Mr. Mayor and Honorable Members of Council:

I write to oppose your approach to settling the fate of the Portsmouth Confederate Monument. Although I support its eventual relocation to a cemetery that already houses the remains of Confederate soldiers, I have three objections to the manner in which you are currently proceeding. The first is that taking up this matter in a virtual meeting of city council does not comply with Attorney General Herring’s guidance in the Sullivan Opinion regarding the legal limitations to which such meetings are subject. As I have pointed out on prior occasions regarding other items of council business, this matter does not qualify as “keeping the lights on in city hall” during the pandemic. Unlike the items to which I previously objected for the same reason, 20-188 likely will elicit a strong reaction from members of the public unhappy with whatever you may decide, resulting in legal action to overturn the decision. I ask you not to invite yet another court battle for the city.

My second objection is that under Virginian Code subsection 15.2-1812, you have a choice between conducting a public hearing on the disposition of the monument or holding an advisory referendum. Council has elected to forego the referendum in preference to the public hearing, a choice with which I disagree. To the best of my knowledge, no one has done any public opinion polling on this question. so we have no accurate indication as to what “the will of people” is in this case. As our elected representatives, you should want to know that on every occasion, but most especially on matters that elicit such strong opposing responses from constituents. In dealing with controversies of this type, the electorate will surely judge you not only for the decisions you make but, as importantly, by the perceived fairness of the process that produced the decisions. Please note that with an advisory referendum, council still gets to be “the decider”; you just decide with a clearer idea of what the public desires.

Regarding my third objection, with council having selected the public hearing approach, what the city has advertised does not, in my view, constitute a public hearing. Virginia Beach, in determining what to do with its confederate monument held an in-person hearing in their convention center so as to maintain the desired “social distance” among the participants. In contrast, Portsmouth has offered our citizens merely a choice of submitting written or oral comments in advance of the virtual meeting. It’s not as though we have no venue for holding a safe meeting: we could do so responsibly in a high school gym, cafeteria, or auditorium. In a true public hearing, speakers can listen to each other, and those coming later in the sequence can reinforce or dispute points made by their predecessors. Interested parties attending the meeting who may have been on the fence about signing up to speak can decide on the spur of the moment to join in, offering arguments pro and con that others have not. On the other hand, those filing comments beforehand have no way to know what their neighbors’ concerns were until well after the fact. An in-person public hearing, then, provides valuable opportunities to foster mutual understanding and community interaction that written and recorded communication do not.

For the preceding reasons, then, I urge you to withdraw item 20-192 until such time as you can legally act on non-emergency issues and then take action to set a date for an advisory referendum.

Please let me know if you need additional information.

Yours truly,
Mark Geduldig-Yatrofsky