regarding the assertions by Girardeau and Brohl that those who do business with the City shouldn’t have to wait through the non-agenda comment period to bring their proposals, Councilwoman Gregory said:

“They’re asking for something; something from our community, not from us. They’re asking of the community. So if they’re here for three or four hours, so be it, because we are doing the business of the City; but we are strictly your messengers, and so I don’t mind them waiting now.” 

Lessie Price, the fifth council member to speak, spoke at length. Below are a few excerpts from her statements:

The non-agenda item has done more for the African-American community than anything else.

Starting with the open agenda, as people came to listen to what was being said, they began to feel more of a part of this community, a part of the city. They built relationships with many of you, through the way you approached them, included them in wanting to hear the ideas. 

The fact that we have opened up the courage of people to come into these chambers and share what their communities are facing on a daily basis, on a monthly basis. That has been very good to build camaraderie and togetherness for this community. And I will tell you that many comments to me and Gail [Councilwoman Diggs] as well, how welcome they feel by many of you, because of the engagement, and the relationships they’ve built as a result of being in these Chambers. We don’t need to create anything rigid, because creating rigid criteria really makes folks skeptical of what they will say, but we need to hear from these individuals.

That is what builds strong communities —- when you can talk to each other and most of all not just talk, but listen.

On Listening

While the word “efficiency” was emphasized by Council members Girardeau and Brohl, the term was never described outright. Councilman Girardeau explained what efficiency isn’t, saying, “It’s not about “trying to go quicker,” nor about “excluding anyone from talking.” 

Councilwoman Brohl said, “We want to hear you, but we want to do it in the right order, in the right manner, and with efficiency” and “There’s nothing in this that is bad, or we don’t want to hear from you.”

Girardeau and Brohl variously ascribed subjective values such as “pro or con” and “positive or negative” and “confrontational” to citizen comments — a perspective that is sometimes echoed in local social media threads, where terms such as do-nothings, naysayers, and CAVE (citizens againt virtually everything) are tossed like spitballs at anyone who gives critical input on local projects.

Is it a positive or a negative to expect officials to comply with points of law? Is it pro or con to ask the City to repair what is broken? Is it confrontational to oppose over-development and the destruction of trees, parks, and historic places? Is citizen participation merely something to be endured, or is it an integral part of a functioning City government?

Crunching Numbers

A running thread among all of the Council members in the June 24 public hearing was the concern over the time spent on nonagenda public comments. All members were in favor of “doing away” with one of the two non-agenda comment periods, as they felt these were causing the meetings to run long. Examination of the actual time spent on non-agenda comments over the past year, however, shows that Council members’ concerns were unfounded. 

While citizens have been allotted two non-agenda speaking periods — one 30-minute period at the beginning of the meeting, and another 30-minutes near the end of the meeting, for a total of 60 minutes of non-agenda comments per meeting — this time has not once been used in full over the past year. 

A review of the twenty-one City Council meeting videos from June 2023 through June 2024 found that the average total time spent on non-agenda comments was only 21 minutes per meeting out of the 60 minutes allotted. The most time spent was 51 minutes on September 25, 2023. The least was 3 minutes on June 10, 2024. 

Over the past year, the average total time spent on non-agenda comments was only 21 minutes per meeting out of the 60 minutes allotted.

The prescribed remedy to this perceived problem, (as written by the unnamed hand that penned Item #5 in the June 24 agenda) was to abolish the first 30-minute non-agenda period, and keep the second non-agenda period. 

There is a problem with this, however, which was well-described by citizen Linda Keener, who spoke at the hearing; a problem that the author of the “Ordinance to Amend Section 2-64 of the Aiken City Code,” knows if he or she crunched the numbers. The problem is that, by the arrival of the second non-agenda period at the end of the meeting, the room is nearly empty. Most everyone has usually gone home. And who could blame them? Most City Council meetings last over two hours, ending after 9:00 p.m. with some lasting until 10:30 p.m. and later.

This is likely the reason why, in over 50% of the meetings over the past year, zero citizens spoke during the second non-agenda comment period. The average time spent on this second period of non-agenda comments  over the past year was only 3.5 minutes per meeting — about one speaker per meeting.

Is this what efficiency looks like?

Local citizens are urged to pay close attention to upcoming City Council agendas for notice of public hearings to amend Section 2.-64 of the Aiken City Code. Is the average of 21 minutes per meeting too much time to allow citizens to speak? Or is there an effort afoot to fix something that ain’t broke? And who is that invisible author? Let City Council know your thoughts.

_____________

See also:

The Citizens’ Voice at City Council Meetings (Part One)

Articles pertaining to issues cited in both articles:

  1. History of the “Open Mic” Public Comment on Nonagenda Items comment period, aka as “Open Mic,” September 2022 to June 2023. 
  1. Youth Recreation Center Fees
  1. Divesting of Parks
  1. Property Deals
  1. Farmer’s Market