All posts by Kelly Cornelius

August 2023, City Government, Project Pascalis 2022

Failed Project Pascalis – A Mayor’s Legacy

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By Kelly Cornelius and Don Moniak
August 6, 2023

Project Pascalis was an epic failure on the part of Aiken City officials. To quote Aiken resident Lisa Smith in a recent interview with WFXG-Fox News’ Lauren Young: “It went down in a flaming ball.”

Concerned Aiken citizens actually shot it down by packing public forums, writing letters to the editor, organizing a petition drive, posting anti-Pascalis yard signs across the city, and filing lawsuits and ethics complaints.

An anti-Project Pascalis protest sign, August 2022. . (Photo by Lisa Smith)

The failed Project Pascalis was also a hot topic at a recent Mayoral Forum where, according to the Aiken Standard, Mayor Osbon said the project “got too big.” During the discussion the Mayor distanced himself from any responsibility in the project, other than to say “it was good for the city to control something so important” as the Hotel Aiken. (32-34 minute mark).

As the Mayor’s race heats up down the stretch, the fate of several small businesses on the Pascalis properties remains uncertain, and the historic Hotel Aiken in that too-big $9.6 million investment continues to stand neglected, deteriorating, hollow, and vacant, Mayor Osbon’s leadership role in Project Pascalis warrants renewed scrutiny.

While Project Pascalis was presented to the public as the brainchild of the now-dissolved Aiken Municipal Development Commission (AMDC), public records show Mayor Rick Osbon was involved from inception to implosion, and the size of the project reflected his vision for downtown Aiken.

Timeline of Mayoral Involvement in Project Pascalis

March 17th, 2021: Project Pascalis was announced. (Among the details that would remain secret for more than eight months was that Aiken Attorney Ray Massey had helped negotiate and prepare contracts for what would become the Project Pascalis properties. Massey, who is one of Aiken City Attorney Gary Smith’s law partners, was working on behalf of WTC Investments, LLC.)

March 22nd, 2021: Aiken City Council unanimously approved  Resolution 3222021B, which adopted the City of Aiken Master Economic Development Plan, also known as “The AECOM Plan.” The Plan authorized the AMDC to, in part, acquire property and execute contracts for clearance and preparation of land for resale. Mayor Osbon presided over the meeting.

March 25th, 2021: The AMDC entered into a cost-sharing agreement with the first Project Pascalis developer, GAC, LLC.

March 29th, 2021:  Mayor Osbon sent a letter to the Aiken Municipal Development Commission (AMDC), following through on Council’s March 22nd resolution. Mayor Osbon’s letter outlined an action plan that also described the just announced, though still secretive, very large Project Pascalis: 

  • A conference center with a capacity for 500 people and “first class lodging” to accommodate that many attendees.
  • Government intervention to assist in redeveloping the Hotel Aiken property.
  • Consolidating “sufficient” private property to “create more urban-scale residential condo and apartment inventory within the downtown area.” 
  • A parking garage, or “structured parking solution,” in support of the proposed redevelopment. 

The entire letter can be viewed here. Note that the cost-sharing agreement between the AMDC and the developer was already signed some four days before the Mayor sent the letter. 

April 13th, 2021:  The AMDC held its monthly meeting. According to the meeting minutes, Commission Chairman Keith Wood cited the Mayor’s action items and the AECOM plan as AMDC guiding documents:

“Mr. Wood asked the Commission members to look at the five key areas that the Mayor noted. He pointed out that those five items are where the MDC’s efforts should be. He pointed out that funds from the $200,000 from the City (to the Commission) would be allocated for some of these five items. He pointed out that tying the Mayor’s letter with the five key areas in the letter and the document adopted as the Strategic Plan gives a clear vision as to where the MDC’s focus should be. He said he wanted to call this to the attention of the MDC members.”

Again, the AMDC had already signed the cost sharing agreement with GAC, LLC nineteen days earlier. Two weeks after the AMDC meeting, Weldon Wyatt backed out of the arrangement, and the first version of Project Pascalis collapsed.

May 3rd, 2021: According to an AMDC memo entitled “recent deal flow notes,” Mayor Osbon met with Weldon Wyatt, (who was associated with both GAC, LLC and WTC Investments, LLC) about the future of the project and the Pascalis properties that were under contract to WTC. (Three weeks later the Aiken Chamber of Commerce would take assignment of the properties in order to hold options for the AMDC to later purchase the properties, and the AMDC began to pursue a new developer.)

August 9th/ August 23 2021: The first and second readings for a bond ordinance was unanimously approved by City Council to obtain the  $9.6M bond, which eventually enabled the AMDC to purchase the Pascalis Properties. Mayor Osbon presided over both hearings, voted to approve the bond, and signed the ordinance.

Sept 22, 2021: The Mayor attended an AMDC “Meeting” at Vic’s (Victors Restaurant, a fine dining establishment in Hotel Florence) in Florence, SC. Also in attendance were Attorney Ray Massey, (who, recall, had already cobbled together and had under contract the Pascalis properties for WTC Investments, LLC) and Raines Group members who would soon comprise, along with Massey, the RPM Development Partners group awarded the chosen developer for Project Pascalis on Dec 3rd, 2021.

November 3rd, 2021: The Mayor signed the paperwork to issue the $9.6 million bond for the Pascalis Properties to be purchased by the AMDC.

November 10, 2022: The AMDC closed on the sale of the Pascalis properties.

Dec 3rd, 2021: RPM Development Partners, LLC was announced as the chosen developer for Project Pascalis. This occurred before the required RFP (request for proposals) had even been put out. As later revealed in the Aiken Chronicles, the contract with this winning developer (represented by the City Attorney’s law Partner Ray Massey) was for nearly $ 5 Million less than  city taxpayers paid for it a mere 24 days earlier when the AMDC via the city bond purchased the properties. (Nov 10th, 2021).

January 4th, 2022: Some of those very same “Vic’s” attendees, including Mayor Osbon, dined at Aiken’s swanky steak joint, Prime Steakhouse. Officials charged taxpayers the $620.49 cost for their top-shelf get-together. The dinner was the final touch to a day of private “influencer meetings.”

Feb 25th, 2022 An invoice from Capstone Services named Mayor Osbon as a Project Pascalis meeting attendee. The invoice also lists AMDC Executive Committee members as present, however, there is no mention of this meeting to be found among the minutes or agendas on the city’s website. 

March 28th, 2022 and May 9th, 2022:  Mayor Osbon presided over both votes to give RPM Development Partners a portion of Newberry Street for Project Pascalis; and then signed the ordinance. (Later, in November 2022, and after much public backlash, City Council took back Newberry St from the would-be developer).

July 26, 2022: In a letter to Aiken Historic Foundation (HAF) president Linda Johnson, then-chair Keith Wood of the now-dissolved AMDC wrote, in part, that the commission first pursued the purchase of the Hotel Aiken, and those properties adjacent to it, at the behest of the Aiken City Council. (There is no documentation of this decision in City of Aiken records.)

Feb 13, 2023: Ordinance 02132023B was approved. Aiken City Council, including the Mayor, voted to take over the AMDC—which also made them the landlord of Warneke Cleaners. Below is a portion of that ordinance — the flaming ball portion.

May 8th, 2023: Mayor Osbon presided over the final vote to dissolve the embattled and now-failed AMDC, which made the City the landlord of the Project Pascalis properties, including the parcel on which Warneke Cleaners sits atop as a long-time tenant.

Summary

From inception to flaming freefall, Mayor Osbon was involved in Project Pascalis. While he sometimes recused or distanced himself — as occurred with fanfare during the January 2023 announcement of the proposed downtown Savannah River National Laboratory office building, the latest incarnation of Project Pascalis — the Mayor participated in the now-failed project at quite essential times.

Project Pascalis “grew large” “and got too big” because the AMDC followed Mayor Osbon’s guidance and vision. If the project had proceeded and succeeded, the Mayor would have embraced it as his legacy. One year after the project failure, Mayor Osbon has chosen to distance himself from any Project Pascalis leadership role.


Farmers Market - Williamsburg St Project, July 2023

Whose Project is it again? …. Bueller?

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By Kelly Cornelius

I attended the June 26th, 2023 City Council meeting to put my questions and concerns regarding the Williamsburg Street tree massacre, or “mistake” as the City has termed it, on the record. I wondered: Just whose project is it?

Below is the transcript from that meeting.

Transcript

Kelly Cornelius: My name is Kelly Cornelius. I came down this evening with concerns about the Williamsburg Street tree massacre as well. I was able to find a report on the AMDC’s website that is still up, and it’s called the Williamsburg final draft report, and that was done by a company named Origin Landscape Architecture. I looked them up. They were dissolved, like the AMDC, but they were dissolved earlier on February 3, 2022. I also read the award letter that was posted on the Facebook page of the Aiken Chronicles, and it was dated February 15, 2023, and it awarded $1.4 million to Quality Plus services, and it referenced a December 15, 2022 due date for the proposal. Now if you recall what was going on. December 15, 2022 the AMDC was down to a party of two because on December 14, I believe, is when Mr. Jameson put in his resignation.

The AMDC did not have a quorum when the proposal due date came about, so my question is, who awarded Quality Plus Services this project? Because we didn’t have an AMDC, and you all would not have your first meeting as the AMDC until March 13, 2023. When was the streetscape project transferred, and who was it transferred to? Because I’ve seen on the most recent Aiken corporation agenda there were two agenda items regarding the project. One was an update… there was just two things on there. So are they in control of it now? Are you in control of it now? Who is in control of the project. ?  

[silence] 

Kelly Cornelius: Anybody? …….Bueller? 

Stuart Bedenbaugh: We’ve always been

Rick Osborn:  Kelly…. [then, spoken under breath to Bedenbaugh, “I’m going to answer this”) We’re in control of it 

Kelly Cornelius: So it’s the City?

Stuart Bedenbaugh: And has been from the start. It’s been a CBDG project. It has never been an AMDC project, the project you reference. What, um… So anyway… it is….

Kelly Cornelius: On the sign it says AMDC out there, but now there’s a piece of tape over it. 

Stuart Bedenbaugh: Yes, I think that was related to the Jackson Petroleum property at Williamsburg, on the southeastern corner of that  — that was the AMDC component. The Parkway project that you referenced earlier has always been a CDBG project. The public hearing I referenced several minutes ago that was March 26, 2021 was held under the auspices of the Community Development Block Grant program,  so I wanna make that clear. It was not an AMDC project. That is just not correct.

Kelly Cornelius: So that report found on their website is not associated with this project at all?

Stuart Bedenbaugh: I don’t have the report in front of me, and I can’t answer that. I just don’t know. I mean, if you had reached out to me ahead of time I could have that answer. I will look and report that in the next issues an updates memo. 

Kelly Cornelius: I agree with what Ms. Lance said, I think it should be stopped until everybody is clear on this. 

Later, $100,000K worth of invoices were found from Cranston Engineering with checks attached for the Williamsburg Streetscape Improvements paid for by the Aiken Municipal Development Commission on their financials binder page.

Exhibit A:
Photo of first bill for $32K
Photo of last bill found on the AMDC Financials Binder

Notice that the Bid Phase (highlighted) in the contract amount column, below, is the only one not paid for. That bid process seems to have started after the AMDC was left without a quorum, as evidenced by the email below obtained in a recent FOIA request.

A review of a recent article in the Aiken Chronicles revealed this piece of the puzzle, which is a March 9th, 2023 invoice from Cranston for the same project showing the Bid Phase paid. While the invoice is addressed to the AMDC, it is now paid by the City of Aiken. The invoice also has the same project number as the AMDC paid bills.

Follow-up

Unable to find the March 26th, 2021 minutes referenced by City Manager Bedenbaugh, I emailed him on July 17th, 2023 asking him to provide a copy of them as well as requesting an explanation on the AMDC funding of the design portion of this project. So far no response has been received on my inquiry.

There is reference, however, in a 5/09/2022 City Council agenda CBDG Committee update to the loan being released for the Williamsburg St project, which stated “work is already in progress with consultants.”

So if this is strictly a City project why did the AMDC sign the checks for the design portion? Recall failed the Project Pascalis was funded by the City’s “Parkway” Bond but it was still an AMDC project.

To Review

Here is what we already knew before finding the cancelled AMDC checks:

a) A plan for the Williamsburg St Redevelopment Project was and is on the now dissolved AMDC’s website. This plan can be viewed here.

b) The sign at the scene of the tree massacres on Williamsburg St had an AMDC logo on it which later was taped over.

The City has since officially put the Williamsburg Streetscape project on pause, and, in this interview, Mr. Bedenbaugh was unwilling to point fingers as he took one one for the “team.”

In the wake of the past year’s losses, which include $9.6M for downtown properties encompassing a historic hotel that continues to rot, the loss of Public Trust and now the loss of some of our Tree City’s beloved parkway trees, it seems someone on this team should be held accountable. Why are citizens still having to ask the hard questions while officials refuse to do so?

___________________

Additional links

City Government, Development Issues, Editorials, June 2023, Planning & Development

“The Zoning Has Been In Place Forever”

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Parker’s Kitchen at Stratford and Whiskey – if approved would be more broken zoning promises

“The zoning has been in place forever.” That is what Aiken City Attorney Gary Smith told the Aiken City Council on the evening of Sept 28th, 2020 before Council approved a car wash on a parcel that was zoned to exclude car washes. Other conditions prohibited on that zoning included no 24 hour businesses, no fuel sales and no fast food restaurants among other things most people wouldn’t appreciate in their backyard.

Enter Parker’s Kitchen, a 24 hour fuel sales/ fast food joint, now applying for approval on that same parcel. The heavily opposed proposal is on this Monday night’s City Council agenda.

Stratford Drive off of Whiskey serves as the single entrance into the three subdivisions. In 2003 when the Springstone Villas portion was approved as the most recent of those subdivisions, it was done as a rezoning and the commercial portion of that rezoning had restrictions/conditions placed on it for future development.

The LuLu’s Experience

In 2020, despite hundreds of signatures on a petition protesting the LuLu’s car wash proposal; despite zoning conditions on the books since 2003 that included NO CAR WASHES, despite a lengthy and passionate public comment period without a single area citizen in support of the proposal, City Council nonetheless approved the request by a 5-2 vote to put a car wash on a parcel with zoning conditions prohibiting a car wash. Councilwoman Diggs and Councilwoman Price were the two dissenting votes.

The same level of resistance and lack of support characterize the debate over the Parker’s Kitchen at Stratford and Whiskey Road proposal.

To add further insult to the LuLu’s approval, Council members Kay Brohl, Andrea Gregory, and Ed Woltz blamed citizens for not knowing what the zoning conditions were when they purchased their homes. The citizens did know. The zoning was Planned Commercial with zoning conditions that included no car washes, as seen below.

Click to enlarge

The record also shows that Council Members Kay Brohl and Ed Woltz both voted to approve these conditions in 2003, when they were on the Planning Commissioners and Ed Woltz was the Chairman. The minutes from that meeting are here.

After the PC’s recommendation was forwarded to Council, Councilwoman Lessie Price seconded the motion to approve those 2003 conditions. City Attorney Smith signed the 2003 rezoning ordinance above with the conditions included.

So that’s a total of four City officials still in power today who either voted or signed the ordinance to approve those 2003 conditions, and who are now charged with hearing the Parker’s Kitchen proposal.

Former councilman Don Sprawls, who is the current real estate representative for the parcel, also voted to approve. So that’s five people involved today who were instrumental in approving the 2003 conditions.

The Parker’s Kitchen and LuLu’s Overlap.

At present, a portion of the LuLu’s parcel is for sale and under contract by Parker’s Kitchen, a 24 hour fuel sale business. What are the other exclusions on those 2003 zoning conditions? They are fuel sales, 24-hour businesses of any kind, and fast food restaurants — all of which fit the description of Parker’s Kitchen.

At the first city council meeting on Parker’s Kitchen, April 24th, 2023 meeting , Councilwoman Price was the only official who seemed to remember those conditions as she made the motion to continue the hearing until a later date.

To be clear, City Council has the power to vote to change the zoning on a parcel; and, as we learned after a 2020 appeal on the Lulu’s decision, City Council can apparently also blatantly ignore conditions on a zoning parcel. City Attorney Gary Smith and former-planning staff member,(now planning director) Marya Moultrie paved the way for Council’s 2020 vote to approve Lulu’s, assuring Council that those conditions did not exist. A similar path has been paved for Parker’s.

City attorney Smith told the council that same night in 2020 that the Planned Commercial (PC) zoning had been in place forever. He stated the concept plan for the parcel had expired, and then, in the same meeting, he told them that the Lulu’s application was to amend a concept plan.

Which is it? The 2003 zoning conditions on the parcel were clear. The concept plan may have expired, but the zoning conditions did not.

As the video below highlights. Mr. Smith, Ms. Moultrie and five council members ignored citizen’s input, ignored the zoning conditions, and then had the audacity to lecture residents for not knowing the zoning conditions when they purchased their homes.

So City Council was led to believe by Planning Commission Staff and City Attorney Gary Smith that they were approving a concept plan on a parcel that had PC zoning without conditions.

The City of Aiken got away with approving Lulu’s, and a Circuit Court Judge ruled in their favor on an appeal. But that was pre-Pascalis lawsuits, pre-Silver Bluff grocery store lawsuit, pre-flurry of ethics complaints, pre-Labscalis.

Back in 2020, only those affected by Lulu’s were paying attention. Up until now, there has been considerably less resistance to the demolishing of historic buildings across a half a city block, heavy-handed land-clearing and development, and the now ubiquitous Dollar Stores and Lulu’s.

Semantics Matter

In the City’s quest to assure those in attendance in the 2020 meeting, (as they approved Lulu’s) that the 2003 zoning conditions no longer existed — that the conditions had somehow magically vanished from the PC zoning — it appears they did not bother to actually remove the conditions or change the zoning because, recall, as Smith told us, “The zoning has been in place forever.” Indeed the PC zoning — with the conditions — has has been in place since then.

The new 2020 ordinance on the parcel approving Lulu’s reads ” Approve a Concept Plan”

While the 2003 zoning ordinance reads ” Approve a re-zoning”

Semantics matter, zoning is zoning, and the court of public opinion is turning. The latter was clearly evident in citizens’ statements made during the public comment portion of the May 22, 2023 City Council meeting to council members regarding matters of civility and having their voices heard. It certainly appears more people are paying attention. Maybe they’re finding more time to read up on local issues while parked on Whiskey.

The 2003 Zoning Conditions Still Recognized in 2014

More research uncovered that the zoning conditions had not fallen off in 2014 when another applicant put a concept plan in for this parcel. Then Planning Director, Ed Evans, put it right in the agenda packet.

The evidence showing that the conditions are ZONING conditions rather than concept plan conditions just continues to accumulate.

Parker’s Kitchen

During the April 24, 2023 meeting on Parkers, I asked Ms. Moultrie if those conditions were listed in the agenda’s Parker’s documents. Mayor Osbon redirected the question to himself. and then did not answer the question.

However, Mayor Osbon did make an issue of a sign that said ‘Shame’ that my 80 year-old aunt held up during my comments, and directed at Council. Law enforcement was called in handle the quite dainty, 80 year-old lady holding a small sign in a City Council meeting.

Now , in the June 12th, 2023 Memorandum from City Manager Stuart Bedenbaugh in the agenda packet for Parker’s states that:

Since no building permits were issued within 5 years of the
original commercial component of the concept plan approval, the 2003 concept plan approval for the commercial component expired, but the PC zoning stayed on the property.

Mr. Bedenbaugh acknowledges in the memo that the 2003 ZONING stayed on the property, but what he failed to admit is that the 2003 PC zoning came with conditions (see the 2003 Ordinance )

The 2003 Concept Plan and Zoning Process.

Permits were issued under that rezoning for Springstone Villas. They are also zoned PC as shown on the map below. This was found in Lulu’s application packet.

Springstone Villas enjoy the same zoning as the parcel in question as it was all rezoned to PC at the same time, in fact, officials placed the conditions on the commercial portion of the PC because there was no definite concept plan for the commercial component for it at the time of the rezoning and this ensured the residential portion of the PC zoning (Springstone Villas) would be protected. The minutes of the 2003 meetings accurately depict this. From the July 14th, 2023 First Reading

Later in that same meeting Councilman Cunning confirmed there is no definite commercial plan.

Early on in those same July minutes it states Planned Commercial zoning requires approval of a Concept Plan. Again, the only Concept Plan ever approved to move forward for this parcel at that 2003 rezoning was that of Springstone Villas.

This seems to completely negate the City’s claim that the 2003 Concept Plan of the Commercial component has expired. According to the minutes, there never was a definite concept plan for the commercial component approved – the Concept Plan approved was for Springstone Villas and the commercial component was Planned Commercial with conditions.

The first PC zoning approval conditions read “only the residential portion will be allowed to proceed and that the concept plan for the commercial portion be reviewed by the planning commission and council prior to approval of any site plan for that portion” (credit to Stratford resident John Melvin for discovering this clause).

The Continuation of the First Parker’s Hearing

Well-organized citizen opposition to Parker’s Kitchen proposal will be presenting their positions to City Council on Monday night, June 12th. City Council will meet an informed, passionate and intelligent citizenry. The opposition is growing, not shrinking.

In addition to concerns over the City’s compliance with its own zoning conditions on Parker’s, there are concerns over issues of health and safety regarding siting a gas station next to a residential area. The City is well-advised to review the definitions of arbitrary and capricious before making their decision.

There is also a closed-door Executive Session scheduled Monday before the meeting to accept legal advice on the Parker’s Kitchen proposal. Although allowed, The Freedom of Information Act does not encourage Executive Sessions. The key word is that Council “can” enter closed door meetings under some exemptions. There is no “shall.”

There is no reason, especially after the legal discussion during the April 24th unfinished hearing, why the legal issues can not be discussed in full open view. There is no pending litigation that is one prerequisite for taking legal advice behind closed doors. The issue should be aired in open session, on-the-record, for every citizen to hear.

Springstone Villas and Aiken Resident Jean Greenwald speaking about protecting public health, quality of life, and property values at the April 24, 2023 public hearing, which can be viewed at https://www.youtube.com/watch?v=JvF4LcMG6iY&t=9703s



Full Disclosure: My mother was the plaintiff vs. The City Council in the appeal on the Lulu’s decision. My Uncle was the President of the Springstone HOA when the Hotel was built off Whiskey Rd adjacent to Stratford. He, along with others, worked hard to make sure that hotel would not affect the residential area. Due to the berm and tree buffers, the dedicated entrance at the opposite of the property off Whiskey Rd, and to not putting a curb cut on Stratford, you truly do not know that hotel exists when you enter into this residential area. They did it right.

April 2023, Laws & Bylaws, Pascalis 2023 - SRNL Lab

Keeping Up Appearances: City Attorney Gary Smith’s $9,600,000 Project Pascalis Bond Opinion

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What do Aiken City Attorney Gary Smith, failed Project Pascalis, and the “appearance of a conflict” have in common? Answer: A Bond Opinion for the $9.6 million City of Aiken debt.

by Kelly Cornelius
April 8, 2023

The failure of Project Pascalis continues to plague concerned Aiken citizens as well as local officials, who are now proposing to pay the debt from the Pascalis property deals by using $9.6 million in state funds gained from the State of South Carolina’s plutonium settlement with the federal government.

The full proceedings of the general obligation bond issuance recently obtained via a Freedom of Information Act (FOIA) request (1) has revealed that embattled Aiken City Attorney Gary Smith was involved in the city’s efforts to obtain the $9.6M bond necessary for the Pascalis project property purchases. Specifically, Smith signed one of two “bond opinions” that assured the $9.6 million being borrowed under the auspices of the City of Aiken’s credit.

This involvement occurred weeks after he was reported to have recused himself via a phone call with AMDC attorney Gary Pope, Jr.; and contradicts statements made in court filings in the Blake et al vs City of Aiken et al lawsuit involving alleged illegalities during the Pascalis proceedings.

This is only the latest in a long line of appearances of conflicts for Smith associated with failed Project Pascalis, and the properties that make up the boondoggle, but it is the most troubling.

Summary of City Attorney Ethics Issues

To recap, City Attorney Smith has been the subject of lawsuits and ethics complaints regarding Project Pascalis since at least April of 2022. At the center of the controversy was the deep involvement of his law partner, Ray Massey, as a lead investor and legal agent for RPM Investment Partners, LLC; the winning developer chosen for Project Pascalis by the Aiken Municipal Development Commission (AMDC) in December of 2021.

The controversy only grew after it was discovered that RPM was selected before the public Request for Proposals was publicly advertised; that the Purchase and Sales agreement between the AMDC and RPM was for only $5 million dollars, almost half the price paid by the AMDC one month earlier; and that an invoice from Smith, Massey, Brodie, and Guynn and Mayes to WTC Investments, LLC shows the firm was involved in cobbling together the properties during the earliest phases of the project.

The “Early Juncture” and “Fall of 2021” Recusal Excuses

More than five months after announcing the first details of Project Pascalis, the AMDC finally held two public meetings on April 20, 2022. During the second meeting, I raised my concerns about the obvious conflict of interest:

“City Attorney Gary Smith sat with the City Council when they made their decision and on the 28th they made the decision to sell this property or give it away I should say. Convey it, they made that decision about Newberry street to RPM development.  The only agent listed for RPM development is a Ray Massey and when you look on the website of Mr Smith’s private firm it’s Smith Massey Guynn whatever else. This is his business partner! There is no conflict of interest in this that anyone else sees but me?”

Three minutes later, meeting moderator Tim O’Briant asked Gary Pope, Jr to address the issue. Pope claimed that Gary Smith recused himself at “an early juncture” and “has been uninvolved in these matters.” Pope’s exact comments are as follows:

My name is Gary Pope. I’m  with Pope Flynn. I work out of the Spartanburg and Columbia offices. I’ve typically served the city and capacity as bond counsel in connection with financings and also other special projects. At an early juncture in this project Gary Smith called me and said I believe that my partner may have, maybe proposing as part of a group for this so I’m going to recuse myself, and I need you to represent the city and the AMDC as we go through this process.

So Mr. Smith has been uninvolved in these matters and I’ve been handling them on behalf of the city so I wanted to make sure before his good name was besmirched and let the record sort of reflect that we have done things by the book the right way and didn’t want to let that pass right, didn’t want that angle, and also that the property was sold from the sellers to the AMDC which Mr. Smith I believe does not represent any capacity currently that’s that’s my role at present, so i wanted to also clarify that he’s recused himself.”

The video of his testimony can be seen here:

April 20th, 2022 AMDC evening meeting gives birth to Smith’s phone in recusal

In response to a FOIA request filed after that meeting, the city wrote the following about Smith’s purported recusal from the Pascalis proceedings:

“The City of Aiken has determined that Mr. Smith declared his recusal verbally in the Fall of 2021 when RPM, LLC’s development proposal came before the Aiken Municipal Development Commission.  While no document was produced, or required, for Mr. Smith to recuse himself, an associated document responsive to your inquiry is the executed dual engagement agreement with Attorney Gary T. Pope, Jr. by and between himself, the City of Aiken and the AMDC.

“This engagement letter, dated October 14, 2021 and executed October 15, 2022 was in response to Mr. Smith’s recusal, the effect of which was replacing him as attorney of record for the City in any matter where there might be an appearance of conflict.”

The City’s FOIA response raised even more ethics issues for Mr. Smith, because:

  1. According to South Carolina ethics laws a recusal cannot be delivered via phone, but must be written and then submitted into the public record. No record of a recusal, which would have a date stamp, was available.
  2. Smith was on the attendance roster at a March 22, 2022, joint AMDC/ City Council closed-door, Executive Session meeting in which Project Pascalis was the only topic. Mr. Smith was there as City Attorney and billed the city 1.5 hours as part of his monthly legal work. (2)

    This meeting occurred five months after Pope has his phone call with Smith and then signed his engagement letter, and five months after RPM was incorporated. Of interest, Gary Pope was also at the March 22nd meeting, held just one month before telling the April 20th audience that Smith had recused himself early on and “by the book.”

(View full minutes here).

3. Smith was present and involved in (and it was broadcast) the March 28, 2022, Aiken City Council First reading to give away part of Newberry Street to RPM Development Partners. The transcript of that exchange is detailed in The Pascalis Attorneys.

Since those first vague recusal excuses were offered, more evidence has emerged:

As recently reported in In the Courts: Pascalis and the Regional Dump, Smith was paid for time advising the Design Review Board the day before their vote to demolish the historic Hotel Aiken at the request of RPM. And in The Pascalis Attorneys, Smith’s involvement in the city ordinance authorizing the $9.6 million bond is made clear.

“Ladies and Gentleman: We are Counsel….”

Now another piece of evidence has emerged: the Bond Opinion. According to the Government Finance Officer’s Association’s “Best Practices”page, bond counsel plays an essential role in ensuring the integrity of the process:

“An essential member of a government issuer’s bond financing team is bond counsel. Bond counsel not only prepares authorizing documents, disclosure documents and assists in compliance with IRS regulations, but also renders an opinion on the validity of the bond offering, the security for the offering, and whether and to what extent interest on the bonds is exempt from income and other taxation. The opinion of bond counsel provides assurance both to issuers and to investors who purchase the bonds that all legal and tax requirements relevant to the matters covered by the opinion are met.”

In response to a FOIA request for the Pope-Flynn bond opinion , the City of Aiken finally released the entire bond record, the 144-page Transcript of Proceedings; although it has still never publicly disclosed the full document.

The Pope-Flynn legal opinion for the $9,600,000 General Obligation Bond is on Page 135 of the transcript, and is signed “Pope-Flynn, LLC.” The entire law firm was behind the opinion, which begins with “Ladies and Gentleman, We have acted as Bond Counsel to the City of Aiken in connection with the above referenced bond.” (2)

On Page 132 of the transcript, Gary Smith’s legal opinion, on his firm’s letterhead, begins with “Ladies and Gentleman, We are counsel for the City of Aiken, South Carolina and have acted as such in connection with the issuance by the City of the above-referenced bond.” (below)

The letterhead, opening paragraphs, and signature from City Attorney’s Gary Smith’s General Obligation Bond Issuance legal opinion. (Click to enlarge)


Oct 25, 2021 is ten full days after Pope-Flynn signed its dual engagement letter; and it is nearly 4 months after Keith Wood, then Chair of the AMDC, raised conflict of interest concerns regarding Smith in a confidential June 10th, 2021 email. Then AMDC Executive Director Tim Obriant and City Manager Stuart Bedenbaugh were both copied on that June 2021 email.

In paragraph 57 of Smith’s August 2022 response to the Blake et al vs. City of Aiken et al lawsuit, his lawyer wrote:

“With respect to the allegations set forth in Paragraph 108 of the Complaint this Defendant did not provide legal counseling to the AMDC after June 2020 and does not have sufficient information or knowledge to admit or deny the allegations set forth in said Paragraph.”

Perhaps Gary Smith’s lawyer does not consider a legal opinion necessary for the AMDC to purchase the Pascalis properties as providing legal counseling to the AMDC, or perhaps Smith did not inform his counsel of this contradictory piece of evidence.

The Ethics Issue Today.

City Council was made aware of this latest conflict of interest concern during my public comment on the evening of Feb 13th, 2023, and Council responded with what has become a tradition of cricket song and deer-in-headlight stares.

Combined on that dais are the Mayor, the City attorney, and six Council Members for a total of eight at the helm of the failed Project Pascalis and the proposed Project Labscalis. Five of the eight have recused themselves for real or potential conflicts of interests at some point in time during both processes.

The only elected official to ever directly address the public’s concerns regarding Attorney Smith was Mayor Osbon, who accused Aiken area resident and businessman Drew Johnson of libel on May 9, 2022, after Mr. Johnson raised ethics concerns (see video below). Ninety minutes later, the Mayor and five council members voted to give away part of Newberry St to RPM Development Partners.

From the origins of this bond to the proposed bailout of the bond, Project Pascalis has been littered with conflicts of interest, dogged with deceit, wrapped in secrecy, and stained with the loss of public trust. The one thing City Council and the Mayor have made transparent is their disregard for citizen’s input and concerns.

Meanwhile, the historic Hotel Aiken continues to suffer from neglect , the taxpayer-funded Pascalis properties on Newberry St sit in the crosshairs of a proposed federal contractor office complex, and a “structured parking solution,” better known as a parking garage, is proposed in support of the federal contractor office complex being designed for use by the Savannah River National Laboratory.

The question yet to be answered is this: in the battle between the City’s conflicts of interest and public opinion, who will prevail in determining the fate of Aiken’s beloved downtown and the small, privately-owned downtown businesses in the crosshairs of the wrecking ball?

Footnotes:

(1) The FOIA request from Kelly Cornelius was for: “a copy of the legal opinion from Pope-Flynn as referred to on page 61 of the ordinance 8232021D 10,000,000 Parkway Bond you can find that here and the opinion I request is again referred to on page 61 in this link. https://edoc.cityofaikensc.gov/WebLink/DocView.aspx?id=1005864&dbid=0&repo=City-of-Aiken-LF Thank You.”

This document provided is 144 pages long, whereas the version released by the AMDC included only 64 pages long, and did not contain the legal opinions and several other certifications and required documents. SC FOIA law does not require public bodies to create new records, so the entire document was provided.

(2) City of Aiken legal department invoices obtained via FOIA by Don Moniak of The Aiken Chronicles show that Gary Smith billed the city 1.5 hours for the March 22, 2022 meeting on Project Pascalis. (below)

Gary Pope, Jr. billed the AMDC 5.5 hours to attend the March 22, 2022, meeting, and have a phone conversation with Tim O’Briant. The hours discrepancy is due to travel time, since Pope-Flynn’s home offices are in Spartanburg and Columbia.

MDA refers to Master Development Agreement. James Wilson was an attorney for RPM Development Partners. All told, the AMDC paid
Pope ~$2500 for travel hours in March 2022.


March 2023, Pascalis 2023 - SRNL Lab, Plutonium Settlement

FOIA’ed Again: A $65,000 Question

4 Comments

By Kelly Cornelius
March 27, 2023.

The City Of Aiken either cannot or will not provide an accounting for $65,000 out of $100,000 requested from plutonium settlement funds to pay its $9.5 million debt from the Pascalis project property purchases of 2021.

Over the course of the past year the City of Aiken’s responses to Freedom of Information Act (FOIA) requests pertaining to the now failed Project Pascalis have mirrored those of officials responsible for Project Pascalis.

City officials  have redacted information that should be public, denied a wide range of requested information, and even claimed they lacked the information requested. Many of the requests they did fill, or partially fill, have been quite costly to obtain, or were made cost-prohibitive to pursue. 

The list of concerns is long and they are well documented in the Aiken Chronicle’s City of Aiken’s Information Games series, which exposes the secrecy surrounding this unpopular project, as well as the lengths city officials will go to maintain that secrecy. These efforts now include redacting even the very name Project Pascalis from legal invoices! 

Kudos to all who fought to save downtown Aiken and shed light on Project Pascalis, whose name is now so tainted that FOIA officials have taken to redacting it.

Today, we can add ‘complete omission’ to that list of growing concerns regarding the actions of the City’s FOIA office.

The recently published  Pu Funds Con Games revealed that the City of Aiken is seeking to pay off $100,000 of “bond issuance” money.  What could possibly cost 100K to issue a bond? 

I recently FOIA’d to see an invoice for a payment to the Pope-Flynn law firm that appeared in the city’s finance department files.  The payment turned out to be for the $9.6 million General Obligation Bond for the “Parkway district” which would later be known as Project Pascalis. This FOIA request was submitted December 9th, 2022.(1) 

The response to that FOIA revealed that Pope-Flynn was paid $32,500 to perform its bond issuance tasks (see below), which led to more questions:

1. If the bond counsel was paid $32,500 (they actually charged $35,700 according to their invoice but were paid $32,500), what constitutes the remainder of the $100,000 in the plutonium funds line item request?

2. Why was this information not revealed in an earlier request for Pope-Flynn invoices(2) which I submitted on May 10th of 2022?

This very important information regarding that General Obligation Bond should have been included in that May FOIA response, but it was not. I would not be provided this Pope-Flynn payment information until some seven months later, after another FOIA request.  Why and how could officials tasked with organizing city records omit something this important? I posed this question to City Manager Stuart Bedenbaugh in a March 20, 2023 email; and at the time of this publishing there is no response. Cue the Jeopardy jingle.

Here is an overview of what was going on May 10, 2022,  the day the first FOIA was submitted. It was the day after the second and final reading of Aiken City Council voting to give away Newberry St to RPM Development Partners, which was represented by the City Attorney’s law partner Ray Massey. The meeting was packed and several citizens, including myself, spoke on the record regarding this conflict of interest, and many more spoke against the idea of giving away part of Newberry Street. 

May 10th was also the day the first lawsuit was filed against the city by Drew Johnson for violations of state ethics law. So on May 10th the situation was heating up, and the City was getting a much deserved public black eye for their actions as the anti-Pascalis movement grew, strengthened, and organized.

I paid $48 (or 2.5 Old Fashioneds) for that original May 10th FOIA and was instructed by then City of Aiken Economic Development Director, AMDC Executive Director, and FOIA Officer for his own department, Tim Obriant, on how to pay it.  I didn’t know at the time the depth of Obriant’s involvement but this would start to be revealed with the August 13th release of The Pascalis Attorneys. The point is that Obriant filling FOIA requests regarding Project Pascalis is the fox watching the henhouse personified.

After reading the emails unearthed in The Pascalis Attorneys, which showed the secrecy and deceit regarding preferred developers and conflicts of interest identified — all of which Obriant was copied on or had initiated himself as then Executive Director of the AMDC — one can’t help but wonder if the omission of that bond payment for the Pascalis Properties in that May FOIA return had anything to do with the city official who was filling them.

I not only asked City Manager Bedenbaugh why this information was withheld the first time I FOIA’d it, but also about the $65,000 discrepancy in the line item for his Pu Funds request in that March 20th, email. If $65,000 is unaccounted for in a $100,000 line item, what else might be amiss in the line below it, listed as “Other Capital Outlay” for $50.4M not to mention the $9.6M In the line about for property the AMDC contracted with RPM to sell for half of that . 

This city council and their staff are clearly accustomed to operating unquestioned. Their missteps on following development laws, FOIA requests and even open meeting laws have been routinely exposed by citizens this year. As we witness the failed Project Pascalis morph into Labscalis — the Bomb Plant lab proposed on the same, ill-begotten Pascalis properties — many questions remain.

FOOTNOTES: 

(1) Request #326-2022I request the invoice from Pope Flynn for the EFT payment dated 12/08/2021 for the amount of $32,500. The description of the payment is listed as 85.18 and is found on page 4 of the records listed in this link to save you time and me old fashion money. https://edoc.cityofaikensc.gov/WebLink/DocView.aspx?id=2751269&dbid=0&repo=City- of-Aiken-LF Thank you

(2) Request #86-2022
I request a copy of services rendered by Attorney Gary Pope for the City Of Aiken (City Council itself) not the AMDC by way of invoices from Oct 2021 to Present 5/10/2022.

Piggy graphic courtesy of Martin Buckley