Chairman Keith Wood and Vice-Chair Chris Verenes Resign
by Don Moniak
December 9, 2022
Keith Wood and Chris Verenes are original members of the Aiken Municipal Development Commission (AMDC), having attended every public meeting since May 20, 2020. Wood was elected Chairman in September 2020, and Verenes was the first and only Vice-Chair. Together with AMDC Treasurer J. David Jameson, they formed the commission’s Executive Committee, a three-person panel that, while ill-defined, functioned as a pre-decisional deliberative body addressing commission business. Along with AMDC Executive Director Tim O’Briant, they orchestrated much of the effort to pursue the $100 million plus downtown Aiken demolition and redevelopment plan known as Project Pascalis.
Chairman Wood was one of two people authorized to sign AMDC checks and negotiate with developers; the other being recently removed AMDC Executive Director Tim O’Briant. In July 2021, he authored a key letter to City Council requesting $10 million in funding for AMDC purchases of “Parkway District” properties.
On September 29, 2022, following approval of a motion to cancel downtown Aiken’s Redevelopment Plan One and the Purchase and Sale Agreement for AMDC-owned downtown properties between the AMDC and RPM Development Partners, Wood and Verenes issued statements blaming unnamed city staff for misleading the commission during the Project Pascalis procurement process.
Both Wood and Verenes demanded that the truth be made public as to why the project effectively ceased on June 23, 2022; twelve days before a major lawsuit was filed seeking an injunction of the project. Since the Blake et al vs City of Aiken lawsuit was filed, fourteen lawyers from eight different law firms have represented the various city officials and public bodies named as defendants in the suit. As previously reported in Cancelled, Stopped, On Hold, Terminated, or Ongoing, the abundance of legal counsel has led to confusion over the actual project status.
Today, Wood and Verenes emailed resignation letters (1) to Aiken City Council and City Manager Stuart Bedenbaugh. The resignation was confirmed by an unnamed source.
Both commissioners expressed alarm at City Council’s refusal to publicly reveal the reasons for the failure of Project Pascalis, and voiced strong protests against signing a “Joint Defense Agreement” (JDA) that would inhibit “open, frank, and complete information.”
In his resignation letter, Wood also appeared to disagree with the AMDC’s attorney in regard to the JDA drafted prior to a joint, closed-door Executive Session with City Council on November 21, 2022:
“David Morrison, AMDC attorney, working in tandem with Daniel Plyler, City Attorney, prepared and forwarded a Joint Defense Agreement (JDA) for all participants of the meeting to sign prior to our meeting. In our view, the JDA restricts any Commissioner’s ability to disclose information that could be shared with you. Any meeting restricting open, frank, and complete information would be a disservice to City Council, AMDC, and the citizens of Aiken.”
Chris Verenes wrote, in regard to the same issues:
“It is important to note that Mayor Pro Tem Ed Woltz and Councilwoman Lessie Price relayed to me that they were in favor of meeting with no preconditions, restrictions, or legal agreements. The Chairman and I were concerned that the joint defense agreement might limit what we would be allowed to say in a public forum. We determined that we will not agree to any restrictions being placed on us as to what could be disclosed to the public.”
Verenes also referenced a joint email (2) from both he and Chairman Wood, in which they wrote:
“Our recommendation is to have discussions without any predetermined restrictions which may impede the truth. This is based on our belief that the public expects and deserves the highest standard of ethical conduct and transparency from all appointed and elected officials.”
The resignations leave only four AMDC commissioners—David Jameson, Philip Merry, Marty Gillam, and Douglas Slaughter. Since he is in violation of city attendance rules for appointed officials, having missed four of six regular meetings this year, Reverend Slaughter will be automatically removed as a commissioner on January 1, 2023. Even with Slaughter, the AMDC does not have a quorum of members and cannot make decisions or take actions.
The AMDC has not met in a regular public meeting in six months, having cancelled every regularly scheduled meeting since the July 5, 2022 lawsuit. The commission has also refused to allow public inspection of its records, with former Executive Director O’Briant stating in early October that information will be withheld until a judge orders otherwise.
Post-Publication Redaction of the AMDC/RPM Contract
by Don Moniak
November 21, 2022
Within twenty-four hours of the publication of “Downtown Aiken Half Priced Sale,” the December 3, 2021 Purchase and Sale Agreement (PSA) between the Aiken Municipal Development Commission (AMDC) and Project Pascalis developer RPM Development Partners, LLC (RPM) was removed from City of Aiken’s document repository. The withdrawal of the document from public view occurred in spite of the agreement —which was amended as late as June 2022 — being terminated by RPM on September 14, 2022 and rendered null and void two weeks later by the AMDC.
The December 3, 2021 agreement was publicly available, within a file titled “11302021 RES Municipal Dev. Com,” between October 21 and November 10, 2022. The file was within an AMDC folder called “other records” in the City of Aiken’s Laserfiche/Ecodocs records repository. Amendments to the agreement remain an AMDC secret.
The file contained both the AMDC resolution to sell the properties and the Purchase and Sale Agreement. At 9:41 a.m. on November 11th the file was removed from view, less than one day after its availability had been publicized in The Aiken Chronicles.
“113022021 RES Municipal Dev. Com” was made publicly available on 10/21/22 and removed 11/11/22
The document detailed the conditions for the sale of the commission’s seven Pascalis project properties. The proposed sale price of $5 million was nearly half of the $9.5 million the commission paid on November 9, 2021.
The contract also allowed for a fifty percent cost reimbursement for project design; and set a price of $3 million for an AMDC buyback of the proposed city-owned conference center and parking garage:
“Seller, or its designee, shall be required to purchase the parking garage and conference center components thereof upon completion of the Redevelopment Project for a purchase price calculated based on ( i) Three Million and 00/ 100 Dollars ($ 3,000, 000. 00), representing the portion of the Purchase Price hereunder allocated to the land for the parking garage and conference center, plus (ii) the actual design, permitting and construction costs ( pursuant to a fixed price agreement therefore) of the parking garage and conference center and a development fee to Purchaser equal to 5% of such costs.”
A $3 million AMDC buyback meant a net cost to the developer of $2 million for the purchase of the Hotel Aiken, the Beckman Building at 106 Laurens Street, and the portion of other properties dedicated to an apartment complex.
The AMDC signature page was signed by commission chairman Keith Wood. The RPM signature page was signed by RPM investor and legal agent Ray Massey, who is one of Aiken City Attorney Gary Smith’s partners.
The commission obtained the money via a grant from the City of Aiken, which in turn raised the funds by borrowing it via a municipal bond issuance approved by ordinance on August 23, 2022. Gary Smith, acting as City Attorney and council parliamentarian during the bond issuance, was responsible for preparing the ordinance, and signed his approval.
The signature page for the $10 million bond issuance ordinance.
The day before the contract with RPM was signed, Wood expressed concern in an email to other commissioners about having Smith’s name on a news release announcing the agreement, writing,
“Do we have to mention the Massey law firm as written? I think having Smith’s name in the news release will raise unwanted questions.”
No justification has been given for the post-publication redaction. RPM terminated the agreement on September 14, 2022; and the commission voted unanimously on September 29, 2022, to declare the contract “null and void.”
No other known purchase and sale agreements involving city property are considered too sensitive to publicly disclose—-even if that were an option. Examples of questionable real estate deals that were public knowledge before closing, and were open to public debate, include:
The agreement to sell the city’s Mattie Hall property to Smith, Massey, Brodie, Guynn, and Mayes law firm associate Scott Patterson. As reported in The City of Aiken’s Mattie Hall Property, the land the city sold for $150,000 was placed on the market for $700,000 two weeks after closing.
The agreement in January 2020 to sell the city’s Finance Building at 135 Laurens Street and the associated parking lot at 130 Pendleton St, SW for a collective $1.3 million to local investor Weldon Wyatt. As reported in The Cleaners, Wyatt then sold 135 Laurens St, SW one month later to SRP Credit Union for $1.3 million, and the parking lot a year later to R&O, LLC (Agent: Rick Osbon) for $500,000.
The only previous justifications for keeping the RPM contract sealed, and for continuing to withhold Project Pascalis procurement records, are two South Carolina Freedom of Information Act (FOIA) exemptions.
Exemption five states the government may withhold documents “Incidental to proposed contractual arrangements and documents of and documents incidental to proposed sales or purchases of property.” (SC 30-4-40(5)).
Although the exemption ends “once a contract is entered into or the property is sold or purchased,” the law also allows for continued exemption “until the deed is executed, but this exemption applies only to those contracts of sale or purchase where the execution of the deed occurs within twelve months from the date of sale or purchase.”
As reported on October 24, 2022, former AMDC Executive Director Tim O’Briant (1) argued that since the deed was never executed, the contract remained exempt from disclosure. Since November 1, 2022, AMDC Chairman Keith Wood (2) has declined to answer requests to review commission records.
Exemption nine states the governmment may withhold “Memoranda, correspondence, documents, and working papers relative to efforts or activities of a public body and of a person or entity employed by or authorized to act for or on behalf of a public body to attract business or industry to invest within South Carolina.” (SC 30-4-40(9)).
These records are not exempt after the offer to attract an industry or business is accepted and the “public announcement of the project or finalization of any incentive agreement, whichever occurs later.”
The AMDC is relying upon the strictest interpretation of the state’s open records law to continue to withhold key information pertaining to Project Pascalis. But by any reasonable assessment, the continued secrecy surrounding the December 3, 2021, RPM Purchase and Sale Agreement, and subsequent amendments, is another indication that the AMDC plays by its own set of rules. After spending more than than $10 million of taxpayer funds to pursue Project Pascalis, the commission is essentially arguing that Project Pascalis contracts and procurement records are exempt from public disclosure because their project failed.
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Footnotes
(1) Tim O’Briant was as an editor at the Aiken Standard from 2000-2016 and once testified to the South Carolina General Assembly on behalf of FOIA reform. After spending a year as an editor with The Brunswick News, in 2017 he was hired by the City of Aiken as its Communications Manager; and in 2019 was promoted to Director of the City’s new Economic Development Department. In November, 2021, he received a certification as an Economic Development Professional from the SC Department of Commerce’s Economic Development Institute.
From March 2021, to September 2022 he was the face and spokesperson for the Pascalis project, and was one of two people authorized to negotiate with developers and sign checks for commission expenditures.
O’Briant is no longer listed on the list of AMDC staff at aikenmdc.org. His unannounced removal from the commission’s staff followed unproven accusations by AMDC members Keith Wood and Chris Verenes that unnamed staff had deceived Wood into signing the December 3, 2021 contract with RPM prior to the release of a Request for Proposals. Details on this series of events can be found in The Project Pascalis “RFP.”
He reportedly remains employed as the City of Aiken’s Economic Development Director. As detailed in Part One of The City of Aiken’s Information Games, in that capacity he led efforts to obstruct access to Project Pascalis records.
(2) Keith Wood is an original AMDC member. He was appointed to the AMDC in early 2020 and has served as the Chairman of the AMDC since September, 2020. Along with Tim O’Briant, he was one of two people authorized to negotiate with Project Pascalis developers and authorize expenditures.
Wood is employed by Amentum Corporation as Vice President of Marketing and Communications in the company’s Nuclear Security Group.
AMDC Agreed to Sell Pascalis Properties for $5 Million.
by Don Moniak
November 10, 2022
Without any public notice, the Aiken Municipal Development Commission (AMDC) has finally made public (1) its December 3, 2021 Purchase and Sale Agreement(PSA) with RPM Development Partners, LLC (RPM). However, the AMDC has yet to release the amended version of the PSA that was completed in June, 2022.
The AMDC purchased the seven Pascalis properties on November 9, 2021 for a total of $9.5 million, using a grant from the City of Aiken from its August, 2021, $10 million municipal bond issuance. The PSA with RPM was signed on December 3, 2021 by AMDC Chairman Keith Wood, and RPM authorized agent Ray Massey.
The AMDC refused to disclose the proposed sale price for the properties and denied Freedom of Information Act (FOIA) requests for the PSA as recently as September 13, 2022–one day before RPM terminated the agreement. The AMDC also refused to release the PSA in early October, stating the process was ongoing.
According to the PSA, the AMDC proposed to sell the Berkman Building on Laurens Street, the Hotel Aiken, the Holley House, Taj Aiken Restaurant, the McGhee Building, Warneke Cleaners, and Newberry Hall for a collective $5 million— a 47% discount from the AMDC purchase price that would have resulted in a $4.5 million loss to the City of Aiken.
Other portions of the PSA included requirements that:
The City of Aiken perform all changes to Newberry Street at no cost to RPM; including removal of parking spaces, relocation of southbound traffic lanes and stormwater drainage and other utilities. If the City of Aiken failed to agree to these terms, RPM had the right to require the AMDC to repurchase the properties for $5 million.
The AMDC maintain insurance policies on all the properties and “manage and operate the Property in accordance with past practices and maintain the Improvements and the tangible Personal Property in substantially its current condition and repair, ordinary wear and tear excepted, to be delivered in a broom clean condition at Closing.”
A Master Development Agreement be completed prior to closing that defined the purchaser’s requirements and set a repurchase price for the garage and conference center at $3 million.
As reported in Portions Rescinded, But No Cancellation, RPM terminated the agreement on September 14, 2022, although that action was not publicly disclosed by the AMDC at the time. On September 29, 2022 the AMDC voted to render the agreement null and void, and commission members Keith Wood and Chris Verenes pinned blame for violations of South Carolina Community Development Law on unnamed “staff.” Since that time, longtime AMDC Executive Director Tim O’Briant was removed from the list of staff on the AMDC website.
In May 2022, the AMDC admitted that a “sole, one-time, financial incentive [for the developers] will be a discounted price for the property upon which they will build the hotel and apartments.” In light of the revelation that the discount was nearly a half-price sale, that statement might qualify as the top understatement of 2022 from the City of Aiken.
(1) The document appears to have been posted at the City of Aiken’s Laserfiche ecodocs document repository on October 21, 2022; filed under “other documents” in the AMDC folder.
The City of Aiken has yet to respond to the following FOIA request, filed on September 29, 2022:
“A copy of the unredacted version of the attached document, Pascalis offers comparison_Redacted, located at: https://aikenmdc.org/wp-content/uploads/2022/03/Pascalis-offers-comparison_Redacted.pdf 2. A copy of all documents related to “Pascalis proposal solicitation and RFP scoring“ not presently at https://aikenmdc.org/2022/03/29/project-pascalis-public-records/; including, but not limited to: a. All emails or other correspondence to prospective developers that accompanied the RFP package; b. All memorandums describing proposals; and c. All submitted proposals. Under SC Community Development Law, all records of the AMDC are to be made available for inspection. I am willing to inspect the files as is to reduce and eliminate search and retrieval time. SECTION 31-10-160. Availability of commission’s books, records, bylaws, rules, and regulations for public inspection; annual report of commission’s activities. (a) The books and records of a commission are at all times open and subject to inspection by the public.”
The $100 million plus downtown Aiken demolition and revelopment endeavor known as Project Pascalis was officially terminated by the Aiken Municipal Development Commission (AMDC) on September 29, 2022. Unofficially, the project ended on September 14, 2022, when project developer RPM Development Partners, LLC (RPM) wrote a contract termination letter to AMDC Executive Director Tim O’Briant. By all indications, project work ceased around June 29, 2022, the day a demolition application for six properties was withdrawn by RPM.
The AMDC and City of Aiken have yet to provide an official report for its justifications for voting to end the project— after it was actually terminated by the developer. However, two AMDC members, Chairman Keith Wood and Vice-Chairman Chris Verenes, did provide individual accounts of what they perceived as the key issue: the delay of the publication of a legal public notice for a Request for Proposals (RFP) in December 2021 until after RPM had been chosen as the developer.
While blame for the illegality of this RFP has been directed at unnamed city employees, the AMDC has failed to account for the role of its contract attorney, Gary Pope, Jr of the Pope-Flynn law firm; nor does it provide any clarity and context in support of the protests of the two commissioners. The statements made by Chairman Wood and Vice-Chairman Verenes failed to answer the questions:
Why is the role of the AMDC’s legal counsel in preparing and publishing the RFP notice unaddressed?
When should have a legal notice for an RFP been published?
Why was no legal notice for the RFP published in May, 2021; when the AMDC began seeking a new developer after its first choice, Weldon Wyatt’s GAC, LLC, exited the project?
In his September 29, 2022, statement, AMDC Chairman Keith Wood wrote:
“AMDC was also informed on June 23, 2022, that staff delayed the publication of a Request for Proposal (RFP) without disclosing the action to the Commission. Subsequent to that decision, the AMDC was advised by staff to sign a Purchase & Sale Agreement (signed on December 3, 2021) without being told the RFP publication was delayed to a future date (December 13, 2021). This resulted in a signed agreement with the developer prior to the issuance of an RFP. Let me be clear, if I had known this…I would never have signed the purchase sale agreement.”
Mr. Wood then cited “staff’s failure” two more times in his statement for the reason the RFP was not legally valid.
In his September 29th statement, AMDC Vice-Chair Chris Verenes also chose to deflect blame; but was even less specific than Mr. Wood:
“A deliberate decision was made——WITHOUT OUR KNOWLEDGE OR APPROVAL…to delay running an ad for proposals until after we signed an agreement with a developer.
Why weren’t we told that a unilateral decision was made to delay the RFP? Delayed for reasons that I believe are indefensible.”
Mr. Verenes provided no details for the reasons for the delay, and since proclaiming “the public deserves no less than the truth,” has not, along with Mr. Wood, released any additional information since September 29th.
The Public Notice for the RFP was first published in the Aiken Standard on December 13, 2021, ten days after the AMDC had announced the selection of RPM as its “preferred developer,” and republished a second time on December 20, 2021. Publication of a public notice for an RFP involving redevelopment and/or sale of property controlled by a development commission is mandated by South Carolina Community Development Law:
“The commission shall, by public notice, published once a week for two consecutive weeks in a newspaper having general circulation in the municipality, invite proposals and shall make available all pertinent information to any person interested in undertaking a purchase of property or the redevelopment of an area or any part thereof. “ (SC 31-10-110(c))
Laws such as this exist to prevent corruption in the procurement process. They serve to prevent corrupt actions such as bid-rigging or the awarding of contracts to cronies. The law is fundamental to a process that protects taxpayer money and a fair, competitive market for services.
The Affadvit of Publication for the December 13 and 20, 2021 legal Public Notice for the “Request for Proposals”
The Role of Pope-Flynn
The publication was handled by the law firm of Pope-Flynn, which was officially contracted by the AMDC as Project Pascalis legal counsel in October, 2021. On November 12, 2021, Pope-Flynn attorney Gary Pope, Jr billed the city for time spent on preparing the notice for the Aiken Standard and correspondence with the paper; all part of a November invoice detailing 62.80 hours of work at a total cost to the AMDC of $19,586.48.
From November 2021 Pope-Flynn Billing Invoice to AMDC
Pope-Flynn’s next billable action on the RFP notice was on December 9, 2021, when the notice was reviewed by a Pope-Flynn paralegal, and Gary Pope Jr. sent a “revised notice of RFP to Aiken Standard.” This was six days after the AMDC announcement it had chosen RPM.
From December 2021 Pope-Flynn Billing Invoice to AMDC
Between November 12th and December 9th, 2021, Gary Pope, Jr. billed the AMDC for 13.3 hours of meeting related business, including a 1.5 hour “meeting with developers” and a “recap” of an AMDC meeting. The AMDC’s $350 per hour legal counsel met twice with commissioners in the two weeks following “correspondence with the Aiken Standard for publication of the public notice;”:
November 16, 2021, a meeting of the AMDC “Executive Committee,” composed of Keith Wood, Chris Verenes, and David Jameson.
November 23, 2021, a meeting of the full AMDC lasting 1.75 hours and conducted in closed-door executive session for all but ten minutes.
Was the subject of this public notice for RFPs discussed during more than three hours of meetings with AMDC members?
From November 2021, Pope-Flynn Billing Invoice
According to this timeline, an public notice of an RFP notice was not prepared until after the AMDC had purchased seven properties in downtown Aiken for a total cost of $9.6 million. While commissioners Wood and Verenes directed blame at city employees, they have yet to address the role played by their hired, contract legal counsel from the Pope-Flynn law firm, who was responsible for publishing the RFP after the developer was announced. They have also not identified when the notice of an RFP should have been published.
The May 2021 Solicitation for Proposals
Even if the RFP had been issued between November 12th and December 3rd, the fact remains that the AMDC began soliciting for proposals six months earlier; in May of 2021 following the withdrawal of Weldon Wyatt’s GAC, LLC from the first Project Pascalis endeavor. This was a period in which Gary Pope, Jr. was performing work for the AMDC under a separate contract with the City, but City Attorney Gary Smith remained the official legal counsel for the commission and the City.
On May 17th, 2021, in an email to David Jameson, Keith Wood, and Chris Verenes titled “Project backgrounder we discussed,” Tim O’Briant wrote:
“Gents, ‘
Please review this information that would be provided to potential developers we select.”
Attached to the email were three project documents.
On May 19, 2021, Tim O’Briant sent out the first solicitation to an unidentified developer in an email titled “deal points memo,” in which he provided the three project documents and wrote:
“I got the greenlight to send this out earlier than expected so you’ll be the first to receive it formally.”
Email from Tim O’Briant to unknown developer, possibly Andy Cajka of Southern Hospitality Group.
On June 8, 2021, the AMDC met to discuss developers in a closed-door executive session. In a June 10, 2021, email, Tim O’Briant cautioned everyone attending that meeting to avoid discussions with any developers:
“While I am pursuing discussions with the single selected developer, I will not be informing the other firms of that and until late next week at the earliest. “
No public notice of a Request for Proposals was conducted before any developers were contacted, interviewed, or chosen. Seven full months passed between the beginning of a search for a new developer and an actual notice for an RFP was issued.
Commissioners Keith Wood and Chris Verenes are willing to admit the December 13, 2021 public notice was not issued in a legal fashion. But they have yet to address the issue of the AMDC’s involvement in a redevelopment procurement process that began in secrecy in May 2021, when a legal Public Notice for a Request for Proposals was mandated.
As asserted in the Blake et al vs. City of Aiken et al lawsuit filed on July 5, 2022, it is the totality of violations related to the absence of an RFP prior to the AMDC selecting RPM as the Project Pascalis developer that is the enveloping issue:
“From the inception of Project Pascalis in March, 2021, until December 3, 2021, AMDC never voted to approve or to issue or to publicize an RFP and never issued or publicized an RFP as required by S.C. Code Section 31-10-110(c) to select a developer for Project Pascalis. AMDC has never had a valid redevelopment plan pursuant to S.C. Code Section 31-10-10, et seq., let alone one that describes or includes Project Pascalis. For this reason and because AMDC never conducted a valid RFP, RPM was improperly and unlawfully selected as the developer for Project Pascalis by AMDC on December 3, 2021, and RPM has never been properly and lawfully selected as a developer for Project Pascalis.”
Instead of addressing the entirety of the contention regarding the illegal selection of a developer by the AMDC, commissioners Wood and Verenes chose to address only a narrow portion of the issue. Both commissioners refused to answer any questions after reading their statements on September 29th, and have acquiesced in the City of Aiken’s decision to keep key Project Pascalis documents sealed.
Mr. Verenes stated “the public deserves no less than the truth.” Instead of keeping vital documents sealed under the ruse of Freedom of Information Act exemptions. The AMDC can provide the truth by publishing all records related to the now cancelled Project Pascalis; and address the issue of why city employees are bearing the brunt of the blame for the project’s failure while the City’s high paid legal counsel, AMDC members, the City Manager, and City Council escape scrutiny.
Excessive Fees, Double-Billing, and the Suppression of Public Inquiry
by Don Moniak October 4, 2022
Recently obtained information (1) has revealed serious irregularities in the City of Aiken’s response process to Freedom of Information Act (FOIA) requests. The information denials were mostly related to the city’s $100 million demolition and redevelopment project known as Project Pascalis. City Manager Stuart Bedenbaugh, who also serves as the custodian of records, has thus far refused to reply to a letter regarding infractions that function to illegally deny access to public records.
Specifically, officials responsible for complying with South Carolina’s Freedom of Information Act:
Issued exorbitant search, retrieval, and redaction fees that suppressed public inquiry into government operations by maximizing costs for access to public records;
Issued identical FOIA fee determinations of $5312 involving exactly 332 hours of labor in response to three distinct, separate FOIA requests over a two month period from March 18 to May 12, 2022.
Issued identical FOIA fee determinations of $443 involving eight hours of labor at an increased rate of $48 per hour—triple the previous rate— in response to two distinct, separate FOIA requests on August 10, 2022;
Responded to requests involving Project Pascalis in an arbitrary and inconsistent manner at odds with SC FOIA response requirements; and
Cannot document whether searches for responsive records, upon which some fee determinations are based, actually occurred; suggesting the probability of fraudulent fee determinations.
The Fundamentals of Openness: When in Doubt, Disclose
A fundamental aspect of South Carolina’s Freedom of Information Act (FOIA) is the powerful encouragement to disclose information and an equally strong discouragement to keep information secretive. Openness is the standard, not the exception.
South Carolina FOIA is characterized by frequent use of the word “may” that favors meetings open to the public and disclosure of records produced by government bodies. Conversely, use of the word “must” is infrequently applied to compel the sealing of documents and the closing of meetings to public view and input.
This legislative urge towards openness is exemplified by two simple statements in SC FOIA law:
“A public body may but is not required to exempt from disclosure the following information:” (SC 30-4-40 (a)); and
“A public body may hold a meeting closed to the public for one or more of the following reasons:” (SC 30-4-70 (a))
The State’s top officials have strongly endorsed this fundamental path towards openness. In 2016 South Carolina Governor Henry McMaster wrote, on behalf of the South Carolina Press Association (SCPA):
“As public servants we should always endeavor to maintain the public’s trust and confidence in their government. In that spirit, I hope you will remember ‘When in doubt – disclose.’”
When in doubt, post the time, place, and purpose of the meeting
When in doubt, open the meeting to the public
Records and public meetings pertaining to Project Pascalis do not fall under any category mandating non-disclosure or closed meetings. Yet, time and again city officials have acted against the spirit of openness as expressed by South Carolina FOIA by denying information access, falsely claiming exemptions for non exempt information, excessively gathering in closed-door executive sessions, and charging exorbitant fees to deter inquiry.
This story is about the latter example, the levying of excessive FOIA processing fees that deters inquiry. It is a story that has been reported for other jurisdictions; but prior to the advent of Project Pascalis the City of Aiken had never resorted to such obstructionist tactics.
The City of Aiken’s Excessive Fee Formulas
South Carolina’s Freedom of Information Act (FOIA) calls for the law to “be construed so as to make it possible for citizens, or their representatives, to learn and report fully the activities of their public officials at a minimum cost or delay to the persons seeking access to public documents or meetings.”
Between March 29, 2022 and May 12, 2022, City of Aiken Economic Development Director and designated Freedom of Information Act (FOIA) Officer Tim O’Briant issued identical FOIA fee determinations in response to three distinctly separate FOIA requests (2) from three different citizens. Each fee determination was exactly $5312 due to an estimated 332 hours of labor to search, retrieve, and redact (if necessary) records related to Project Pascalis.
Aiken Economic Development Director Tim O’Briant sent this identical FOIA fee determination in response to three separate FOIA requests; with two being sent on March 29th, 2022; and one being sent on May 12th, 2022
The response to the first two FOIA requests were preceded by a
a billing of 4.0 hours from Aiken Municipal Development Association (AMDC) attorney Gary Pope ($350/hr), in part for “Emails re FOIA to Tim O’Briant”
a billing of 0.5 hours by Pope Flynn associate Sara Weather ($225/hr) for “communications with Gary regarding overly broad FOIA requests and research of prior language.”
Invoices to AMDC from Pope-Flynn law firm for the month of March, 2022.
These legal discussions surrounding FOIA requests cost taxpayers as much $1500 in legal fees before the city even responded to two requests.
In a response to another FOIA request (3) made on September 9, 2022, City of Aiken Solicitor Laura Jordan explained that no records of “initial searches” for information are kept. There is no evidence to date that the “initial searches” that led to thousands of dollars in FOIA processing fees were ever conducted.
On August 10, 2022, Ms. Jordan issued two more identical fee determinations for two separate and very different FOIA requests. The fee determinations involved eight hours of “economic development” labor at a rate of $48 per hour. As the city’s Economic Development Director, Mr. O’Briant was being tasked with reviewing information from his own department for possible redactions.
South Carolina’s Freedom of Information Act does allow government bodies to:
“Establish and collect reasonable fees not to exceed the actual cost of the search, retrieval, and redaction of records. The public body shall develop a fee schedule to be posted online. The fee for the search, retrieval, or redaction of records shall not exceed the prorated hourly salary of the lowest paid employee who, in the reasonable discretion of the custodian of the records, has the necessary skill and training to perform the request.”
SC FOIA also allows for fees to be waived if the information is in the public interest:
“Documents may be furnished when appropriate without charge or at a reduced charge where the agency determines that waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public.”
The $48/hr fees for information pertaining to Project Pascalis were instituted on August 4, 2022 and coincided with publication in The Aiken Chronicles of incriminating and embarrassing AMDC emails obtained via FOIA. The $48 per hour fee is triple the only published rate of $16 per hour on the city’s legally required FOIA online fee schedule page.
Since being informed of these particular findings on September 12, 2022, City Manager Stuart Bedenbaugh, who also serves as Custodian of City Records, has refused to address the issues.
Following is the letter to Mr. Bedenbaugh detailing these particular violations of South Carolina’s Freedom of Information Act.
Mr. Bedenbaugh,
I recently submitted a Freedom of Information Act request for the tracking spreadsheet for the city’s FOIA system. In it I found two interesting situations that warranted further investigation. Here are the results.
1. Summary:
Case 1: Three individuals charged identical amounts ($5312) for identical labor estimates (332 hrs) for three different requests. In Case #1:
a. Why was there first a double-billing of $5312 in FOIA fees?
b. Why was there a third identical billing while one of the original requests remained open?
c. What evidence is there that an “initial keyword search” actually occurred in response to any of these FOIA requests?
d. How would the City of Aiken defend itself against an attempted fraud complaint?
Case 2: Two individuals charged identical amounts ($443.98) for identical labor estimates (8 hours of “Economic Development Time” and two hours of IT staff time) for two very different FOIA requests. In Case #2:
a. Why was there no “initial keyword search” reported for a FOIA request that generated a 10 hour labor estimate?
b. Why was an identical fee determination issued for one request within twenty minutes of another request; and only 1.25 hours after the request was filed?
c. How would the City of Aiken defend itself against an attempted fraud complaint?
2. Double Billing and Fraud
Double billing in legal parlance refers to charging an hourly rate to two clients for the same time spent, or to bill different accounts for the same charge. It is a serious problem in the legal and health professions.
“any activity that relies on deception in order to achieve a gain. Fraud becomes a crime when it is a ‘knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment’ (Black’s Law Dictionary). In other words, if you lie in order to deprive a person or organization of their money or property, you’re committing fraud.”
Public records are public property.
SC FOIA allows for fees to be charged for the search, retrieval, and redaction of records:
“The public body may establish and collect reasonable fees not to exceed the actual cost of the search, retrieval, and redaction of records. The public body shall develop a fee schedule to be posted online. The fee for the search, retrieval, or redaction of records shall not exceed the prorated hourly salary of the lowest paid employee who, in the reasonable discretion of the custodian of the records, has the necessary skill and training to perform the request. “
3. Case 1: Three fee estimates for exactly $5312 for three different requests from three different individuals.
March 16, 2022: Citizen 1 files a detailed, two-page Freedom of Information Act request for a wide range of records, broken down into sixteen categories, related to Project Pascalis. It is designated FOIA #49-2022 by the City of Aiken’s FOIA response system.
March 18, 2022: Citizen 2 files a one paragraph FOIA request for a wide range of records related to Project Pascalis. It is designated FOIA # 54-2022.
March 18, 2022: AMDC contract attorney Gary Pope, Jr. bills the AMDC for 0.5 hrs to discuss “overly broad FOIA requests” with “Gary,” who is assumed to be Gary Smith, Aiken City Attorney. (Correction, 10/4/22: This is now believed to be a discussion between Gary Pope and Pope-Flynn associate Sarah Weather).
March 29, 2022: Citizen 1 receives a five-page response (2) to request #49-2022, with citations to information already publicly available, and a fee determination of $5213 for 332 staff hours to complete the request. Most of this The fee determination reads:
“In order to comply with this broad and extensive request, considerable staff time will be involved. For instance, an initial keyword search of the City email archive returned 32,000 individual results that must be reviewed for exemptions, attorney-client privilege, relevance, etc. If an average of 30 seconds is spent reviewing each of those mail items that will involve a minimum of 267 hours. The other records involved will require an additional estimated 65 hours from multiple staffers and from various departments to research and fulfill the request. The City of Aiken’s FOIA fee schedule provides for an hourly charge of $16 for such research and collection, therefore the charge to complete the request as stated would be $5,312. Staff will be assigned to begin the compilation of the requested records following the payment of a $1,328 (25%) initial payment. Once the deposit is paid, the City of Aiken would make the documents available within 30 calendar days as required by the South Carolina Freedom of Information Act, §30-4-10. Prior to release of the collected records, the remainder of $3,984 would become due and payable.
Sincerely, Tim O’Briant”
The request is kept open, pending payment.
March 29, 2022: Citizen 2 receives a response to request #54-2022. In it, Tim O’Briant wrote:
“Your request is substantially similar to one received just days prior to your own submission. That being the case, I have included the response that request here along with links to many of the records and information requested. See below.”
A carbon copy, cut and paste version of the detailed letter and the Hotel Aiken Historic Registry attachment for #49-2022 followed; including the exact same fee determination.
Citizen 2 accepts the response and their request is cancelled.
May 12, 2022. At 12:14 a.m., Citizen 3 filed a FOIA request for correspondence “between Weldon Wyatt or any LLC associated with the Wyatt family, and the Aiken Economic Development Commission and the Mayor of Aiken, between January 1, 1999 and January 1, 2022, regarding Project Pascalis, Downtown Redevelopment, the Hotel Aiken, The Johnson Drug building, and any properties purchased by the AMDC in November 2021. All details of this correspondence can be placed online via the AMDC transparency page.” The FOIA is designated #89-2022.
May 12, 2022. At 8:18 a.m., Tim O’Briant responds to #89-2022. Unlike #49-2022 and #54-2022, no additional information is provided—such as the information provided in the five page letter to Citizen 1.
Even though Request #49-2022 remains open and involves much of the same information requested in #89-2022, a fee determination of $5312 for 332 hours of search, retrieval, and review time is provided. The entire paragraph detailing costs is cut and pasted from the response to Citizen 1 for #49-2022; just as it had been for Citizen 2 for #54-2022. (See Table 1).
June 13, 2022: An attempt to narrow the scope of FOIA #89-2022 is denied by Tim O’Briant, and Citizen 3 is asked to file a new request. O’Briant then cancels the original request.
A new, narrower request is filed, resulting in an $80 fee determination.
Table 1: Identical FOIA Fee Determination Requests. March 16 to May 12, 20222.
FOIA #49-2022
FOIA #54-1022
FOIA # 89-2002
Date of Request
3/16/22
3/18/22
5/12/22
Date of Response
3/29/22
3/29/22
5/12/22 (1)
Time Estimate Hrs
332
332
332
Cost Estimate $
5312
5312
5312
Number of Results in Initial Search
32,000
32,000
32,000
Hourly Charge
$16
$16
$16
Day Cancelled
5/31/22
3/29/22
6/13/22 (2)
Number of Results
32,000
32,000
32,000
(1) Time of Request
12:14 a.m.
Time of Response
8:18 a.m.
(2) Cancelled by City which requested a new request instead of a narrowing of the request.
Case 2: Another identical billing: $443.98 for eight hours of “Economic Development” labor and 2 hours of IT labor at $16/hr.
August 10, 2022: 8:45 a.m. In response to FOIA Request # 185-2022, Citizen 3 charged $443.98 for eight hours of “Economic Development” labor at $48/hr; and 2 hours of IT labor at $16/hr.
Request #185-2022 was filed on August 1, 2022, for “Copies of all emails from to and from Aiken Economic Development Director Tim O’Briant’s private email account tim.obriant@icloud.com. for the periods May 1, 2021 to June 30th, 2021 and December 1, 2021 and January 15th, 2022.”
The first response to this FOIA request included a suggestion by Ms. Jordan to narrow the search due to the volume of emails, estimated at 6,000 for the 3.5 month period in question; which would yield a minimum of 6,000 pages of paper copies at a cost of more than $9,000. Subsequently, IT determined that the emails could be downloaded and provided in an electronic format, resulting in the current, excessive $443.98 charge.
Fee Determination for FOIA # 185-2022.
August 10, 2022: 9:04 a.m. In response to FOIA request #203-2022, Citizen 4 was also charged $443.98 for eight hours of “Economic Development” labor at $48/hr; and 2 hours of IT labor at $16/hr.
The request was sent on August 10th at 7:45 a.m. for: “Emails to or from anyone from the firm Smith Massey Brodie Guynn and Mayes to any members of The AMDC, the Aiken City Council, The DRB and any city of Aiken staff from the time period of Jan 2021 – present.”
This request was for a 19-month period, yet there was no estimation of total records volume and no report of an “initial key word search.” This means the cost estimate was established within one hour and twenty minutes, and only fifteen minutes after the identical cost estimate for #185-2022.
The JustFOIA fee notification stated:
“The requested records for 203-2022 have been processed and will be released pending payment of the issued fee.”
Fee Determination for FOIA Request 203-2022. The invoice is identical to FOIA Request 185-2022 .
While this would be considered a broad request in terms of the time span, there was no apparent initial search—which is routine in some cases and absent in others, as indicated in Case 1 above. A few more examples illustrate this inconsistency:
For FOIA #79-2020, filed in July 2020, then City Solicitor Leigh Staggs wrote, in response to questions about the $48 fee estimate (3 hrs at $16/hr):
“Dear Mr. Moniak,
There are over five hundred emails that will need to be reviewed to determine which ones meet the criteria for the information you’ve requested.
Best,
Leigh Staggs City Solicitor.”
For FOIA’s 193-2022, 194-2022, and 195-2022, the initial fee determination included an estimate of 300-325 pages for each request.
Yet, for 203-2002 there was no reported initial search and no estimate on volume of reviewable records; and both (fee determinations) contained the odd “IT Staff KH” labor cost of $35.99/hr.
Thank you for your prompt attention to this very serious matter.
Donald Moniak
__________________
Footnotes and References
(1) In FOIA Request #230-2022, the following was requested:
“A copy of a listing of all FOIA requests since January 1, 2022 to the City of Aiken. Since this system is very well organized and systematic, I believe there should be a spreadsheet, database, table, or other document, on paper or electronic, that provides a listing of all FOIA requests by number, date of final response, fee determinations, fee collection, and any other information the City of Aiken finds pertinent. I believe this should take less than 15 minutes as this is a living document being updated on a regular basis.”
(2) Here are the three FOIA responses described in Case #1:
FOIA #49-044
Request Date: 3/16/22
Response Date 3/29/22
“In order to comply with this broad and extensive request, considerable staff time will be involved. For instance, an initial keyword search of the City email archive returned 32,000 individual results that must be reviewed for exemptions, attorney-client privilege, relevance, etc. If an average of 30 seconds is spent reviewing each of those mail items that will involve a minimum of 267 hours. The other records involved will require an additional estimated 65 hours from multiple staffers and from various departments to research and fulfill the request. The City of Aiken’s FOIA fee schedule provides for an hourly charge of $16 for such research and collection, therefore the charge to complete the request as stated would be $5,312. Staff will be assigned to begin the compilation of the requested records following the payment of a $1,328 (25%) initial payment. Once the deposit is paid, the City of Aiken would make the documents available within 30 calendar days as required by the South Carolina Freedom of Information Act, §30-4-10. Prior to release of the collected records, the remainder of $3,984 would become due and payable.”
FOIA #54-2022
Request Date: 3/18/22
Response Date: 3/29/22
The response was cut and pasted from #49 to #54 because they were “similar in nature.”
“In order to comply with this broad and extensive request, considerable staff time will be involved. For instance, an initial keyword search of the City email archive returned 32,000 individual results that must be reviewed for exemptions, attorney-client privilege, relevance, etc. If an average of 30 seconds is spent reviewing each of those mail items that will involve a minimum of 267 hours. The other records involved will require an additional estimated 65 hours from multiple staffers and from various departments to research and fulfill the request. The City of Aiken’s FOIA fee schedule provides for an hourly charge of $16 for such research and collection, therefore the charge to complete the request as stated would be $5,312. Staff will be assigned to begin the compilation of the requested records following the payment of a $1,328 (25%) initial payment. Once the deposit is paid, the City of Aiken would make the documents available within 30 calendar days as required by the South Carolina Freedom of Information Act, §30-4-10. Prior to release of the collected records, the remainder of $3,984 would become due and payable.”
The actual invoice listed the total time for search, retrieval, and review as 83 hours; and a cost of $1325 at a rate of $16/hr. There is no invoice for $5312 with a request for 1/4 deposit.
FOIA #89-2022
Request Date 5/12/22; Request Time 12:14 a.m.
Response Date 5/12/22. Response Time 8:18 a.m.
The City of Aiken has determined that in order to comply with this broad and extensive request, considerable staff time will be involved. For instance, an initial keyword search of the City email archive returned 32,000 individual results that must be reviewed for exemptions, attorney-client privilege, relevance, etc. If an average of 30 seconds is spent reviewing each of those mail items that will involve a minimum of 267 hours. The other records involved will require an additional estimated 65 hours from multiple staffers and from various departments to research and fulfill the request. The City of Aiken’s FOIA fee schedule provides for an hourly charge of $16 for such research and collection, therefore the charge to complete the request as stated would be $5,312. Staff will be assigned to begin the compilation of the requested records following the payment of a $1,328 (25%) initial payment. Once the deposit is paid, the City of Aiken would make the documents available within 30 calendar days as required by the South Carolina Freedom of Information Act, §30-4-10. Prior to release of the collected records, the remainder of $3,984 would become due and payable.
(The following was added to #89-2022)
Bear in mind that much of the material you seek will not be disclosed as it is exempt from disclosure. As related to the proposed sale of the referenced properties, FOIA provides that a public body may exempt from disclosure “documents of and documents incidental to proposed sales or purchases of property,” as well as correspondence “relative to efforts or activities of a public body and of a person or entity employed by or authorized to act for or on behalf of a public body to attract business or industry to invest within South Carolina” S.C. Code Section 30-4-40(a)(5), (9). The City has reviewed the FOIA Request and determined the Requested Correspondence is subject to exemption as it relates to the sale of the property and efforts to attract investment. In light of the foregoing, the City has determined to exempt the Requested Correspondence from disclosure and will not produce any documents responsive to that portion of the FOIA Request.
3) FOIA Request #243-2022 was for:
“1. A copy of any and all City of Aiken Freedom of Information Act policy, protocols, or any other document detailing standard procedures to comply with all South Carolina Freedom of Information Act requests; for the period January 1st, 2022 to present.
2. A copy of any and all records from the City’s IT department or other sources pertaining to the “initial search” for records for the following FOIA requests. a. FOIA # 89-2022, submitted at 12:30 a.m. on May 12, 2022; with a response at 8:18 a.m. on the same day. This search request resulted in a fee determination of $5312 with an estimate of 332 hours of search, retrieval, and review time. b. FOIA #49-2022, submitted on May 18, 2022. According to the City’s FOIA tracking spreadsheet, this FOIA resulted in a fee determination of $1328. c. FOIA # 54-2022, submitted on March 18, 2022. According to the City’s FOIA tracking database, this FOIA request resulted in a fee determination of $1328.
The September 15, 2022 response from City Solicitor Laura Jordan read:
“As to No. 1 of your request, the City employs the text of the South Carolina Freedom of Information Act, Title 30, Chapter 4, of the S.C. Code of Laws Annotated. A copy of S.C. Code Ann. 30-4-10, et. seq., cited as the Freedom of Information Act, has been uploaded to the JustFOIA portal. The City, as required by the Freedom of Information Act, employs a published fee schedule describing how charges will be calculated. That schedule is publicly available at the following Website URL: https://www.cityofaikensc.gov/government/freedom-of-information-fee- schedule/
As to No. 2 of your request, no records are generated by the City’s IT Department pertaining to the “initial search” of records for emails. Specifically, no records were created by the IT Department or any other department pertaining to the “initial search” for records for FOIA Requests #89-2022, #49-2022, and #54-2022. FOIA obligates the City to disclose “public records” which by definition only include items in the possession of, or retained by the City. Accordingly, to the extent the body does not have a record conforming to your request, the City is under no obligation to create a public record and has not done so with respect to this item in your FOIA Request.”
