Category Archives: Project Pascalis 2022

Update to: “Did the AMDC Violate Open Meeting Laws?” (1) 

The Beef Stew and Mundane Vegetable Soup of Public Meetings

Updated July 29, 2022, with full series of referenced emails (2)

On January 12, the day after an Aiken Municipal Development Commission public meeting, the Aiken Standard reported:


“The Aiken Municipal Development Commission recently hosted talking sessions with the prospective lead development group behind Project Pascalis. Over the course of two days, a total of 57 people attended five sessions, billed as a conversation with Grey Raines, managing partner with Raines Co.”

Two months later the AMDC formally approved its January 11 minutes (The minutes were available for approval at its planned February 8 meeting but no quorum was present).  The minutes do not clarify nor correct the Standard’s story; and create a strong, though admittedly ambiguous, impression that the AMDC had hosted private meetings with select invitees. These “talking sessions” and “fellowship” with the developer functioned as “social meeting” used “ in “circumvention of the spirit of requirements of” South Carolina’s open meetings rules defined with the state’s larger Freedom of Information Act law (SC 30-4-70(c)). 

SC Code of Law https://www.scstatehouse.gov/code/t30c004.php

Aiken Economic Development Director and AMDC staffer Tim O’Briant denies the contention the AMDC was involved in illegal private meetings. In an email sent a few hours after the posting, he wrote: 


“The small group introductions you reference from January of 2022 we’re (sic) organized by the chamber at the request of Raines to meet with various stakeholders in the community. These were not AMDC meetings and none of the sessions were attended by or conducted by the AMDC or its staff. Gray Raines held the meetings as indicated in the update to the AMDC at a subsequent public meeting recited in the minutes you reference. There would have been no need for such an update had the commission conducted and attended the meetings held by Mr. Raines.”

There are contradictions with this version of events. First, in a followup email responding to questions regarding his denial, O’Briant wrote: 


“I attended these meeting (sic) as AMDC staff and David Jameson, an individual AMDC member was present at each in that capacity and in his role as Chamber president.” 

Second, within the same January 11 meeting minutes is a report from the  Marketing Aiken Committee chair Chris Verenes describing Commissioners, and not Raines, initiating the private meeting process: 


“As a result of the publicity regarding the Pascalis Project, there have been questions. The Committee talked about a process that we can get some feedback and discussions along the way. He noted there was a phone conversation about getting Rainsco to start getting out into the community to talk about the project. Rainsco was contacted and some meetings were set up. He pointed out that they met with the DRB and other groups.” 


There was no reported discussion pertaining to any need to hold public meetings or forums to “talk about the project.” The entire effort was conducted under the public radar.  Only after a contentious March 28th City Council public hearing and vote on the Newberry Street privatization (conveyance) ordinance did the AMDC plan and schedule the April 20 public meetings. Four months passed between the elite private meetings and the first open sessions regarding the entirety of Project Pascalis. 

Third, O’Briant claims the meetings did not constitute a public AMDC meeting because there was no quorum of members present; and presented the following argument: 


“By its nature and definition, a pot of beef stew must contain beef. By nature and definition, any meeting of a public body must include the members of that public body. How could it be otherwise.  One could ask, where’s the beef? Or, more appropriately, how can one say a public body met when the membership was never assembled in any way, shape or form?” 

He further stated:


“What you are presenting as beef stew was actually a mundane vegetable soup.” 

This misdirected metaphor presents an effort to overlooks the fact that using the Aiken Chamber of Commerce as a surrogate to “answer questions” and “introduce” the developer circumvented the spirit of the law.  

While a quorum is necessary to vote on matters and declare the meeting official, the possible absence of a quorum does not disqualify planned meetings from being announced to the public. Nor does the lack of a quorum preclude the body from keeping minutes, as it did for its shortened February 8, 2022 meeting. The April 20, 2022 “design workshops” were described as “public meetings” in the AMDC’s April 12, 2022 meeting minutes. 

While this particular incident will not be aired in a judicial setting in the near future, the AMDC’s contempt for early and full public involvement has been on display as prominently as somebody driving fifty miles per hour through downtown. Just because they were not pulled over and ticketed does not make it legal. 

____________________

(1) Original posting at: 

Do It Right FB page

(2)  Following is the complete email exchange between May 27th and May 31st between Donald Moniak and Tim O’Briant based on the story originally posted on the Do It Right! Facebook Page and later posted to The Aiken Chronicles website: 

On Fri, May 27, 2022, 3:53 PM Tim O’Briant wrote:


Mr. Moniak,

Your post regarding the small group meetings with Gray Raines has been brought to my attention. Just as you are, I am always concerned about public bodies observing, meeting and exceeding all notice requirements for their meetings.

The small group introductions you reference from January of 2022 we’re organized by the chamber at the request of Raines to meet with various stakeholders in the community. These were not AMDC meetings and none of the sessions were attended by or conducted by the AMDC or its staff. Gray Raines held the meetings as indicated in the update to the AMDC at a subsequent public meeting recited in the minutes you reference. There would have been no need for such an update had the commission conducted and attended the meetings held by Mr. Raines.

As you are likely aware, the SC FOIA SECTION 30-4-20 defines a public meeting as follows:
(d) “Meeting” means the convening of a quorum of the constituent membership of a public body, whether corporal or by means of electronic equipment, to discuss or act upon a matter over which the public body has supervision, control, jurisdiction or advisory power.
(e) “Quorum” unless otherwise defined by applicable law means a simple majority of the constituent membership of a public body.

Please update your posting to correct any impression that the AMDC violated public meeting requirements in this case. Thank you in advance for your commitment to truthful and accurate commentary.

Regards,

Tim O’Briant
Economic Development Director
City of Aiken, South Carolina
803-508-1429

On May 27, 2022, at 3:32 PM, Donald Moniak wrote:


Mr O’Briant,

1. The Aiken Standard in the cited article clearly reported the meetings were held by the AMDC. If they were in error, is there any record of the AMDC or City ever correcting the mistake?

2. The meeting minutes cited create a clear impression of AMDC involvement. There is no mention of the event as being  Chamber sponsored. The AMDC approved these minutes, creating a distinct impression that it was involved in some capacity. Why is there no mention that AMDC related business was Chamber sponsored?

3. Mr. Jameson is an AMDC Commissioner and its treasurer. If he commingled his two roles at this meeting to advance the AMDC’s position, the public has a right to know. Did Me. Jameson disclose his position as an AMDC Commissioner, or did he, like Philip Merry on May 9th, pretend to be just an interested observer?

4. In your citation of open meetings laws, why did you omit SC 30-4-70(c),  regarding the use of social events or other means to circumvent the spirit of the law?

5. If Raines requested these meetings, were they encouraged to do so by AMDC members, or is their standard operating procedure to circumvent the public process regarding public-private partnerships involving tens of millions of dollars in public funds?

I will post an update that includes your entire response and these questions. But even if legal, the act of setting up private, invitation only meetings regarding a major development within an area of long term contention wreaks of elitism and disdain for true public input.

I will remind you that like myself, you are not a lawyer. Perhaps Mr. Smith or Mr. Pope should be weighing in on the legalities of the meetings. Were either of them consulted?

Thank You,

Donald Moniak

On Fri, May 27, 2022 at 7:33 PM Tim Obriant wrote:

Mr. Moniak,

By its nature and definition, a pot of beef stew must contain beef. By nature and definition, any meeting of a public body must include the members of that public body. How could it be otherwise.  One could ask, where’s the beef? Or, more appropriately, how can one say a public body met when the membership was never assembled in any way, shape or form?

I attended these meeting as AMDC staff and David Jameson, an individual AMDC member was present at each in that capacity and in his role as Chamber president.

A quorum of a public body (five voting members in the case of the AMDC) must be present at the same time and in the same location, or even virtually, to constitute a meeting. That did not occur during any of these several meet-and-greet sessions with 57 community members and Mr. Raines, nor has anyone, including the Aiken Standard, ever asserted such.

What you are representing as beef stew was actually a mundane vegetable soup. No aspect of FOI was violated intentionally or otherwise, and, yes, attorney Gary Pope vetted the plans for the event to ensure full compliance. Thank you for your questions and efforts to make sure you get this right and fairly represent the facts of both the law and the reality of the event described.

Tim O’Briant
Economic Development Director
City of Aiken, South Carolina
803-508-1429

On Tuesday, May 31, 2022 at 12:21 Donald Moniak wrote: 

Mr. O’Briant, 

Could you provide a date, other than March 15, when the January 11 meeting minutes were addressed and corrected? 

The Aiken Standard story clearly described the private meetings as “talking sessions” “hosted” by the AMDC. There is no ambiguity in their report as their is in the January 11 minutes. The story was published on January 12and the AMDC had two full months to set the record straight, but chose not to until your May 27, 2022 email disputing the accuracy of my social media posting and email that was also sent to City Council. 

In your initial email, you stated “no staff” was present at the five private meetings, yet in your subsequent email you stated you were present. You are listed under “Staff” at the AMDC website. Did you or Mr. Jameson take notes at these meetings or conduct any followup with interested participants? 

Also, in those 1/11 minutes there was a reference to additional future meetings being planned. How many of these were held, who organized them, and who was present? 

As to quorums, there was no quorum for the planned February 8 meeting, yet some discussions took place and minutes were recorded. No quorum of Commissioners was present at the April 20, 2022 public “workshops” that were described in the April 12 AMDC meeting minutes as “public meetings,” as only two AMDC members spoke up–although they did not clearly identify their affiliations, similar to Mr. Merry’s lack of disclosure on May 9. Yet, these were videotaped and available for participation via Zoom, which was commendable but also in accordance with established City of Aiken transparency policies and practices. 

Your response to my questions did not address 30-4-70(c). The issue here is not the AMDC conducting business by holding votes or setting policy without a quorum, but using a private organization as a surrogate to facilitate private meetings that should have been open to the general public. The list is 30-4-70(c) does not appear to be exhaustive, these are examples of inappropriate conduct that functions to circumvent open meeting laws. 

Finally, please work on your metaphors. If a recipe calls for a pound of beef stew meat but only a quarter pound is used, it is still beef stew. If the stew meat is excluded, that makes it a vegetable stew, not a “mundane vegetable soup,”  As to the latter metaphor, would you be willing to tell the 57 select invitees their participation was “mundane” and they were not provided any meat at their private meetings? 

Thank You, 
Donald Moniak

On May 31, 2022 at 3:57 p.m. Tim O’Briant wrote: 

Mr. Moniak,

When you quote me as saying that “(I) stated “no staff” was present at the five private meetings, yet in your subsequent email you stated you were present,” you are misrepresenting my actual correspondence. What I wrote, copied here verbatim, was “these were not AMDC meetings and none of the sessions were attended by or conducted by the AMDC or its staff.” Admittedly, my use of the compound verbs, attended by or conducted by, was somewhat imprecise in that my intent was to explain the AMDC as an assembled body politic did not participate at any point those days. I was at each of the meetings, but played no official role in my staff capacity. I apologize that my response was unclear and caused any confusion.

As to your other questions/comments, I am in receipt of your FOI request 109-2022 related to this matter and the response to that query will within ten days (excepting Saturdays, Sundays, and legal public holidays) of the receipt of the request, notify you of the City’s determination as to the public availability of the requested public records. In the interim, feel free to call me directly or stop by the next time you’re in the City if you need additional assistance.

Regards,
Tim

This was Mr. O’Briant’s first suggestion that a FOIA request response would be withheld until the legal time limit. 

The City’s Management of the Hotel Aiken:  All “Reasonable Measures” taken to ensure safety, except inspections and alarms. 

In a July 26,  2022 letter to the Historic Aiken Foundation (HAF), Aiken Municipal Development Chair (AMDC) Keith Wood attributed a slowdown in the “tireless” work to “find a suitable permanent solution that would elmininate any and all” fire risks associated with the Hotel Aiken and surrounding properties to three week old litigation involving the HAF and eight other plaintiffs. (1) 

The AMDC bought the Hotel Aiken and six other properties for $9.5 million in November, 2021, and intends to demolish its investments and remake the area into a complex of new apartments, parking garage, hotel, retail, and conference center. Apparently, litigation filed eight months after the purchase is a cause for an absence of fire inspections and an alarm system. 

Wood’s letter was in response to a July 22, 2022 letter from the HAF requesting specific maintenance and safety measures by the AMDC due to a concern “that adverse conditions at the hotel lead to further deterioration of its condition.”

Sapling-sized tree in the second story window above Beyond Bijou. This sapling was in the window in November 2021 when the AMDC bought the property, and is still there today.

The letter named six specific actions ranging from monthly inspections to fire monitoring and sealing of hatches and other access points; and asked the AMDC to “remove debris around the exterior of the building both for safety and to improve the general character of the area.” 

In his response,  Mr. Wood committed to no changes from the status quo and assured the HAF that “all reasonable measures are in place to ensure” the integrity and security of the Hotel Aiken.  He then proceeded to falsely infer ownership of the existing fire detection system, failed to acknowledge an unauthorized intrusion into hotel last week, and implied a part-time caretaker constitutes a full-time fire watch. The AMDC’s confident demeanor is  further undermined by the fact that no fire inspections have occurred since the commission purchased the building. 

Wood did not comment on the HAF’s request for monthly fire inspection system. According to Aiken Public Safety records, the last inspection by the City of Aiken was on February 17, 2021; and a freedom of information act (FOIA) request for all fire inspections since March 2, 2021 yielded no documents. March 2, 2021; Aiken Public Safety fire marshalls conducted three thorough inspections between early 2019 and February of 2021. 

Click image to view full size

The existing fire detection system involves more than 100 heat detectors. It was installed by ADS Security for the previous owner, Historic Hospitality, LLC (Agent: Neel Shah) to meet criteria for city approval of an interior demolition permit issued in 2018. While describing the system as a “robust set of smoke, heat, and fire sensors placed throughout the structure,” Wood failed to acknowledge the system was in place when the AMDC bought the property and signed a contract with ADS to continue the system.  The commission is only paying $65 a month for the basic service and has not incurred any installation charges. 

The hotel “fire watch” involves a single “APS Cadet” who receives free rent from the AMDC in return for the following work services: 

  • General public safety and fire watch works; 
  • to monitor the area of the adjacent city properties on a regular basis and report any suspicious activity to public safety for further investigation; 
  • other duties as assigned.  (3) 

The fire watch/caretaker is not assigned to assist with cleanup behind that hotel that contributes to a blighted appearance the AMDC is chartered to address. City of Aiken officials will not respond to specific questions pertaining to the percentage of time the property caretaker is on site, or to what other duties have been assigned. 

The extent to which an APS fire cadet, who is also being trained elsewhere on critical emergency response procedures, is monitoring the area “on a regular basis” is unknown, as city officials have not responded to such questions.  It is now known that it is clearly not regular enough to prevent unauthorized intruders from entering the hotel. 

While Mr. Wood did not cite any recent intrusions, AMDC Executive Director Tim O’Briant has acknowledged an intrusion last week, just a few days after HAF President Linda Johnson reported “the gate in the rear chain link fence was wide open.” The intrusion was noted only after the fact during a “routine security check by staff.” 

As a result, “an additional intrusion security is being added to the contract with design of the sensor layout taking place this week and installation in the near future.” However, in Mr. Wood’s version of events, any time the rear gate was open “an authorized key holder is present on the property.” 

So Wood provided no reason for the AMDC to engage ADS Security to “add motion and intrusion alarms to the system;” while O’Briant admitted that a break-in was the reason. 


But the saddest part of this story is that the AMDC loves to tout Aiken’s Economic Master Plan when it is convenient to do so. The plan (2) was prepared by the AECOM Corporation (Now part of Amentum, Mr. Wood’s employer) and adopted by City Council in March, 2021, about the same time that Project Pascalis began mostly in secrecy. In the plan that commissioners love to cite and discuss is this passage: 

“Aiken also has the unique challenge of preserving its notable historic architecture, while making room for new growth, so the City will need to partner with the Historic Aiken Foundation and other stakeholders to ensure that the downtown’s charming historic character is preserved, while also encouraging new growth and development and higher densities where appropriate.”

Yet, the Historic Aiken Foundation has never been invited to an AMDC meeting, and this week the AMDC chair stiff-armed the concerns of the foundation and chose antagonism over cooperation. 

________________

(1) 7/22 letter from HAF to AMDC : https://aikenchronicles.com/wp-content/uploads/2022/07/HAF-to-AMDC-072222.pdf

7/26 letter from AMDC to HAF: https://aikenchronicles.com/wp-content/uploads/2022/07/AMDC-to-HAF-072622.pdf

July 5th Lawsuit: 

(2)

Hotel Aiken rear lot
HEADER IMAGE: Rear lot of Hotel Aiken, May 2022. (Photo courtesy of Jacob Ellis)

Toast of the Town: The January 4th ”Social Business Gathering” at Prime Steakhouse

Project Pascalis is the name for a proposed $100 million plus demolition and redevelopment project targeted for downtown Aiken. The project is being directed by the Aiken Municipal Development Agency (AMDC), which in December 2021 officially announced RPM Development Partners, LLC (agent: Ray Massey) as the project developer. RPM represents the three primary investors and developers:  Raines Company, Lat Purser and Associates, and Ray Massey. 

Toast of the town

Information obtained yesterday regarding an extravagant taxpayer funded dinner featuring shots of premium whiskey reveals that the Mayor of Aiken, the City Manager, the city’s Economic Development Director, and three Aiken Municipal Development Commissioners participated in a “social business gathering” with three members of RPM Development Partners. A separate check was provided to the latter group. Most of the participants also attended a City of Aiken Design Review Board (DRB) workshop just prior to the gathering. 

On July 13, 2022 I emailed (1) Aiken City Manager Stuart Bedenbaugh with concerns and questions regarding two issues on the “transparency page” of Aiken Municipal Development Commission’s (AMDC) website: 

  1. The existence of copies of AMDC checks within invoice and billing files with routing number and account number not redacted; and 
  2. A January 10th check from the AMDC to the City of Aiken for a $620 bar and dinner bill dated January 4, 2022 from Prime Steakhouse in downtown Aiken. On that bill were seven orders of premium whiskey worth $130, four orders of steaks, one order of short ribs, one order of veal piccatta, and an appetizer of Calamari. 

Within a few days, all files containing copies of compromised AMDC checks were removed from their “transparency page,” and have yet to be returned.

In regard to the Prime Steakhouse bill, one question posed was:

Can you identify the people in the party who dined on fine steaks along with premium whiskey that afternoon?

After two weeks without any further response, on July 25th I filed a Freedom of Information Act (FOIA) request for the expense report, the meeting notes, and a listing of all attendants including those on a referenced second check.(2) 

On July 27th Aiken Economic Development Director and FOIA officer Tim O’Briant responded with another copy of the dinner and bar tab and a copy of the AMDC check, with banking information redacted.

In an emailed response, Mr O’Briant explained that the City’s purchasing card was used “because the restaurant does not accept checks as the AMDC intended to pay;” and the city was later reimbursed by its commission. O’Briant also explained the following regarding attendees and meeting notes: 

Those from the City of AIken present were Stuart Bedenbaugh, Rick Osbon and Tim O’Briant. From the AMDC, attendees were Keith Wood, Chris Verenes and David Jameson.

There was no record of discussion and no agreements were made during this business social gathering following a day of stakeholder meetings held by RPM, LLC and Raines, and followed by the AIken DRB meeting earlier in the evening

Neither the City nor the AMDC maintains a record of those attending from RPM or Raines, but by memory it included David Tart, Ray Massey and Brandon Graham. Ticket number two was for their meals and the City of Aiken nor the AMDC maintain a record of the charges paid by RPM/Raines.

David Tart is a managing partner of Raines, Brandon Graham is a project manager for Raines, and Ray Massey is a lead investor and agent for both Project Pascalis developers RPM Development Partners and Aiken Alley Holdings. 

Prior to the Prime Steakhouse dinner and drinks, Stuart Bedenbaugh, Tim O’Briant, David Jameson, Chris Verenes, Ray Massey, and Brandon Graham all reportedly attended the City of Aiken’s Design Review Board Workshop (DRB), but not its monthly public meeting.(3) Mayor Osbon was not listed as an attendee at that important workshop. 

The following two questions posed to Mr O’Briant at 4:30 p.m. today went unanswered: 

If this was not a meeting, why was it paid for with city funds? 

Under what city procurement authorization is this type of party of six allowed? 

___________________

Next:  The “Stakeholders Meetings.” 

__________________

(1) The email read: 

“Mr. Bedenbaugh, 

I have some questions and comments regarding two issues: 

1. I suddenly realized that the Aiken Municipal Development Commission (AMDC)  has been published sensitive city financial information online. Specifically, the AMDC has published copies of its checks to various consultants, vendors, utilities, etc that contain the routing number and account number of the checking account. 

1a. Can you explain why this routing and account number information was not redacted? Even with a banking executive on the commission? 

1b. If this information was released via a Freedom of Information Request (FOIA)  before being placed on the AMDC site ( as it appears to have been since no recent payments are posted) did the failure to redact violated any city or state FOIA rules or policies? 

You all really should go back through and redact that account number before somebody goes out and buys some premium whiskey online; which provides a segue to item 2. 

2. Pertaining to the $620 bill from Prime Steakhouse on January 4, 2002, identified as “City of Aiken payment for Prime 011022” on the AMDC “transparency page” of its website: 

2a. Can you identify the people in the party who dined on fine steaks along with premium whiskey that afternoon? 

2b. Was this considered a meeting under state open meetings law? 

2c.  Was the dinner and drinks related in any way to the structural assessment of the Hotel Aiken also conducted that day by a consultant for RPM Development Parters, LLC, or is that pure coincidence? 

Thank You, 

Don Moniak

Eureka Fire Protection District

Aiken County, SC.” 

Mr. Bedenbaugh responded that day: “I will review.” 

The AMDC transparency page is located at: https://aikenmdc.org/2022/03/29/project-pascalis-public-records/

(2)A FOIA request was submitted on July 25, 2022 for: “1. The expense report that was submitted for the steak and whiskey dinner at Prime Steakhouse on January 4, 2022; as required by City of Aiken statutes and policies governing reimbursement of expenses. 2. The memo for record (or other document) that recorded the discussion and agreements reached at the Steak and Whiskey dinner, and a listing of all attendants at the meeting, including those on the second check cited on the dinner and whiskey tab.” 

(2) From the DRB January 4, 2022 Workshop Meeting Minutes, the following people were listed as present: “City Manager Stuart Bedenbaugh, Assistant City Manager Mary Catherine Lawton, Planning Director Marya Moultrie, Planner Mary Tilton, Zoning

Official Mike Dennis,Economic Development Director Tim O’Briant, Erica

Sanders, Ray Massey, Grey Raines, Brandon Graham, Stephen Overcash,

Susan French, David Blake, Mandy Drumming, Mark Chostner, Philip

Merry, David Jameson, Christopher Verenes, Martin Buckley and other

interested parties”

Although the meeting minutes state the workshop began at 5:30 p.m and ended at 6:30. The bar and dinner bill time appears to be 19:55 (7:55 p.m). 

https://edoc.cityofaikensc.gov/WebLink/DocView.aspx?id=2735900&dbid=0&repo=City-of-Aiken-LF

The Project Pascalis Evictees 

Omissions, Distractions, and Inaccuracies Plague Latest Aiken Standard Report

A front page story in the Sunday edition of the Aiken Standard (“Aiken businesses in footprint of Project Pascalis share reactions to redevelopment plans,” by Matthew Christian, July 23, 2022) (1) devoted considerable space to discussing the private business information of eight businesses still operating within the proposed Project Pascalis demolition zone. 

Project Pascalis is the name for the City of Aiken’s $100 million plus endeavor to demolish and redevelop more nearly half of a major downtown block (2) and the businesses are being compelled to relocate. The businesses are located on five of the seven properties purchased by the Aiken Municipal Development Commission (AMDC) in November, 2021 for $9.5 million and each property is proposed for demolition and redevelopment. 

The issues with the story include: 

  • It is unnecessarily littered with guesswork about the private business information regarding individual rent schedules; 
  • Omits the fact that one business, On Board Realty, also operates as property manager; which one citizen’s investigation has revealed to be a no-bid contract; 
  • Failed to recognize a separate leasing arrangement held by another business, Newberry Hall; 
  • Did not report on the non disparagement clause in the proposed relocation agreement between the AMDC and the demolition zone tenants. 
The Distraction of Rent Payments 

The July 24th Aiken Standard story contains unnecessary and intrusive speculation based on a single document, which Standard reporter Matt Christian defines as “a redacted document on the transparency page” on the (AMDC) website. This document can be found at: 

The Standard is apparently unaware the actual rent information was available prior to July 13th, contained within several files involving the property manager. These files are no longer available for a good reason: unlike the redacted lease list, the names of businesses were not redacted from the document on file. 

On July 13, 2022, I emailed City Manager Stuart Bedenbaugh with concerns and questions regarding the security of AMDC checking account data and the $620 bar and dinner tab at Prime Steakhouse amassed by the AMDC on January 4, 2022. I made that email public on the Do It Right! Facebook page, but did not make this subsequent email public: 

Mr. Bedenbaugh,

Along the same lines, the checks at the AMDC transparency page have the info redacted, but the invoices do not. The City also needs to go through and redact the important business information related to AMDC tenants. The names of tenants are redacted on one document but they are not in the invoices from On Board Reality.

Now maybe it is time to find a new FOIA officer for the city?

Within a few days of these two emails, the documents containing the routing and account numbers on copies of AMDC Security Federal checks, and the documents containing the names of AMDC tenants were properly removed from the its “transparency page.”  Unfortunately, the documents, with properly redacted information, have not been restored. 

There is one rent that is of public interest, as it does involve a city contractor. On Board Realty pays $450 a month. 

An Undisclosed, No-Bid Contract 

The AMDC’s property manager for the Pascalis properties is On Board Reality, a fact that the Standard either did not uncover or chose not to disclose. 

The Standard did disclose that On Board Realty is “another business owner operating under a month-to-month arrangement with the Aiken Municipal Development Commission.” Its owner, Patricia Lucas, was the only person interviewed to express pleasure with Project Pascalis. 

On Board Realty handles the property management under contract to the AMDC, including collecting more than $19,000 a month in rent payments; a fact easily discernible by viewing the commission’s bank statement, located at the same AMDC “transparency page” as the redacted lease list: 

This contract was not obtained via a competitive bid, as required by the city’s municipal code. This lapse in procurement compliance was uncovered by Aiken resident and concerned citizen Kelly Cornelius. On July 15, 2022 Ms. Cornelius filed a FOIA request for, “the RFP or bid proposal notice that went out for the position that On Board Realty now holds as the collector of rent for the Pascalis Properties.” 

Two days later, one of the city’s FOIA officers, Economic Development Director Tim O’Briant, replied: 

“The AMDC selected the firm for property management based on prior experience managing the same properties. The firm is also one of the tenants impacted by the purchase of the properties. There was no RFP or bid.”

Mr O’Briant did not cite an existing lease agreement assigned to the AMDC during the sale closures to justify the no-bid contract, and tenants at the 106 Laurens property paid their rent directly to Shah Enterprises, LLC prior to obtaining the city as their new landlord.

City of Aiken’s municipal code requires bids on “purchases of or contracts for supplies, materials, equipment, or services” exceeding $2500: 

  • if between $2,500 and $5,000, “oral bids from at least three suppliers on the bidders list, whenever possible, should be obtained.” 
  • if greater than $5,000 but not exceeding $25,000, “bids from at least three suppliers on the bidders list, whenever possible, must be obtained in writing.”:
  • if greater than $25,000 a written contract is mandated and a more complex set of rules apply.

The Aiken Standard devoted considerable efforts guessing at the rent payments of each business, information that is exempt from disclosure under FOIA. The redactions in the document cited was proper. The lack of redactions in documents removed was not proper.

Newberry Hall 

Newberry Hall is the only affected business whose owners were involved in negotiating a lease arrangement during the early phases of Project Pascalis, when the only meetings being held were behind closed doors in executive sessions. This information was made public on the AMDC “transparency” page only after another FOIA request by Ms. Cornelius. 

That request yielded the signed, closing purchase and sale agreement between the Wyatt family’s WTC Investments, LLC and Newberry Hall’s owner, Myrtle Anderson; and the “agreement regarding lease and option” between WTC and Newberry Hall’s business owners, Patrick and Natalie Carlisle. (3) This lease agreement remained in effect when the Aiken Chamber of Commerce took “assignment” of WTC’s purchase contracts on June 3, 2021, and when the AMDC finally purchased the properties on November 9, 2021 (4). 

The lease agreement included options for compensation for lost income, purchase of a new building, and taking over operations of the new conference center. As reported in The Aiken Chronicles on July 16th, the status of negotiations between the AMDC and Newberry Hall are unknown; but in response to a FOIA request for a contract to operate the new conference center, the city has declared that no such contract exists.(5) 

While the Aiken Standard devoted considerable energy and space to the issue of compensation to businesses formerly paying rent to Shah family enterprises, the AMDC’s lease agreement with Newberry Hall received scant attention. 

The No Disparagement Clause

The Standard interviewed most of the business owners, but either failed to recognize or decided not to report an important clause in the proposed relocation assistance agreement the city has offered tenants. Section three of the clause reads: 

“Section 3 Non-Disparagement. The Tenant agrees not to make any negative, defamatory, disparaging, or derogatory public comments about the Commission concerning the termination of the Tenancy.”

This may be standard boilerplate legal language, but in this case the landlord is not a private property owner, the landlord is currently a branch of city government that is responsible for pursuing and managing Project Pascalis. How does a tenant agree to not disparage the project without disparaging the project’s commission seeking to terminate the tenancy? 

Commentary

On June 13th I also wrote the following to Aiken City Manager Stuart Bedenbaugh: 

“I have always accepted some exemptions to FOIA. We do not need to know what day Tenant x paid their rent and how much they paid.

“I think it was 21 years ago that I encountered a travel report for a Nuclear Regulatory Commission staff member on its cumbersome ADAMS web site. It included his passport information. I informed him right away and the agency took down the letter and redacted the sensitive information.

“There are many stories just like that. In fact we have one here on the AMDC website, in which info we have little right to, and no need to know, is posted, but information that may be released that we have a right to know is redacted or withheld.

“Obviously I am referring to the list of developers who submitted proposals in response to the May 2021 AMDC RFP; as well as the entire body of that request.

“This serves as another appeal for the full release of those documents.” 

The City of Aiken has yet to release these documents that, under SC FOIA law, they “may” release but can also withhold. The redacted document referred to in that email is here: 

This story illustrates how we are often treated to information we do not need to know and is even generally exempt from FOIA requests; while important information pertaining to the common good is routinely withheld from public view. 

At the April 20, 2022 Project Pascalis public meeting, moderator Tim O’Briant took offense to a question posed by Aiken resident and concerned citizen Lisa Smith: “How many businesses have been evicted?”

Mr. O’Briant correctly noted that no businesses had been evicted, but did not elaborate on the legal meaning of eviction or the possibility of future evictions. It is this kind of disingenuousness that earns government the wrath of its citizens. 

The Aiken Standard yesterday devoted considerable space to discussing the private business information of the Project Pascalis Evictees, as I now sometimes refer to the businesses that are being compelled (subject to legal interventions) to relocate and make way for the Mayor and City Council’s idea of progress. While nobody has faced any legal eviction proceedings, the fact is that threat does loom in their future unless they play ball with the city. 

In yesterday’s story, the Standard treated people to what they did not need to know while neglecting issues of much greater importance.  The Standard owes its readers and the businesses a correction pertaining to its speculation, and an apology for its omissions of known information and a general failure to investigate using all the tools at its disposal. 

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(1) https://www.postandcourier.com/aikenstandard/news/local-government/aiken-businesses-in-footprint-of-project-pascalis-share-reactions-to-redevelopment-plans/article_5a161a48-083b-11ed-a238-87866c0e6316.html

(2) A Project Pascalis Timeline 

(3) https://aikenmdc.org/wp-content/uploads/2022/06/Anderson-Contract.pdf

(4): https://aikenmdc.org/wp-content/uploads/2022/03/2021-11-09A-Municipal-Development-Commission-Agenda-Packet-Updated.pdf

(5) https://aikenchronicles.com/2022/07/16/when-no-info-is-good-info-a-city-not-listening-the-antique-mall-and-newberry-hall/

Barely Insured: The City of Aiken’s Management of the Historic Hotel Aiken

Recently obtained documents reveal the City of Aiken has declared no insurance value for the historic Hotel Aiken, and is paying an annual insurance premium of only $441 on the hotel. (1) The City of Aiken has provided no reason for the decision to leave the hotel nearly uninsured. 

Hotel Aiken: No Value, Barely Insured 

The City of Aiken’s Municipal Development Commission (AMDC) purchased seven properties at a cost of $9.5 million in early November, 2021. The purchase was funded by a bond issuance approved by Aiken City Council three months earlier. (2). Two of the properties, the Hotel Aiken and the adjacent Holley House Motel, were vacant at the time of the purchase. The combined purchase price for these two properties was $4.25 million. 

The properties form a substantial portion of the proposed, but evolving, demolition and redevelopment endeavor in downtown Aiken called Project Pascalis.  The project is promoted and led by the AMDC, which was formed in 2019 and has no prior, largescale institutional development experience. 

After the original developer GAC, LLC (agent: Weldon Wyatt) exited from the project in May, 2021 for unknown reasons, the AMDC eventually selected RPM Development Partners, LLC (agent: Ray Massey) as its replacement in December 2021.  The AMDC signed a conditional purchase and sale (PSA) agreement for the seven properties, pending a final master cost-sharing and development agreement. That PSA remains confidential and exempt from a Freedom of Information Act request. The AMDC has stated that it will offer “a discounted price for the property upon which they will build the hotel and apartments.” (3) 

A request for proposals (RFP) leading up to RPM’s selection occurred in May, 2021 and was not publicly advertised as required by South Carolina Community Development laws. A legal advertisement for RFP’s was placed ten days after the selection of RPM. As a result, the legitimacy of RPM’s status as the developer has been challenged in court. (4)

The Hotel Aiken was placed on the city’s historic register in 2018. The designation remains despite the city’s Design Review Board (DRB) approval on March 1, 2022 of a demolition application from RPM for the hotel and the adjacent building titled 106 Laurens St, SW. The permission to demolish, approved by a vote of 6-1, is conditional, and demolition will not occur until RPM has a final agreement to purchase the property, has a final master agreement with the AMDC, and final designs are approved by the DRB.

In a document titled “Property Schedule,” attached to the first page of the property declarations portion of the city’s property insurance policy, no value is assigned to the Hotel Aiken. This zero value was assigned months prior to the demolition application being filed. 

The annual insurance premium for the hotel is only $441, less than the premium for the average 1200 square foot home. The total insurance value is only $284,060, even though in 2021 the Aiken County Assessor appraised the market value of the land at $562,000 and the hotel improvements at $987,000 for a total appraised market value of $1.549 million. 

Another way of looking at the value of the Hotel Aiken is by examining the offers the AMDC received in 2021. According to a redacted review of bidders (5) involved in the May, 2021 RFP process, one developer was rejected for only offering $1 million for the hotel property, described in the review as a “deeply discouted (sic) price.” 

In contrast, the adjacent Holley House motel, which is also vacant and part of the Project Pascalis demolition zone, has an assigned value of  $2.25 million and an annual policy payment of $3493. Every other building in the demolition zone also has an insurance value matching the AMDC’s purchase prices. (See Property Declarations Table). 

When asked about the lack of insurance value for the Hotel Aiken, city officials declined to comment. The question as to why the AMDC spent more than $2 million on land and improvements, describe a $1 million offer as a “deeply discounted” value, and then chose not to insure the improvements against fire or other losses also remains unanswered. 

____________________

Coming Soon: Part 2: Less Protected: A before and after comparison of fire protection programs for downtown AMDC properties.

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(1) A Freedom of Information Act (FOIA) request was filed on July 11, 2022. The request was for: 

“Copies of the Property and Building Insurance Policies for the following AMDC owned properties 121-21-09-001: 106 Laurens St 121-21-09-002 : Hotel Aiken 121-21-08-001 Holley House 121-21-08-002: Taj Restaurant + 121-21-08-003: Old Johnson Drug Store 121-21-08-004: Warneke Cleaners 121-21-08-004: Newberry Hall. These commercial property and building insurance policies should be readily on hand and retrievable within fifteen minutes.”

The City of Aiken responded on July 18 with a $16 charge for 1.25 hours of search and retrieval labor. After receiving payment on July 18th, the city waited until July 21st to release three documents: 

File name Document Description
insuranceinfo.pdf The Property Declarations page and the “property schedule.” 
Property Schedule – Pascalis Project.pdfA January 19, 2022 table of insurance values
SCMIRF-Property Coverage Contract 2022.pdfThe City’s Insurance Policy for city property. 

The insurance policy is titled “SOUTH CAROLINA MUNICIPAL INSURANCE and RISK FINANCING FUND COVERAGE CONTRACT 2022.” 

Only a portion of this document, the “property declarations” chapter, was provided in the FOIA response. The city claims that the remaining portions do not apply to AMDC owned properties. Chapters detailing coverage declarations for liability, crime, and casualty coverage were considered unrelated to the request for entire insurance policies. 

The issue is presently under appeal to Aiken City Manager Stuart Bedenbaugh. 

The documents are are available at: 

Hotel Aiken Fire Information – https://drive.google.com/file/d/1krYZVK5MrOVDOGxr_cAWzUpdyBhSmhJk/view?usp=sharing

Hotel Aiken et al property declarations – https://drive.google.com/file/d/1LGsW1ZOpzCD7vimEoEnepygtmQ2kf4nh/view?usp=sharing

Hotel Aiken et al and city insurance policy – https://drive.google.com/file/d/1Y29OaSyUmtBmUheZ-iq3BfME7_JM4kHs/view?usp=sharing

(2) A table showing the seven properties, the purchase values, and the county’s assessed values, can be viewed at: https://i0.wp.com/aikenchronicles.com/wp-content/uploads/2022/07/d117f8c8-47de-42c9-b18e-c928155e1e07.jpeg?ssl=1

“A Timeline for Project Pascalis” can be viewed at: https://aikenchronicles.com/2022/06/29/a-project-pascalis-timeline/

(3) https://aikenmdc.org/2022/05/16/just-the-facts-why-pascalis-how-do-we-pay-for-it/

(4) A lawsuit filed on July 5, 2022 challenging nearly all aspects of the Project Pascalis proceedings can be found at: 

https://publicindex.sccourts.org/Aiken/PublicIndex/PIImageDisplay.aspx?ctagency=02002&doctype=D&docid=1657032061451-750&HKey=1225510198105101819811411111368116736686988811779851011126650118568710782105981141011085499115100111699969

(5) https://aikenmdc.org/wp-content/uploads/2022/03/Pascalis-offers-comparison_Redacted.pdf