Tag Archives: Tim O’Briant

The City of Aiken’s Information Games. Part One.

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.’”

In the same SCPA guide to FOIA compliance, South Carolina Attorney General Alan Wilson wrote: 

  • When in doubt, disclose the public record, 
  • 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 FOIAThe $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. 

The Association of Fraud Examiners describes fraud as

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 #49-2022FOIA #54-1022FOIA # 89-2002
Date of Request 3/16/223/18/225/12/22
Date of Response3/29/223/29/225/12/22 (1)
Time Estimate Hrs332 332332
Cost Estimate $531253125312
Number of Results in Initial Search 32,00032,00032,000
Hourly Charge $16$16$16
Day Cancelled 5/31/22 3/29/226/13/22 (2) 
Number of Results32,00032,00032,000
(1) Time of Request 12:14 a.m.Time of Response8:18 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 193-2022194-2022, 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. 

Table 2: Case 2. 

FOIA #185-2022FOIA #203-2022
Date of Request8/1/22; 10:28 a.m8/10/22;
7:45 a.m.
Date and Time of Fee Determination8/10/22;
8:45 a.m.
8/10/22;
9:04 a.m
Time Estimate, Hrs 1010
Cost Estimate, $$443.98$443.98
Number of Results 6,000No initial search conducted

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.”

The Aiken City Attorney: No contract

by Don Moniak
September 17, 2022 

On August 16, 2022, a Freedom of Information Act (FOIA) request* was submitted for information related to City of Aiken legal work conducted by the law firm of Smith, Massey, Brodie, Guynn, and Mayes. Gary H Smith III has been the City of Aiken’s Attorney** for 27 years; and members of his firm have also performed various work for the City. For example, on August 26, 2022, Aiken Economic Development Director Tim O’Briant wrote in an email: 

The March 18, 2021 $173,047.51 wire transfer from the AMDC’s checking account to Smith, Massey, Brodie, Guynn, and Mayes was entirely unrelated to Pascalis. Attorney Mary Guynn has handled real estate closing for the City for several years. This was the balance due for the closing on the Jackson Petroleum/Williamsburg property closing.

The information request, based in part on this email, and involving the period since January 1, 2019, consisted of three parts: 

1. Copies of all closing documents, settlement documents, or other real-estate related documents for all City of Aiken real estate transactions involving any member of the Smith, Massey, Brodie, Guynn, and Mayes law firm, for the period January 1, 2019 to present.
2. A copy of the contract for services, or any contract for services, with any member of the Smith, Massey, Brodie, Guynn, and Mayes law firm, including City Attorney Gary Smith; for the period January 1, 2019 to present.
3. A listing, if available, of all City of Aiken real estate transactions for the period January 1, 2019 to present.

The response to date was completed on Friday September 15, 2022. Twenty-three documents were found to be responsive, much of it already in the public record. The first part of the response, involving twenty-two records, is under review. The results of the other two portions of the request can be summarized as follows: 

  • The City of Aiken does not keep an accounting of its real estate transactions which range from a few thousand dollars to nearly $10 million dollars, in a simple, easy to retrieve format; and
  • There are no contracts between the City of Aiken and members of the firm that conducts much of its real estate transactions; and the only record of any agreement is a letter from the City Attorney to the City Manager dated December 28, 2016. 

No Tracking of Real Estate Transactions 

As is the case with many FOIA responses, the most revealing information is the absence of information. In response to part three of the request for “a listing, if available, of all City of Aiken real estate transactions for the period January 1, 2019 to present,” Aiken City Solicitor responded: 

With regards to No. 3, South Carolina’s FOIA statute obligates the City to disclose “public records” which by definition only includes items in the possession of, or retained by the City. Accordingly, to the extent the City 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.

There is no tracking of city real estate deals, no one document that specifies what was bought or sold, who was involved, and the purchase and sale costs. 

No Attorney Contracts 

Part two of the request was for: 

A copy of the contract for services, or any contract for services, with any member of the Smith, Massey, Brodie, Guynn, and Mayes law firm, including City Attorney Gary Smith; for the period January 1, 2019 to present.

The only responsive record to this portion of the request is a December 28, 2016 letter from City Attorney Gary Smith to former City Manager John Klimm, titled a “Fee Arrangement Letter” in the city’s files. 

The 2016 “Fee Agreement Letter” between City Attorney Gary Smith and the City of Aiken.

Section 2-348 of Aiken’s Municipal Code pertains to professional services from a wide array of licensed professionals including law firms.

Professional services shall be obtained through the process of requesting interested firms to submit their qualifications; reviewing the qualifications submitted and determining which firms are qualified; requesting the qualified firms to submit proposals; selecting the qualified firm with the best proposal; and negotiating the necessary contract. Except for agreements for less than $25,000.00 and that are provided for in the annual operating budget of a department, agreements for professional services shall state the terms and conditions and shall be approved by city council.

No evidence of such a process or outcome for the City Attorney position has been provided in response to two FOIA requests.

The City Attorney is near the top of the city’s organizational chart, one of two most powerful unelected positions in local municipal government; and responsible for:

  • providing advice on municipal matters of law and jurisprudence to City Council, the City Manager, and boards, commissions, and committees; 
  • serving as parliamentarian to the City Council; and 
  • ensuring city government operates lawfully. 

Yet, for all this, the existing contract is a little more than a handshake, one that has lasted nearly six years.

______________

Footnotes: 

*This is the second FOIA request for the City Attorney’s contract this year. Aiken area resident Kelly Cornelius requested City Attorney Gary Smith’s contract and received the same response: the December 28, 2016 letter. 

** Aiken City Attorney Gary Smith is the defendant in three lawsuits (including one filed by Ms. Cornelius) regarding violations of state ethics law involving the Project Pascalis proceeedings. A detailed account of the record, including the City Attorney’s job description, is contained in “The Pascalis Attorneys,” which can be viewed at: 

A review of Mr. Smith’s defense in one of these lawsuits can be viewed at: 

Beyond Project Pascalis, two City of Aiken real estate transactions have been examined in The Aiken Chronicles:

“The City of Aiken’s Mattie C. Hall Property….”

https://aikenchronicles.com/2022/08/06/the-city-of-aikens-mattie-c-hall-property-another-curious-questionable-aiken-county-council-property-deal/

and

“The Cleaners…”

https://aikenchronicles.com/2022/07/21/the-cleaners-how-aiken-city-council-got-taken-to-the-cleaners-by-the-wyattfamily/

(Edit: The Orginal Title of this story was:

“City of Aiken’s Real Estate Deals: No Tracking and No Contracts.”

The title created confusion. The “tracking” referred to just that, a tracking system for real estate transactions. “No contracts” referred to contracts for professional legal services, not to real estate contracts.

My apologies for any confusion. Don Moniak, 9/18/22)

The Aiken Planning Commission and Project Pascalis: More Ethical Dilemmas on the Horizon?

What would happen if the $100 million plus downtown Aiken demolition and reconstruction endeavor known as Project Pascalis were to come up before the Aiken Planning Commission? How many of its members would have to recuse themselves due to conflict of interest, or abstain because any perception of neutrality was compromised by past endorsements of the project? 

On November 9, 2021 the Aiken Municipal Development Commission (AMDC) passed a resolution “authorizing the acceptance of certain options to purchase real property from the Greater Aiken Chamber of Commerce in connection with Project Pascalis and other matters related thereto.” 

According to the meeting minutes for that November 9, 2021 meeting, AMDC Executive Director Tim O’Briant described the process leading to that point: 

Mr. O’Briant stated that as we moved through the early process of negotiating with an initial developer who held contracts for the purchase of real estate that we (were) considering the purchase of, negotiations with that group broke down. We had a cost sharing agreement where we were doing pre-development explorations. In exchange for that agreement the developer had granted the Commission the right to maintain those options and contracts on the project to keep the project alive. The developer pulled out so late that it was impossible for the AMDC or Council to act in time to save the contracts by the deadline. The Greater Aiken Chamber of Commerce and their Executive Committee stepped in and agreed to hold those options and make available the sum of $135,000 to pay the earnest money on the contract. Today this resolution will repay the Chamber of Commerce for their advance for the options to purchase the property.

The resolution passed unanimously, although two AMDC members, Vice-Chair Chris Verenes and Treasurer J. David Jameson (better known as President of the Aiken Chamber of Commerce) abstained from the vote. According to the minutes:

The motion was approved by the Commission, with Mr. Verenes and Mr. Jameson abstaining from participating in the discussion and voting on the resolution.

Mr. O’Briant was referring to the chain of events that began around May 1, 2021, a literal “May Day” for the AMDC.  On March 17, 2021,  the AMDC announced it had “identified and recruited an “experienced” and “well capitalized” developer. That developer was not revealed at the time, but it was Weldon Wyatt, and he was backing out of the deal less than forty days after signing the cost sharing agreement cited by O’Briant (see Project Pascalis Property Acquisition Timeline below) .

Project Pascalis Property Acquisition Timeline (2)


March 2, 2021: $7.5 million purchase and sale agreement (PSA) signed by WTC Investments, LLC* for “Shah Property” on Laurens St, Richland Ave, and Newberry St. 

March 15, 2021: Aiken Alley Holdings (Agent; Ray Massey) purchases 210 and 200 The Alley for $2.025 million. 

March 23, 2021: Aiken Municipal Development Association (AMDC) and GAC, LLC (Agent Weldon Wyatt) sign cost-sharing agreement with options for AMDC to buy properties obtained by GAC, LLC and its affiliates (WTC Investments)

April 4, 2021:  Smith, Massey, Brodie, Guynn, and Mayes, LLC (Agent Gary Smith III) send $6800 Invoice for property acquisition work to WTC Investments*

April 15, 2021: $2.0 million PSA signed by WTC Investments* for “Anderson Property”

May 1-10, 2021: GAC, LLC withdraws from cost-sharing agreement. AMDC, Aiken Chamber of Commerce (the Chamber) and WTC Investments, LLC* negotiate “assignment” of Shah and Anderson properties to the Chamber allowing WTC Investments to recover $135,000 in nonrefundable earnest money held by Smith, Massey et al. 

May 12, 2021: The Chamber Aiken takes assignment of “Shah Property” from WTC Investments, LLC (Agent Ray Massey). 

June 3, 2021: The Chamber  takes assignment of “Anderson Property” from WTC Investments, LLC

June 3, 2021: Email from WTC Investments to Mary Guynn and Ray Massey requesting release of $35,000 Earnest Money for “Anderson Property.” 

June 7, 2021: Aiken Alley Holdings, LLC purchases 121 Newberry St, SW for $675,000. 

August 23, 2021: Aiken City Council authorizes $10 million in general obligation bonds for AMDC to purchase unspecified properties in the city’s Parkway District. 

October 27, 2021: RPM Development Partners, LLC (Agent Ray Massey) registers with SC Secretary of State. 

November 9, 2021: AMDC “accepts assignment” of Shah and Anderson properties from the Chamber for $9.5 million. 

December 3, 2021: AMDC signs PSA for Shah and Anderson properties with RPM Development Partners for unspecified sum, pending demolition approvals and a final development agreement. 

May 16, 2021: AMDC reports it will sell properties at a discount as a “one time incentive.” 

*WTC Investments, LLC dissolved on January 4, 2021 and re-registered with the South Carolina Secretary of State on May 11, 2021. Ray Massey was agent for both entities. 

__________________

In order to preserve the option to purchase the seven properties in the proposed Project Pascalis demolition zone, the AMDC and the Aiken Chamber of Commerce struck a deal with Wyatt’s WTC Investments, LLC that allowed Wyatt to recover $135,000 in earnest money deposited with the law firm of Smith, Massey, Brodie, Guynn, and Maynes. 

As Tim O’Briant described, the Chamber essentially advanced the AMDC $9.5 million, also known as taking “assignment” of the properties, while the AMDC hustled the Aiken City Council for its own  $9.5 million to buy the properties. The council obliged in August, 2021 with a $10 million general obligations bond issuance prepared by the law firm of Pope-Flynn. The AMDC finalized the deal on November 9, 2021 by purchasing the properties. 

The Aiken Chamber of Commerce Executive Committee is currently composed of  Norman Dunagan, Jason Rabun, Charlie Hartz, Joe Lewis, Van Smith, Ryan Reynolds, and J. David Jameson.  Both Rabun and Reynolds also serve on the Planning Commission: 

  • Planning Commission Chair Ryan Reynolds is the “Immediate Past-Chair” of the Aiken Chamber of Commerce Executive Committee. Reynolds was the Chamber’s Executive Committee Chair during the Wyatt-AMDC-Chamber of Commerce deal. 
  • Planning Commission Vice-Chair Jason Rabun is the “Chair-Elect & Membership Services” officer for the Aiken Chamber of Commerce Executive Committee. Rabun was a newly elected Chamber Board member in 2021. 

Jason Rabun also submitted a brief comment during the second of two April 20, 2021 Project Pascalis public meetings. (3) While not identifying his affiliations, he wrote: 

“I am very much in support of this project.” 

GIven the deep involvement of the Aiken Chamber of Commerce and Chamber President Jameson’s abstention from a key vote involving the Project, are Planning Commission members Rabun and Reynolds also obliged to recuse or abstain if any Project Pascalis issues come before their purview? 

___________________

(1) AMDC Meeting Minutes for November 9, 2021:
https://edoc.cityofaikensc.gov/WebLink/DocView.aspx?id=2685557&dbid=0&repo=City-of-Aiken-LF

(3) Jason Rabun comments in April 20, 2021 Zoom meeting

Click above to view full size

The Project Pascalis “Influencers” Meetings: Yes, the AMDC Violated Open Meeting Laws

The Aiken Municipal Development Commission (AMDC) is the branch of City of Aiken government that has pursued the proposed $100 million plus demolition and reconstruction endeavor known as Project Pascalis. The first eight months of project execution was conducted almost entirely in secrecy. Following announcements of land purchases and the selection of a developer, RPM Development Partners, AMDC officers and its Executive Director planned, organized, and executed illegal meetings between the developer and select members of the public, city council, and other city officials. The meetings were not announced to the public, not open to the public, were referred to as “influencer meetings,” and the scope of the meetings appears to have been strongly influenced by the developer. 

FOIA and Open Meetings 

South Carolina’s Freedom of Information Act (FOIA) exists to prevent wrongdoing by government officials, elected and appointed. The “Open Meetings” aspect of the law specifies that every “meeting of all public bodies shall be open to the public unless closed for distinct reasons.” There are no laws saying a meeting “must be” closed, only that it “may be” closed for reasons including issues of employment, contracts, property purchases and sales, and matters “relating to the proposed location, expansion, or the provision of services encouraging location or expansion of industries or other businesses in the area served by the public body. “

The law directs city and county governments—councils, boards, and commissions; school boards and every other public body — to not circumvent this basic requirement for open meetings, by stating: 

c) No chance meeting, social meeting, or electronic communication may be used in circumvention of the spirit of requirements of this chapter to act upon a matter over which the public body has supervision, control, jurisdiction, or advisory power. (1) 

The Aiken Municipal Development Commission (AMDC) was formed in 2019 by the Aiken City Council under the terms of South Carolina’s Community Development law. (2) The AMDC is legally restricted to addressing areas within the City of Aiken that meet the legal criteria for blighted and near blighted areas, (known as “conservation areas”), and is legally obligated to adhere to the state’s Open Meetings laws. 

In March 2021 the AMDC announced the formation of “Project Pascalis,” and held meetings almost exclusively behind closed-door Executive Sessions for the next eight months. Nearly two-thirds of the commission’s public meeting time during that period was held in these closed-door sessions. The remainder of the meeting time was devoted to issues unrelated to Project Pascalis. (3) By the time preliminary details of the project were publicly announced on November 9, 2021, the City of Aiken had devoted $9.5 million to the purchase of seven downtown properties now forming the project’s proposed demolition zone encompassing nearly half of a city block. 

On December 3, 2021 the AMDC announced the selection of RPM Development Partners, LLC as the Project Pascalis developer; and the existence of a purchase and sale agreement between the AMDC and RPM involving the seven properties. No legal request for proposals had ever been advertised prior to selecting RPM. The AMC actually ran a public notice for a request for proposals on December 13th and 20th, after choosing the developer.

Private Emails and a Zoom Call. 

From December 9th to the 29th, 2021, the AMDC’s three officers and Executive Director Tim, planned and organized illegal, invitation-only meetings in the name of “public input” that were held on January 4th and 5th of 2022.  At least four of the meetings were scheduled for the Aiken Chamber Of Commerce’s offices. One “dinner” meeting was eventually held at Prime Steakhouse in downtown Aiken and involved city officials and developers that eventually featured a $620 dinner and drinks bill for the six City officials in attendance— at taxpayer expense. 

Preliminary, detailed information regarding these illegally closed meetings was reported on May 27, 2022, with an update issued on June 3, 2022.  AMDC Executive Director Tim O’Briant denied the meetings met the legal definition of a “public meeting,” and even denied involvement by AMDC officials in the planning stages. (4) 

A series of recently obtained emails (5) between AMDC Treasurer J. David Jameson, his fellow AMDC officers,  and AMDC Executive Director Tim O’Briant shed light on the real involvement of AMDC officials. Mr. Jameson also serves as the President of the Aiken Chamber of Commerce, and most of the emails originate from his Chamber email account. AMDC Chairman Keith Wood and Vice-Chair Chris Verenes also used email accounts provided by their employers, Amentum and Security Federal Bank, respectively. No AMDC officers used their official government email accounts at the AMDC’s aikenmdc.org domain. 

In fact, it does not appear that a single AMDC commissioner has used their AMDC email account, in spite of a June 2, 2020 warning from City Attorney Gary Smith to never use private email accounts to conduct city business: 

Council and Board members must use their City provided email address for all official City business. [Hillary Clinton]

1. Use of private email for official City business may subject your private email address to be searched pursuant to the FOIA.


 Smith also advised the Commission that day on public meetings: 

All meetings must be properly noticed. I. Four members of City Council/ Boards cannot be together unless they arein a properly advertised public meeting.

1. No phone conferences that involve four or more members on the phone at the same time.

and 

3. No secret meetings. [Sconyers BBQ] (6)

The emails reveal the three AMDC officers and Tim O’Briant initiated, planned, organized, and executed five Project Pascalis secret, “public input” meetings with only select invitees, and in consultation and coordination with Project Pascalis developer RPM Development Partners, LLC. (Agent: Ray Massey). The meetings were labelled “Influencer Meetings” in a few emails. Among the invitees were fellow AMDC commissioners, so any of the meetings easily could have exceeded the four commissioner limit triggering a proper and legal public notice. 

The planning began on December 9, one week after RPM was announced as the project developer, when AMDC Chair Keith Wood wrote to Tim O’Briant: 

Would you mind setting up a meeting with Grey Raines and the AMDC Executive Committee in the next couple weeks? We would like to understand his process for seeking public input and get a schedule from him on this topic. The meeting needs to take place prior to meeting with the DRB in January and preferably in person if possible.

Within two hours O’Briant responded “Will do.” 

Grey Raines is the President of Raines Hospitality, a “development, management, and investment company that develops, operates, and owns the world’s leading hotel brands as well as boutique hotels,” and is commonly referred to as Rainesco (as in rainesco.com). Rainesco is one of three investor and development groups within RPM Development Partners, the other two being Lat Purser & Associates and Ray Massey and his local investors, if any. 

The “Executive Committee” is composed of the AMDC’s three officers and Tim O’Briant, but its roles and definition cannot be found in the commission’s by-laws or founding ordinance. The schedule of full “Executive Committee” meetings are publicly posted as part of the AMDC’s meeting schedule. 

O’Briant began organizing the Zoom meeting at some point, beginning with RPM Development Partners, LLC investor and agent Ray Massey. In a December 15th email to Grey Raines titled “Zoom Call” and cc’ed to Tim O’Briant’s private tim.obriant@icloud.com account, Ray Massey wrote: 

Grey, is there a time next week that me, you, Tim, and Keith can jump on a quick zoom call? Keith just wants to hear from us how the process is handled with the public, if and when, any meetings might be necessary.

Raines responded to Massey and O’Briant’s private email the same day: 

Sure thing. I have availability on Monday afternoon and Tuesday afternoon.

The email from O’Briant’s private account was forwarded the next day to the private employer accounts of the AMDC officers, ultimately confirming Tuesday, December 20, 2021 for a “call with RPM.” 

The invitees to the December 20, 2021 zoom meeting organized by O’Briant  were AMDC Chair Keith Wood, Vice-Chair Chris Verenes, Treasurer J. David Jameson,  Grey Raines, and lead local investor and agent for RPM Development Partners, Ray Massey. The topic was “Project Pascalis public input discussion.” Conspicuously absent from the proceedings was Lat Purser, the third investor and developer in RPM. The meeting was not publicly posted as an Executive Committee meeting.

Details of the Zoom meeting are unknown at present, but a FOIA request for meeting notes, a copy of the transcript, and the video has been filed.

The Influencers Meetings Invitation List

On December 22nd Jameson emailed his three colleagues with the subject “suggested schedule for January 4/5” and an attachment titled “Influencer Meetings.” The body of the email was headed as “Random Thoughts,” and reveals an inclination to restrict public input to select, elite members of the public, as well as a preference for two exclusive Chamber of Commerce member meetings. Jameson’s random thoughts were: 

I like Ray’s (Massey) list—maybe he should invite them to a session that several of us could also attend. 

The Chamber is available for as many sessions as needed.

I would like one session for the Chamber Executive Committee. 

I suggest that we bring back the Mosaic participant as a session—maybe the 8AM on the ‘s 5th.

I suggest that we have one session with Chamber Past-Chairs. 

We’ll have to scrub the above lists to make certain folks are not invited multiple times

City Council, Some County Council, some Legislative Delegation

These invites would have to go out next week.

Just a starting point for me.

The Attachment titled “Influencer Meetings” shows four meetings scheduled for January 4th, followed by a Design Review Board meeting followed by “Dinner.” Four more meetings were originally scheduled for January 5th. (photo of meetings) 

The email reveals the organization was led by the AMDC, with Jameson operating in a grey zone in his dual role as Chamber President by offering meeting space and seeking a greater role for Chamber luminaries. 

A few hours later Jameson had the invitee list completed. In an email to O’Briant with the subject, “as we discussed,” was an attachment titled,  “Final List with email addresses only.” The body of the email reads:  “this is a good list.” 

The “influencers” list (7) is three pages long and contains 113 names. Remarkably, the list even excluded two elected city officials and included only one County Council member. Although their list does not include the affiliations or title of invitees, among the 113 “influencers” were people who could have and should have raised a flag of concern regarding proper public meeting protocols, including:

  • (Then) Aiken Standard Publisher Rhonda Overbey;
  • Mayor Osbon and council members Lessie Price, Gail Diggs, Andrea Gregory, and Ed Woltz (Ed Girardeau and Kay Brohl are not listed); 
  • Design Review Board, Velice Cummings; 
  • Three members of the Aiken Planning Commission: Jason Rabun, Ryan Reynolds, and Steven Simmons;
  • Two members of the Aiken Housing Authority, Nathanial Dicks and James Gallman;
  • Former Aiken School District Board Chair Levi Green; 
  • Superintendent of the Aiken School District, King Laurence;
  • Former superintendent of schools and current Executive Vice-President and Chief Administrative Officer for Savannah River Nuclear Solutions,(SRNS), Sean Alford;
  • Aiken County Council Vice-Chair Andrew Siders;
  • AMDC Commissioners Catina Broadwater,  Douglas Slaughter, and Philip Merry;
  • Department of Energy Savannah River Site Operations Manage Michael Budney.

The invitation of five city council members indicates the potential for a quorum of members that would trigger a public announcement and notice. No such notice was issued. 

It is unknown at this time if any concerns were raised, but letters of inquiry have been sent, and are still being sent to existing public officials (7). Only Andrew Siders of Aiken County Council has answered, stating he “was not aware of them” and did not attend. 

One person not included on the list was Aiken area resident Christopher Hall, who had written to Commissioner Chris Verenes on November 30th inquiring about a public input schedule for Project Pascalis and offering some suggestions for development, such as bike paths and a “Complete Streets” initiative. Vice-Chair Verenes shared Hall’s one-page email with fellow officers and O’Briant, but there were no comments on any of his suggestions for improving the downtown area. 

On December 28, Jameson wrote to fellow committee members with more refined plans for a new total of seven meetings in an email titled  “Influencer Meetings for January 4/5”:

Tim and I met this morning to work on the influencer meeting for January 4/5. We have placed everyone among 5 groups. Four of the meetings will be at the Chamber. The four of us can attend any or all of the sessions.

This particular email indicates the potential for a quorum of AMDC members, which legally should have triggered a public meeting notice. No such notice was ever issued. 

Four meetings were planned for January 4th, 2022, three prior to an announced, public Design Review Board meeting and a subsequent dinner with select city officials and the developer:

January 4th

11:00 — Ray’s (Massey) group
2:00 — Combined Leadership Group (Chamber Executive Committee, Aiken Corp., ADDA, some AMDC, several elected officials, etc.) 
3:30 —Chamber Past Chairs
5 —DRB
7 —Dinner —Mayor, Stuart, Tim, Chris, Keith, David, and Grey’s group.

Two additional meetings planned for January 5th were devoted to another Chamber of Commerce group plus the singular meeting devoted to “many constituencies”:

January 5 

9 —Chamber Board
11–Diverse group representing many constituencies.

To break it down, the secret “influencer” meetings consisted of five different groups, one led by the lead local investor, two restricted to Chamber of Commerce past and present VIPs, the “combined leadership group,” and a singular meeting devoted to “many constituencies.” 

Jameson also submitted a draft invitation for review that clearly reveals he was acting as an AMDC member, and not in his Chamber role: 

I am contacting you today in my capacity as a member of the Aiken Municipal Development Commission (AMDC) to invite you to a small gathering to meet Grey Raines, the preferred developer for Project Pascalis, and his team. 

In November, the AMDC selected Rainesco for futher negotation and due diligence related to an exciting development project that envisions a hotel, conference center, apartments, and a parking garage on a prominent block downtown.

This is an opportunity for you to meet Grey and hear his development philosophy.

Expect to receive an Outlook appointment to arrive shortly. Please accept of decline the request. I hope that you can attend.

There were no comments on the draft invitation. The next day, December 29th,  Jameson emailed the invitations to an undefined list. 

The Influencer Meetings: Fellowship, Conversation, and a Celebratory Dinner

The City of Aiken has refused two FOIA requests for meeting minutes and attendee lists. The most recent submitted on July 28, 2022 asks for:

1. A listing of all attendees at the AMDC organized ‘influencer meetings’ held on January 4thand January 5th, 2022. The January 4th meetings was also referred to as a “stakeholders meeting” in a July 27, 2022 email from Aiken FOIA Officer Tim O’Briant. 2. Meeting minutes, notes, or other written documentation detailing comments and questions from the select audiences.

In spite of Jameson stating he was acting in his capacity as an AMDC member in the invitation, Tim O’Briant answered the FOIA an hour later by denying the existence of such records and the involvement of the AMDC: 

“The City of Aiken has determined that it retains no records related to these meetings hosted privately by the Aiken Chamber of Commerce and Raines Development. For further information please contact those organizations.”

To date, the only documentation of the meetings remains the week-old recollections of O’Briant, Verenes, and Jameson. According to the AMDC’s meeting minutes (8) for January 11, 2022, fifty-seven people attended five meetings,  so half of the people on the invitation list had not been invited, declined the invitation, or were no-shows the day of the meetings. 

The AMDC meeting minutes of January 11th indicate the January 4th and 5th “influencer” meetings were more about marketing than obtaining public input. Vice Chair Chris Verenes is credited with stating: 

The Executive Committee is part of the Marketing Committee. He pointed out that as a result of the publicity regarding the Pascalis Project, there have been questions. The Committee talked about a process that we can get some feedback and discussions along the way. He noted there was a phone conversation about getting Rainsco to start getting out into the community to talk about the project. Rainsco was contacted and some meetings were set up. He pointed out that they met with the Design Review Board and other groups. He said they were planning to meet with Mark Chostner to get details on the timeline for the Pascalis Project to see how they can couch the marketing plan with some general concepts of when things will be done.

In a subsequent discussion titled “Rainesco Visit Recap,” the January 11 meeting minutes describe some of the “influencer” meetings in general terms, but left out mention of the dinner meeting: 

Mr. O’Briant stated Mr. Jameson was great in putting meetings together. He said Mr. Jameson took the opportunity to gather people together for fellowship and information with Rainsco. He said we tried to include people in different walks of life for diversity so we have people from different thoughts. Mr. Jameson stated there were five sessions, with a total of 57 people attending the sessions over two days. Mr. O’Briant stated there will be more meetings. The Rainsco people, the developers for the Pascalis Project, were in town and introduced themselves to the Design Review Board. He noted the Design Review Board will make very important decisions about the project. They did not show plans at this time, as they wanted to just introduce themselves. He pointed out that Rainsco has handled a large number of public-private partnerships throughout the South. They like to meet in small groups instead of having a large public session. They like to explain what they want to do and then take input and questions. They will be doing more sessions.

Mr. Jameson stated Rainsco was available the Tuesday after Christmas. It was not an ideal time, but people responded very well. The sessions were presented as a conversation with Gray Rains. Mr. Rains introduced himself, talked about his development philosophy, referred to some projects that he had done, what the obstacles were and how he had overcome them, and things that had worked smoothly. It was explained that there were no plans, renderings, and no site plan yet. They are in the beginning stages. Mr. Jameson stated people appreciated the fact that they got to look into the eye of the person that may become the master developer of this project. They got to see him early on and understand his philosophy. He said he received thank you notes from people who appreciated being included.

Since two of the meetings involved Chamber’s Board members and its Executive Committee, and nearly all of these members were on the invite list, it is safe to assume many of the Chamber’s VIPs attended. (9) 

The only publicly announced meeting on the list was closed to input from the general public. The DRB meeting was a public “workshop” that began at 5:30 p.m. and was termed a “pre-application conference.” A discussion between the Board and RPM representatives occurred, with most answers being noncommittal. No questions were accepted from the public.  The list of attendees is incomplete, ending with “other interested parties.” (10)

The 7 p.m. “Dinner Meeting” went as planned, with Mayor Osbon, City Manager Stuart Bedenbaugh, Tim O’Briant, Keith Wood, J. David Jameson, and Chris Verenes enjoying a tax-payer funded dinner with a $620 dinner and drinks bill that included seven orders of premium whiskey and dinners that started at $46 apiece. According to Tim O’Briant, the RPM representatives dining with the city officials. but paying for their own dinner and drinks, were Ray Massey and Raines executives David Tart and Brandon Graham. O’Briant most recently described the day’s events in a FOIA response as a:

business social gathering following a day of stakeholder meetings held by RPM, LLC and Raines, and followed by the AIken DRB meeting earlier in the evening. (11) 

Conclusions

Ample evidence now exists illustrating that the AMDC “Executive Committee” planned, organized, and conducted meetings deemed illegal under SC FOIA law. Even though the meetings clearly had the potential for a quorum of AMDC members, no public notice was issued. The “Executive Committee,” whose meetings are routinely publicly posted (11), participated in a ZOOM conference organizing call that was not publicly announced. While the meetings were deemed “influencer meetings,” one intent behind the meetings was to gain “public input.” 

The implications of these secret meetings extend beyond their illegalities. Although there is no attendee list publicly available at present, the fact is the invitation list included elected and appointed city officials tasked with making legally binding decisions based on an objective review of the facts regarding Project Pascalis and related matters. 

While the City of Aiken Planning Commission is not scheduled to hear any Project Pascalis requests, that could change, as Project Pascalis is frequently described by Tim O’Briant as an “evolving process.” The presence of three members on the list indicates the potential to taint any future commission hearings. Even if he did not attend any meetings, Chamber of Commerce Executive Board member and Planning Commissioner Jason Rabun has already expressed his “full support” for the project, which should disqualify him from any future proceeedings. 

If five members of City Council were invited to a single meeting, that would constitute a public meeting and the need for a public notice. An effort to separate the members into different meeting groups could indicate illegal intent to circumvent the quorum requirement. Because there was no notice, there was the potential for “ex-parte” communications  that are prohibited among public officials and which taint and undermine the public input process.  

In May 2022, Aiken City Council has already passed one ordinance related to the project — the privatization of a part of Newberry Street, a proposal originating in March, 2021 before any conceptual designs were commissioned. These meetings call into question the legitimacy and credibility of the Newberry Street ordinance. 

The meetings also raise credibility issues for the AMDC and its Executive Director, who is on the record denying involvement by AMDC members. On May 27, 2022, O’Briant wrote in an email disputing the first full story on these meetings: 

The small group introductions you reference from January of 2022 we’re organized by the chamber at the request of Raines to meet with various stakeholders in the community. These were not AMDC meetings and none of the sessions were attended by or conducted by the AMDC or its staff.

O’Briant later repeated this assertion in a May 31 email: 

What I wrote, copied here verbatim, was “these were not AMDC meetings and none of the sessions were attended by or conducted by the AMDC or its staff.”

______________

REFERENCE

(1) SC Freedom of Information Act. Sections 30-4-60 through 30-4-90 pertain to open meetings law. https://www.scstatehouse.gov/code/t30c004.php

(2) SC Community Development Law specifies all legal aspects of Community Development Commissions. https://www.scstatehouse.gov/code/t31c010.php

(3) “The Project Pascalis Transparency Index.” by Don Moniak. 

(4) “Did the AMDC Violate Open Meetings Law” by Don Moniak was first posted on May 27th, 2022 on the Do It Right! public Facebook page: https://www.facebook.com/groups/550766946465448/?multi_permalinks=613473893528086&comment_id=613653766843432&notif_id=1653694800539955&notif_t=feedback_reaction_generic&ref=notif

and later published at The Aiken Chronicles website at: 

“An Update to Did the AMDC Violate Open Meetings Law” by Don Moniak was originally posted to the Do It Right! Facebook page and a version with complete email correspondence between Tim O’Briant and Don Moniak was later published at The Aiken Chronicles website: 

(5) July 11, 2021 Freedom of Information Act Request: 

Copies of all emails to and from AMDC Commissioner J. David Jameson involving AMDC related business between May 1, 2021 and June 15, 2021 and then for the month of December 2021, including but not limited to the following topics: Project Pascalis, WTC Investments, LLC, Weldon Wyatt, RPM Development Partners, LLC, Raines Company, Smith Massey et al Law Firm, and Newberry Street. The official email address djameson@aikenmdc.org (if that is correct) as well as the email addresses listed in City of Aiken board memberships (attached) should be searched. The two other emails identified with Mr. Jameson are djameson@aikenchamber.net and jdavidjameson@gmail.com. While Mr. Jameson was a commissioner at the time of the AMDC’s June 2, 2020 AMDC, he should have been briefed on Mr. GAry Smith’s thorough presentation of state FOIA and ethics law when he became a Commissioner, and should be aware that private email accounts are subject to FOIA.” 

The City responded on July 18th with a $192 bill for search, retrieval, and review costs. 

After a 25% deposit was made, the city released 238 pages of responsive records, and considers the response complete. The response was not complete, as there are major gaps in the timeline of events. 

A link to the series of emails is at: https://drive.google.com/file/d/1HPUMA4t6h1gRF_7JHWf6fIVPKC5Ks3nK/view

(6) June 2, 2020 AMDC Meeting Agenda. https://edoc.cityofaikensc.gov/WebLink/DocView.aspx?id=519868&dbid=0&repo=City-of-Aiken-LF&cr=1

Page 3 from the June 2, 2022 AMDC meeting agenda

(7) The ‘influencers list” is not being released for the simple reason that the parties listed did no wrong. However, emails have been sent to many of the present day officials, including the entire City Council, Andrew Siders, and Michael Budney asking if they had received invitations and their responses to them. No responses have been forthcoming to date. 

However, one comment made during the real public input process on the entirety of the project that formally began on April 20th is important to note. During the evening meeting, Chamber Executive Committee vice-chair and Aiken Planning Commission member Jason Rabun wrote to the city’s Zoom call moderator: 

“I am very much in support of this project.” 

Mr. Rabun did not identify any of his affiliations, most notably his role on the planning commission. 

(8) https://aikenmdc.org/wp-content/uploads/2022/03/2022-03-15-Municipal-Development-Commission-Agenda-Packet.pdf contains the minutes for the January 11, 2022 AMDC meeting. 

Mark Chostner was an invitee to the “influencer meetings” and is referenced in the minutes in regard to the Project Pascalis schedule, owns and operates “Capstone Services.” https://www.postandcourier.com/aikenstandard/sundays_best/mark-chostner-businessman-focuses-on-stewardship-encouragement/article_fbecaace-4a4c-11ec-9b27-2f61c18dc705.html

According to the AMDC’s “transparency page,” Capstone Services has earned more than $10,000 for undefined “professional services” from the AMDC. The invoices for these services were removed from the website in mid-July due to the presence of copies of AMDC checks with bank routing and checking account numbers not redacted. Today, only the checks remain. 

(9) The Chamber of Commerce staff members are listed at: https://www.aikenchamber.net/our-team.html

Chamber President J. David Jameson is also Treasurer of the AMDC. On May 9th, 2022 he spoke at an Aiken City Council meeting during the second hearing of an ordinance to privatize part of Newberry Street, part of the Project Pascalis plan. Mr. Jameson did not identify himself his dual role as an AMDC commissioner during those comments. 

Chamber Vice President for Administration Diane Philips also expressed support during the Zoom meeting portion of the April 20th public meeting, although she did not mention her affiliation with the Chamber. 

Executive Committee members and Board Members are listed at: https://www.aikenchamber.net/board-of-directors.html

The Chamber’s Executive Committee has been active in promoting Project Pascalis. Charlie Hartz wrote a letter to the Aiken Standard, Jason Rabun spoke in favor at the April 20thmeeting, and Norm Dunagan spoke at the April 20th meeting and May 9th public hearings. Van Smith was featured in a WRDW story speaking in support of the project. 

(10) The DRB Workshop meeting minutes for January 4, 2022 are at: https://edoc.cityofaikensc.gov/WebLink/DocView.aspx?id=2735900&dbid=0&repo=City-of-Aiken-LF

Attendees were “City Manager Stuart Bedenbaugh, Assistant City Manager Mary Catherine Lawton, Planning Director Marya Moultrie, Planner Mary Tilton, Zoning Official Mike Dennis, Economic Development Director Tim O’Briant, Erica Sanders, Ray Massey, Grey Raines, Brandon Graham, Stephen Overcash, Susan French, David Blake, Mandy Drumming, Mark Chostner, Philip Merry, David Jameson, Christopher Verenes, Martin Buckley and other interested parties” 

Stephen Overcash is the lead architect at ODA Architecture, which is a contract firm for RPM working on the designs of various parts of Project Pascalis—specifically the Hotel and Conference Center. 

(11) “Toast of the Town: The January 4th Social Business Gathering at Prime Steakhouse.”  Don Moniak. July 28, 2022. 

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

The Beef Stew and Mundane Vegetable Soup of Public Meetings

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

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


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

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

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

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


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

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


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

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


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


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

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


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

He further stated:


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

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

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

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

____________________

(1) Original posting at: 

Do It Right FB page

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

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


Mr. Moniak,

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

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

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

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

Regards,

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

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


Mr O’Briant,

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

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

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

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

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

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

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

Thank You,

Donald Moniak

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

Mr. Moniak,

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

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

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

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

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

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

Mr. O’Briant, 

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

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

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

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

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

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

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

Thank You, 
Donald Moniak

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

Mr. Moniak,

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

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

Regards,
Tim

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