Loading...
Item O2t IrAGENDA ITEM SUMMARY Meeting Date: FebruM 18 2009 - KL Bulk Item: Yes No X Division CQqniy Attorne Staff Contact Person:_ Suzanne Hutton, #3470 for: Commissioner Wiginaton, District 1 AGENDA ITEM WORDING: A public hearing for the purpose of adopting and implementing a Monroe County False Claims Ordinance to deter persons from causing Monroe County to pay claims that are false, fraudulent or inflated and providing enforcement and penalties, including damages, for the submission of false claims to the County. ITEM BACKGROUND: The purpose of the Monroe County False Claims Ordinance is to deter false claims being made in order to obtain Monroe County taxpayer's dollars. While seeking to further assist our County's provision of oversight and close scrutiny of contracts, the ordinance would not be limited to contractors. The ordinance would also seek to weed out frivolous lawsuits, as the County spends large sums of taxpayer's dollars to defend itself against these. The Ordinance would provide remedy and establish penalties for defrauding the County. These provisions are not exclusive and these remedies shall be in addition to any other remedies provided for in any other law, or available under common law, or otherwise. The Monroe County False Claims Ordinance shall be for the purpose of protecting and promoting the public interest. PREVIOUS RELEVANT BOCC ACTION: 1/28/09 (O-lb) BOCC approval to hold Public Hearing on 2/18/09 in Key Largo CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approval. COST TO COUNTY: None BUDGETED: Yes No SOURCE OF FUNDS: N REVENUE PRODUCING: Yes X No AMOUNT PER MONTH Year APPROVED BY: County Atty x OMB/Purchasing Risk Management DOCUMENTATION: Included X Not Required IIISPOSITION: AGENDA rUM ff. Commissioner Wigington ORDINANCE NO. - 2009 AN ORDINANCE PROHIBITING PRESENTATION, MAINTENANCE, OR PROSECUTION OF FALSE OR FRAUDULENT CLAIMS AGAINST MONROE COUNTY; REQUIRING FORFEITURE OF ANY CLAIM CONTAINING FALSE OR FRAUDULENT ALLEGATIONS OR STATEMENTS; IMPOSING PENALTIES FOR SUBMISSION OF FALSE OR FRAUDULENT CLAIMS; PROVIDING BOTH COUNTY AND PRIVATE ENFORCEMENT; AND PROVIDING SEVERABILITY, INCLUSION IN THE CODE, AND AN EFFECTIVE DATE. WHEREAS, the County may from time to time receives invoices for services not provided or goods clearly not the quality and quantity of the representation, and claims for damages not suffered or for which the claimant knows is not the responsibility of the County; and WHEREAS, responding to such frivolous claims consumes the resources of County staff, and may also incur additional costs for consultants, to prove what occurred, what did not occur, and whether County officers, employees or agents may have caused any damages claimed; and WHEREAS, such claims add an inordinate burden on the County which has to be paid by the taxpayers; and WHEREAS, it is desired to create a mechanism by which the County can recoup for the taxpayers the cost of investigating and defending against such frivolous claims, as well as to establish a deterrent to the filing of false claims, submission of fraudulent invoices, and the like; now therefore BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA: Section 1. Division 1X of Chapter 2 of the Code of Monroe County, Florida, is hereby created to read as follows: This division shall be known and cited as the Monroe County False Claims Ordinance. Section 1. Purpose and Construction. The purpose of the Monroe County False Claims Ordinance is to deter persons from knowingly causing, assisting in causing, or attempting to cause the County to pay claims that are false, fraudulent, or inflated, and to provide remedies for obtaining damages and civil penalties for the County when money is sought or obtained from the County by reason of a false claim. The provisions of this article are not exclusive, and the remedies provided for in this article shall be in addition to any other remedies provided for in any other law, or available under common False Claims Ord. 2 Commissioner Wigington law, or otherwise. This article shall be liberally construed and applied to promote the public interest. Section 2. Definitions. As used in this ordinance, the following words and terms used in this article shall have the meanings ascribed to them in this section, except when the context clearly indicates a different meaning: (1) "Bid takeoff" means the final estimate, tabulation, or worksheet prepared by the contractor in anticipation of the bid submitted, and which shall reflect the final bid price. (2) "Claim" means any invoice, statement, request, demand, lawsuit, or action, under contract or otherwise, for money, property, or services made to any employee, officer, or agent of the County, or to any contractor, grantee, or other recipient if any portion of the money, property, or services requested or demanded was issued from, or was provided by, the County (hereinafter "County funds"). (3) "Claimant" means any person who brings, submits, files, maintains, or pursues a claim. (4) "County" means the government of Monroe County or any department, division, bureau, section, commission, planning agency, board, district, authority, agency, or instrumentality of the County. (5) "Extended overhead" means the amount of a claim relating to an increase in overhead costs resulting from a delay in contract performance that is not compensated by a markup of direct costs. (6) "Knowing" or "knowingly" means that a person, with respect to information: (a) has actual knowledge of the information; (b) acts in deliberate ignorance of the truth or falsity of the information; or (c) acts in reckless disregard of the truth or falsity of the information. (7) "Overhead per diem" means the amount calculated by dividing the total overhead costs set forth in the final bid takeoff by the number of days for substantial completion of the work set forth in the contract. (8) "Person" means any natural person, corporation, firm, association, organization, partnership, agency, limited liability company, business, trust, municipality or other form of government. Section 3. Certification of claims. (1) Upon the request of the County, the person who has submitted any type of claim shall, within False Claims Ord. Commissioner Wigington thirty (30) days, including Saturdays, Sundays, and legal holidays, submit a certified claim as defined by this section. A "certified claim" shall be made under oath by a person duly authorized by the claimant, and shall contain a statement that: (a) the claim is made in good faith; (b) the claim's supporting data are accurate and complete to the best of the person's knowledge and belief; (c) the amount of the claim accurately reflects the amount that the claimant believes is due from the County; and (d) the certifying person is duly authorized by the claimant to certify the claim. (2) Failure to provide the requested certification within the prescribed thirty -day (30) period shall constitute a forfeiture of the entire claim. Section 4. Liability for false claims; penalties. (1) The following action(s) shall constitute a violation of this ordinance: (a) any person who knowingly presents or causes to be presented to the County, or to any officer, employee, agent, or consultant of the County, a false or fraudulent claim for payment or approval; (b) any person who knowingly makes, uses, or causes to be made or used, a false record or statement to get a false, fraudulent, or inflated claim paid or approved by the County; (c) any person who conspires to defraud the County by facilitating the payment of a false, fraudulent, or inflated claim allowed or paid by the County; (d) any person who delivers, with the intent to defraud the County, goods or services of different quality or quantity than that specified in the applicable contract or specification; (e) any person who is authorized to make or deliver a document certifying receipt of property used, or to be used, by the County and, intending to defraud the County, makes or delivers the receipt without completely knowing that the information on the receipt is true; (f) any person who knowingly buys, or receives as a pledge of an obligation or debt, public property from an officer, employee, or agent of the County who lawfully may not sell or pledge the property; or (g) any person who knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the County. False Claims Ord. Commissioner Wigington (2) Any beneficiary of an inadvertent submission of a false claim to the County, who subsequently discovers the falsity of the claim, and who fails to disclose the falsity of the claim to the County within thirty (30) days of discovering the error, shall also be found to have submitted a false claim to the County. (3) Any person found to have submitted a false claim to the County shall: (a) be liable to the County for an amount equal to three times that part of the claim which is false, fraudulent, or inflated; (b) immediately, fully, and irrevocably forfeit the entire amount of the claim; (c) be liable to the County for all costs and fees (including, without limitation, reasonable legal, expert, and consulting fees) incurred by the County to review, defend, and evaluate the claim; and (d) be subject to debarment from County contracting for a period not to exceed five (5) years. Additionally, any person who certified a claim later found to be false shall be subject to debarment from County contracting for a period not to exceed five (5) years. (4) Liability under this section shall be joint and several for any act committed by two or more persons. 5 Nothing contained herein shall pLgclude the prosecution of criminal laws against the person submitting the false or fraudulent claim. Section 5. Civil actions for false claims. (1) The County Administrator or his designee may investigate a violation under Section . If the County Administrator or designee finds that a person has violated or is violating Section he or she may request_ approval from the Board of County Commissioners to bung a civil action against the person on behalf of the County. In the event that the County Administrator is provided with information and evidence which support a civil action and fails to bring_the matter forward to the Board of County Commissioners within forty-five days after the Clerk of Courts or the County Attorney has reguested such action the County Attorney may briniz the matter forward to the Board of Coun1y Commissioners. (2) A person may bring a civil action for a violation of Section for the person and for the County. Civil actions instituted under this ordinance shall be governed by the Florida Rules of Civil Procedure and shall be brought in the name of the County. (a) The complaint shall be identified on its face as a qui tam action and shall be filed under seal in the Circuit Court of the Sixteenth Judicial Circuit, in and for Monroe County. Immediately upon filing of a complaint by a person, a copy of the complaint and written disclosure of substantially all material evidence and information the person possesses shall be served on the County Administrator by registered mail, return receipt requested. The County Administrator may elect to proceed with the action, in lieu of the qui tam plaintiff, on behalf of the County, within 180 days after he or she receives both the complaint and the material evidence and information. False Claims Ord. Commissioner Wigington (b) The County Admiaistratef, for good cause shown, may petition the court to extend the time during which the complaint remains under seal under paragraph (a). Any such motion may be supported by affidavits or other submissions in camera. The defendant is not required to respond to any complaint filed under this subsection until twenty (20) days after the complaint is unsealed and served upon the defendant in accordance with law. (c) Before the expiration of the 180-day period or any extensions obtained under paragraph (b), the County Administrator or designee, or County Attorney,. shall: i. obtain approval from the Board of County Commissioners to proceed with the action, in which case the action is conducted by the County Attorney on behalf of the County; or ii. notify the court that the Board of County Commissioners declines to take over the action, in which case the person bringing the action has the right to conduct the action. (d) When a person files an action under this section, ++�+++++++v w+.++v+, vw rwwv vv.aacr' A iLLV AilV • 4AA 4AAV I.LVUVAAVV VA R4 VVLIAA 4,' A I.UAllllllt)Ll ULV 1, 1111A� the Board of County Commissioners shall make the decision whether to intervene on behalf of the County or bring an action under this ordinance based on the facts underlying the pending action. Section 6. Rights of the parties in civil actions. (1) If the County , elects to proceed with the action, he or she has the primary responsibility for prosecuting the action, and is not bound by any prior or subsequent act(s) of the person (hereafter qui tam plaintiff) originally bringing the action. The County may also voluntarily dismiss the action notwithstanding the objections of the qui tam plaintiff. (2) If the County elects not to proceed with the action, the qui tam complainant has the right to conduct the action. If the County Administrator or County Attorney so requests, he or she shall be served with copies of all pleadings and motions filed in the action and copies of all deposition transcripts. When the qui tam plaintiff proceeds with the claim, the court may permit the County to take over the action on behalf of the County at a later date upon a showing of good cause. (3) Nothing in this ordinance shall be construed to limit the authority of the County or the qui tam plaintiff, proceeding pursuant to Section , to compromise a claim brought in a complaint filed under this ordinance if the court determines, after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances. Section 7. Awards to Qui Tam Plaintiffs. (1) If the County proceeds with and prevails in an action brought by qui tam plaintiff under this False Claims Ord. 6 Commissioner Wigington ordinance, except as provided in subsection (2), the court shall order the distribution to the qui tam plaintiff of 10 percent of the proceeds recovered under any judgment obtained by the County in an action under Section or of the proceeds of any settlement of the claim. (2) If the County proceeds with an action which the court finds to be based primarily on disclosures of specific information, other than that provided by the qui tam plaintiff, relating to allegations or transactions in a criminal, civil, or administration hearing; a legislative, administrative, or inspector general report, hearing, audit, or investigation; or from the news media, the court may award such sums as it considers appropriate, but in no case more than 5 percent of the proceeds recovered under a judgment or received in settlement of a claim under this ordinance, taking into account the significance of the information and the role of the qui tam plaintiff in advancing the case to litigation. (3) If the County does not proceed with an action under this ordinance, the qui tam plaintiff shall receive 25 percent of the proceeds recovered under a judgment rendered in an action under this ordinance or in settlement of a claim under this ordinance. (4) Any payment under this section to the qui tam plaintiff shall be paid only out of the proceeds recovered from the defendant. (5) Whether or not the County proceeds with the action, if the court finds that the action was brought by a person who planned, initiated, or furthered the violation of Section upon which the action was brought, the person shall be dismissed from the civil action and shall not receive any share of the proceeds of the action. Such dismissal shall not prejudice the right of the County to continue the action. Section 8. Expenses; attorney's fees and costs. (1) If the County initiates an action under this ordinance or assumes control of an action brought by a qui tam plaintiff under this ordinance, and the County prevails in such action, the County shall be awarded its reasonable attorney's fees, expenses, and costs. (2) If the court awards the qui tam plaintiff proceeds under this ordinance, the person shall also be awarded an amount for reasonable attorney's fees and costs. Payment for reasonable attorney's fees and costs shall be made from the recovered proceeds before the distribution of any award. (3) If the County does not proceed with an action under this ordinance and the defendant is the prevailing party, the court shall award the defendant reasonable attorney's fees and costs against the qui tam plaintiff. (4) No liability shall be incurred by the County for any expenses, attorney's fees, or other costs incurred by any person in bringing or defending an action under this ordinance, except as otherwise specifically provided by law. Section 9. Exemptions to civil actions. (1) In no event may a person bring an action under Section based upon allegations or False Claims Ord. Commissioner Wigington transactions that are the subject of a civil action or an administrative proceeding in which the County is already a party. (2) No court shall have jurisdiction over an action brought under this ordinance based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing; in a legislative, administrative, or inspector general report, hearing, audit, or investigation; or from the news media, unless the action is brought by the County, or unless the person bringing the action is an original source of the information. For purposes of this subsection, the term "original source" means an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the County Manager before filing an action under this ordinance based on the information. (3) No court shall have jurisdiction over an action where the person bringing the action under Section (2)_ is: (a) acting as an attorney for the County; or (b) an employee or former employee of the County, and the action is based, in whole or in part, upon information obtained in the course or scope of County employment. (4) No court shall have jurisdiction over an action where the person bringing the action under Section obtained the information from an employee or former employee of the County. Section 1.0. Protection for participating employees. Any employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms or conditions of employment by his or her employer because of lawful acts done by the employee in furtherance of an action under this ordinance, including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed under this ordinance, shall have a cause of action under Florida Statutes, Section 112.3187. Section 11. Burden of proof re claims under contracts; presumption of false claim. (1) Whenever practicable, bid specifications for County contracts shall contain a requirement that the successful bidder maintain, as a condition precedent to submitting a claim against the County, a final bid takeoff. The final bid takeoff shall contain a line item for allocation of overhead costs. (2) Upon request from the County, a contractor making a claim against the County for delay or other damages shall submit, within twenty (20) days, a copy of the final bid takeoff, certified pursuant to this subsection. Failure to provide the requested certification shall constitute a forfeiture of the claim for delay or other damages. The certification shall be submitted under oath by a person duly authorized by the claimant and shall contain a statement that: (a) the final bid takeoff was prepared contemporaneously with the bid and in anticipation of the bid for the project; False Claims Ord. Commissioner Wigington (b) the contractor relied on the final bid takeoff to prepare the bid and the original schedule of values; and (c) the final bid takeoff has not been altered in any way. (3) Any claim for extended overhead costs that exceeds, on a per diem basis, more than ten percent (10%) of the overhead per diem contained in the final bid takeoff shall be presumed to be a false claim, and the contractor shall have the burden of proving that any such claim for extended overhead is not false. Section 12. Innocent claimant affirmative defense. The provisions of this ordinance shall not apply if the claimant can demonstrate by a preponderance of the evidence each of the following facts: (1) the claimant submitted or caused to have submitted the claim to or against the County reasonably believing that such claim was free of any material misstatements, or any exaggerated, inflated, or unsubstantiated assertions or damages; (2) the claimant had no reasonable basis to doubt the truth, veracity, or accuracy of such claim at the time it was submitted; (3) prior to submitting the claim, the claimant diligently investigated the facts underlying such claim and prepared the claim in a reasonable manner given all the relevant information available; and (4) when information indicating that any element, statement, or allegation in the claim was false or misleading first became available, such claimant, within five business days of discovering the falsity of the claim, took immediate steps to modify, correct, or withdraw such claim and provided the County with immediate notice thereof. SECTION 2. SEVERABILITY. Should any provision of this Ordinance be declared by a court of competent jurisdiction to be invalid, the same shall not affect the validity of this Ordinance as whole, or any part thereof, other than the part declared to be invalid. If this ordinance or any provision thereof shall be held to be inapplicable to any person, property or circumstances, such holding shall not affect its applicability to any other person, property or circumstances. SECTION 3. CONFLICT WITH OTHER ORDINANCES. All ordinances or parts of ordinances in conflict with this Ordinance are hereby repealed to the extent of said conflict. SECTION 4. INCLUSION IN THE CODE OF ORDINANCES. The provisions of this Ordinance shall be included and incorporated in the Code of Ordinances of the County of Monroe, Florida, as an addition or amendment thereto, and shall be appropriately renumbered to False Claims Ord. 9 Commissioner Wigington conform to the uniform numbering system of the code. SECTION 5. EFFECTIVE DATE. This Ordinance shall take effect on , provided that this Ordinance shall be filed with the Department of State as provided in section 125.66(2), Florida Statutes. PASSED AND ADOPTED by the Board of County Commissioners, Monroe County, Florida at a regular meeting of said Board held on the day of , 2009. Mayor George Neugent Mayor Pro Tern Sylvia Murphy Commissioner Heather Carruthers Commissioner Mario DiGennaro Commissioner Kim Wigington (Seal) Attest: DANNY L. KOLHAGE, Clerk BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA Deputy Clerk Mayor/Chairperson OVER AS TO F S. ZANNE A. ICU 1 ON Col}�3 Y 3 R' Yq� Date (( False Claims Ord. 10 REVISED NOTICE OF llfi` CONSIDER ADOPTION OF COUNTYOR NOTICE IS HEREBY GIVEN TO WHOM IT MAY CONCERN that on Wednesday, February 18, 2009 at 3:00 P.M., or as soon thereafter as may be heard, at the Murray E. Nelson Government Center, 102050 Overseas Highway, Mile Marker 102.5, Ivey Largo, Monroe County, Florida, the Board of County Commissioners of Monroe County, Florida, intends to consider the adoption of the following County ordinance: Pursuant to Section 286.0105, Florida Statutes, notice is given that if a person decided to appeal any decision made by the Board with respect to any matter considered at such hearings or meetings, he will need a record of the proceedings, and that, for such purpose, he may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. ADA ASSISTANCE: If you are a person with a disability who needs special accommodations in order to participate in this proceeding, please contact the County Administrator's Office, by phoning (305) 292-4441, between the hours of 8: 30 a.m. - 5: 00 p.m., no later than 2 working days prior to the scheduled meeting, if you are hearing or voice impaired, call 11711 ". Dated at Key West, Florida, this 2"d day of February, 2009. DANNY L. KOLHAGE, Clerk of the Circuit Court and ex officio Clerk of the Board of County Commissioners of Monroe County, Florida (SEAL) Publication dates: Reporter (Fr) 2/6/2009 Keynoter (Sa) 2/7/2009 — Re -notice: initial publication ran 1/31/09 with KL Library address KW Citizen (Su) 2/4/2009 — Re -notice: initial publication ran 2/1/09 with KL Library address