Madison County calls VAC funding suit 'frivolous'; Lavite, VAC seek more than $1M in funding shortfalls

By Heather Isringhausen Gvillo | Feb 21, 2019

Madison County called a lawsuit seeking more than $1 million due to alleged shortfalls in funding for the Veterans Assistance Commission “frivolous” and without “basis in fact or law."

Veterans assistance superintendent Brad Lavite and the Veterans Assistance Commission, or VAC, filed the two-count lawsuit on Christmas Eve against Madison County, County Clerk Debra Ming-Mendoza and former County Clerk Mark Von Nida. Von Nida is currently the Madison County Circuit Clerk, but served as County Clerk from Dec. 1, 2007 until Nov. 30, 2012. 

Lavite and the VAC are represented by Thomas Burkart of Burkart Law Office in Hamel. 

In his complaint, Lavite alleges the defendants failed to extend the county’s tax rate sufficiently to raise the money approved for the VAC in each of the fiscal years for the past decade. 


Burkart  

The suit states that according to Illinois common law, funding for the VAC is established when the VAC makes a recommendation of an appropriate amount necessary to assist veterans, pay salaries and pay expenses. Then the County Board either approves or disapproves.

According to the complaint, the VAC has offered the Madison County Board its recommendation of the funding needed each year for the past decade, which has been approved each year “with little or no change by written agreement contained in the Board’s official minutes.”

Once the funding request was approved, the County Clerk was tasked with determining the tax rate percentage to add to the county’s tax rate in order to produce the funds approved by the County Board, the suit states. Once levied and collected, the suit states that the money must be paid into a special fund in the county treasury and used as authorized. 

The maximum annual rate percent for Veterans Assistance Commissions is .03 percent of the equalized assessed value of all property within the county, according to the County Code of Illinois.   

Lavite alleges the rate percent necessary to raise the approved funds for the VAC since 2008 has not exceeded the maximum .03 percent.

Lavite accuses Madison County of breaching its written agreement to fund the VAC with the approved amount when Von Nida and Ming-Mendoza failed to properly determine the correct rate percent to raise the funds for the tax years of 2008 through 2016. 

As a result, Lavite alleges the VAC suffered a shortfall of $1,058,882 in funding.

“Plaintiff has demanded, but defendant has refused to deposit that amount into the special fund” as required by the County Code of Illinois, the suit states. 

Lavite also made a claim for injunction, alleging the determination of the percentage rate necessary to fund the VAC is “a mathematical certainty using the equalized assessed value of all property in the county, and is a non-discretionary ministerial function of the County Clerk..” 

“Plaintiffs’ remedies at law are inadequate in that the county’s breaches continued year after year and were of such a continuing nature that redress cannot be had at law alone,” the suit states.

Lavite seeks an order that Madison County, Ming-Mendoza and her successors in office “be enjoined from refusing to establish the percentage rate to be added to the county’s tax rate that will produce not less than the full amount of the VAC’s annual recommendation as approved by the County Board on an annual basis in the future.”

He also seeks an order requiring the defendants to pay $1,058,882 into the special fund established for VAC expenditures.

The defendants answered the complaint on Feb. 4 through attorneys Philip Lading, John Gilbert and J.D. Brandmeyer of Sandberg Phoenix & von Gontard PC in Edwardsville. 

They denied the allegations and argued in their affirmative defenses that the plaintiffs’ claims are “frivolous and have no basis in fact or law.”

The defendants argue that the plaintiffs lack standing to challenge the annual tax levy. 

“The VAC is not a taxing body, and has no statutory authority to tax or force any other government entity or official to levy a tax in any specific amount on its behalf,” the answer states.

They allege the plaintiffs’ only remedy provided by the Illinois Military Veterans Assistance Act is to seek mandamus, but only in relation to the appropriate approval by the County Board and not as to the annual property tax levy. 

The defendants also argue that Lavite and the VAC have sustained no damages. 

“At all times relevant to the allegations raised by plaintiffs in their complaint, plaintiffs have been able to spend up to the full amounts annually appropriated for their use, based upon annual funding requests tendered by the plaintiffs to the defendants,” the answer states.

The defendants also argue that claims against Ming-Mendoza and Von Nida are barred by the doctrines of legislative immunity and qualified immunity. They also argue that claims against Madison County are barred by Eleventh Amendment sovereign immunity.

The Veterans’ Assistance Commission of Madison County also filed a motion for substitution of judge on Feb. 5. The case had been assigned to circuit judge Dennis Ruth on Jan. 7. 

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