by Don Moniak
August 13, 2022
Recently obtained documents add weight to allegations that Aiken City Attorney Gary Smith, also the agent for the law firm of Smith, Massey, Brodie, Guynn, and Mayes, violated State of South Carolina ethics law by failing to properly recuse himself from the City of Aiken’s $100 million plus demolition and reconstruction endeavor known as Project Pascalis. No written evidence of a recusal has been produced by the City of Aiken, and Mr Smith has acted in his role as Parliamentarian at numerous City Council meetings where Project Pascalis or its funding was on the agenda.
These documents also further undermine the credibility of City of Aiken contract attorney Gary Pope, who on April 20, 2022 issued a strongly worded, though weakly supported, defense of Mr. Smith, claiming that he had “recused himself” via a phone call at “an early juncture of the project.” Mr. Pope never defined the date of that alleged recusal, and no written recusal, as required by law, has been produced.
Three lawsuits to date (1) allege that City Attorney Gary Smith failed to recuse himself from business related to the $100 million plus downtown demolition and reconstruction endeavor known as Project Pascalis. Specifically, litigation to date describes Mr. Smith acting in his customary roles of Parliamentarian and legal advisor during:
- The January 24, 2022 City Council meeting where a proposal before City Council to sell city property to a firm represented by his partner Ray Massey was discussed in closed-door, executive session; and
- The March 28, 2022 first public reading and hearing of the Newberry Street privatization (conveyance) ordinance which sought to transfer a part of Newberry Street to RPM Development Partners, LLC in exchange for land owned by Aiken Alley Holdings, LLC, also owned in part and represented by Ray Massey.
To date, litigants have not included his actions in the August 9 and 23, 2021 public hearings when Aiken City Council unanimously approved $10 million in general obligation bonds for use by the Aiken Municipal Development Commission (AMDC) to purchase properties undefined by the ordinance drafted by Mr. Smith, but well known to commissioners and Mr. Smith’s law firm.
Recently obtained documents reveal:
- On behalf of their client, WTC Investments, LLC; at least one member of the law firm of Smith, Massey, Brodie, Guynn, and Mayes helped negotiat the purchase and prepared purchase and sale agreements for the seven Project Pascalis properties now owned by the AMDC.
- City Attorney Gary Smith had not recused himself in June, 2021 while secret negotiations were ongoing with potential developers.
- City officials discussed the potential conflict of interest in June 2021 after Aiken Muncipal Development Chair Keith Wood expressed concern over Mr. Smith’s continued involvement in the project and in potential meetings with developers.
- City officials referenced the potential conflict of interest again in December, 2021 when his law partner was announced as a leader in the Project Pascalis development team.
In spite of these facts, Gary Pope, Jr. of the Pope-Flynn law firm stated at an April 20, 2022 public meeting that Gary Smith had recused himself “at an early juncture” of the project and “has been uninvolved in these matters.”
As the presiding officer in these official city proceedings, Aiken Mayor Rick Osbon was also remiss in his oversight of the state’s ethics laws that are intended to prevent corruption in government and to “make public servants more accountable to the citizens they serve in order to restore public trust in government institutions and the political and governmental processes.” (2) When confronted by Aiken County resident Drew Johnson with conflict of interest allegations on May 9, 2021, Mayor Osbon blithely dismissed the issue by stating the “City Attorney does not vote,” and accused Mr. Johnson of libel.
Recusals and the Basis for Conflict of Interest Ethics Violations
South Carolina law prohibits public officials, members, and employees from using their status to gain an economic interest or influence decisions affecting themselves, their family, their associates, and any associated business. The law requires anybody with a conflict of interest real or perceived to present written statements to that affect, and for “presiding officers,” such as Mayors, to excuse the person from the proceedings in which there is a conflict. (3) This is a major anti-corruption statute.
Recusals are not uncommon in City of Aiken proceedings. For example, Mayor Osbon recused himself from November, 2019, to January, 2020, from the process of selling city property composed of two parts: the City’s former finance and administrative building at 135 Laurens St, SW.; and a parking lot and drive-up building at 130 Pendleton St SW. The purchaser was WTC Laurens, LLC a firm owned, at least in part, by local investor and developer Weldon Wyatt, managed by his son Tom Wyatt, and represented by Thomas “Chip” Goforth. The final negotiated purchase price was $1.3 million. (4)
Mayor Osbon recused himself because he owned adjacent property where his downtown dry cleaning business, Osbon Cleaners, is located. Mayor Osbon’s recusal turned out to be especially necessary, because in May, 2021, the investment firm he represents, R and O, LLC, purchased the Pendleton Street portion of the property for $500,000 from WTC Laurens, LLC. City Attorney Gary Smith, who has held the position on a contractual basis since 1996, announced Mayor Osbon’s recusals during the sale process.
The power and significance of the City of Aiken’s City Attorney is apparent in state law, and city code and policy. According to the City of Aiken’s “Handbook for Effective Boards, Commissions and Committees:”
“The City Attorney, like the City Manager, is appointed by, and serves at the pleasure of, the City Council. As the City of Aiken’s chief legal advisor, the City Attorney consults with the City Council, its committees, the City Manager, and other city officers, when requested, on all legal questions arising in the conduct of city business. The City Attorney also serves by preparing city ordinances, reviewing all contracts to which the city is a party, and appearing for the city in all actions, cases, and special proceedings before all courts in which the city is a party. The City Attorney is directly responsible to the City Council, but acts in concert with the City Manager. “ (5)
According to a 2003 opinion from the South Carolina Attorney General’s office, the City Attorney is considered a “pubic member” subject to the same rules as public officeholders. In her lawsuit alleging a conflict of interest, Aiken resident Kelly Cornelius cited this 2003 opinion declaring the position is an “office for dual-office holding purposes.” At the time, Gary Smith was inquiring if his position as City Attorney disqualified him from holding a position with the Aiken County Commission on Higher Education. He believed he could hold that office, while the Attorney General disagreed. (6)
The City Attorney also acts as the City’s “Parliamentarian,” generally defined as “an expert in interpreting and applying the ‘Rules of Order’ for meetings,” that “enable groups to efficiently and fairly discuss and determine actions to be taken.” Gary Smith explained this role to the AMDC during his June 2, 2020 briefing on FOIA, ethics, and procedure, citing Section 2-68 of the municipal code:
“City attorney to attend, act as parliamentarian, etc. The city attorney shall attend all meetings of the council, unless excused by the council. The city attorney shall act as parliamentarian, propose ordinances and resolutions, review all ordinances, resolutions and documents presented to the council and give opinions upon questions of procedure, form and law to any member of the council.”
Smith also outlined ethical issues under SC law to AMDC commissioners that day.
d. Ethical Issues for City Council and Board Members
i. Sec. 8-13-700(A), SC Code of Laws—No public official… may knowingly use his official office, membership, or employment to obtain an economic interest for himself, a family member, an individual with whom he is associated, or a business with which he is associated.
ii. If a Council member is concerned about a possible conflict of interest,that member should consult the City Attorney who will seek an Informal Ethics Opinion from the South Carolina State Ethics Commission.
1. Please give as much notice as possible as these opinion letters can take up to a month to process.
iii. If a Council member is determined to have a conflict of interest, that member must refrain from ALL discussions regarding the matter.
1. Council member to leave the public meeting during the discussion and vote on the matter.
2. Council member must fill out the City Conflict Form.
3. Council member should have no informal discussions with Staff, other Council members, or the public.” (7)
There can be no doubt that after twenty six years as the City of Aiken Attorney, Gary Smith is an expert on the theoretical application of ethics law to city government. Yet, time and again he failed to formally recuse himself in writing, as mandated by ethics law, from proceedings where there were obvious and potential conflicts of interest; and this began early in the Project Pascalis history.
It also can not be overstated that while the City Attorney does not have a formal vote, they are integral to influencing and shepherding the city’s legislative process. It is one of the most powerful and influential positions in city government, alongside the City Manager and the Mayor.
The “Early Juncture” of Project Pascalis
On April 20, 2022, contract attorney Gary Pope, Jr. of the Pope-Flynn law firm informed a public gathering that Gary Smith had phoned him at “an early juncture” in the Project Pascalis proceedings to inform Mr. Pope he needed to fill the City Attorney role for project issues because Mr. Smith had recused himself. No date was given for the alleged recusal, and Mr. Pope did not discuss the fact that a phone call between colleagues is not a lawful recusal under South Carolina ethics law.
The only evidence the City of Aiken has provided in support of the recusal contention is an October 14, 2021 “Dual Engagement” agreement between the AMDC, the City of Aiken, and the Pope-Flynn law firm. The letter contains no reference to any recusals on the part of Gary Smith.
The earliest juncture of Project Pascalis is March 2021, when the AMDC announced on March 17th it had “identified and recruited an experienced, well-capitalized developer” to enter into a joint redevelopment venture with the city. Members of the law firm Smith, Massey, Brodie, Guynn, and Mayes were responsible for negotiating property purchases in what would come to be known as the Project Pascalis development area.
Also in March, 2021, Aiken City Council sanctified this land consolidation approach, though not the exact mechanism, by approving an “Economic Master Development Plan” prepared by the AECOM corporation (8). In the plan, consolidated land ownership is encouraged, while “fragmented” property ownership is cited as an impediment to growth.
Following the adoption of the AECOM plan, on March 29, 2021 Mayor Osbon wrote a letter to the AMDC in which he outlined his and “his colleagues” goals, including a conference center with a capacity for 500 people, adjacent to “first class lodging,” that should include a renovated or redeveloped Hotel Aiken — all with sufficient parking.
The law firm of Pope-Flynn, which had acted as counsel in previous City of Aiken municipal bond actions, was working for the AMDC. Attorney Gary Pope, Jr.; completed a cost-sharing agreement between the AMDC and project developer GAC, LLC (agent: Weldon Wyatt) in March 2021; and worked on an incentive agreement with the developer in April, 2021.
It is unclear who was providing additional legal advice to the AMDC during this period. Neither Gary Pope, Jr, nor Gary Smith are listed on the attendee list of any AMDC public meetings from March, 2021 through October, 2021, even though the AMDC held nine meetings during this time, including eight closed-door, executive sessions.
Documents dated between March, 2021 through June 11, 2021 indicate that Gary Smith had not recused himself from Project Pascalis proceedings even as his own law firm represented the land purchasing arm, WTC Investments, LLC (Agent: Ray Massey) of the project’s developer, GAC, LLC (Agent: Weldon Wyatt). Smith had also not recused while his partner, Ray Massey, was involved with soliciting other developers after GAC, LLC withdrew from the project in early May, 2021, nor after a discussion about potential conflict of interest occurred between AMDC commissioners and City Manager Stuart Bedenbaugh.
Simply put, the early Project Pascalis system of property acquisition (see “Property Aquisition Timeline”) and design worked as follows:
- The AMDC and GAC, LLC finalized a cost-sharing agreement, drafted by Attorney Gary Pope, on March 23, 2021 that required GAC, LLC to be able to obtain properties necessary for development, and
- Smith, Massey, Brodie, Guynn, and Mayes, on behalf of WTC Investments, LLC, and Alley Holdings, LLC (Agent: Ray Massey) made arrangements to consolidate land for the redevelopment effort.
Members of Smith, Massey, Brodie, Guynn, and Mayes, LLC negotiated and prepared purchase and sale agreements to consolidate property for Project Pascalis on behalf of WTC Investments, LLC. (9)
On April 4, 2021, Smith, Massie, Brodie, Guynn, and Mayes, LLC sent a $6,800 “Bill for Services Rendered” to WTC Investments, LLC, ATTN: Chip Goforth.
“Prepare Contracts and negotiate contracts for purchase of hotel, purchase of Mrs. Anderson’s property and purchase of Antique Mall.”
Two weeks later GAC LLC submitted an invoice to the AMDC that included half of this cost (see below).
At the time, WTC Investments, LLC was reported as “dissolved” by the South Carolina Secretary of State’s Office. It would not be reregistered as a SC limited liability company until May 11, 2021, the day before the Chamber of Commerce took assignment of the “Shah Property” consisting of six different properties. The agent for the newly reregistered WTC Investments, LLC was Ray Massey, just as he had been when WTC Investments unsuccessfully pursued redevelopment of the old Aiken hospital property in 2019.
Smith, Massey et al also controlled the $135,000 in earnest money deposited by WTC Investments for the seven properties. The last of this earnest money was released in June, 2021. On June 3, 2021, Thomas “Chip” Goforth from WTC wrote to Mary Guynn, and cc’ed to Ray Massey:
Mary, We assigned the Myrtle Anderson Contract to Aiken Chamber of Commerce (ATTACHED), you can release the $35,000 Earnest Money we had up. You can wire to our account.
The next day, GAC Management, LLC sent an invoice to “City of Aiken Municipal Development Comm, “Attn Tim O’Briant” for $14,417.50 for concept design and property contract work. $3,400 is billed for “Prepare Contracts and negotiate Contracts for purchase of hotel, purchase of Mrs Anderson’s property, and purchase Antique Mall.”
This is fifty percent of the amount billed to WTC Investments, LLC by Smith, Massey et al on April 4, 2021, as was allowed under the AMDC/GAC cost sharing agreement.
There is no doubt that members of the law firm of Smith, Massey, Brodie, Guynn, and Mayes were heavily involved in the earliest stages of Project Pascalis.
Phase Two Begins and A Flag is Raised
After the Chamber of Commerce took assignment of the seven properties, on behalf of the AMDC, in the proposed Project Pascalis demolition and reconstruction zone, Ray Massey pursued development options in conjunction with AMDC efforts to solicit new developers. In a June 4, 2021 email exchange between WTC Investments, LLC representative Chip Goforth and AMDC Executive Director Tim O’Briant cited “Ray and his group,” as a party pursuing new developers for the project.
In early June, 2021 the AMDC was also in discussions to select an unnamed developer in response to a privately issued request for proposals (RFP) sent in May, 2021 to select firms. On June 10th Tim O’Briant sent an email titled “Lobbying Concerns” to all AMDC members, City Manager Stuart Bedenbaugh, Diana Floyd, and ex-officio member Arthur Rich (10). In it, O’Briant wrote:
I understand that at least one of the firms we considered on Tuesday in executive session is making efforts to contact commission members to lobby for their proposal.
In all cases, please refer any questions about the status of the selection or the process to me. While I am pursuing discussions with the single developer, I will not be informing the other firms of that and until late next week at the earliest. I know I don’t need to remind you that any discussion of what occurred in executive session could be very damaging to the process.
Please call me if you have any questions or concerns.
Hours later, in response to the email, AMDC Chair Keith Wood raised the conflict of interest issue, but cited the matter as “CONFIDENTIAL” and only related his concerns to City Manager Stuart Bedenbaugh, Tim O’Briant, AMDC Vice Chair Chris Verenes, and AMDC Treasurer David Jameson. Wood wrote on June 10, 2021:
CONFIDENTIAL
Stuart,
Indirectly related, I have concerns relative to a conflict of interest the City Attorney may have in our process. I noted that Ray Massey submitted the Alley proposal on letterhead that included Gary Smith’s name. In addition, I am concerned that Gary’s attendance in future meetings with developers may compromise our process based on his relationship with Ray Massey (i.e. same legal firm). I recommend we ensure the proper firewall exists to alleviate any real or perceived conflict of interest.”
Bedenbaugh responded early the next morning, June 11, 2021, with a statement that appeared to confuse Attorney/Client privilege with the conflict of interest provisions in SC ethics law:
Keith,
Thank you for reaching out. We have had similar questions in the past and have not had any problems. Gary is bound by Attorney/Client privilege as the City Attorney and historically has taken that very seriously, as he recognizes he could face discipline by the SC Bar, as would any attorney that violates that precept.
Smith, Pope and Project Pascalis: Fundraising, Property Purchases, and the Selection of RPM Development Partners, LLC
Gary Smith continued in his role as the City of Aiken Attorney during Project Pascalis related proceedings. On August 9th and 23rd, 2021, Gary Smith was the Parliamentarian and legal counsel when City Council passed an ordinance authorizing, without a referendum, a $10 million general obligations bond issuance. The bond issuance allowed the AMDC to purchase undefined private property within the city’s Parkway District under the pretext of addressing abandoned buildings and impending blight, but without specifying which properties were being sought. (11)
Gary Pope, Jr acted as a counsel on the bond issue, as his firm had prepared the offering.
However, the Pope-Flynn law firm’s Pascalis work was not formalized until the signing of a October 15, 2021 letter titled “Advice and Counsel—-Joint Engagement by City of by Aiken Municipal Development Commission and City of Aiken.” In it, Pope-Flynn laid out the terms of the firm’s Project Pascalis involvement. (12) Although six months later this was cited as evidence of Gary Smith’s recusal, no reference to any recusals are in the agreement letter.
Shortly after that, Pope-Flynn’s involvement grew. The AMDC paid $9.5 million to accept the Chamber of Commerce property “assignments” on November 9, 2021. Pope-Flynn’s invoice for November, 2021 for $19,586 of billable work to the AMDC for described 62.8 hours of work by Pope-Flynn lawyers and paralegals involving the $9.5 million purchase, subsequent relocation assistance agreements, a “Letter of Intent” from Newberry Hall’s owners Patrick and Natalie Carlisle, AMDC meetings and executive sessions, and then another set of purchase and sale agreements. (13)
The purchase and sale agreements (PSAs) that Pope-Flynn helped prepare in the latter half of November, 2021 were between the AMDC and RPM Development Partners (Agent: Ray Massey), which had registered as a South Carolina company on October 27, 2021, nearly two weeks after the Dual Engagement letter was signed. RPM is primarily composed of Raines Company (or Raines Hospitality Group), the Lat Purser company, and Ray Massey. City officials and Massey have declined to identify any other local investors.
From December 1 to December 3, 2021, Tim O’Briant and the AMDC “Executive Committee” drafted and crafted a news release regarding the selection of RPM and the signing of the PSA’s. (14) In a December 2, 2021 email, AMDC Chair Keith Wood once again referenced the potential conflicts involved with having a City Attorney involved with the city’s developer that was represented by his law partner. Wood wrote:
1. Do we have to mention the Massey law firm as written? I think having Smith’s name in the release will raise unwanted questions.
2. Should we quickly mention our process to select RPM? If not, I think I need to do so tomorrow.
3. Let’s add a link to the Rainesco web site.
O’Briant answered fifteen minutes later, giving a nod to the power of investigative reporting:
Massey is listed as RPM’s registered agent and the firm’s headquarters as recorded by the Secretary of State are his law office. Paper will report that regardless.
As for the procurement process, O’Briant wrote:
Best done during the presentation and not written in materials.
Three hours later another draft was complete and Keith Wood wrote:
I am fine with this if Rainsco and Massey are comfortable with the sentence highlighted in yellow.
That sentence read:
“The Raines-led team was assembled by and includes a group of Aiken investors, including Attorney Wm. Ray Massey.”
It is unknown whether O’Briant called Raines and Massey or contacted them through one of his private email accounts, but twenty minutes later he wrote:
“They just gave it a thumbs up across the board.”
The news release was sent out the next day and RPM Development Partners, LLC was formally introduced as the Project Pascalis developer. Ten days after choosing its developer, the AMDC published a Request for Proposals for Project Pascalis in the Aiken Standard. This RFP advertisement was also prepared by Gary Pope, Jr. This belated attempt to satisfy South Carolina Community Development law is another subject of litigation.
The 2022 Project Pascalis Land Deals
On January 24, 2022 , Gary Smith was the Parliamentarian and city counsel when City Council considered a purchase and sale agreement for city owned property to a firm owned in part and represented by his partner, Ray Massey. One of the properties, the Municipal building fronting The Alley, was proposed for a five story retail and apartment complex in the original Pascalis designs; as part of a larger residential complex that included property in The Alley owned by Massey’s firm Aiken Alley Holdings, LLC.
As described in Blake et al vs. The City of Aiken et al (1), a purchase and sale agreement already signed by Ray Massey was presented to City Council in their agenda packet. The issue was discussed in closed-door, executive session. Subsequently, the agenda item was tabled but not rejected. The proposed sale can be revisited at a future date.
On March 28, 2022 Gary Smith was the Parliamentarian and city counsel when City Council held its first reading and public hearing before a packed council chambers pertaining to an ordinance privatizing 0.644 acres of Newberry Street as part of Project Pascalis. Earlier in the month, on March 1st, the city’s Design Review Board (DRB) conditionally approved the demolition of the Hotel Aiken and the 106 Laurens Street building, home to three existing small businesses.
Controversy surrounding the project was increasing, and Freedom of Information Act (FOIA) requests were beginning to affect the process. According to a Pope-Flynn billing invoice for Project Pascalis, on March 18, 2022 Gary Pope, Jr billed 0.5 hours for “communications with Gary regarding overly broad FOIA requests and research of prior language.” That half hour of communication cost the City of Aiken at least $225, as Gary Pope Jr’s rate is $300/hr and Gary Smith’s rate is $150/hr. (Clarification: 10/5/21: The billing was for Pope-Flynn associate Sarah Weathers, probably for discussion with Gary Pope, Jr.)
The Newberry Street ordinance would transfer a significant portion of the publicly owned Newberry Street to RPM Development Partners, LLC in exchange for two smaller parcels totalling 0.24 acres owned by Aiken Alley Holdings, LLC . The “property swap,” as the ordinance phrased it, was conditional upon final agreements being reached between RPM and the AMDC. (15)
The city’s odd justification for the “property swap” was that, without it, the proposed apartments and conference center on that block would exceed the city’s fifty-five foot height requirement. The fact that the AMDC had offered a part of Newberry Street to prospective developers in May of 2021 never came up for discussion that day.
The meeting was unusually full, with more than eighty people attending. Public comments overwhelmingly opposed the privatization proposal as well as the overall project. The last speaker was Design Review Board member Katy Lipscomb, who described the process as segmented, disjointed, and confusing.
Immediately after the public comments, Gary Smith became involved in the discussion of an ordinance he had helped write and that clearly involved his partner’s interests. In an exchange that verified Lipscomb’s sentiment, Smith himself initially appeared confused and deferred to AMDC Executive Director Tim O’Briant for clarification. Smith then turns more assertive and helps guide the ordinance towards approval. This transcript of the exchange reveals the confusion and complexity of the arrangement:
Ed Woltz:
I don’t see where (the ordinance) mentions Aiken Alley Holdings as transferring property. It mentions an RPM or RNP whatever it is but they don’t own the property . Aiken Alley Holdings does. So we’re doing an ordinance to transfer property with a group that doesn’t own the property is that correct?
Mayor Osbon:
I’d look to our city manager.
Stuart Bedenbaugh:
That is correct the ordinance does not mention Aiken Alley Holdings that is correct, but Aiken Alley Holdings consists of the same partners or some of the same partners so I would refer to I guess the city attorney, and is that something that could be handled with an amendment to the ordinance.
Gary Smith:
Um, maybe Tim knows the answer better than I do I thought that the agreement was between AMDC and the owners of the property. Did I misunderstand that? That’s how I understand.
Tim O’Briant:
That is correct there are additional members and investors in the rpm group outside of the Aiken Alley Holding which is a local group and yes those agreements would be between the AMDC and those investors. That would be contingent on their conveying that property to the overall project which is seen as in the betterment of the entire city to provide this economic development, and the conveyance of this right-of-way is going to be contingent on getting that entire agreement worked out with everybody. Essentially the vision of the ordinance is that all of this would happen simultaneously at any closing. Any closing is contingent upon DRB site plan approval, it’s also no small point about the elected officials. The real approval will be when the full plan is here and the council is asked to fund the project or not, so it will come back before council all of those pieces would have to be in place before the individual things came together.
Ed Woltz:
But this agreement, because we don’t have the owners of the property how’s it, I’m not smart to figure out how it can hold up when the people in the property aren’t a part of it. Just because some of the people are on that group doesn’t mean that the whole group’s going.:
Gary Smith:
If we don’t have a global agreement with all of the partners in the city and the Aiken Municipal Development Corporation then none of this is going to happen.
Ed Woltz:
Okay so don’t we need an agreement between Aiken Alley Holdings and RPM be executed too at the same time so when we agree with something with RPM we know that they can get the
Gary Smith:
We don’t have any control over that.
Ed Woltz:
Unless I miss that I’m not smart enough to figure this out.
Gary Smith:
In order for the right-of-way to be conveyed there’s going to be an agreement between everybody that has to be involved in the agreement and that’s going to include conveying the…
Ed Woltz:
I’m not a lawyer I don’t know I don’t see this I understand your simple language but i don’t see it here to say that and and so um i guess I’m a little confused.”
Tim O’Briant:
Yes sir, but this would authorize the mayor to execute the documents if all of the conditions precedent were met so i believe that that being the case if RPM development did not hold that property we would not convey it correct.
The April 20th Public Meetings: A Past Recusal is Vaguely Referenced
Gary Smith was not present on April 20, 2022, when the AMDC held the first open, public meetings, moderated by Tim O’Briant, addressing the entirety of the Project Pascalis proposal. (16) Instead, Gary Pope sat in his place, even though he, too, had worked on the project since its inception, including crafting the $10 million bond issuance that financed the AMDC purchase of the seven properties in the Project Pascalis proposed demolition zone.
The City of Aiken had replaced Gary Smith with Gary Pope, Jr., although this fact was not shared during the first meeting. Moderator Tim O’Briant did not explain the reason for Mr. Pope’s presence at either meeting until the conflict of interest issue was raised in the evening meeting by Aiken resident Kelly Cornelius. Three minutes after raising her concerns, and following another speaker, O’Briant returned to the issue, stating:
I was having a vapor lock which gave me an opportunity to remember what I wanted to say. I was a little bit concerned whenever individuals names are raised and brought into things. I don’t know if if Mr. Massey is here and if he’d like to address any of those concerns . I’m not sure if he’s here but I would like for Gary Pope just to discuss his role with the city and the commission and how that came to be and uh how the legal profession handles these ideas of uh conflicts.
O’Briant then deferred to Gary Pope for insights and opinions. Pope described a vague recusal process in an effort to prevent Gary Smith from being “besmirched:”
My name is Gary Pope. I’m with Pope Flynn. I work out of the Spartanburg and Columbia offices. I’ve typically served the city and capacity as bond council in connection with financings and also other special projects. At an early juncture in this project Gary Smith called me and said I believe that my partner may have maybe proposing as part of a group for this so I’m going to recuse myself, and I need you to represent the city and the AMDC as we go through this process.
So Mr. Smith has been uninvolved in these matters and I’ve been handling them on behalf of the city so I wanted to make sure before his good name was besmirched and let the record sort of reflect that we have done things by the book the right way and didn’t want to let that pass right, didn’t want that angle, and also that the property was sold from the sellers to the AMDC which Mr. Smith I believe does not represent any capacity currently that’s that’s my role at present, so i wanted to also clarify that he’s recused himself. (. )
Gary Pope, Jr never defined the date when Gary Smith called him, only stating it was at an early juncture; he did not articulate his role as defined in the October, 2021 “Dual Engagement” agreement. Mr. Pope did not explain that a phone call between colleagues is not a legally binding means of recusal in South Carolina, where the law requires “public members” such as Gary Smith to submit a written statement describing the matter and the conflict and “furnish a copy to the presiding officer of an agency, commission, board, or of a county, municipality, or a political subdivision thereof, on which he serves.”
May 9th, 2021: The Newberry Street Ordinance Has a Different City Attorney.
On May 9th, the Aiken City Council held a public meeting that included a second hearing on the Newberry Street privatization ordinance (17). By this time the ordinance had been amended to include 0.26 acres of Newberry Street, but the building height justification remained.
According to another Pope-Flynn invoice (18) for Project Pascalis, ethics was a billable subject prior to the meeting. The invoice for the month of May, 2021 reveals that Gary Pope, Jr billed 1.7 hours for discussions involving a “question of a conflict of interest asserted by Ms. Dione,” referring to Aiken attorney Dionne Carroll.
Absent from the entire proceedings was Gary Smith and in his place as Parliamentarian and legal counsel on all city matters was Gary Pope, Jr. According to Pope-Flynn’s May 2022 invoice, Pope had helped amend the Newberry Street privatization ordinance.
The chamber was standing room only, with more than 120 people in attendance. This time supporters of the proposal appeared and spoke, and approximately fifty people stood up when asked to by Chamber of Commerce Board President Norman Dunagan.
Conflict-of-interest issues were raised at least five times that evening. The earliest exchange, between Mayor Osbon and Aiken City landowner Drew Johnson, had passages not recorded in the official meeting minutes. As Johnson was stating, “you can’t have a city attorney give millions of dollars to his—“, Mayor Osbon interrupted to state: “The city attorney doesn’t vote to give any money.”
Johnson replied:
Well you and you guys all knew about that y’all had to have known that they were business partners which makes you guys look really bad. This is crazy.”
Mayor Osbon interrupted again, stating:
You can’t stand and libel the City Attorney.”
Johnson replied, referring to Gary Smith’s presence at the March 28, 2021 meeting:
I mean, I’m just telling the facts he was at the meeting.
At no time did Mayor Osbon acknowledge state law and city policies guiding potential conflicts of interest, nor did he acknowledge that while the City Attorney does not vote, he does prepare the ordinances that are up for a vote and provides legal counsel during the debate, as he did on March 28th.
After the public comment period, Council person Ed Woltz was the first member to speak, as he had been on March 28th. He articulated a number of concerns regarding the ordinance, primarily that Council would not have a final say on the matter. According to the minutes:
He felt it was Council’s obligation to the citizens of Aiken that we take a look at this before we give away the street. The people who are developing this have nothing but the best in mind, but it may not be what the rest of the committee thinks. He felt Council needs to take a second look, and we need to make sure we have the last say ‘yes’ or ‘no’ on whether this is a good master development agreement because it will affect the whole town.
Council person Kay Brohl then spoke, describing past projects as “controversial” while not addressing Woltz’s concerns. She also spoke obliquely to the conflict of interest issue by defending her colleagues:
Y’all were very respectful tonight but I’ve heard in times past insinuations that something underhanded or secretive has been going on that is just not true and I think that’s an affront to all of our character I don’t know anyone up here would do something like that and to have that insinuated about us is hurtful and disappointing.
Following Brohl’s comments, Pope interjected to offered legal counsel to Council regarding the issue raised by Woltz, accurately described in the minutes:
Mr. Gary Pope, Attorney, stated to Councilman Woltz’ point strictly speaking legally,the master plan does not need to come back to Council, but from a practical sense, it has to come back to Council because the public infrastructure is likely to be paid for by City Council and the money will need to be appropriated and the plan for finance will need to be finalized. That will need to happen before the master development agreement is finalized. For a practical sense it will have to come back, but speaking from a very narrow legal sense it does not need to come back, but it will be back.
Brohl commented again, agreeing with Pope, and stating:
But that’s the bottom line. I think people don’t understand that that they are not going to be given this money until this is finished.
Pope’s counsel also empowered Councilperson Andrea Gregory to state that City Council had the last word, that the “conveyance” and the project could not continue without approved funding.
After more discussion, the vote was taken and the ordinance passed 6-1, with Councilperson Woltz casting the lone dissenting vote.
Conclusions
Between March, 2021 and May, 2022, the two main attorneys for Project Pascalis have acted in a manner that undermines their credibility and severely weakened the public process.
City Attorney Gary Smith never recused himself from Project Pascalis related business, even though members of his law firm were involved in the project from its inception — both as representatives for the first developer and, at least in the case of Ray Massey, as investors in the project.
Mr. Smith was responsible for writing ordinances—and signing off on their approval—that provided nearly $10 million for the AMDC to purchase downtown properties and to give away a portion of Newberry Street to a developer represented by his law partner. On March 28, 2022, he provided legal counsel that helped guide the ordinance towards approval. All of this happened even after one member of the AMDC, Chairman Keith Wood, twice expressed concern over Smith’s role in the process.
From the beginning of the project, Pope-Flynn law firm’s Gary Pope, Jr has participated more directly and much more often in the Project Pascalis process than Gary Smith. Although he has yet to be named in any litigation, his role is hardly without controversy.
In November, 2021 Gary Pope, Jr. prepared the public advertisement for an RFP at the same time he was helping draft purchase and sale agreements with the yet to be announced developer. In March 2022 he consulted with Gary Smith on Project Pascalis FOIA issues. On April 20, 2022 he openly condemned any thought that Mr. Smith had not recused himself, and offered a legally invalid excuse, a phone call, as a means of recusal.
In preparation for the May 9, 2022 meeting, Mr. Pope helped amend the Newberry Street privatization ordinance. During the meeting he offered legal advice that helped solidify and justify support for the ordinance that led to its approval; which in turn gave strength to a project for which his firm was billing $8,000 to $11,000 of work per month to the City of Aiken’s Municipal Development Commission.
______________
References
(1) Aiken City Attorney Gary Smith has been named in three lawsuits this year alleging violations of South Carolina State Ethics Laws in relation to his partnership with Project Pascalis investor and developer Ray Massey, who is also the listed agent for RPM Development Partners, LLC.
a. On May 9, 2021 Kelly Cornelius filed a civil appeal complaint against Aiken City Council in the Court of Common Pleas alleging conflict of interest involving City Attorney Gary Smith for failing to recuse himself during the March 28, 2021 Aiken City Council hearing regarding the partial privatization of Newberry Street as an integral part of Project Pascalis.
In response, City of Aiken attorneys from the law firm of Nance and McCant’s filed a motion to dismiss, claiming the suit was filed in the wrong jurisdiction. No denials of conflict of interest allegations were made.
b. On May 10, 2022, John “Drew” Johnson filed a civil appeal complaint against Aiken City Council, Mayor Rick Osbon, City Attorney Gary Smith, and City Manager Stuart Bedenbaugh, in the Court of Common Pleas. Johnson also alleged a conflict of interest involving City Attorney Gary Smith for failing to recuse himself during the March 28, 2021 Aiken City Council hearing regarding the partial privatization of Newberry Street as an integral part of Project Pascalis.
The same response from the same legal firm as Cornelius vs Aiken City Council was made. Again, City of Aiken attorneys did not dispute the allegation, and sought to have the case dismissed on jurisdictional grounds.
c. On July 5, 2022. David W. Blake, Luis E. Rinaldini, Dudley Richard Dewar, Jenne Stoker, Beatrice B. McGhee, Gail King, Historic Aiken Foundation, Inc., Green Boundary Foundation, and the South Carolina Public Interest Foundation, filed a lawsuit in the Court of Common Pleas, Second Judicial Circuit of South Carolina, against the City of Aiken. The lawsuit named twenty-eight defendants ranging from Aiken Mayor Rick Osbon to RPM Developers,LLC. One of the defendants was Gary Smith.
Items pertaining to City Attorney Gary Smith’s conflict of interest include:
48. Gary Smith (“Smith”) served, at all times pertinent to this lawsuit, as the City of Aiken’s designated attorney and repeatedly advised the City, the AMDC and the DRB about redevelopment projects and matters that are subjects of this lawsuit and in which Ray Massey and Mary Guynn, Smith’s law partners, have and have had financial interests undisclosed to the public.
106. The first public announcement of Gary Smith’s recusal was made at the second of two information meetings about Project Pascalis, both held on April 20, 2022. No information about Smith’s recusal has been noted in any minutes or other public record of the AMDC or the City, as required by S.C. Code Sections 8-13-700(B).
136 The CTR Sale was documented in a fully negotiated Purchase and Sale agreement dated December 21, 2021, initialed on every page by, and signed by, Ray Massey and ready for City signatures. The Ordinance had signature blocks for Rick Osbon as Mayor, Gary Smith as City attorney, and Sara Ridout as City Clerk.
187 A. Gary Smith, the City Attorney, participated in numerous meetings dealing with, and gave advice and numerous opinions regarding, matters related to Project Pascalis matters related thereto after his law partner, Ray Massey, became and was an interested party in or before March 2021 by acquiring interests in Pascalis Project property and by representing WTC and RPM, and even though Mary Guynn, his law partner, owns a building on the Pascalis block and may represent other owners, investors and/or tenants in the Pascalis block;
(2) SC State Ethics Commission Brochure: https://ethics.sc.gov/sites/ethics/files/Documents/Brochures/EMPLOYEEBROCHUREFINAL.March2020.pdf
(3) The “South Carolina Ethics, Government Accountability, and Campaign Reform Act,” can be located at:
https://www.scstatehouse.gov/code/t08c013.php
The pertinent section is SC 8-13-700 (B), “Use of official position or office for financial gain; disclosure of potential conflict of interest;”
No public official, public member, or public employee may make, participate in making, or in any way attempt to use his office, membership, or employment to influence a governmental decision in which he, a family member, an individual with whom he is associated, or a business with which he is associated has an economic interest.
A public official, public member, or public employee who, in the discharge of his official responsibilities, is required to take an action or make a decision which affects an economic interest of himself, a family member, an individual with whom he is associated, or a business with which he is associated shall:
(1) prepare a written statement describing the matter requiring action or decisions and the nature of his potential conflict of interest with respect to the action or decision;
In the case of public officials or members:
(4) if he is a public official, other than a member of the General Assembly, he shall furnish a copy of the statement to the presiding officer of the governing body of an agency, commission, board, or of a county, municipality, or a political subdivision thereof, on which he serves, who shall cause the statement to be printed in the minutes and require that the member be excused from any votes, deliberations, and other actions on the matter on which the potential conflict of interest exists and shall cause the disqualification and the reasons for it to be noted in the minutes;
(5) if he is a public member, he shall furnish a copy to the presiding officer of an agency, commission, board, or of a county, municipality, or a political subdivision thereof, on which he serves, who shall cause the statement to be printed in the minutes and shall require that the member be excused from any votes, deliberations, and other actions on the matter on which the potential conflict of interest exists and shall cause such disqualification and the reasons for it to be noted in the minutes.
(4) “The Cleaners: How Aiken City Council got Taken to the Cleaners by the Wyatt Family” can be read at:
(5) The City of Aiken’s “Handbook for Effective Boards, Commissions and Committees,” can be read at:
https://edoc.cityofaikensc.gov/WebLink/DocView.aspx?dbid=0&id=240480&page=1&cr=1
City Attorney
“The City Attorney, like the City Manager, is appointed by, and serves at the pleasure of, the City Council. As the City of Aiken’s chief legal advisor, the City Attorney consults with the City Council, its committees, the City Manager, and other city officers, when requested, on all legal questions arising in the conduct of city business. The City Attorney also serves by preparing city ordinances, reviewing all contracts to which the city is a party, and appearing for the city in all actions, cases, and special proceedings before all courts in which the city is a party. The City Attorney is directly responsible to the City Council, but acts in concert with the City Manager. “
City of Aiken Handbook
Section 8-13- 700(A) provides:
“No public official, public member, or public employee may knowingly use his official office, membership, or employment to obtain an economic interest for himself, a member of his immediate family, an individual with whom he is associated, or a business with which he is associated. This prohibition does not extend to the incidental use of public materials, personnel, or equipment, subject to, or available for, public officials, public members, or public employees use which does not result in additional public expense. “
(6) The SC Attorney General’s office 2003 opinion on the role of the Aiken City Attorney can be read at: https://www.scag.gov/wp-content/uploads/2017/01/G.-Smith-09-8-2003-01236832xD2C78.pdf
(7) The June 2, 2020 AMDC Meeting Agenda is at:
https://edoc.cityofaikensc.gov/WebLink/DocView.aspx?id=519868&dbid=0&repo=City-of-Aiken-LF
(8) The AECOM report can be read at:
Mayor Osbon’s letter can be read at:
https://www.cityofaikensc.gov/mayor-outlines-key-priorities-for-development-in-aiken/
(9) The emails involving Smith Massey et al can be viewed at:
(10) Emails referring to “Lobbying Concerns” and potential conflict of interest can be viewed at:
https://drive.google.com/file/d/1034qZX0_9QukNCOrqK_Pvz9XETRtrDGE/view
(11) August 9, 2021 and August 23, 2021 Bond Issuance.
On August 9, 2021 Smith was present, and did not recuse himself, when Aiken City Council unanimously approved a $10 million general obligation bonds issuance for the AMDC to purchase property. While Gary Pope was the bond counsel for the city, Smith remained in his Parliamentarian role throughout the proceedings, as reflected in the August 9, 2021, meeting minutes:
https://edoc.cityofaikensc.gov/WebLink/DocView.aspx?id=999532&dbid=0&repo=City-of-Aiken-LF
The basis for the bonds was to purchase property as part of a “land bank” in the city’s Parkway District, an area running from Morgan Street to Williamsburg Street. The proposal was not specific to the downtown, and the memorandums of support from AMDC Chair Keith Wood, AMDC Executive Director Tim O’Briant, and City Manager Stuart Bedenbaugh did not specify any properties.
Instead, the memorandums spoke only in generalist terms, of an historic district with abandoned buildings, impending blight, and a need to consolidate properties because “fragmented property ownership” was deemed an impediment to redevelopment. This sentiment was instilled in the ordinance authorizing the bonds.
“The City may soon be in a position to obtain control over a significant and meaningful portion of Parkway District suffering from disuse and deterioration, and which portion of Parkway District may soon be blighted. Such property assemblage is a first step and condition precedent to the redevelopment of a significant portion of Parkway District, and theCity Council expects that the revitalization of the area will “encourage private investment in an area that has been ignored and even avoided for many years byprivate investors.”‘ City Council finds that such redevelopment will address the health and safety concerns attendant to abandoned buildings, buildings, and will also significantly add to the City’s tax rolls both due to the specific redevelopment of parcels to be initially acquired by the City and also due to anticipated follow- on investment throughout the Parkway District area.”
Even though the AMDC held the option for specific properties, no specific properties were identified in the ordinance. As it turns out, the bonds were not for “abandoned buildings,” they were for properties that were presently occupied by nine different businesses. Only one rental property was vacant, and the Hotel Aiken was officially undergoing renovation and was not abandoned.
(12) The Pope-Flynn “Dual Engagement” Agreement letter can be viewed at: https://drive.google.com/file/d/1VsFhYimJnkZdd-KuUZ3NoxshmDaFxntX/view
(13) Pope-Flynn’s November, 2021 invoice to the AMDC can be viewed at: https://drive.google.com/file/d/14w3zRT0b4uz0J5PzPgUzBZ4LUVb5zD8j/view
(14) The emails discussing the selection of a developer can be viewed at:
https://drive.google.com/file/d/1_MrqflMABxrLlneCsxDXhvhWDkNdKAVy/view
(15) Aiken City Council Meeting March 28, 2022:
Meeting Agenda: https://edoc.cityofaikensc.gov/WebLink/DocView.aspx?id=2727196&dbid=0&repo=City-of-Aiken-LF
Meeting Minutes: https://edoc.cityofaikensc.gov/WebLink/DocView.aspx?id=2733272&dbid=0&repo=City-of-Aiken-LF
The You Tube video for the meeting is at: https://archive.org/details/coasc-City_Council_Meeting_March_28_2022
(16) A listing of links to transcripts for the April 20, 2022 meetings can be viewed at:
The video for the meetings and presentations can be viewed at:
(17) May 9, 2021 City Council Meeting.
Meeting Agenda: https://edoc.cityofaikensc.gov/WebLink/DocView.aspx?id=2734517&dbid=0&repo=City-of-Aiken-LF
Meeting Minutes: https://edoc.cityofaikensc.gov/WebLink/DocView.aspx?id=2737373&dbid=0&repo=City-of-Aiken-LF
Video is at: https://archive.org/details/coasc-City_Council_Meeting_May_9_2022
(18) Pope-Flynn invoices are within the following document:
