The Fifth District Appellate Court has affirmed Clinton County Associate Judge William Becker’s order denying veteran services officer Brad Lavite’s request to pay attorney’s fees with funds intended for assisting Madison County veterans.
Becker had granted in part and denied in part a motion for a preliminary mandatory injunction filed by Brad Lavite, superintendent of the Madison County Veterans Assistance Commission, or VAC. He also discharged Lavite’s petition for a rule to show cause.
Justice Judy Cates delivered the Rule 23 decision on July 24 with Justices Melissa Chapman and David Overstreet concurring. They found that Becker did not err in his ruling.
The appellate court also held that Becker’s order discharging the rule to show cause is not a final and appealable order.
Lavite’s appeal is the second time his case against Madison County officials had been before the appellate court.
Lavite filed a three-count complaint in his capacity as superintendent of the VAC on June 12, 2015 through attorney Thomas Burkart of Hamel. Lavite filed the case against Chairman of the Madison County Board Alan Dunstan, County Administrator Joseph Parente, the Madison County Board and Madison County Sheriff John Lakin.
The dispute began after a standing order issued by Parente on March 20, 2015 prohibited Lavite from entering his VAC office in the Madison County Administration Building. The standing order also warned Lavite that he would be arrested for trespassing if he failed to abide by the order.
Lavite alleges he was wrongfully denied access to his office. He sought a writ of mandamus directing the defendants to allow him back into his office, to process payroll warrants for his salary and to pay other warrants for attorney fees related to this litigation from VAC funds.
Madison County Associate Judge Stephen Stobbs granted the defendants’ motion to dismiss all counts on the pleadings. Lavite filed his first appeal.
In an Aug. 5, 2016, opinion, the Fifth District found that the trial court erred in dismissing count I and count III of the complaint. The orders were vacated and remanded to the trial court.
The Fifth District determined that county officials “did not have the authority to subject the VAC to the county’s ordinances regarding competitive purchases and/or expenditures in excess of $5000 when they processed warrants to pay the plaintiff’s attorney fees from funds that had already been appropriated for the VAC’s expenses in that fiscal year,” Cates wrote.
The defendants also conceded that Lavite’s attorney’s fees must be paid from funds that had been appropriated to the VAC to the extent that funds were available.
After the case was remanded, Stobbs recused himself. Becker was then appointed to preside over the case.
On Aug. 25, 2016, Burkart delivered a letter to the Madison County Treasurer demanding payment for his legal fees. A redacted invoice showed a balance of $60,365.92 in attorney fees. The “description-of-services” section had been redacted “because it contained matters of attorney-client privilege.”
Burkart allegedly advised that Lavite had approved the fees “after thoroughly reviewing the invoice, including a complete description of services.
“Burkart asserted that the defendants had no authority to demand to review an unredacted copy of the invoice. He warned that failure to make full payment of the invoice would be in direct contravention of the appellate court’s decision,” Cates wrote.
On Sept. 6, 2016, Jennifer Zoelzer, chief deputy auditor of Madison County, informed Burkart that the redactions were too extensive. She said she would need “some type of general description for services” in order to process payment.
Burkart replied to the email on Sept. 7, 2016, warning Zoelzer that the auditor’s office may be subject to contempt proceedings if they continued to interfere with the payment warrants.
Then on Sept. 14, 2016, the Madison County Finance Committee directed County Auditor Rick Faccin to notify the VAC that if the attorney’s invoice was paid then there would not be enough funds to complete payroll through the end of the fiscal year.
On Sept. 15, 2016, Robert Sedlacek, president of the VAC Executive Board, wrote a letter to Faccin, advising him that the VAC Executive Board had recently learned of the existence of an unreserved fund account in the county treasury that contained funds levied for the VAC. He also stated that the Executive Board directed county officials to pay the legal fees while ensuring that all obligations were met.
The next day, Lavite filed a petition for a rule to show cause why Dunstan, Parente, Faccin, Madison County State’s Attorney Thomas Gibbons, and the Madison County Finance Committeepersons should not be held in contempt of court for failing to pay Burkart’s attorney’s fees.
Lavite included a document indicating that there was a balance of approximately $800,000 in the unreserved fund. The account contained funds from property taxes that had been levied and excess VAC funds that had not been spent from prior years.
He also included an unverified transcript of an audio recording of the September 14, 2016, Finance Committee meeting. According to the transcript, Faccin told the committee that the auditor’s office could not pay the invoice until Burkart provided some explanation of services.
Faccin also “expressed his view that the VAC matter should be settled because the money being used for attorney fees should be going to veterans,” Cates wrote.
The committee then voted to have the auditor’s office inform the VAC that if the legal fees were paid, there would be insufficient funds to meet obligations through the end of the fiscal year.
On Sept. 23, 2016, the defendants objected to Lavite’s petition to show cause, asserting that it lacked merit because there was no order directing them to pay the legal fees.
They argued that the only order issued by the appellate court was a directive to the trial court to deny the motions to dismiss.
In a Nov. 14, 2016, motion to dismiss, the defendants also argued that a $14,548.88 check was issued to Burkart, which allegedly consumed the balance of the fund for fiscal year 2016.
Parente filed an affidavit stating that Burkart had already been paid $78,240.01 for his work on behalf of the VAC during the 2016 fiscal year. An additional $65,365.92 would result in a total of $138,605 in attorney’s fees, which represented 38 percent of the VAC’s administrative budget.
Becker denied Lavite’s request to pay the remaining attorney fees from the Direct Aid Fund or the unreserved fund, expressing concern about whether Burkart could be paid from these funds without a supplemental appropriation from the county board.
However, Becker also directed the defendants to maintain a balance of at least $45,817 in the unreserved fund to pay the remaining attorney fees pending a determination of the issue of whether a supplemental appropriation is required.
He found that “the plaintiff had raised a fair question as to the existence of the rights claimed, ad that it was appropriate to maintain the status quo until a final determination on the merits.”
Lavite filed his second appeal in the case on Dec. 13, 2016. He argued that Becker “erred in granting in part and denying in part his request for an order enjoining the defendants from interfering in the VAC’s expenditure of funds that had been levied, collected, and appropriated to the VAC.”
However, the appellate court held that the trial court “properly concluded that an order directing county officials to maintain an adequate balance in the unreserved fund to pay the plaintiff’s attorney fees would best maintain the status quo until those questions can be considered on the merits.
“Accordingly, the trial court did not abuse its discretion in granting in part and denying in part the plaintiff’s motion for a preliminary injunction.”