Madison - St. Clair Record

Thursday, April 2, 2020

Madison County VAC, Superintendent seek summary judgment in $1M funding dispute; They argue the county seeks to exert control over VAC


By Heather Isringhausen Gvillo | Feb 13, 2020

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The Veterans’ Assistance Commission of Madison County and Superintendent Bradley Lavite filed a proposed order supporting its request for summary judgment in a $1 million suit over alleged funding shortfalls.

The plaintiffs filed the proposed order on Jan. 9 addressing the issue of how the VAC is funded and why they believe the county must pay them back for a funding shortfall. The question of how the VAC is funded came up during oral arguments on Dec. 19. Madison County Circuit Judge David Dugan instructed the parties to address the issue in their proposed orders.

The parties were told to address whether it could force the county to use its general fund to pay VAC expenses if the VAC exhausted its “investment” fund, also referred to as its “reserve” fund.

The plaintiffs wrote in their proposed order that the real issue is “the control the county seeks to exert upon the VAC.”

“It has become clear to the court that the logical conclusion of the defendants’ argument results in the VAC being at the mercy of the county when the clear intent of the Military Veterans Assistance Act is to create an independent VAC,” the proposed order states.

“In other words, the issue is not whether the county can use county money to pay VAC expenses, but whether the county must extend the tax rate to a percent that will raise ‘not less than’ the amount the VAC and the county agree upon to fund the VAC in a given year,” it continues.

The plaintiffs argue in their proposed order that if they request money for a special project and it is approved by the county board, then the VAC may use the funds “however they see fit.”

Lavite and the VAC explain in their proposed order that the county board must provide funds that are just and necessary to assist veterans and their families.

“Although the board has discretion to provide additional funds, it has no discretion over the threshold ‘just and necessary’ sum,” it states.

The plaintiffs add that the VAC is funded by Class A funds while the county is funded by Class C funds. Class A funds must be automatically paid out by the county treasurer, but Class C funds cannot be withdrawn without prior approval of the county chairman, the proposed order states.

“It is clear to this court that the intent of the legislature was to create and fund a VAC that is independent of the political will of the county,” it continues.

Lavite and the VAC filed a motion for summary judgment on Sept. 23 through attorney Thomas Burkart of Burkart Law Office in Hamel. They argue that the county board approved the requested funds for the VAC from 2008 through 2016.

However, they argue that the county clerk failed to set the rate percent upon the equalized assessed valuation for the levy year at a rate high enough to produce funds not less than the amount approved for each fiscal year. As a result, the fund where the VAC’s tax revenue is supposed to be deposited is short $1,058,882.35.

In their opposition, the defendants argue that the VAC disagreed with the amount the county agreed to fund the VAC in each of the mentioned years.

Laviete and the VAC argue in their reply that there were no disagreements.

“In each of the years dating back to 2008, the VAC agreed with the amount the county approved and there was no need to file a mandamus action,” the reply states. “It was the county’s failure to execute what the parties had agreed upon that was the problem.”

The plaintiffs filed the two-count lawsuit on Christmas Eve 2018 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.

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.

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.

Madison County Circuit Court case number 18-L-1731

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Madison County Circuit CourtBurkart & Burkart Law OfficeMadison County