Veterans administrator wins appeal; still locked out of Madison County building

A year and a half after he was barred from Madison County property, veterans’ assistance superintendent Brad Lavite is winning in court — but is still out of his office.

Lavite is currently barred from entering the Madison County Administration Building where the offices of the Veterans Assistance Commission are located, despite his continued employment as the VAC superintendent. In March 2015, Lavite had a mental breakdown that his doctors attributed to post-traumatic stress disorder relating to his combat service. During his breakdown, he kicked out the window of a police car, for which he later paid a fine and restitution.

He was subsequently declared fit to return to work without restrictions by the PTSD specialist at the St. Louis Veterans Administration Medical Center, Dr. Jane Loitman. But Jeremy Jewell, a child psychologist employed by the county, disagreed. County administrator Joseph Parente then issued an order banning Lavite from county buildings, and therefore from his office.

The VAC is an independent agency. Under state law, the county is required to provide the VAC with an office and appropriations, and to pay its bills within the constraints of its approved budget. The VAC board has voted to stand by their superintendent and filed a lawsuit on Lavite’s behalf, asking the court to allow him to return to work.

That suit was filed, dismissed, and has since been reinstated by the appeals court. Meanwhile, a federal lawsuit is now pending alleging that Madison County is violating Lavite’s civil rights.

The initial lawsuit requested three actions by the court: lifting Parente’s order that Lavite be banned from county property; ordering that the county process Lavite’s paychecks; and ordering that the county pay the VAC’s attorney, Thomas Burkart, under their budget.

The county filed motions to dismiss all three counts, and last fall Madison County Associate Judge Stephen Stobbs dismissed the suit with prejudice, which meant it could not be amended and represented. The VAC then appealed to the Fifth Circuit Court of Appeals.

This week, the appeals court issued an order that for the most part affirmed the VAC and Lavite over the county:

▪  On the order banning Lavite from the property: the appellate court reversed the lower court’s dismissal and ordered that the issue proceed to trial. According to the court’s decision, the statement from Parente said nothing about the need to act to protect public safety, but instead focused on the decision to ban Lavite as being within Parente’s discretion as county administrator.

“Instead, during argument on their motion, the defendants offered only their argument that the action taken by Parente was a discretionary act,” the court’s decision read. “Not a scintilla of credible evidence was proffered before the trial court in the form required by the code. Indeed, Parente may have had a reason to keep Lavite from entering the administration building, but this was clearly a question of fact not properly raised by the defendants’ motion. There is nothing in the record to indicate that Parente’s unilateral denial of Lavite’s access to the administration building or the Madison VAC office was performed for any reason other than that alleged by plaintiff in his complaint.”

▪  On the order to process Lavite’s paychecks: that dismissal was upheld because the county indicated it would continue to process the checks. The appeals court stated, however, that Lavite could renew his motion if the paychecks stopped.

▪  On the order to pay the VAC attorney: the court reversed Judge Stobbs’ dismissal, stating that the budget for the VAC legal expenses had been appropriated as part of its budget and the county had no right to further limit funds for their legal expenses.

At one point, the appeals court called one of the county’s arguments — that Lavite did not have standing to bring the suit — “nonsensical.”

“Of course, I don’t agree with the court’s decision, but that’s their decision and we have to respect it and follow it,” said John Gilbert, the attorney representing Madison County.

Meanwhile, Lavite filed a federal lawsuit on Friday alleging that Madison County is violating his civil rights. The suit asks for an injunction requiring that Lavite be permitted back in his office, as well as unspecified compensatory and punitive damages.

Burkart said the VAC instructed him to file the civil rights suit before they learned that the appeals court would uphold their arguments.

“PTSD does not disqualify someone from serving in an office,” Burkart said. “The incident was not on county property; it’s been over a year; and there has not been another incident.”

Burkart said since the beginning, the VAC has had a standing offer to drop all legal action against the county if the administration would lift the order and allow Lavite to return to work. He said he is not sure if that offer is still on the table, as now he believes Lavite and others at the VAC see it as standing up for veterans with PTSD and their right to continue working.

“Veterans, firemen, first responders… they come back with PTSD, and it’s inflicted on them because they defended us,” Burkart said.

Gilbert said the county has made repeated overtures to find a path that would allow Lavite to return to work. He said they want another psychological evaluation including a review of all the details of the incident in March 2015. He said they also want a procedure approved by which people who have concerns about safety in the VAC workplace can have an avenue to pursue it.

“So far the VAC has turned us down,” he said. “They’re not even willing to meet with us about it. We can’t make progress if we can’t talk about it.”

But Burkart said that was not the case. He said the VAC was not willing to meet without legal counsel present, but remained willing to find a solution. However, he said, they were not willing to agree to the procedures proposed by the county, which he said would allow them to exercise control over who worked for the VAC — not just Lavite, but all the VAC employees.

“The county would make the decision whether (the employee) was fit or unfit, and that’s not what the law says should be the case,” Burkart said. “The county already has operating procedures in place for safety and prevention of violence in the workplace… They gave me a proposal that involved control over the VAC that we were not willing to agree to.”

Gilbert acknowledged that the county does have a workplace violence prevention policy. “The county wants to make sure that’s applicable to the VAC,” he said.

But Burkart said the proposed procedure puts the determination of the risk in the hands of the county safety and risk management department and then to Parente, who has the final authority. That is not permitted by the statute that created the VAC system in Illinois, he said.

Meanwhile, Lavite has continued his work using stations set up all over the county. Burkart said Lavite travels to various VFWs, American Legion halls, local libraries and other public buildings to meet with clients. Lavite has been focused on suicide prevention among veterans, he said, including an incident where he personally joined first responders at the home of a combat veteran who called the VAC threatening suicide. Lavite is developing a blueprint for first responders who are called to help someone with PTSD, he said.

“Brad would like to be working with the mental health department at the county to improve these services,” Burkart said. “He would much rather be in his office.”

The initial suit now will return to Madison County Circuit Court under Judge Stobbs, while the civil rights suit is pending in federal court.

This story was originally published August 8, 2016 at 6:32 PM with the headline "Veterans administrator wins appeal; still locked out of Madison County building."