Category Archives: November 2022

Aiken County Government, In the Courts, November 2022, Public health and safety

A Verdict of Gross Negligence

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$150,000 Jury Award in Owens vs Sheriff Michael Hunt et al.

by Don Moniak

November 30, 2022

The first general provision of Title 24 of South Carolina law—Corrections, Jails, Probations, Paroles, and Pardons—pertains to a Sheriff’s responsibility for managing county jails:

“The sheriff shall have custody of the jail in his county and, if he appoints a jailer to keep it, the sheriff shall be liable for such jailer and the sheriff or jailer shall receive and safely keep in prison any person delivered or committed to either of them, according to law.”

On November 4, 2022, an Aiken County jury in the Second Circuit Court of South Carolina returned a verdict finding Aiken County Sheriff Michael Hunt and three local government agencies grossly negligent in their supervision and confinement” of Aiken Detention Center inmate Otis Owens in January, 2017. The jury awarded $150,000 in damages.

Owens has a criminal record dating back to the late 1990’s for convictions ranging from receiving stolen goods and grand larceny to a variety of illegal drug possession charges. According to court records, at the time of the incident he was in pre-trial detention.

Sheriff Hunt was first elected in 2003, and since then has easily won five re-elections. Captain Nick Gallum is presently the Jail Administrator for the Aiken County Detention Center, but was not named in the lawsuit. The jail also has chronic understaffing issues—job openings for underpaid detention center officers are a fixture in the county’s jobs listings.

According to the sheriff’s office , the average daily population at the facility is 407 inmates. Around the time of the incident the jail reported to the Aiken Standard that it had exceeded its official capacity—317 inmates at the time—sixteen times in 2016.

The case was filed in June, 2017; and the subsequent five years of litigation featured:

  • Sheriff Hunt and Aiken County declining an offer to settle, in 2018, for $75,000; and again in 2021 for $100,000. 
  • Defense lawyers unsuccessfully preventing Sheriff Mike Hunt from being deposed. 
  • Allegations emerging of pervasive mistreatment of inmates at Aiken County Detention Center; including another personal injury lawsuit in 2022.
  • The Aiken County Sheriff’s Office being accused of “gamemanship” and “nefariously colluding” to force a trial without Owens present.
Figure 1: Jury Verdict form, November 4, 2022.

Timeline of Owens vs Sheriff Michael Hunt et al (1)

June 20, 2017:  On behalf of Otis Owens of Warrenville, SC, Greenville, SC Attorney Joshua Hawkins  files a lawsuit  against Sheriff Michael Hunt, the Aiken County Sheriff’s Office, the Aiken County Detention Center, and Aiken County, claiming:

“”On or about January 27, 2017, when the plaintiff was going in from the recreation yard, an Aiken County Detention Center corrections guard, in searching the plaintiff, probed the plaintiff’s belly button, ran his hands up the inside of the plaintiff’s legs, and grabbed and squeezed the plaintiff’s testicles. The guard maliciously and aggressively assaulted the plaintiff, going beyond anything necessary to search the plaintiff. The guard, while acting for the governmental defendants, acted in disregard for the plaintiff’s rights, and acted in a way that could only be construed as at least reckless and grossly negligent.”

The complaint went on to state that Owens requested and was denied medical treatment; but a month after the assault “ a sonogram revealed that the plaintiff had sustained injuries to his groin and that fluid had accumulated around his testicles, and was treated with Tylenol and antibiotics for ten days for the injuries he sustained as a direct and proximate result of the defendants’ tortious acts.”

The complaint asserted that “all governmental and non-governmental entities condoned and ratified the actions of guards, officers, employees, and agents acting on their behalf during the events related to this action.”

July 25, 2017: Attorney William Davidson, representing Sheriff Hunt, the Sheriff’s Office, and Aiken County, answers the complaint by denying all charges and claiming immunity for his clients.

June 15, 2018; Judge Keesley orders mediation, to be completed by October 1, 2018. The deadline is later extended to June 2019.

October 23, 2018: Owens offers to settle for $75,000, and defense declines offer.

October 23, 2019. Owens attorney Joshua Hawkins files a second lawsuit against individual Aiken County detention center guards. The complaint alleges that before assaulting Owens, Deputy Timothy Gibson “accused the plaintiff and other inmates of playing dice,” that no dice were ever found, and that Gibson had “violated another prisoner’s rights in the same way.” (2)

August 12, 2020: Following a separate incident, three Aiken County Detention Center guards are fired after an internal investigation into the beating of an inmate. (3)

February 5, 2021: An Alternative Dispute Mediation results in an impasse.

August, 2021: Owens offers to settle for $100,000.

December 21, 2021: Parties agree to a trial date the week of February 21, 2022.

February 5, 2022: “Due to unique circumstances,” the court orders a 90-day continuance of the case and the jury trial is postponed.

March 1, 2022: Attorney Hawkins files a Motion for Costs (4) describing the twist in the case leading to postponement. Before the trial date, Owens violated parole during house arrest and could not be located. Hawkins alleged that the Aiken County Sheriff’s office knew where Owens was located, chose not to apprehend him, and “nefariously colluded, deceived opposing counsel, and wasted the Court’s time for the purpose of attempting to force the trial without Owens present.

April 4, 2022:  Attorney Davidson files a motion to quash to prevent Sheriff Hunt from being deposed, arguing that he had no firsthand knowledge and his position involves many responsibilities, and that being deposed would only serve to embarrass him:

“This witness, who is Sheriff of Aiken County, has little or no firsthand knowledge about the facts of this case. Any information he does have that is even arguably relevant can be gathered from other sources without burdening Sheriff Hunt for a deposition. Because of the demands of his position and the absence of any firsthand knowledge relevant to this case, requiring him to appear for a deposition would be a needless imposition on Sheriff Hunt and his many responsibilities and can only amount to an effort to harass, embarrass or cause undue burden on him in violation of the rules.” 

An affidavit from Sheriff Hunt was also filed, in which he swore he was unaware of the facts in the case—even though the case also involved his overall management of the jail.

April 4, 2022 Affidavit of Aiken County Sheriff Michael Hunt.



May 4, 2022: Judge Keesley orders a jury trial to begin October 31, 2022.

June 20, 2022: Circuit court judge William P. Keesley denies Davidson’s motion to quash the deposition of Sheriff Hunt, writing that because the allegations were part of a pattern in the Sheriff’s Department, that he could be deposed under oath:

“The Sheriff has filed an affidavit stating that he knows nothing about any issues related to this lawsuit, aside from what he has learned from staff. He argues that taking his deposition is a waste of time and that the Apex Doctrine prevents his being required to sit for a deposition because he is merely the head of the Department. The court finds that the plaintiff is entitled to depose Sheriff H. Without limiting the scope of the examination, there appears to be an ability to conduct this deposition based on the assertion that this alleged misconduct was a pattern in which members of the Sheriff’s Department engaged.”

Sheriff Hunt was deposed under oath and the deposition was entered into the court record. (5)

October 31 to November 4, 2022. After three previously schedule trials were postponed, a five day jury trial is held. Thirteen witnesses were listed for the Plaintiff, while the Defense called no additional witnesses.

The jury ruled in favor of the plaintiff that, based on the preponderance of evidence, the defendants were grossly negligent.

November 14, 2022.  On behalf of the defense, attorneys Davidson and Andrew Lindemann file a motion for a new trial and to dismiss Aiken County from the case, arguing that: 

  • The Sheriff is solely responsible for the management of the Aiken County Detention Center. 
  • The Sheriff is a state officer and not a County officer; therefore Detention Center officers are employees of the Sheriff’s Office and not County employees, and therefore, “Aiken County is not liable under state law for any acts or omissions by an employee of the Sheriff working at the Detention Center.” 
  • The verdict is “grossly excessive.” 
  • There was no expert medical witness testimony. 
  • The plaintiff failed to prove gross negligence in the hiring of employees. 
  • The plaintiff should have filed a charge of assault instead of, or in addition to, gross negligence, against the guards. 

In regard to the latter contention, Davidson and Lindemann argued that: 

“ The gross negligence standard is not applicable to the intentional tort of assault and battery or any vicarious liability claim based on a sexual assault or sexual misconduct committed by Deputy Gibson. In other words, if the Plaintiff intended to bring a tort claim for the sexual misconduct alleged against Deputy Gibson, the proper cause of action would be for assault and battery – not for gross negligence.”

No date has been set to hear the motion for a new trial.

For another story on a larger jury award for gross negligence, see
Another Verdict of Gross Negligence



Footnotes

(1) Information was obtained primarily from court records available at https://publicindex.sccourts.org/Aiken/PublicIndex/
and through the PACER federal court records system available at
https://pacer.login.uscourts.gov/csologin/login.jsf

(2) Hawkins moved to consolidate the cases two months later, but it was instead transferred to federal court. On April 26, 2022, U.S. Magistrate Judge Molly Cherry granted a motion for summary judgement that dismissed all defendants in that case with the exception of detention Timothy Gibson. The case against Gibson is pending.

(3) The case was turned over to South Carolina Law Enforcement Division (SLED), which filed charges of “misconduct in office” against the three officers on January 15, 2021. Court records show a dismissal in one case; and the Aiken Standard reported the cases were diverted to alternative disposition routes.

On July 20, 2022 Neil Alger and Austin Crosby filed a civil suit against the Aiken County Sheriff’s Department on behalf of Clifford Beaudin, alleging gross negligence and claiming, in part, that:

“Additionally, ACSO has a practice and history of allowing violations of policies and procedures by employees pertaining to excessive force and the improper treatment of inmates.”

The case is pending.

(4) Three weeks after the case was continued for 90 days, Hawkins filed the March 1, 2022, Motion for Costs, which reads as follows:

“The plaintiff filed a motion for a day certain in this case, and this case was set for February 21, 2022. While preparing for trial, the undersigned learned that the plaintiff violated the terms of his parole and could not be located. Because the undersigned was unable to contact the plaintiff, the undersigned reached out to the defendants and indicated the plaintiff would resolve the case for the defendants’ last offer. The defendants instructed the undersigned to send power of attorney documents proving that the plaintiff’s mother had authority to settle the case, which the undersigned did. Then the defendants refused to settle the case.

When the defendants refused resolve the case for their last offer, the undersigned asked the defendants if they would agree to a strike the case pursuant to SCRCP 40(j) so that the undersigned could attempt to locate the plaintiff. The defendants refused. The undersigned then had to file a motion with the Court, which the defendants opposed and continued to oppose at a hearing on February 1, 2022.

After February 21, 2022, passed, Otis Owens was immediately arrested. A deputy told Owens that the Sheriff’s Office had known where Owens was for some time, but that Defendant Michael Hunt instructed deputies not to pick Owens up until after the trial date passed. This means that the defendants nefariously colluded, deceived opposing counsel, and wasted the Court’s time for the purpose of attempting to force the trial without Owens present. The defendants should have arrested Owens when they knew where he was instead of attempting to pull a fast one with the Court. Worse, is that the defendants are public servants and instead of doing the job tax dollars compensate them for, they engaged in gamesmanship, wasting tax payor resources with an unnecessary hearing in the process.

Based upon the conduct of the defendants, the plaintiff respectfully requests that the Court order the defendants to pay costs and fees associated with the previously filed Rule 40(j) motion and this motion.”

The motion to pay costs and fees was denied in the same order denying the defense motion to quash the deposition of Sheriff Hunt.

(5) The depositions of Sheriff Hunt, other ACSO officials, Owens, and other detention center inmates are not publicly available at sccourts.org because they are not scannable. At least one is a video deposition. The depositions have been requested from the Aiken County Clerk of Courts.

On May 22, 2022, during the same period an effort was made to prevent Sheriff Hunt from being deposed, The Aiken Standard publishes a major investigative story by reporter Alexandra Koch detailing a pattern of late night to early morning, warrantless searches on passenger buses on the Aiken County and Lexington County line. The only significant arrest for drug possession during years of routine, warrantless searches was later dismissed by the courts after a judge ruled there was no probable cause for the search, passenger civil rights were violated, and the pretext for the stop was not verified by dashcam video. Sheriff Hunt declined to comment on the issues or the story.

Aiken County, City Government, November 2022, Planning & Development

The Village at Woodside’s Clever Zoning and Land Accounting

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Parking Lots as Open Space and Converting Residential to Commercial

The 100-acre Village at Woodside development has been classified by the City of Aiken as “Planned Residential” zoning since 2005. From 2001-2005 the development was part of the larger Woodside Plantation, which is also zoned Planned Residential. In its most recent proposed Concept Design amendment, Village at Woodside’s developer continues classifying paved parking lots as non-commercial space, and claims a proposed shopping center with 339 parking spaces and fronting Silver Bluff Road is primarily for its residents. The City of Aiken’s Planning Department and Planning Commission have accepted these proposals, and Aiken City Council is poised to make the final approval. (Update: City Council unanimously approved the development on November 28, 2022).

“Planned Residential”

Planned residential is a special use district within the City of Aiken’s Zoning Ordinance, described as a flexible and creative class of zoning:

“The Planned Residential (PR) District permits greater flexibility and more creative and imaginative design for the development of residential areas than is generally possible in other residential districts while potentially allowing a limited range of nonresidential uses primarily serving the residents of the PR project. In exchange for there typically being no minimum lot sizes and widths or minimum setbacks, and a variety of housing types, the developer gives City Council control of the details of a proposed project through approval of a concept plan. The District promotes more economical and efficient use of the land, a harmonious variety of housing types, a higher level of amenities, compatibility with surrounding uses, preservation of natural features and open space, and the interconnection of trails and sidewalks.”

Some design standards in the Planned Residential category that are prone to creative manipulation include:

  • A maximum of five percent of the total area is “permitted to be devoted to uses other than residential and open space, but there is no entitlement to any commercial or institutional use.” 
  • Any commercial development “shall be designed primarily to serve the residents of the Planned Residential project.” 
  • Twenty percent of single family residential areas, and forty percent of multifamily residential, must be devoted to “open space;” and half of this must be improved for recreational use. (1)

The Village at Woodside was separated from Woodside Plantation in 2005, after Woodside land holding company Sidewood Development, LLC transferred more than ninety-three acres of property to Silver Bluff Development Corporation— which subsequently became the developer of record.

Since 2005, Silver Bluff Development has deeded 14.5 acres of its property to two property owner associations, retained 33 acres, and sold the remainder to residents and businesses. One-third of property owner association lands consist of paved parking lots or roads.

Since its inception, area residents have voiced concerns about the scale of commercial development at the Village; and the prospect of the undeveloped stretch of Silver Bluff road devolving into a congested area like Whiskey Road. Some city officials joined with developers to calm concerns by portraying planned commercial development as limited:

  • “The developers had stated that 69% of the commercial area will be green space and not developed.  Approximately 30 acres will be developed in that section.” (Aiken City Manager Roger DeLuc, June 11, 2001 City Council Meeting Minutes)
  • ” The commercial area would be more like 21.4 acres rather than 30 acres” (Aiken Mayor Fred Cavanaugh, June 11, 2001).

    Commercial Space Without Parking Lots?

    Due to the five percent commercial use rule, The Village at Woodside is allowed by the City to have a total of 229,000 square feet of commercial space, or 5.25 acres. The Village at Woodside has minimized its total commercial space through the loophole of deeding commercial parking lots to the Woodside Village Master Neighborhood Association.

    Under state law, “the special valuation of homeowners’ association property shall not result in any homeowners’ association property being valued at a rate less than five hundred dollars an acre.”(2) These lands held by property owner associations are classed as “common areas” by the Aiken County Assessor’s Office. This classification applies whether the property is an open field, a recreational trail or a busy, paved parking lot.

    In its most recent Concept Plan amendment, the Village provided a listing of commercial properties in Schedule A (3). All but one property, the maintenance building, involve only the square footage of buildings, which collectively total 189,000 square feet. While Village at Woodside breaks down its commercial space to the square foot, its concept plan fails to break down the 37 acres it claims as “open space.” (4)

    However, the three paved parking lots that service businesses are not categorized as commercial space. If these 4.5 acres of parking lots are considered, the total commercial area more than doubles. These parking lots are owned by the Woodside Village Master Neighborhood Association, are categorized by the county as ‘common ground,” and appraised at the standard rate of $500 per acre. The total appraised value of the paved “common areas” is less than $2500. Thus, the POA’s annual tax bill for each parking area is about ten bucks.
Village at Woodside Medical Center parking lot and tax bill.


Aiken County does not categorize these “common area” paved parking lots as improvements; unlike the approach in most commercial developments where pavement is considered an improvement often appraised at a rate of $75,000 to $90,000 per acre. For example, down the road at Center South Shopping Center, the 6.2 acre paved parking area is appraised at close to $580,000; as compared to the less than $2500 total appraisal for Village at Woodside parking lots. In downtown Aiken, the improvement value of a 0.3 acres of pavement in a parking lot owned by R&O Enterprises, LLC (Agent Rick Osbon) is appraised at $25,000.

While the Village at Woodside developer is not unique in exploiting this tax loophole, it is unique in presenting the illusion that commercial parking lots owned by its property association somehow constitute open space within a planned residential development.

The 1.25 acre Village at Woodside Medical Center parking lot and “common area” is appraised at $625 by the County Assessor.


This trend will continue if Aiken City Council approves the latest annexation and design change. The newest proposed addition to the commercial total, situated in a 4.6 acre proposed annexation parcel, is also the largest—a 60,000 square foot shopping center composed of a 47,240 square-foot grocery store and seven 1,400 square-foot shops. Again, only the buildings are considered part of the commercial space equation, leaving the large, multi-acre, 339-space parking lot and road system in the default category of open space.

Exhibit A from Village at Woodside Concept Plan Amendment

In this aerial view of the proposed shopping center, the grey area representing paved parking lots, roads, and truck spur to the loading dock are not considered commercial space by Silver Bluff Development Corporation or the city. From: Aiken City Council Agenda Packet for 11/28/22


The proposal also includes other infringements on the open space concept. Silver Bluff Development has labeled buffer areas along Silver Bluff Road as “open space,” all future, proposed commercial development will require the clearcutting of approximately fourteen acres of currently undeveloped, real open space, and the new shopping center will destroy an existing trail and fragment the interconnection of trails and sidewalks. (5)

The Planned Residential Shopping Center

Village at Woodside has promised its residents its own grocery store since 2005. In every amendment to its concept plan, the grocery store was always listed as 20,000 square feet, and its location was always presumed to be in the Village, not facing Silver Bluff Road. Beginning in 2001, in order to better maintain the rural, residential character of the area, developers also promised no commercial development along and fronting Silver Bluff Road.

Village at Woodside Master Plan Approvals, 2005-2022.



The 20,000 square-foot promise continued through Feburary, 2022. Seven months later Silver Bluff Development announced that it had attracted a grocer who would build a 48,000 square foot “speciality grocery store” with seven adjacent shops of 1400 square feet each, a three-fold increase over what was promised and approved for seventeen years.

Even though the planned shopping center with a large grocery store fronts Silver Bluff Road, is one-third of a mile from the nearest resident, a half-mile from the center of the residential development, and contains more parking spaces (339) than allowable residential units (318), Silver Bluff Development and Peach Properties insist that its shopping center will primarily serve residents of Village at Woodside, and thereby meet the requirements of Planned Residential zoning.

It should be clear that the developers are exploiting the Planned Residential category to avoid the visual of converting an area zoned residential for decades by Aiken County into a commercial shopping center. This distortion of the zoning concept is further seen in updated drawings in the Design Concept plan which exclude adjacent neighborhoods across the road and behind the proposed shopping center, and present the Village at Woodside as an isolated, stand-alone community.

The latest rendition of the Village at Woodside. Red indicates future development. The tanned area is the primary residential community.



FOOTNOTES

(1) Section 10 of the City of Aiken Zoning Ordinance defines “open space” as:

“OPEN SPACE: Outdoor or unenclosed area on the ground accessible for outdoor living, recreation, pedestrian access, or landscaping. Open space shall not include parking areas, driveways, deck or terrace areas, utility or service areas, or any space with a dimension of less than six feet in any direction.”

Section 4.2.6(G)(5) of the The City of Aiken Zoning Ordinance sets the following conditions for Open Space in Planned Residential areas:

“a. All open space areas shall be held in common for the enjoyment of the residents of the development or dedicated to the City for the use and enjoyment of the general public.

i. A minimum of one-half of the required open space area shall be improved for passive and active recreational use.

ii. Required open space shall be in addition to any required landscape, buffer, or setback areas required for individual uses with the development.

b. The portion of the project composed predominantly of detached single-family dwelling units must have at least 20 percent open space. The portion of the project composed predominantly of multifamily residential units must have at least 40 percent open space. The portion of the project composed predominantly of nonresidential development must have at least the open space required in the PC District. City Council may vary the standards of this section to allow for creative design. (Ord. 09122011C)

c. Common open space required by these regulations shall be developed in accordance with the following.

i. The amount of open space required shall not include land area devoted to other uses, including buildings, except for recreational structures.

ii. Common open space shall be used for amenity or recreational purposes. The uses proposed for the common open space must be appropriate to the scale and character of the development considering its size, density, expected population, topography, and the number and type of dwellings to be provided.

iii. Common open space is intended to serve as a community amenity, providing focal points for the development (including squares, plazas, or greenways), as well as passive and active recreational space that serves the needs of the residents. Residential development within the PR project is intended to have a close visual relationship to the provided open space.

iv. Common open space must be suitably improved for its intended use, but common open space containing natural features, existing trees, and groundcover worthy of preservation may be left unimproved.

v. The site planning of the PR project shall provide open space which provides for internal connectivity and is useable by the residents. For the purposes of this Section, parcels under 25 feet in width or located without access by residents shall not be counted as open space.

vi. Open space should connect with similar open spaces on adjacent properties in order promote an interconnected network of greenways and trails.

vii. The buildings, structures, and improvements proposed in the common areas shall conserve and enhance the amenities of the common open space.

viii. Proposed development staging shall provide for coordination of the improvement of the common open space and the construction of dwelling units in the PR project.

ix. Legal instruments as provided under the Horizontal Property Act of South Carolina shall govern the permanent retention and maintenance of any common open space not dedicated to the City. A description of such lands shall be recorded with the proper authorities.”

(2) SC 12-43-227 defines state property tax requirements.

Woodside is not alone in exploiting this homeowners association loophole for tax purposes. There are paved parking areas all across Aiken County that are appraised at $500 per acre because they are owned by a not-for-profit property owners assocation; even though the commercial buildings or residential complexes that are served are commercial for-profit.

For example, the 5.65 acre parking lot of the Aiken Regional Medical Center’s medical office building across from the hospital is owned by a POA and is appraised for $2825. In contrast, the paved, “improved” parking area at Aiken Regional Medical Center is appraised for nearly $600,000.

(3) Schedule A. All figures are in square feet.


(4) The Village at Woodside provides detailed accounting of commercial space and residential units, but “open space” is simply identified as “37 acres,” with no subsequent, detailed accounting.

From Village at Woodside Concept Design map. February, 2022.

In the most recent version of the Concept plan, the proposed “Village Inn” hotel is removed from the commercial accounting and added to the residential totals; and the 20,000 square foot grocery store is replaced by the much larger shopping center.



(5) Some open space that is identified on the Concept Design map is the buffer between commercial developments and Silver Bluff Road, as the example below shows.


Future development will require approximately fourteen acres of existing undeveloped, forested land to be clearcut and converted to buildings or parking areas.

Village at Woodside (Blue = Approximate boundary, Areas in Red = Future Development)





City Government, November 2022

More Overlooked Absenteeism

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The City of Aiken Recreation Commission’s High Absenteeism Rate


Three members of the City of Aiken’s Recreation Commission violated the attendance policy for city boards, commissions, and committees in 2021 by missing more than forty percent of their meetings. Yet, no members were automatically removed, as required by city ordinance. Two of the three voted on February 1, 2022 to dramatically raise city recreation fees, a vote later inappropriately presented in a memorandum to City Council as a legally valid approval of the major fee increases. Without these votes, the meeting would have lacked a quorum, and no vote could have occurred.

Boards, Commissions, and Committees

Aiken City Council appoints citizen volunteers to three boards, seven commissions, four committees, and the Aiken Housing Authority—which operates as an independent body. According to the Aiken Handbook for Effective Boards, Commissions, and Committees (Handbook), these advisory volunteer bodies are essential for crafting city policies that can have profound effects on the lives of citizens:

“In keeping with Aiken’s philosophy of citizen involvement, the City Council appoints  citizens to commissions, committees, and boards to assist it in formulating city policy.  The strength and success of the Aiken City Government is to a large degree reflective  of the quality of service performed by volunteers to these entities.”

Most volunteer bodies fall under the advisory category, but several have broader powers over the citizenry:

  • The Design Review Board and Board of Zoning Appeals are “quasi-judicial” bodies similar to administrative courts of law; and their decisions can only be appealed to District Court.
  • The Planning Commission provides the first round of review and approvals or disapprovals for requests for annexations, developments requiring zoning changes, and city services for developments outside city limits.  City Council rarely overrules their recommendations. 
  • The Municipal Development Commission is independently incorporated, but remains almost entirely funded through the City budget; and its resolutions, recommendations, and plans still must be approved by City Council.
  • Among other duties, the Community Development Committee is legally authorized to approve or disapprove the disbursement of federal housing assistance funds, choose contractors, and rule on Community Development Block Grant (CDBG) programs.
From Aiken Handbook of Effective Boards, Commissions, and Committees. 2018.


Rules of Attendance

Chapter Two, Article Four of the city’s municipal code governs the requirements of the various boards, commissions, and committees.
The lead requirement, Section 2-141, involves attendance:

“Any appointed member of a board or commission created by an ordinance of the city council who during a calendar year is absent from 40 percent or more of the regular meetings or three or more successive regular meetings of the board or commission shall automatically be removed therefrom and shall not be reinstated to the remainder of his term except by a resolution adopted by the city council.”

According to the Handbook, each volunteer body is assigned a paid city employee as a contact. The function of the contact is similar to that of the City Manager’s role during Council meetings; they are responsible for working with Chairpersons and members to provide leadership and support, prepare and review agenda material, and offer expert advice.

Another primary responsibility of the staff contact is to monitor the attendance policy:

“Reviews the attendance policy with the Board, Commission, and Committee members and ensures that they understand and are following attendance rules by attending at least sixty percent (60%) of all regular and special meetings. Maintains records of attendance and reports to the city manager the need for potential removal of any Board, Commission, or Committee member who is absent three successive regular meetings in a year and/or who is absent a total of forty percent (40%) or more in a year. “

Attendance Problems Receive a Public Airing

At its November 14, 2022 meeting, Aiken City Council debated the merits of reinstating Design Review Board member Josh Stewart; who missed forty percent of all regular meetings in 2021. In 2022 he has missed three of eight meetings, two workshops involving the Hotel Aiken and Beckman Building demolition discussion, and the legally mandated continuing education workshop.

Council eventually tabled the motion to reinstate by a vote of 4-3, but not before City Planning Director Marya Moultrie made a false claim to Council that Stewart had attended every meeting in 2022. Details of the contentious debate were reported in the Sunday, November 20th edition of the Aiken Standard.

Recreation Commission Attendance Problems

According to its city website, the Recreation Commission’s mission is to “serve as a liaison between the city residents and program participants and the Aiken City Council to ensure the development and provision of appropriate, quality recreation facilities, services, and programs.”

Because programs are open to nonresidents of the city, the commission is one of three organizations that allows nonresident volunteers to serve; the other two being the Aviation Commission and the Equine Committee. The group also holds the distinction of having non-voting “youth commissioners,” and in 2021 introduced the concept of “youth influencers.” The commission is currently involved with crafting the proposal to build a multi-million dollar soccer complex at Citizens Park.

A review of Recreation Commission meeting minutes revealed an even deeper attendance problem than the Design Review Board. In 2021, three members of the commission missed fifty percent or more of the meetings (1); and in 2022 two of those members continued to miss more than fifty percent of meetings (2). Although city ordinance mandated the members be removed from their appointed office, no action was taken.

In addition, up to three meetings in 2022 were cancelled due to a lack of a quorum (2), indicating a deeper attendance issue. Overall, the Recreation Commission is plagued by a lack of participation. Even its youth commissioners are absent well over fifty percent of the time.

As reported in Taking $2 From a Child to Play a Game, on February 1, 2022 the Recreation Commission held a special-called meeting that lacked proper public notification. The only agenda item involved a proposal to substantially increase recreation fees. The 5-0 vote to approve the fee increases occurred despite the fact the commission lacks the authority to change fees—it is only authorized to provide advice and recommendations to City Council.

By city ordinance, two of the voting members should have been automatically removed from their positions and ineligible to vote. Even if the vote had only involved a resolution to recommend fee increases, the presence of only three legitimate members and subsequent lack of a legal quorum would still have rendered such a vote invalid.

Troubles with Volunteerism in Aiken

2022 has been a difficult year for Aiken’s volunteer commissions and boards. A lawsuit filed against the demolition and redevelopment effort known as Project Pascalis revealed that three members of the Municipal Development Commission and two members of the Design Review Board were appointed despite not living in the city—a major oversight by City Council. At one point the three person election commission was reduced to a single member.

Now, the issue of overlooked attendance violations has emerged for the Design Review Board, the Recreation Commission, and possibly other committees, commissions, and boards. For example, while not at the forty percent level, Planning Commission Chairman Ryan Reynolds has missed nearly a third of the meetings of the most powerful commission in the city in 2022. Equine Committee member Courtney Conger missed four of seven meetings in 2021, and two of three in 2022; although that committee is deemed ad-hoc.

Aiken City Council has consistently delegated more of its authority to city staff in recent years. For example, as reported in Taking $2 From a A Child to Play a Game, Council discussed delegating the approval of the hanging of banners to city staff. While this sounds innocuous, a single incident of a controversial banner will likely return the issue back to Council approval.

In the case of the Recreation Commission, recreation fees were raised despite the fact it was not authorized to do so, in a meeting that lacked proper notification, and by members who legally should have been removed for attendance policy violations.

______________________

Footnotes

(1) Recreation Commission Minutes for 2021.

Tuesday, January 19, 2021 Aiken, South Carolina 
Present: Chairperson Suzy Haslup, Vice-Chairperson Mike Beckner, Commissioners Lori Comshaw, and Ricky Brown. 
Others Present: City Staff Sam Radford, Rasheka Gaines, and Alex Meyers, Fellow Lead for America.
Absent: Commissioners Melissa Viola, Susan Schifer and John Wallace, and Youth Commissioners Bailey Edwards and Grey Larlee 

Tuesday,, March 16, 2021

Present: Chairperson Suzy Haslup, Vice-Chairperson Mike Beckner, Commissioners Lori Comshaw, Susan Schifer, and Ricky Brown. Others Present: City Staff Sam Radford, Rasheka Gaines, and Breanna Jackson Absent: Commissioners Melissa Viola and John Wallace, and Youth Commissioners Bailey Edwards and Grey Larlee 

Tuesday, May 18, 2021

Present: Chairperson Suzy Haslup, Vice -Chairperson Mike Beckner, Commissioners Melissa Viola, John Wallace, and Ricky Brown. Others Present: City Staff Rasheka Gaines Absent: Commisoners Susan Schifer and Lori Comshaw; Youth Commissioners Grey Larlee and Bailey Edwards.

Tuesday,August 17,2021

Present: Chairperson Suzy Haslup, Vice-Chairperson Mike Beckner,Commissioners SusanSchifer, Lori Comshaw and Ricky Brown. Others Present: City Staff Samantha Radford. Absent: Commisoners Melissa Viola and John Wallace

Tuesday, October 19, 2021

Present: Chairperson Suzy Haslup, Vice-Chairperson Mike Beckner, Commissioners Susan Schifer, Lori Comshaw, John Wallace, and Ricky Brown. Others Present: City Staff Samantha Radford & Rasheka Gaines; PRT Influencers Kaia McMullen, Mika Mayo, Kaeleigh Seigler Absent: Commissioner Melissa Viola 

RECREATION COMMISSION 

Tuesday, November 30, 2021.
Present: Chairperson Suzy Haslup, Vice-Chairperson Mike Beckner, Commissioners Lori Comshaw, Ricky Brown, and Melissa Viola (Zoom). Others Present: City Staff Jessica Campbell, Samantha Radford & Rasheka Gaines. Absent: Commissioner John Wallace, Susan Schifer 

Summary of Recreation Commission Attendance, 2021.
50% Absentee Rate: Commissioners John Wallace and Susan Schifer. 67% Absentee Rate: Commissioner Melissa Viola.

Member 1/19 (Z) 3/16 (Z)5/18 (Z)8/17 (Z)10/1911/30
Haislup PPPPPP
WallaceA A PA PA
ComshawPPA PPP
SchiferAPA PPA
Viola AA PA A P (Z)
BecknerPPPPPP
BrownPPPPPP
P = Present; A = Absent, (Z) = Attended via zoom


(2) Recreation Commission Minutes, Calendar Year 2022.

Tuesday, February 1, 2022 Aiken, South Carolina 

Present: Chairperson Suzy Haslup, Vice-Chairperson Mike Beckner (Zoom), Commissioners Lori Comshaw, John Wallace, and Melissa Viola (Zoom).  Others Present: City Staff Jessica Campbell, Seth Holley, Rasheka Gaines, Alex Myers, and Alison Cribb . Absent: Commissioner, Susan Schifer 

Tuesday, March 15, 2022

Present: Chairperson Suzy Haslup, Vice-Chairperson Mike Beckner, Commissioners Lori Comshaw, and John Wallace. Others Present: City Staff – Rasheka Gaines, Austin Rippy, Alex Myers, and Alison Cribb. Absent: Commissioners Susan Schifer and Melissa Viola.

Tuesday, August 16, 2022

Present: Chairperson Suzy Haslup(Zoom),Commissioners John Pettigrew,Lori Comshaw,  Susan Schifer, and John Wallace. Others Present:City Staff-Rasheka Gaines,Sara Harvey, and Alison Cribb. Absent: CommissionersMelissa Viola.

Summary of 2022 Recreation Commission Attendance 
67% Absentee Rate: Susan Schifer and Melissa Viola.

Member 2/13/155/18 8/16 10/1811/21 
Haislup PPCPNQ
WallacepPCPNQ
ComshawPPCPNQ
SchiferAACPNQ
Viola P (Z) A CA NQ
BecknerP (Z) PC NA NQ
Brown ResignedNAC NANQ
Pettigrew NANANA PNQ

P = Present, A = Absent, C = Cancelled Meeting, NQ = No Quorum. NA = Not Applicable, not a member.
Shifer and Viola each missed two of the three meetings held with a quorum thus far in 2022.

Laws & Bylaws, November 2022, Project Pascalis 2022

The City of Aiken’s Information Games: Part II

7 Comments

Post-Publication Redaction  of the AMDC/RPM Contract

by Don Moniak

November 21, 2022

Within twenty-four hours of the publication of “Downtown Aiken Half Priced Sale,” the December 3, 2021 Purchase and Sale Agreement (PSA) between the Aiken Municipal Development Commission (AMDC) and Project Pascalis developer RPM Development Partners, LLC (RPM) was removed from City of Aiken’s document repository. The withdrawal of the document from public view occurred in spite of the agreement —which was amended as late as June 2022 — being terminated by RPM on September 14, 2022 and rendered null and void two weeks later by the AMDC.

The December 3, 2021 agreement was publicly available, within a file titled “11302021 RES Municipal Dev. Com,” between October 21 and November 10, 2022. The file was within an AMDC folder called “other records” in the City of Aiken’s Laserfiche/Ecodocs records repository.  Amendments to the agreement remain an AMDC secret.

The file contained both the AMDC resolution to sell the properties and the Purchase and Sale Agreement. At 9:41 a.m. on November 11th the file was removed from view, less than one day after its availability had been publicized in The Aiken Chronicles.

“113022021 RES Municipal Dev. Com” was made publicly available on 10/21/22 and removed 11/11/22

The document detailed the conditions for the sale of the commission’s seven Pascalis project properties. The proposed sale price of $5 million was nearly half of the $9.5 million the commission paid on November 9, 2021.

The contract also allowed for a fifty percent cost reimbursement for project design; and set a price of $3 million for an AMDC buyback of the proposed city-owned conference center and parking garage:

“Seller, or its designee, shall be required to purchase the parking garage and conference center components thereof upon completion of the Redevelopment Project for a purchase price calculated based on ( i) Three Million and 00/ 100 Dollars ($ 3,000, 000. 00), representing the portion of the Purchase Price hereunder allocated to the land for the parking garage and conference center, plus (ii) the actual design, permitting and construction costs ( pursuant to a fixed price agreement
therefore) of the parking garage and conference center and a development fee to Purchaser equal to 5% of such costs.”

A $3 million AMDC buyback meant a net cost to the developer of $2 million for the purchase of the Hotel Aiken, the Beckman Building at 106 Laurens Street, and the portion of other properties dedicated to an apartment complex.

The AMDC signature page was signed by commission chairman
Keith Wood. The RPM signature page was signed by RPM investor and legal agent Ray Massey, who is one of Aiken City Attorney Gary Smith’s partners.

The commission obtained the money via a grant from the City of Aiken, which in turn raised the funds by borrowing it via a municipal bond issuance approved by ordinance on August 23, 2022. Gary Smith, acting as City Attorney and council parliamentarian during the bond issuance, was responsible for preparing the ordinance, and signed his approval.

The signature page for the $10 million bond issuance ordinance.



The day before the contract with RPM was signed, Wood expressed concern in an email to other commissioners about having Smith’s name on a news release announcing the agreement, writing,

“Do we have to mention the Massey law firm as written? I think having Smith’s name in the news release will raise unwanted questions.”

No justification has been given for the post-publication redaction. RPM terminated the agreement on September 14, 2022; and the commission voted unanimously on September 29, 2022, to declare the contract “null and void.” 

No other known purchase and sale agreements involving city property are considered too sensitive to publicly disclose—-even if that were an option. Examples of questionable real estate deals that were public knowledge before closing, and were open to public debate, include:

The agreement to sell the city’s Mattie Hall property to Smith, Massey, Brodie, Guynn, and Mayes law firm associate Scott Patterson. As reported in The City of Aiken’s Mattie Hall Property, the land the city sold for $150,000 was placed on the market for $700,000 two weeks after closing.

The agreement in January 2020 to sell the city’s Finance Building at 135 Laurens Street and the associated parking lot at 130 Pendleton St, SW for a collective $1.3 million to local investor Weldon Wyatt. As reported in The Cleaners, Wyatt then sold 135 Laurens St, SW one month later to SRP Credit Union for $1.3 million, and the parking lot a year later to R&O, LLC (Agent: Rick Osbon) for $500,000. 

The only previous justifications for keeping the RPM contract sealed, and for continuing to withhold Project Pascalis procurement records, are two South Carolina Freedom of Information Act (FOIA) exemptions.

Exemption five states the government may withhold documents “Incidental to proposed contractual arrangements and documents of and documents incidental to proposed sales or purchases of property.”  
(SC 30-4-40(5)).

Although the exemption ends “once a contract is entered into or the property is sold or purchased,” the law also allows for continued exemption “until the deed is executed, but this exemption applies only to those contracts of sale or purchase where the execution of the deed occurs within twelve months from the date of sale or purchase.” 

As reported on October 24, 2022, former AMDC Executive Director Tim O’Briant (1) argued that since the deed was never executed, the contract remained exempt from disclosure. Since November 1, 2022, AMDC Chairman Keith Wood (2) has declined to answer requests to review commission records.

Exemption nine states the governmment may withhold “Memoranda, correspondence, documents, and working papers relative to efforts or activities of a public body and of a person or entity employed by or authorized to act for or on behalf of a public body to attract business or industry to invest within South Carolina.” (SC 30-4-40(9)).

These records are not exempt after the offer to attract an industry or business is accepted and the “public announcement of the project or finalization of any incentive agreement, whichever occurs later.” 

The AMDC is relying upon the strictest interpretation of the state’s open records law to continue to withhold key information pertaining to Project Pascalis. But by any reasonable assessment, the continued secrecy surrounding the December 3, 2021, RPM Purchase and Sale Agreement, and subsequent amendments, is another indication that the AMDC plays by its own set of rules. After spending more than than $10 million of taxpayer funds to pursue Project Pascalis, the commission is essentially arguing that Project Pascalis contracts and procurement records are exempt from public disclosure because their project failed.

_______________


Footnotes


(1) Tim O’Briant was as an editor at the Aiken Standard from 2000-2016 and once testified to the South Carolina General Assembly on behalf of FOIA reform. After spending a year as an editor with The Brunswick News, in 2017 he was hired by the City of Aiken as its Communications Manager; and in 2019 was promoted to Director of the City’s new Economic Development Department. In November, 2021, he received a certification as an Economic Development Professional from the SC Department of Commerce’s Economic Development Institute.

From March 2021, to September 2022 he was the face and spokesperson for the Pascalis project, and was one of two people authorized to negotiate with developers and sign checks for commission expenditures.

O’Briant is no longer listed on the list of AMDC staff at aikenmdc.org. His unannounced removal from the commission’s staff followed unproven accusations by AMDC members Keith Wood and Chris Verenes that unnamed staff had deceived Wood into signing the December 3, 2021 contract with RPM prior to the release of a Request for Proposals. Details on this series of events can be found in The Project Pascalis “RFP.”

He reportedly remains employed as the City of Aiken’s Economic Development Director. As detailed in Part One of The City of Aiken’s Information Games, in that capacity he led efforts to obstruct access to Project Pascalis records.

(2) Keith Wood is an original AMDC member. He was appointed to the AMDC in early 2020 and has served as the Chairman of the AMDC since September, 2020. Along with Tim O’Briant, he was one of two people authorized to negotiate with Project Pascalis developers and authorize expenditures.

Wood is employed by Amentum Corporation as Vice President of Marketing and Communications in the company’s Nuclear Security Group.



City Government, In the Demolition Zone, November 2022, Project Pascalis 2022

Acts of Neglect

15 Comments

November 18, 2022 email from Don Moniak to the Aiken Design Review Board.

Chairman Law, 

At last night’s (11/17/22) public workshop, the Design Review Board (DRB or Board) requested information about the condition of Pascalis project properties officially owned by the City of Aiken’s Municipal Development Commission (AMDC), and paid for with public funds.

Following are three lines of information for the Board to consider. The Board is charged with determining whether any properties warrant a designation of “demolition by neglect,” meaning the owners have permitted structures or property to:

“fall into a serious state of disrepair or to remain in a serious state of disrepair so as to result in the deterioration of any exterior architectural feature which would, in the judgment of the Commission, produce a detrimental effect upon the character of the structure or property, or, if the structure or property is in an Historic District, upon the district.”

1.  The AMDC chose to avoid last night’s public meeting, and its absence was an act of neglect. The commission is established by city ordinance, funded by the City of Aiken, and is mandated to work on behalf of the citizens of Aiken, who remain at the top of the city’s organizational chart. 

The failure of a single commissioner to attend was inexcusable, and only served to strengthen the public perception that demolition of its half of the block remains the commission’s only goal. 

2. The terminated Purchase and Sale Agreement between the AMDC and RPM Development Partners, which required the AMDC to: 

“manage and operate the Property in accordance with past practices and maintain the Improvements and the tangible Personal Property in substantially its current condition and repair, ordinary wear and tear excepted, to be delivered in a broom clean condition at Closing.”

 This PSA should provide one benchmark for evaluating how well the property owner, who was absent from last night’s proceedings, has maintained its properties.  Unless water damage from roof leaks are considered “ordinary wear and tear” then the AMDC failed to meet even this most basic contractual obligation.

The Hotel Aiken is not the only AMDC property with a leaking roof. The CC Johnson Drug Store had problems with leaks when the Shah family owned it, and a chimney remains covered with a mat held down by cinder blocks. What is the purpose of this low-tech arrangement? 

This situation was also featured in the AMDC’s 11/8/21 News Release, and not remedied until a year later. (Photo by Don Moniak, 10/9/22)

Beyond Bijou in the Beckman Building at 106 Laurens St, SW, reported another roof leak on its Facebook page on September 2nd.  

As an aside, this PSA is no longer publicly available. The City of Aiken removed it from its document repository within 24 hours of the publication of Downtown Aiken Half Price Sale on November 10, 2022. 

2. On November 8, 2022 the AMDC published a page of photographs showing the existing conditions of a few of its properties, but almost primarily the Hotel Aiken. 

Unfortunately, the AMDC purchased its properties in an “as-is” condition and did not have them appraised or inspected.  So the commission has no baseline for what the conditions were in the Beckman Building at 106 Laurens Street, SW, Taj Aiken Restaurant, and the McGhee Building when it wrote that: 

“From every angle, the area of Downtown that makes up the Project Pascalis footprint is in need of a refresh. This highly visible block of the central business district has fallen into disrepair, as the former owner’s plan to redevelop the Hotel Aiken and adjacent property has stalled.”

However, the photographs do provide a baseline of the conditions the AMDC willingly accepted when it spent $9.5 million of public funds on the seven properties. The Board could recruit volunteer, independent photographers to replicate these photos to see where conditions have worsened under the minimalist management approach of the AMDC, where they have remained the same, and where there might be an improvement. 

One example of how disrepair has remained in place is shown by a comparison of this photograph published on November 8th, that shows a boarded up window on the Laurens Street side of the Hotel Aiken. 

AMDC Photo. November 8, 2021.

And here is a similar view taken on November 17, 2022, with the same boarded window. The only differences are there are more leaves remaining on the Ginkgo tree this year, and the presence of the Voluntary Cleanup Contract sign. 

Photo: Don Moniak, November 17, 2022

Another November 8th photograph illustrated a tree growing out of a second floor window of the Beckman Building. As reported in “A Tree Disappears in Aiken,” the AMDC neglected for nine months to remedy this highly visible situation it cited as an example of disrepair. 

The Board should obtain the original photos from the AMDC and work to replicate some of them as part of its information gathering and analysis process—if one actually exists.  After all, Chairman Law collaborated with the Pascalis project manager to gather information to support the demolition application. 

As seen in this screenshot of Capstone Service’s February, 2022, work invoice, that collaboration included planning drone pictures of the Hotel that were shown at the Board’s Feburary 1, 2022 workshop. These photos could also be replicated to determine the degree of neglect this year. 

If the Chairman of the Design Review Board could work with the City’s Municipal Development Commission and Planning Deparment earlier this year to help build a case for demolition, then the Board as a whole should be willing to work with citizens–who fund the existence of the commission– to determine to what degree the Pascalis properties have been neglected to the detriment of downtown Aiken. It can then act in accordance with Section 5.1.8 of the municipal code, Ordinance 04142003A, which requires corrective actions and penalties for violations “of any provisions of this Chapter.” 

Thank You, 

Donald Moniak

aikenchronicles.com

Footnote:

The Aiken Chronicles is encouraging readers interested in the upkeep of the publicly owned Pascalis properties to submit suggestions on how the Design Review Board should proceed to eurekascresearch@gmail.com. This includes any pertinent information that should be gathered, and what non-neglect should look like.

The suggestions will be compiled and published; and presented to the Design Review Board. Anonymity is allowed.