UPDATE Dec. 14, 2021: The search for a new city attorney has opened back up. Portsmouth council members approved a motion in a 5-2 vote to resume the search Tuesday night.

Click here for more updates on the meeting.

PORTSMOUTH, Va. (WAVY) — There’s a controversy brewing in Portsmouth on who the next city attorney should be. We’re told a majority of the seven council members want a city attorney who the other three think is unqualified.

We have confirmed that the candidate is Norfolk attorney Herman C. Smith III, but it’s Smith’s past that seems to be catching up with him involving this appointment.

“Would criminal activity disavow someone serving as a City Attorney?” On November 23, Portsmouth City Councilman Bill Moody asked that question and raised that question to Interim City Manager Burle Stromberg with concern Moody has about Smith.

“I will be sharing that information. It is public information and the public needs to be aware,” Moody continued.

In our interview, neither Mayor Shannon Glover nor Councilman Moody mentioned Smith by name.  

10 On Your Side has learned the candidate in question is Smith. He has an office in Norfolk. 

Glover, without mentioning Smith by name, told us, “There are a number of concerns relating to his background that we believe make him unfit.”  

Specifically, “a track record for failing to appear in court.” 

Moody added: “That is not professional behavior that you want your city attorney to exhibit.” 

10 On Your Side called Smith and text him repeatedly over the last three days. We also went to his Norfolk law office, but he was not there.  

An associate told him on the phone that we were in the office, and he said he was in court.

We left our number, as we have on several occasions, but Smith did not return our call.  

We wanted to ask him about court records showing his failure to appear in court to represent his clients on several occasions, in different courts around Hampton Roads:  

• Smith was found guilty on Jan. 3, 2019 for a failure to appear in Virginia Beach.  
• Smith was found in contempt of court in Chesapeake earlier this year. The court notes indicated he was 45 minutes late to trial.  
• On May 27, 2021, Smith pleaded guilty again in Chesapeake for failure to appear.  

“Based upon the standards that we have been made aware of, I don’t think this candidate meets those standards,” Glover said. 

In these cases, there was no jail time; he received suspended sentences. 

The councilmembers are concerned with what they call a pattern of failing to appear to represent his clients.

“A city attorney is a drum major for professionalism and ethical standards. They evaluate and direct the attorneys that work in their office,” Moody said.

“We want that person to be of high ethical, high professional standard, and that has to be the bar that is set for that position,” Glover said.

Smith was also charged with felony obstruction of justice in Norfolk Circuit Court. Court documents show Smith called out a man who testified against his client, calling him a snitch. 

Outside the courtroom, Smith was heard saying “Let everybody in Young’s Park know he a snitch.” 

In court documents obtained by 10 On Your Side, the exact quote was: 

“Yeah, he from Young’s Park. Go out there tonight and tell everybody he a snitch. He a snitch. Go out there and tell everybody he a snitch. He probably gon(na) have to do three years but he gon(na) have to come back. Let everybody in Young’s Park know he a snitch,” documents said. 

In a plea agreement, Smith pleaded down the felony to misdemeanor contempt of court.   

In a hearing before the Virginia State Bar, Smith agreed to a “public reprimand without terms” in reference to this case, and he remains in good standing with the Virginia State Bar.   

“It is a track record of no responsibility, poor decision making, and our city attorney needs to be on top of their game professionally,” Moody added.

“When we think about the City Attorney that is the top legal arm and legal decision-maker. He will have to defend the city and issues relating to legal matters?” Glover said.

They are also concerned Smith fails to meet this city attorney qualification which states, “at least three years of management or supervisory experience,” 

Glover explained why.

“Because he does not have any municipal experience as a city attorney or running a city attorney’s office,” he said. 

We asked Vice-Mayor De’Andre Barnes about these issues involving Smith and he would only say, “I have some things in my past I’m not proud of, but that doesn’t mean I shouldn’t be Vice-Mayor.” 

We don’t know what will happen during a city council work session Tuesday, but there is expected to be a spirited discussion in closed session. 

Glover and Moody also say the four councilmembers who will decide who the city attorney will be likely support Smith because they have refused to show up for at least one meeting to discuss the candidates.

10 On Your Side has been told if a vote is taken Tuesday the likely outcome will either be Mr. Smith or Interim City Attorney Burle Stromberg. There could also be a decision to reopen the search for Portsmouth’s next city attorney.