Category Archives: October 2024

Aiken County, Aiken County Government, October 2024, Planning

The Resiliency Element

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The Aiken County Comprehensive Plan, disasters, and near-disasters.

by Don Moniak
October 18, 2024

This year, Aiken County is required by law to develop a Comprehensive Plan that serves as a guiding document for development and redevelopment.

Such plans are mandated by Section 6-29-510 of the South Carolina Local Government Comprehensive Planning Enabling Act of 1994, which states that local Planning Commissions are “to maintain the process that will result in the systematic preparation and continual re-evaluation and updating of those elements considered critical, necessary, and desirable to guide the development and redevelopment of its area of jurisdiction.”

Prior to 2020, plans had to be written to address, at a minimum, nine key variables, aka “elements.” (1) Those were, and remain, population, economic development, natural and cultural resources, community facilities, housing, land use, transportation, and priority investments.

In 2020, the tenth element of resiliency was added, which in this case is perhaps best defined by FEMA as “the ability to prepare for threats and hazards, adapt to changing conditions, and withstand and recover rapidly from adverse conditions and disruptions;” an understated way of describing both widespread and localized disasters and near-disasters.

This definition is perhaps the most pertinent because, under state law, the resiliency element requires that planners consider the impacts of natural phenomena that can create “natural hazards.” Specifically, the law states, in part, that:

“A resiliency element considers the impacts of flooding, high water, and natural hazards on individuals, communities, institutions, businesses, economic development, public infrastructure and facilities, and public health, safety and welfare. This element includes an inventory of existing resiliency conditions, promotes resilient planning, design and development, and is coordinated with adjacent and relevant jurisdictions and agencies..”

The Aiken County Plan and Resiliency

The operative word for comprehensive plans is “guide.” The plans are not legally binding, but intended to provide guidance for future decision-making, i.e., the approval or disapproval of a developer’s plans.

Once a draft plan is completed, public hearings must be held prior to the plan’s approval by County Council. According to the 2014-2024 Aiken County Comprehensive Plan, the Aiken County Planning Commission (ACPC) held a public hearing on December 18, 2014, and that was followed by a 12-month public comment period and public input sessions.

The County’s process for its 2025-2035 plan is moving at a similar pace, with a schedule for completion and approval in mid to late 2025.

According to the minutes from the ACPC’s May 2024 public meeting, the status of the plan was discussed during the “New Business” portion of the agenda (2). Four months later, the early timeframe (Figure 1) presented at the May meeting evening had still not been realized—the ACPC had yet to hold a public meeting to discuss the issue.

As the process moves along, the opportunity to delve into the issue of resiliency planning and response to natural and man-made disasters has been presented at a time when the lessons learned from emergency preparations for, and post-disaster response to Hurricane Helene will be fresh in the minds of Aiken County residents. The next year is an opportune time to discuss the issues posed by natural and man-made hazards—which currently are only addressed in the County’s thorough, though obscure, Emergency Operations Plan.

Figure 1. Early timeline for preparing Aiken County’s Comprehensive Plan for the next 10 years. A Freedom of Information Act request has been filed to determine who the consultant is, when that consultancy contract was procured, and what interviews, if any, have been conducted.


The Resiliency Element

Aiken County is susceptible to numerous natural hazards, including tornadoes, tropical storms/hurricanes, ice storms, major rainfall events that can trigger flooding and dam failures, severe drought, and wildfires—all hazards that can be chronically exacerbated by human development. The County is also vulnerable to man-made disasters such as a radiological dispersal accident at the Savannah River Site or its neighbor, the Plant Vogtle nuclear power plant

In the past ten years, the County has experienced two major, widespread weather events—-the Ice Storm of 2014 and 2024’s Hurricane Helene. Both incidents resulted in catastrophic damage to the electrical grid, with critical facilities and more than a hundred thousand residents losing electrical power. The amount of debris generated by the storms overwhelmed local and state-wide capabilities.

These consequences led to the federal designation of a regional disaster area that included Aiken County; thus enabling the County to receive FEMA funds to alleviate the cost of its responses, most notably debris removal. However, FEMA does not come to the rescue for lesser, more localized events whose severity levels do not reach the threshold beyond which the County and State of South Carolina can adequately respond; and even FEMA funding requires some accompanying cost sharing that provides a financial incentive to mitigate disaster response needs.

The County can also experience man-made hazards that can result in disasters and near-disasters. Most notable is the Graniteville train wreck of 2005 that produced a plume of chlorine gas; which triggered an evacuation of more than 5,000 people, killed nine, and caused long-term health impacts for hundreds of residents. This accident is still a top-of-the-mind event, as the Aiken County Emergency Management Plan identifies a railroad accident as “likely” to be “catastrophic;” and thus it is assigned the highest disaster rating of 9 in the disaster rating summary (Figure 2).

While these events may remain prominent because of their scale and breadth of the events, other disastrous and disrupting events have occurred. These include the 2009 tornado that tore across 35 miles of terrain from Columbia County to New Ellenton, tornadoes in the Windsor and Monetta areas in 2022, record-breaking rainfall and associated dam failures in Eastern Aiken County—and across the state—during the 2015 Hurricane Joaquin-related, thousand-year rainfall event referred to as the “fire hose” phenomenon, and the Gateway Fire in May 2019 that caused a complete shutdown of Interstate 20 and the evacuation of dozens of residents.

Figure 2. Aiken County Disaster Rating Summary. From the Aiken County Emergency Operations Plan. The plan states that Aiken County Emergency Management will “prepare for all possible events, but place the greatest emphasis on the most dangerous events that are also most likely to occur.” Severe drought that can result in water shortages is one category that is overlooked. (Click to enlarge)


Comprehensive Planning in Other Jurisdictions

In 2022, the North Augusta City Council approved its 2021-2031 Comprehensive Plan, but failed to include the resiliency element—even though much of the City’s growth has occurred in the Savannah River flood plain, and tornadoes and other extreme weather, most recently Hurricane Helene, have struck the town.

In 2023, the City of Aiken did make an effort to address the newly identified resiliency element in its amended, five-year update to its Comprehensive Plan. In the final document, city planners devoted two pages (217-218) to resiliency. The chapter began by stating that little guidance is currently available from the State of South Carolina to address these issues.

Compare these first two local efforts to Lexington County’s 2022-2032 Comprehensive Plan. In it, twelve pages of detailed information were devoted to the resiliency element chapter (3), and thirteen concrete measures to be taken were later identified in the implementation chapter.

While the emphasis was on mitigating flood risks and responding to flood events that have plagued, and continue to threaten, the County, the plan also identified ice storms, hurricanes, and man-made hazards such as the risk of a radiation dispersal accident at nearby Summer Nuclear Power Plant—although no mitigating measures were identified yet for the latter.

The Lexington County plan also includes a much fuller identification of the various agencies and jurisdictions, and identifies the means to achieve greater resiliency, such as treating “ lowlands as natural assets,” and “preserving natural areas.”

Florence County, which is also comparable in size to Aiken County, also addressed resiliency in its plan. The County provided a detailed snapshot of the extreme natural events experienced in the past 50-60 years—a table (Figure 3) that provides an insight into the breadth and frequency of natural hazards.

Figure 3: Natural hazards experienced in Florence County over the past half-century. (Click to enlarge)


Aiken County has the opportunity to delve into the resiliency element in a similarly broad and deep manner as other counties, and in a way that could greatly heighten citizen awareness of how risks can be mitigated and how responses can be better streamlined. The planning process will likely follow an internal review of how the County’s Emergency Management response corresponded to its operations plan during the recent Hurricane Helene (Figure 4) disaster, and the ongoing response to that event—including such prominent issues such as information availability and dissemination, the provision of emergency shelters, and the timeliness of debris removal from our roadsides.

Figure 4. Hurricane Helene storm path, 6 a.m., February 27th. According to the Aiken County Emergency Operations Plan, a hurricane is considered “possible” in Aiken County and has a disaster rating of 4–the same as an earthquake and less than a flood. Prior to Hurricane Helene, Aiken County residents were more accustomed to hosting evacuees from the Coast, not experiencing hurricane force winds first-hand.



Footnotes

(1) The law states the following:

“A local comprehensive plan must include, but not be limited to, the following planning elements:

A population element “which considers historic trends and projections, household numbers and sizes, educational levels, and income characteristics.”

An economic development element “which considers labor force and labor force characteristics, employment by place of work and residence, and analysis of the economic base.”

A natural resources element “which considers coastal resources, slope characteristics, prime agricultural and forest land, plant and animal habitats, parks and recreation areas, scenic views and sites, wetlands, and soil types. Where a separate board exists pursuant to this chapter, this element is the responsibility of the existing board.”

A cultural resources element “which considers historic buildings and structures, commercial districts, residential districts, unique, natural, or scenic resources, archaeological, and other cultural resources. Where a separate board exists pursuant to this chapter, this element is the responsibility of the existing board.”

A community facilities element “which considers water supply, treatment, and distribution; sewage system and wastewater treatment; solid waste collection and disposal, fire protection, emergency medical services, and general government facilities; education facilities; and libraries and other cultural facilities.”

A housing element “which considers location, types, age, and condition of housing, owner and renter occupancy, and affordability of housing. This element includes an analysis to ascertain nonessential housing regulatory requirements, as defined in this chapter, that add to the cost of developing affordable housing but are not necessary to protect the public health, safety, or welfare and an analysis of market-based incentives that may be made available to encourage the development of affordable housing, which incentives may include density bonuses, design flexibility, and streamlined permitting processes. The planning commission must solicit input for this analysis from homebuilders, developers, contractors, and housing finance experts when developing this element.”

A land use element which “considers existing and future land use by categories, including residential, commercial, industrial, agricultural, forestry, mining, public and quasi-public, recreation, parks, open space, and vacant or undeveloped.”

A transportation element that “considers transportation facilities, including major road improvements, new road construction, transit projects, pedestrian and bicycle projects, and other elements of a transportation network. This element must be developed in coordination with the land use element, to ensure transportation efficiency for existing and planned development.”

A priority investment element that “analyzes the likely federal, state, and local funds available for public infrastructure and facilities during the next ten years, and recommends the projects for expenditure of those funds during the next ten years for needed public infrastructure and facilities such as water, sewer, roads, and schools.”

The resiliency element that “considers the impacts of flooding, high water, and natural hazards on individuals, communities, institutions, businesses, economic development, public infrastructure and facilities, and public health, safety and welfare. This element includes an inventory of existing resiliency conditions, promotes resilient planning, design and development, and is coordinated with adjacent and relevant jurisdictions and agencies. “

(2) The May 21, 2024 agenda did not identify the Comprehensive Plan as being a New Business agenda item. There was no public notice that the plan was even to be discussed. This was arguably a violation, at least in the spirit if not the letter, of the South Carolina Freedom of Information Act. SC FOIA mandates that agendas be published within 24 hours of a meeting and that any changes in the agenda be made at the beginning of the meeting and documented. The plan was not on the agenda, it was added to the agenda with no notice and no Motion to do so.

(3). Lexington County also added a public safety element and an implementation plan, and divided natural and cultural resources into separate chapters to create a thirteen-chapter plan—three more issue categories than required by the law.

Additional Resources

GovPilot.com: How Local Governments Build Resilient Communities.

The Beaufort County Comprehensive Plan considers “resiliency in the face of a changing coastline,” one of the only plans that even alludes to the impacts of climate change, which drove the inclusion of the “resiliency element” into comprehensive planning—without mentioning the term “climate change.”

The FEMA National Resilience Guideline.

Feature Photo: A unique specimen of Longleaf Pine. The ~75-year-old tree appears to have been damaged in the ice storm that occurred in March, 2004. After the top was broken, it developed multiple tops but no cohesive structure. The tree was resilient to a harsh event, but still did not fully recover.

As a species, Longleaf Pine is generally much more resilient than the more prevalent Loblolly Pine; being better adapted to higher fire intensity, hail, high winds, and other phenomena.

The photo was chosen because the issue of forest cover and species composition in forestlands and urban forests could be at the forefront of near-term discussions relating to resiliency; which is an issue to also be addressed in future stories.

The Aiken Chronicles welcomes all letters and columns devoted to the Aiken County Comprehensive Plan and any other issues of concern.

City Government, October 2024, Project Pascalis 2024

Former AMDC Commissioners Seek Full Disclosure of Pascalis Records.

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Attorneys representing former AMDC Chairman Keith Wood and Vice Chair Chris Verenes have filed a Motion for a Protective Order Authorizing Disclosure of Documents and Testimony pertaining to the failed Project Pascalis. The Motion seeks the full and unconditional disclosure of public records that otherwise might be construed as exempt from release due to being deemed as privileged and confidential attorney-client work product. In addition to the Motion for complete disclosure of once-privileged records, Wood and Verenes have already provided the Plaintiff with 1,318 pages of documents that were classed as non-privileged, demonstrating a willingness to cooperate with unveiling the complete Project Pascalis record; a willingness that is currently not shared by City officials.

(Update. The 1,315 pages of non-privileged information produced by Keith Wood and Chris Verenes in response to the subpoena described in this article is available via this FOIA response link.)

by Don Moniak
October 18, 2024
(Update May 25, 2025)

The July 5, 2022, Blake et al vs City of Aiken et al lawsuit sought not only to halt the $75-100 million downtown demolition and redevelopment effort known as Project Pascalis; it also strove to have the courts issue a declarative judgement that the City of Aiken and two of its legal entities—the Design Review Board (DRB) and Aiken Municipal Development Commission (AMDC) violated the state’s Community Development Law and Freedom of Information Act.

On September 29, 2022, less than three months after the lawsuit was filed, the Project was officially cancelled. That action was followed within months by the repeal of the pivotal Newberry Street privatization Ordinance, and eventually by the dissolution of the AMDC—which had been the lead organizer of the project, and owner of the Pascalis properties that then reverted to City ownership and are currently up for sale.

Two of the City of Aiken’s contract attorneys, Daniel Plyler and Rachel Lee of the Smith Robinson Law Firm, successfully argued that these three actions rendered the lawsuit “moot,” The Plaintiffs appealed the court’s concurrence with that argument, contending that while the injunctive relief request may have been satisfied, the issue of declarative judgement remained.

While the case remained in the appeals stage, Plaintiffs continued to seek discovery of project records. The City resisted discovery, leading to a May 6, 2024, Motion to Compel project records.

In a subsequent July 5th Memorandum of Law in Support of the Motion to Compel, Plaintiffs argued that the City “has not even tried” to respond to discovery requests—a statement supported by the fact that a mere nine records had been produced by the City—six of which were already public and one of which had been privately published in late 2022 after it was inadvertently made public by the City.

Five days later, on July 10th, Plaintiffs took the overdue approach of issuing one subpoena to former AMDC Chair Keith Wood and a second subpoena to former AMDC Vice Chair Chris Verenes.

The reason for the long wait was quizzical. Immediately after the project cancellation, both individuals had issued strong statements alleging malfeasance by city staff; sentiments that were reiterated in a November 2022 email to City Council and in their subsequent letters of resignation—all of which were written in protest of Aiken City Council’s refusal to meet with the AMDC in the absence of a Joint Defense Agreement, one that Wood and Verenes contended would inhibit the public’s right to know how the cancellation of the project had transpired.

Unlike Project Pascalis investment and development team leader Ray Massey, who successfully had a Motion to Quash his subpoena granted by the court, Wood and Verenes appear eager to testify and release records. The fact that they have procured their own legal counsel and have complied with discovery requests indicates the former AMDC officers are acting more in a whistleblower capacity than as players for a defense devoted to prolonging the case while spending hundreds of thousands of taxpayer dollars in legal fees.

Also in contrast to the lengthy Massey subpoena was the brevity of the Plaintiffs’ request for documents from Wood and Verenes, simply written as:

“All documents and written communications in your possession pertaining to Project Pascalis and your involvement with the Aiken Municipal Development Commission.” (Figure 1)

Figure 1: Subpoena for Keith Wood. The Deposition has yet to be held due to the discussion
regarding the release of records that might be interpreted as privileged and confidential legal
correspondence. (click to enlarge)


Anyone who thought the two former AMDC officers might follow the City’s lead and stonewall the Plaintiffs would have been mistaken.

This past Thursday, October 17th, attorneys for the two former appointees filed a Motion for a Protective Order Authorizing Testimony and Documents. Specifically, the brief presents the argument that, since Wood and Verenes were “misled about the project and about relationships that city officials had with those involved,” and “they very much want to shed light on the improprieties hidden from them (and the public),” any records and testimony that might be construed as subject to attorney-client privilege should not be treated as such, and should be entered into the case record.

In that regard, a sixteen-page “privilege log” listing ~120 written records —that mostly involved, in some manner, AMDC Attorney Gary Pope—accompanied the brief.

Even without the “privilege log” documents, Wood and Verenes have already collectively provided to the Plaintiffs 1,318 pages of non-privileged documents; expressing and demonstrating a willingness to cooperate—while Aiken City Council has apparently directed its attorneys to obstruct the Plaintiffs’ discovery requests.

For example, in their Response to the Plaintiff’s Second Set of Interrogatories, City of Aiken attorneys objected, in part, “to the extent that they seek disclosure of information subject to attorney-client privilege, the work product protections afforded by Rule 26(b)(3) of the South Carolina Rules of Civil Procedure, or any other applicable privilege or immunity. By responding to these Interogatories, Defendant does not waive any privilege or immunity, but instead relies specifically on such privileges and immunities.”

Attorneys for Wood and Verenes argued the opposite, that since the project was cancelled, the AMDC is defunct, and Wood and Verenes were removed as individual defendants, the sixteen pages of records listed in the “privilege log” should be made available to the Plaintiffs; both as original records and during verbal depositions.

Most important among the reasons to unconditionally release the records was that “public policy favors disclosure of government action occurring behind closed doors,” concluding, in that respect:

“When government closes its doors, it selectively controls information rightfully belonging to the people. (Detroit Free Press vs. Ashcroft…2002)”

The argument made is that, while Executive Sessions and privileged records may once been arguably appropriate, time itself, coupled with the dissolution of the AMDC, have rendered moot any objections to full public disclosure.

The latest stance from Wood and Verenes is consistent with their written statement to City Council, made on November 21, 2022, that, “Any meeting restricting open, frank, and complete information would be a disservice to City Council, AMDC, and the citizens of Aiken.”

After more than two years of litigation, one thing appears certain—the City of Aiken and Aiken City Council appear willing to stonewall as long as necessary, while their former project leaders are willing to leave no stone unturned in “the best interests of justice.” As the Motion made by Wood and Verenes states,

“The citizens of Aiken deserve to hear Mr. Wood’s and Mr. Verenes’ perspectives because this is a matter of public concern involving governmental spending of millions of taxpayer dollars to renovate the most prominent block in the City and the Hotel Aiken.”

Update, May 25, 2025

In the case of Blake et al vs City of Aiken et al (The Pascalis lawsuit) the Court issued a Consent Order on March 10, 2025, pertaining to the 120 or more documents held by Keith Wood and Chris Verenes that contained potentially privileged information.

The Court ruled that 

1. “All communications and documents in the possession of Mr. Wood and Mr. Verenes pertaining to the dispute surrounding Project Pascalis that were created or took place before the Aiken Municipal Development Commission retained attorney David Morrison on July 9, 2022, are not subject to a valid claim of privilege. Mr. Wood and Mr. Verenes are authorized to testify about all communications they were a part of regarding Project Pascalis and produce all relevant documents pertaining to the project so long as those documents and communications were created or took place prior to Mr. Morrison’s engagement as counsel in this matter.”

2. “All documents produced AFTER the AMDC obtained counsel are on a case by case basis and records involving their counsel are subject to challenges by the City asserting privilege.”

Related Articles

Project Pascalis Legal Costs provides a breakdown of all legal fees incurred by the City of Aiken related to Project Pascalis, as well as which lawyers represented each of the Defendants—City of Aiken, Aiken City Council, the AMDC, the DRB, and City Attorney Gary Smith.

The Project Pascalis RFP provides background on the key issues behind the cancellation of Project Pascalis.

Moot or Not Moot describes the City of Aiken’s Motion for Summary Judgement and the Plaintiff’s response—which is further detailed in “A Continuation of Project Pascalis.

The First and Last Council/AMDC Meeting? chronicles the process, through March 2023, of dissolving the AMDC and transferring the Commission’s Project Pascalis properties to the City of Aiken.






Aiken County Government, Elections, Letters, October 2024

Aiken Election Board: Incompetence or Malfeasance?

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Guest Editorial
by Peter DeLorme
October 16, 2024

In the first week of October, Ms. Maria Sullivan of Aiken had a letter printed in the Aiken Standard. It praised the Aiken County Board of Elections for its quick action during the first week of August when it appointed to the Elections Office Interim Director Ms. Judy Justice, and Interim Assistant Director Ms. Amy Nichols. These appointments were triggered by the resignations of the Elections Office’s Director Cynthia Holland in May, and Assistant Director Michael Bond in July. The interim employees were to fill the management void until a new Director was hired.

Ms. Sullivan’s letter went on to lament the sudden dismissal of those same interim employees and to complain about the makeup of the committee that had conducted the search for a new Director.

First, let’s look at what really happened with the flawed appointments of the interim employees, and how they relate to the statement “someone did something they should not have done” made recently by the Board’s Chair Ms. Blanche Wimberly.

Early in her interim tenure Ms. Justice relayed to me two important pieces of information. One was that both she and Interim Assistant Director Nichols had been simultaneously appointed by the Board. The other was that she had no input into the decision to appoint Ms. Nichols.

SC Law grants the Elections Board the authority, in a public meeting, to appoint the Director. It grants to the Director the authority to select and manage the Office staff, which includes the Assistant Director. Clearly, the Board should not have appointed the Interim Assistant Director, nor should the Interim Director have been appointed in a non-public Board meeting.

The State Elections Commission (SEC), in relation to these Board actions, has stated “We have had conversations with multiple people in Aiken County about this issue but have not heard a consistent story of how these hirings were made by the board.” What does it say about our Elections Board that its members cannot explain to the SEC how the interim employees were lawfully appointed?

Second, Ms. Sullivan comments that the interim employees were abruptly terminated and there was not a suitable transition period.

Remember, these were interim appointments.  It is not surprising that Ms. Justice was replaced immediately upon the hiring of a permanent Director.  

I am similarly not surprised that Ms. Nichols was not retained. In one of her Facebook posts, she wrote: “Yet (sic), the election was manipulated in two critical ways: First, the government dishonestly used the coronavirus pandemic to make wholesale changes to our voting rules that made it easier for Democrats to amass ballots.”  Posts such as this made her unsuitable for a management position in the non-partisan office charged with conducting our elections.   

Were the interim appointments made so quickly that there was no proper vetting of the candidates?  It would be useful to know who proposed this person be hired and appointed.

As it relates to the abrupt termination of the interim employees by the new Director, the SEC also referenced the SC Code of Laws, writing:

“Once hired, it would be the responsibility of the director to hire and manage all subordinate office staff, which would include the position of assistant director (see SC Code of laws Section 7-5-10 (B)).”

This statement clearly puts into the hands of the Director the ability/responsibility to terminate (or to use Ms. Sullivans term, ‘fire’) Elections Office employees.

It is clear from an article printed in the Aiken Standard on Sept. 18 that the decisions on the terminations were properly made by the new Director, Ms. Dana Burden. As to whether or not there was sufficient turnover, what took place during the transition were personnel matters, so it is unlikely we will ever know what turnover, if any, took place.

It is commendable and important that the Board was supporting Ms. Burden as she considered whether or not to retain the interim employees and that she was given that leeway by the board. That is a good start to a new era in which there needs to be more cooperation and trust between the Board and the Director.

Third, in the middle of her letter complaining about how the recent transitions took place, Ms. Sullivan brought up old news about the make-up of the committee performing the search for the new Director. Her implication was that Ms. Wimberly acted improperly when she did not appoint to the committee Ms. Lori Boddy, who was the only Board officer not so appointed. Why this was improper, or how this presumed appointment failure negatively impacted the search was not explained. Nor was it explained how this presumed failure related to the hiring or firing of the interim employees.

There has been turnover and irregular activity in the Election office the last few months, but a visit to the Elections Office will show that preparations and training for the election are well underway. 

Unfortunately there are still unfilled 300 of the needed 900+ Clerk and Poll Manager positions.   All civic-minded citizens are urged to sign up NOW, and to say YES when contacted by the County elections office, to work the polls.   Yes, it is a long, long, day, but it provides a very satisfying experience.


In the Courts, October 2024

The Four-Year Old Adam Crow Wrongful Death Lawsuit Continues to Plod Through the Courts.

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by Don Moniak
October 9, 2024
(Updated October 10, 2024)

Adam Crow died after hanging himself in the Aiken County Detention Center (ACDC) on May 16, 2017. The series of events preceding his death are chronicled in a consolidated wrongful death lawsuit filed by his family, and involving as Defendants the Aiken Regional Medical Center (ARMC) and its parent company United Health Services; members of the ARMC staff; the Aiken County Sheriff’s Office (ACSO); and the Aiken County Detention Center (ACDC) and its former health care provider Southern Health Partners.

A November 2022 Motion to Compel and the original Summons (pages 10-17) both chronicle the six-hour sequence of events leading to his death.

After drinking a pint of liquor that morning, Mr. Crow drove to the Aurora Pavilion Behavioral Health (Aurora) mental health facility to self-commit. His path to Aurora ended when he ran a red light and collided with another vehicle. 

 “Because he appeared to be heavily intoxicated,” Crow was brought to ACDC by a Highway Patrol officer, and later was confirmed to have a blood alcohol content of 0.225. 

Once at ARMC, where he had been previously diagnosed as suffering from various mental illnesses and labeled as having suicidal ideation, Crow was placed under a suicide watch. Two hours later he was discharged and transported to the Detention Center, instead of to Aurora for treatment. 

Once at the jail, Crow underwent a meager five-minute intake process, followed by detainment in a holding and observation cell. Three hours later, he manually covered the lens of the video monitoring camera in his cell, an action that went undetected by jail employees. 

One hour later Adam Crow hung himself by his pants. His body was not discovered until an hour later, and only after another prisoner alerted the ACDC staff. (The video footage showing the moments leading to his death was included in a December 4, 2023 WRDW feature story.)

None of these facts are in dispute. What is in dispute is whether ARMC and the Sheriff’s Office–and therefore the Detention Center and its former health provider Southern Health Partners–were negligent in their treatment and care of Adam Crow, whether its actions rise to the level of gross negligence, which could lead to a determination of wrongful death. 

The wrongful death lawsuits that were filed on July 30, 2020, one against the health providers and one against the Sheriff’s Office and its Detention Center,  have slogged through the courts for more than four years. The developments in the cases since that time, beyond the Defendants’ denials of culpability and negligence, have included the following: 

  • November 30, 2022: The Plaintiff made a settlement offer of $250,000 to the Sheriff’s Office. That offer was rejected in a similar manner as in the Owens vs. ACSO et al and the Rhoads vs. Southern Health Partners et al cases. In both cases, juries eventually went on to award Plaintiff’s far greater amounts than those offered to the County. 
  • December 29, 2024: A Motion to Compel that alleged an ARMC doctor provided “evasive and non-responsive” to interrogatories submitted two years earlier. 
  • January 24, 2024: The two lawsuits were consolidated. 
  • April 30, 2024: Southern Health Partners settled for $25,000. The company’s role was less obvious given the fact that Crow was only held during the intake process for five minutes.
  •  August 26, 2024: The Plaintiff filed a Motion to Compel ARMC for key information that would provide sufficiently complete information on his medical history.

In the Plaintiff’s most recent Motion to Compel, or in the alternative a determination of spoliation,  the point of issue is an audit trail of Crowe’s treatment and medical history, one that would include three audit logs that “record the activity of people accessing a patient medication record and maintain a record of what parts of a patient’s medical record are opened and closed.”

According to an email from the ARMC defense team, the Audit Log records that were requested “cannot be stored for very long. We are talking hours, maybe a day or two at most, not weeks or months, and certainly not years.” 

In their Motion, Plaintiff’s attorneys describe an ARMC statement, that it has already produced an audit trail, as “simply untrue” and should cause the court to “view the remainder of ARMC’s defense with a high level of skepticism.” 

The attorneys go on to assert that, if the audit trail is missing, that absence constitutes a “spoliation of evidence,” meaning the record was deleted after the lawsuit was filed, an action that the Plaintiff’s lawyers described in an email to ARMC’s defense team as potentially “nefarious:”  

“It appears this was a sentinel event and to delete a document as important as the audit trail under those circumstances makes no sense, other than for nefarious purposes.” 

In support of their Motions, the Plaintiff’s attorneys submitted several exhibits detailing that federal rules and law dictate that such electronic records be maintained for up to ten years.

The brief argues that “for the Court to not compel a complete audit log production (or, in the event that one cannot be provided, not to find for spoliation of evidence) would defeat one of the primary purposes of the federal government’s push to switch to electronic health records;” and concludes that “a complete audit log is critical in allowing Plaintiff to identify whether the medical record is accurate and complete.” 

October 10, 2024 Update on the Hearing.

The Motion to Compel was heard on October 9th at the Aiken County Courthouse, in the Court of Common Pleas of the State of South Carolina’s Second Judicial Circuit.

Plaintiff’s Attorney Robert Philips began his argument before Judge Brian Gibbons by stating, “This is not a fishing expedition. We have a fish on the line and we do not know what fish it is;” referring to records that should exist, but which ARMC had refused to fully divulged.

Philips explained that, after his death, Adam Crow had been returned to ARMC. By then his lab results had shown the high blood alcohol content in addition to “active benzo and active THC.” The portion of the audit trail that was provided showed that Crow’s chart was modified at 1:30 a.m. to indicate he was coherent upon discharge. The details of that modification are what is being sought.

Philips finished by repeating that the Plaintiff’s were “not on a fishing expedition,” adding this time that “there is something going on here.”

ARMC attorney Denny Major began his argument by stating “I feel like a third-string quarterback covering this. This is the first time I’ve seen this.” He later would state “I am completely in the dark,” “I am not prepared to speak to that,” and “I haven’t had a chance to go through it.”

He argued, in part, that HIPAA was “for the insuring of the integrity of records, not designed to retain records for tort cases.”

Judge Gibbons then granted the Motion to Compel, while declaring the issue of spoliation was “not ripe,” but could be brought back. The Defendant ARMC was given fifteen days to produce the requested records.