The most prominent item on the Aiken City Council’s July 11, 2022 meeting, other than another closed-door executive session regarding Project Pascalis, is a proposed amendment to the ordinance defining and governing the Aiken Municipal Development Commission (AMDC). The AMDC is the governmental side of the braintrust behind the $100 million plus project to demolish a substantial portion of downtown Aiken and construct a new hotel, apartment complex, parking garage, retail space, and a conference center.
The issues surrounding this amendment were first reported in “Reminder of the Day: The AMDC Cites the Law, Then Sets Its Own Rules,” with an updated version posted on July 1st. This account detailed the differences between City of Aiken law and AMDC bylaws, and the city’s contentions that the differences are the result of a “scrivener’s error,” and that City Council’s original intent was to allow membership.
A review of past city council agendas and minutes reveals no intent to change membership requirements to include non residents who have “vested business interests” in the city.
The July 11th Hearing
In Agenda Item #1 of new business for the July 11th meeting is the “First Reading of an Ordinance to Amend the City Code (Section 11-2) Regarding Membership of the Municipal Development Commission.”
The supporting memo from the Aiken City Manager merely states:
In reviewing our enabling ordinance for the Aiken Municipal Development Commission [AMDC], we believe that the membership paragraph needs to be updated. The current language states that members will be citizens of the City of Aiken. We propose adding to that “or have vested residential and/or business interests within the Commission’s jurisdictional boundaries. (1)
City code presently specifies that AMDC members be “citizens of Aiken.” The memorandum contains no discussion of the following facts:
a. Nonresidents currently are serving on the AMDC and have voted on resolutions that have been forwarded to City Council. This is essentially an amendment to grandfather these members into compliance.
b. The AMDC’s final bylaws, written and adopted by the AMDC in December 2020, defined membership criteria as “vested residential and/or business interests,” and 18 month has passed since that policy, which was contrary to City code when it was written, was adopted without Council approval.
c. This is a matter currently identified in the lawsuit filed July 5th seeking an injunction against Project Pascalis
d. The definition of “vested business interests.
The memo also omits any supporting evidence of past intent by City Council, most likely because none exists. Yet, the city is asserting publicly that a “scrivener’s error” is the source of the problem. If that is the case, it has to present clear and compelling evidence of the original intent.
The city has not. The proposed amendment, simply put, involves the city changing the law to comply with bylaws that were written and adopted even though they did not comply with to city law. There is no evidence of prior intent, and therefore no evidence of a “scrivener’s error.” The AMDC should be rewriting its bylaws to comply with the City Council approved ordinance, not vice-versa.
AMDC Formation and Amendments: 2019-2020
The first reading of the ordinance establishing the AMDC was held on June 10, 2019, and it was the third item (2) of new business that day. In the supporting memorandum for creation of the AMDC, City Manager Stuart Bedenbaught wrote:
Proposed bylaws are attached at the request of Council as a one page summary of the commission. AMDC, an arm of City Council, will be utilized to facilitate public and private investments which reduce physical and economic blight, foster new business startups and expansions, and increase the availability of decent and affordable housing in the identified area.
The proposed bylaws contained no mention of membership requirements. There was also no discussion of membership requirements during deliberations. Two citizens, Jane Vaughters and Reggie Ebner, raised numerous concerns about the new commission, and no citizens stepped forward in support.
The ordinance passed its first reading by a vote of 5-1, with only Councilperson Dick Dewar dissenting (Councilperson Gregory was absent). According to the minutes for that meeting, he seconded Ms. Vaughters’ concerns:
Many of the matters that Ms. Vaughters talked about are listed in Chapter 10, such as borrowing money, issuing bonds, adopting a seal, etc. (Councilperson Dewar) felt this may be a body of government that he is not sure Aiken needs. He pointed out that the Aiken Corporation is empowered to do what he felt the Redevelopment Commission would do. He said he was confused as to what we would expect the Redevelopment Commission to do that we can’t get done with the Aiken Corporation and the city board structure that we have.”
On August 14 ,2019, the ordinance came up for its second and final reading. It again passed that day by a vote of 6-1. Councilperson Dewar being the sole dissenter, and his concerns were more numerous than at the first hearing, and, according to the minutes, included the following:
He noted that the first sentence in the ordinance says ‘whereas the staff of the City of Aiken has advised City Council that a blighted area or conservation area exists.’ He said he did not know where the blighted areas is. He felt that was a very general comment to make and it should be specified. He said by adopting this ordinance we would be approving the charter without approving the rules of the charter.
At neither of the hearings was the issue of membership criteria that included only a “vested business interest” ever raised. The only statement about membership at the second and final reading was:
The proposed commission would consist of nine members,three of whom will be City Council members and six commissioners appointed by City Council to help with economic development. The City Manager would serve as an ex-officio member of the Commission. Bylaws would be drafted by the new commission.
The September 2020 Amendment
The Commission did not meet until May of 2020. During that summer a few council members, most notably Ed Woltz, recused themselves from any commission votes that may come before City Council. This led to an amendment regarding membership that passed a second reading on September 14, 2020.
This amendment only pertained to the number of voting AMDC members, which was increased to nine, while three City Council memberships were converted to non-voting “ex-officio” status. There was no discussion of residency requirements in the City Manager’s supporting memorandum, and the detailed meeting minutes do not cite any discussion about citizens with “vested business interests’ serving on the commission.
During the first reading at their August 24, 2020 meeting, council expressed support “to remove the present three Councilmembers from ex officio members, ask the Commission to recommend three members to replace the three Councilmembers, and empower the Commission to be able to amend the bylaws as they see fit.” But no language was added that allowed for a bylaw amendment to automatically trigger an amendment to the ordinance.
The September 14, 2020 meeting minutes pertaining to amendment reads:
“(City Manager) Mr. Bedenbaugh stated Council created the Municipal Development Commission in August 2019. The commission has been actively meeting and has made a recommendation to Council to amend its enabling ordinance to allow for a more efficient operation by the board. Specifically,the Commission recommended that its voting membership stay at nine. The current three City Council members would gain ex officio status, which would necessitate three additional appointments to be made.”
If there is any evidence of past intent, the City of Aiken has yet to locate and present it.
The “Scrivener’s Error”
The language of the September 14, 2020 amendment is clear in the packet agenda:
Nine commissioners shall be citizens of the City of Aiken…
The City of Aiken contends a “scrivener’s error” is the cause of the ordinance not reading “vested residential and/or business interests,” but has yet to offer any evidence of council intent.
The 1996 edition of Barron’s Law Dictionary defined a “scrivener” as “a term, infrequently used in the United States, signifying a writer or scribe, particularly one who draws legal documents.” The City of Aiken does not have a “scrivener.” The City Attorney is responsible for a range of duties that can be considered analogous to a scrivener, including:
“the city attorney shall prepare and revise ordinances when so requested by any member of the city council.”
Although the term scrivener remains obscure, the “Scrivener’s Error Doctrine” is still a term more widely in use in the legal community. According to the website lawyer.zone, “Scrivener’s Error doctrine is one that states that when there is a typographical error or a minor mistake, the court can correct the mistake when it’s absolutely clear.”
In a 2016 paper challenging the strictness of this doctrine, Harry Bigelow of the Chicago School of Law wrote, “it is widely accepted that courts may correct legislative drafting mistakes, i.e., so-called scrivener’s errors, if and only if such mistakes are ‘absolutely clear.’” (3) Any reasonable examination of this paper indicates this is a complex issue that could ultimately be decided by the courts.
City Council is not a court, and there is no clear mistake that was made during the drafting of the AMDC’s ordinance, or the only amendment to it. The AMDC’s by-laws were finalized three months after the September 2020 membership amendment. While Council did express its support for the AMDC to draft its own by-laws, it did not allow a change in by-laws to trigger a change in the law; and doing so would undermine the entire system of city government and leave the law in the hands of unelected officials.
References
(1) City of Aiken agenda and meeting minutes can be found at
https://www.cityofaikensc.gov/government/city-council/
(2) The AMDC is currently composed of eight men and one woman. In spite of frequent discussion at its meetings about “what millenials want,” most members are not millennials, and no age criteria was discussed in the context of commission membership requirements. In fact, there were no requirements for membership in the initial proposed ordinance.
Coincidentally, the second item on the September 14, 2020 council agenda was the “First Reading of an Ordinance to Rezone Property at 828 Richland Avenue W and 159 Morgan Street NW from Office (O) to Planned Commercial (PC) and Approve a Concept Plan.” This is the “old hospital” property and site of the former county administrative complex.
That plan involved local developer Weldon Wyatt’s proposal to destroy the existing buildings and construct a new hotel, apartment complex, garage, and conference center in its place. That story is discussed in “Reminder of the Day: Project Pascalis and The Wyatt Factor.” https://aikenchronicles.com/2022/06/21/project-pascalis-and-the-wyatt-factor/
The agenda packet that day included an eighteen page submission from Mandy Drumming, a millenial who made the case for restoration of the old hospital instead of demolition. (Pages 270-285) Part of that submission was a copy of the Spring 2019 edition of The Rambler, a publication of the Georgia Historic Trust, titled “Millenials and Preservation.”
https://www.georgiatrust.org/the-rambler-publication/spring-2019/
(3) https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=12504&context=journal_articles
