Fifth District rules for Lavite attorney Burkart in fee dispute with Madison County

By Record News | Jan 8, 2019

MOUNT VERNON – Madison County must fully honor a warrant for fees that Tom Burkart charged as counsel to veteran assistance superintendent Brad Lavite, Fifth District appellate judges ruled. 

They issued a writ of mandamus against the county, which paid Burkart less than a fourth of a $60,365.92 warrant from the veteran assistance commission. 

Justice Judy Cates wrote that the county declined to pay because of concerns that the commission didn’t have sufficient funds to pay the fees and meet its payroll. 

“This decision, however, was not the defendants’ decision to make,” Cates wrote. 


In the opinion published Jan. 2, Cates wrote that the county also indicated it wasn’t inclined to pay the fees because Burkart redacted the description of his services. 

She wrote that defendants asserted in pleadings and affidavits that the county had a uniform policy requiring itemized invoices for all warrants – yet, the county could not produce such a policy and offered no documents, testimony, or other evidence of necessary requirements for processing invoices. 

Cates pointed out that the absence of itemization didn’t keep the county from paying a portion of the warrant. 

Burkart sought a similar order on a second warrant, but Cates advised him to seek an appropriation for it from the county board. 

Justice Melissa Chapman concurred, and Justice Richard Goldenhersh concurred before he retired. 

They showed irritation over a case that landed at their door for the third time. 

Cates wrote that the plaintiff attempted to stretch the original Fifth District decision and defendants attempted to contract it. 

“The parsing of the opinion was a disservice to the trial court and frankly, has not served either side well,” Cates wrote. 

“At this point, we believe it is necessary to remind the litigants that the objective of appellate review is not to determine whether the record is totally free of error, but rather to determine whether any error occurred that substantially prejudiced a party and affected the outcome.” 

Lavite sued the county board, former board chairman Alan Dunstan, former administrator Joseph Parente, and sheriff John Lakin in 2015. 

Lavite challenged a decision to ban him from the administration building, where the veteran assistance commission keeps an office. 

He claimed they banned him in retaliation for a series of disagreements, and sought a writ of mandamus returning him to his office, and fees for Burkart. 

The county moved to dismiss the suit, claiming Parente performed a discretionary act not subject to judicial review. 

Associate judge Stephen Stobbs granted the motion. 

Lavite appealed, and Fifth District judges reversed Stobbs in 2016. 

“Not a scintilla of credible evidence was proffered before the trial court in the form required by the Code,” Cates wrote. 

She found no reason in the record for banning Lavite except the one he alleged – retaliation. 

On fees, Cates wrote that officials had no authority to subject the commission to the county’s purchasing ordinances. 

The suit returned to Stobbs, who recused himself. 

The Illinois Supreme Court assigned Clinton County associate judge William Becker as visiting judge. 

On Aug. 25, 2016, Burkart submitted a warrant for $60,365.92. 

The county refused payment, and Burkart petitioned for a rule to show cause why Becker shouldn’t hold officials in contempt. 

The county paid Burkart $14,548.88. 

Burkart pressed for the rest, claiming the commission could authorize a transfer from its direct aid fund or from reserves. 

The county claimed the commission lacked that authority. 

Becker denied an injunction but enjoined the county to keep at least $45,817 in reserve pending resolution of the issue. 

Burkart filed an interlocutory appeal, which proceeded in Mount Vernon while litigation to restore Lavite to his office continued in Edwardsville. 

On Dec. 14, 2016, Burkart submitted a warrant for the old balance plus new charges for a total of $96,021.80. 

County voters had elected Kurt Prenzler over Dunstan by then, and Prenzler immediately restored Lavite to his office. 

The dispute over Burkart’s fee has lasted longer than Lavite’s banishment. 

Burkart moved for summary judgment on the second warrant in February 2017, and Becker granted it. 

He stayed judgment pending an appeal by the county. 

Last August, Fifth District judges found Becker handled the dispute properly when he enjoined the county to keep a reserve. 

In light of this year’s decision, the county will need it.  

Cates wrote that the veteran assistance commission has authority over its personnel and its operational expenses. 

She wrote that the commission may retain professionals who are agents of the commission, not the county. 

She also wrote that state law doesn’t empower defendants to unilaterally refuse payment of a proper warrant for professional services, “simply because they disagree with the commission’s decision on that particular expense.” 

“Warrant No. 16-4 should have been processed and paid from the 2016 administrative fund, shortly after it was submitted,” Cates wrote.  

She wrote that Lavite didn’t establish a clear right to the second warrant, and Becker committed error by ordering payment. 

She wrote that Lavite’s proposal to use appropriations for 2017 to pay expenses from a previous year could impede the commission’s ability to provide assistance to veterans in 2017. 

“Nothing within this disposition would prevent the plaintiff from making a request for a special appropriation to pay Warrant 16-5,” Cates wrote. 

The second warrant would carry a balance of $50,204.76, after the county has completed payment of the first warrant. 

Cates concluded with a call for veterans to pay attention. 

“We pause briefly to acknowledge that there are fair questions about whether the commission’s demand for payment of this expense was short sighted or lacked discernment,” she wrote. 

“With autonomy comes the freedom to make wise and unwise decisions. 

“The decisions and performance of the elected superintendent and VAC executive committee will ultimately be graded by those they serve.”  

Philip Lading of Edwardsville and Timothy Sansone of St. Louis, both with Sandberg Phoenix, represent the county.         

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