A version of this story appeared in The Virginian-Pilot on Feb 18, 2017.
It’s one thing to lose a case in court. It’s something else to get slapped around by a federal judge in the process.
That’s exactly what happened to the city of Virginia Beach earlier this month when U.S. District Court Judge Henry Morgan delivered a stinging rebuke to a city that had stomped all over the constitutional rights of one of its residents. Allegedly to save a few bucks.
The judge – who has not decided on damages – repeatedly used the term “arbitrary and capricious” to describe the actions of City Hall.
I’d call it something else: Arrogant and wasteful.
Face it, most of us don’t expect much from government. We want to be treated fairly when we are forced to interact with officials. And we want our tax dollars spent wisely.
Using even that minimal measurement, Virginia Beach failed the good government test in this case.
In fighting a Beach dentist, who merely asked for what he was owed – relocation costs after the city ordered him out of his office – Virginia Beach embarked on an expensive battle that promises to cost taxpayers far more than if the city had treated the man fairly from the outset.
In a city where leaders shamelessly kowtow to developers and are now itching to blow about $2 million to dead-end Atlantic Avenue as a favor to an Oceanfront hotelier, a dentist in another part of town was bullied over a far smaller sum.
Let’s back up. According to news reports and court documents, in 2014 the city purchased the North Witchduck Road office building where Dr. Allan Bergano had practiced dentistry since 1983. He was told he’d have to vacate and the city would pay relocation costs. By the summer of 2015, Bergano had a new lease in a building that needed construction work to make it suitable for a dental office.
That’s when the city told Bergano he didn’t have to move after all.
Trouble was, not only had Bergano found new space, but he claimed the city had turned the old building into a undesirable location. The complex now housed Human Services Department offices, and manacled prisoners were sometimes in the hallways.
Not what patients want to encounter on their way to get their teeth cleaned.
The fact that the city eventually hired a team of outside lawyers to fight Bergano was not lost on the judge. One charges $375 an hour, the other $200, according to the city attorney’s office.
“The problem with this whole case is that the City of Virginia Beach from the very beginning treated this as an adversary proceeding, which it’s not supposed to be,” Morgan said, according to a court transcript. “The City employees work for the taxpayers. ... It’s not their purpose to try to get away with paying Dr. Bergano as little as they possibly can or not advising him of his rights and telling him that because he has a lawyer he has to figure out what his rights are.”
“What the city is supposed to do is notify him in clear language what his rights are. ... They’re supposed to give him what he is fairly entitled to, and what they have done is they have spent a lot of money trying to keep from paying him anything other than a few thousand dollars. ... Virginia Beach was not some entity which was created to fight its tax paying citizens. It was created to serve them, and they haven’t been served in this case.”
“They have tried to use every technicality that they could think of to deprive them of that to which he was entitled. It’s really an aggravated situation, and as you can tell, the Court is very concerned about it because if this is an example of the way the City of Virginia Beach treats its citizens, it speaks very poorly of the City of Virginia Beach, where I happen to live.”
Furthermore, when there was a chance to avoid a court battle, through mediation, the city refused, the judge noted.
After the decision, Bergano and his legal team were ebullient.
One of his lawyers, Joe Waldo, characterized the case as a “David versus Goliath” situation.
“In the beginning, I expected to be treated just like the other dentists,” Bergano told me Friday, referring to others who were moved under similar circumstances and justly compensated. “I looked forward to working with the city and being treated fairly.”
Didn’t happen. Bergano was forced to hire lawyers and head to court.
Now that it’s been determined that Bergano’s constitutional right to due process and equal protection were violated, the dentist has asked the judge to make the city pay his attorney fees.
Naturally, the city’s highly compensated lawyers, whose initial payments have amounted to $179,723.52 and are still on the clock, objected.
“I’m so glad it’s over,” Bergano said, wryly noting that it’s been especially disheartening to know that the city was using his tax money to tussle with him in court.
If Beach officials had any decency, they’d sincerely apologize to Bergano. Then they’d apologize to taxpayers for wasting their money on such a pricey and pointless fight.
