More Questions Than Answers
by Don Moniak
October 12, 2022
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 By all indications, project work ceased around June 29, 2022, the day a demolition application for six properties was withdrawn by RPM.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 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.
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.
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?
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.”
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.
Read More: AMDC Resignations, December 9, 2022
