HomeMy WebLinkAboutAgenda Item Cover PageAGENDA ITEM COVER PAGE
File ID: #3887
Ordinance
Second Reading
Sponsored by: Wifredo Gort, Commissioner
AN ORDINANCE OF THE MIAMI COMMISSION AMENDING CHAPTER 37 OF THE CODE OF
THE CITY OF MIAMI, FLORIDA, AS AMENDED ("CITY CODE"), ENTITLED "OFFENSES—
MISCELLANEOUS," BY CREATING SECTION 37-14, ENTITLED "FALSE OR FRAUDULENT
CLAIMS FOR PAYMENT OR APPROVAL," PROVIDING FOR A SHORT TITLE, PURPOSE,
DEFINITIONS, CERTIFICATION OF CLAIMS, LIABILITY FOR FALSE CLAIMS, PENALTIES,
CIVIL ACTIONS FOR FALSE CLAIMS, RIGHTS OF THE PARTIES IN CIVIL ACTIONS,
AWARDS TO PLAINTIFFS BRINGING CIVIL ACTIONS, EXPENSES, ATTORNEYS' FEES,
COSTS, EXEMPTIONS TO CIVIL ACTIONS, PROTECTION FOR PARTICIPATING
EMPLOYEES, BURDEN OF PROOF AND PRESUMPTION OF FALSE CLAIM, AND
INNOCENT CLAIMANT AFFIRMATIVE DEFENSES; CONTAINING A SEVERABILITY
CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE.
City of Miami File ID: 3887 (Revision: 8) Printed On: 12/11/2018
GS.,Y OFA
�1
i" City of Miami
+' nein uare� #
Legislation
Ordinance
Enactment Number: 13786
File Number: 3887 Final Action Date: 9/13/2018
AN ORDINANCE OF THE MIAMI COMMISSION AMENDING CHAPTER 37 OF THE
CODE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED ("CITY CODE"), ENTITLED
"OFFENSES—MISCELLANEOUS," BY CREATING SECTION 37-14, ENTITLED
"FALSE OR FRAUDULENT CLAIMS FOR PAYMENT OR APPROVAL," PROVIDING
FOR A SHORT TITLE, PURPOSE, DEFINITIONS, CERTIFICATION OF CLAIMS,
LIABILITY FOR FALSE CLAIMS, PENALTIES, CIVIL ACTIONS FOR FALSE CLAIMS,
RIGHTS OF THE PARTIES IN CIVIL ACTIONS, AWARDS TO PLAINTIFFS BRINGING
CIVIL ACTIONS, EXPENSES, ATTORNEYS' FEES, COSTS, EXEMPTIONS TO CIVIL
ACTIONS, PROTECTION FOR PARTICIPATING EMPLOYEES, BURDEN OF PROOF
AND PRESUMPTION OF FALSE CLAIM, AND INNOCENT CLAIMANT AFFIRMATIVE
DEFENSES; CONTAINING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, the State of Florida ("State") enacted Sections 68.081 through 68.092,
Florida Statutes, the Florida False Claims Act, to deter persons from knowingly causing or
assisting in causing the state government to pay claims that are false and to provide remedies
for obtaining treble damages and civil penalties for the state government when money is
obtained from the state government by reason of a false claim; and
WHEREAS, Miami -Dade County ("County") enacted Article XV of the Miami -Dade
County Code of Ordinances, as amended ("County Code"), the False Claims Ordinance, to
deter persons from knowingly causing or assisting in causing 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;
and
WHEREAS, neither the State nor the County's respective false claims laws apply to the
City of Miami ("City"); and
WHEREAS, the City wishes to deter persons from knowingly causing or assisting in
causing the City to pay claims that are false, fraudulent, or inflated; and
WHEREAS, it is in the City's best interest to provide remedies for obtaining damages
and civil penalties for the City when money is sought or obtained from the City by reason of a
false claim; and
WHEREAS, pursuant to Section 16 of the City Charter, the City Manager has the duty to
see that the laws and ordinances are enforced and to perform such other duties as are required
by, inter alis, ordinance; and
WHEREAS, pursuant to Section 21 of the City Charter, the City Attorney shall prosecute
all complaints, matters, suits, and controversies as he or she is directed to prosecute;
City of Miami File ID: 3887 (Revision: 8) Printed On: 1211112018
NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION OF THE CITY OF
MIAMI, FLORIDA:
Section 1. The recitals and findings contained in the Preamble to this Ordinance are
adopted and incorporated as if fully set forth in this Section.
Section 2. Chapter 37 of the Code of the City of Miami, Florida, as amended, is
amended in the following particulars:'
"CHAPTER 37
OFFENSES—MISCELLANEOUS
Sec. 37-14. False or fraudulent claims for Davment or aDDroval.
(a) Short Title, Purpose, and Definitions.
This Section shall be known as and may be cited as the "Miami False Claims Ordinance."
The purpose of the Miami False Claims Ordinance is to deter persons from knowingly causing
or assisting in causing the City to pay claims that are false, fraudulent, or inflated, to provide
remedies for obtaining damages and civil penalties for the City when money is sought or
obtained from the City by reason of a false claim. The provisions of this Section are not
exclusive, and the remedies provided for in this Section shall be in addition to any other
remedies provided for in any other law, available under common law, or otherwise. This Section
shall be liberally construed and applied to promote the public interest.
For the purposes of this Section, the following terms, phrases, and words shall have the
following meanings:
(1) Bid Takeoff means the final estimate, tabulation, or worksheet prepared by the
contractor in anticiaation of the bid submitted and which shall reflect the final bid Drice.
(2) Certified Claim means a Claim made under oath by a Person duly authorized by
the claimant and shall contain a statement that:
A) The Claim is made in aood 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 Citv: and
(D) The certifying Person is duly authorized by the claimant to certify the Claim.
(3) City means the City of Miami, its departments, officials, officers, employees,
consultants, and agents. It shall also include any instrumentality, authority, agency,
board. district. committee. or commission of the Citv includina its members. officials
officers, employees, consultants, and agents.
' Words and/or figures stricken through shall be deleted. Underscored words and/or figures shall be
added. The remaining provisions are now in effect and remain unchanged. Asterisks indicate omitted and
unchanaed material.
City of Miami File ID: 3887 (Revision: 8) Printed On: 12/11/2018
(4) Claim means any invoice, statement, request, reimbursement, demand,
proceeding, lawsuit, complaint, or action under contract or otherwise for money,
property, or services made to any employee, officer, or agent of the City, or to any
contractor, grantee, or other recipient if any portion of the money, property, or services
requested or demanded from, or provided by, the City; withholding any money, property,
or services from the City; any costs incurred by the City in defense of any Claim as
defined herein.
(5) Claimant means any person who brings, submits, files, maintains, or pursues a
Claim.
(6) 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 markua of direct costs.
(7) Knowing or Knowingly means that a person, with respect to information:
(A) Has actual knowledge of the information;
Acts in deliberate ianorance of the truth or falsitv of the information: or
(C) Acts in reckless disregard of the truth or falsity of the information.
(8) Original Source means a Person who has direct and independent knowledge of the
information on which the allegations are based and has voluntarily provided the
information to the City Manager before filing an action under this Section based on the
information.
(9) 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.
(10) Person means any natural person, corporation, firm, association, organization,
Partnership, agency, limited liability company, business, trust, or any other group acting
as a unit.
(b) Certification of Claims.
Upon the request of the City, the Person submitting a Claim shall, within thirty (30) days,
including Saturdays, Sundays, and legal holidays, submit a Certified Claim as defined herein.
Failure to provide the requested certification within the prescribed thirty (30) day period shall
constitute a forfeiture of the entire Claim.
(c) Liability for false Claims.
(1) The following action(s) shall constitute a violation of this Section:
(A) Any Person who knowingly, deliberately, and/or under the penalty of perjury
presents or causes to be presented to the City a false or fraudulent Claim for
Payment or approval;
(B) Any Person who knowingly, deliberately, and/or under the penalty of perjury
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 City;
City of Miami File ID: 3887 (Revision: 8) Printed On: 12/11/2018
(C) Any Person who conspires to defraud the City by facilitating the payment of a
false, fraudulent, or inflated Claim allowed or paid by the City;
(D) Any Person who delivers, with the intent to defraud the City, goods or
services of a different quality or quantity than that specified in the applicable
contract or specification;
(E) Any Person who intentionally buys, or receives as a pledge of an obligation or
debt, public property from an officer, employee, or agent of the City who the
Person knows may not lawfully sell or pledge the property; or
Any Person who knowingly, deliberately, and/or under the penalty of perjury
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 City.
(G) Subject to the limitations and restrictions of Section 768.295, Florida Statutes
(F.S.), any person who knowingly, deliberately, and/or under the penalty of
perjury makes, uses, or causes to be presented to the City, a judicial body, or a
quasi-judicial body a false or fraudulent statement, charge, allegation, or
testimony against the City, its departments, officials, officers, employees, or
agents.
(2) Any beneficiary of an inadvertent submission of a false Claim to the City, who
subsequently discovers the falsity of the Claim, and who fails to disclose the falsity of the
Claim to the City within thirty (30) days of discovering the error shall also be found to
have submitted a false Claim to the City.
(d) Penalties.
1) Anv Person found to have submitted a false Claim to the Citv shall:
(A) Be liable to the City for an amount equal to three (3) 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) Return to the City any and all funds disbursed and/or paid by the City on that
part of the Claim which is false, fraudulent, or inflated;
(D) Be liable to the City for all costs and fees (including, without limitation,
reasonable legal, expert, and consulting fees) incurred by the City to review,
initiate proceedings, defend, and/or evaluate the Claim; and
(E) Be subject to debarment from City 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 City contracting for a period not to exceed five
5 ears.
(2) Liability under this Section shall be joint and several for any act committed by two (2)
or more persons.
(3) Any person who is found to have only violated Section 37-14(c)(1)(G) shall only be
liable to the Citv for all costs and fees (includina. without limitation. reasonable leaal.
City of Miami File ID: 3887 (Revision: 8) Printed On: 12/11/2018
expert, and consulting fees) incurred by the City to review, initiate proceedings, defend,
and/or evaluate the violation.
e) Civil actions for false Claims.
(1) The City Manager may investigate a violation under Section 37-14(c) of the City
Code. If the City Manager finds that a Person has violated or is violating Section 37-
14(c), he or she may, upon City Commission approval, request that the City Attorney
brina a civil action aaainst the Person on behalf of the Citv.
(2) A Person may bring a civil action for a violation of Section 37-14(c) for the Person
and for the City. Civil actions instituted under this Subsection shall be governed by the
Florida Rules of Civil Procedure and shall be brought in the name of the City.
(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 Eleventh Judicial Circuit, in and for
Miami -Dade 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 City Manager by
registered mail, return receipt requested. The City Manager may elect, upon City
Commission approval, to proceed with the action, in lieu of the qui tam plaintiff,
on behalf of the City, within one hundred eighty (180) days after he or she
receives both the complaint and the material evidence and information.
(B) The City Manager, for good cause shown, may petition the court to extend
the time during which the complaint remains under seal under Section 37-
14(e)(2)(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 Section until twenty (20) days after the complaint is
unsealed and served upon the defendant in accordance with law.
(C) Before the expiration of the one hundred eighty (180) day period or any
extensions obtained under Section 37-14(e)(2)(B), the City Manager shall:
i. Upon City Commission approval, proceed with the action, in which case
the action is conducted by the City Attorney on behalf of the City: or
ii. Notify the court that the City 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 the Miami False Claims Ordinance, no
Person other than the City Manager, upon City Commission approval and on
behalf of the Citv. may intervene or brina an action under the Miami False Claims
Ordinance based on the facts underlying the pending action.
(f) Rights of the parties in civil actions.
(1) If the City Manager, upon City Commission approval and on behalf of the City, 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 bringing the
action. The City may also voluntarily dismiss the action notwithstanding the objections of
the Person bringing the action.
(2) If the City Manager and/or the City Commission elects not to proceed with the action,
the Person bringing the action has the right to conduct the action. If the City Manager
City of Miami File ID: 3887 (Revision: 8) Printed On: 12/11/2018
and/or the City 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 Person bringing the action proceeds with the claim, the court may permit the City to
take over the action on behalf of the City at a later date upon a showing of good cause.
(3) Nothing in this Section shall be construed to limit the authority of the City, or the qui
tam plaintiff proceeding pursuant to Section 37-14(e)(2), to compromise a Claim brought
in a complaint filed under the Miami False Claims Ordinance if the court determines,
after a hearing, that the proposed settlement is fair, adequate, and reasonable under all
the circumstances.
(g) Awards to plaintiffs bringing civil actions.
(1) If the City proceeds with and prevails in an action brought by a Person under the
Miami False Claims Ordinance, except as provided in Section 37-14(8)(2), the court
shall order the distribution to the Person of ten percent (10%) of the proceeds recovered
under any judgment obtained by the City in an action under Section 37-14(b) or of the
proceeds of any settlement of the Claim.
(2) If the City proceeds with an action which the court finds to be based primarily on
disclosures of specific information, other than that provided by the Person initiating the
action, relating to allegations or transactions in a criminal, civil, or administration hearing;
a legislative or administrative action; a report, hearing, audit, or investigation by the
City's Independent Auditor General; or from the news media, the court may award such
sums as it considers appropriate, but in no case not more than five percent (5%) of the
proceeds recovered under a judgment or received in settlement of a Claim under this
Section taking into account the significance of the information and the role of the Person
bringing the action in advancing the case to litigation.
(3) If the City does not proceed with an action under this Section, the Person bringing
the action or settling the Claim shall receive twenty-five percent (25%) of the proceeds
recovered under a iudament rendered in an action or in settlement of a Claim under the
Miami False Claims Ordinance.
(4) Any payment under this Section to the Person bringing the action shall be paid only
out of the proceeds recovered from the defendant.
(5) Whether or not the City 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 37-14(c)
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 City to continue the action.
(h) Expenses, attorney's fees, and costs.
(1) If the City initiates an action under the Miami False Claims Ordinance or assumes
control of an action brought by a Person under the Miami False Claims Ordinance and
the City prevails in such action, the City shall be awarded its reasonable attorneys' fees,
expenses, and costs.
(2) If the court awards the Person bringing the action under the Miami False Claims
Ordinance, the Person shall also be awarded an amount for reasonable attorneys' fees
and costs. Payment for reasonable attorneys' fees and costs shall be made from the
recovered aroceeds before the distribution of anv award.
City of Miami File ID: 3887 (Revision: 8) Printed On: 12/11/2018
(3) If the City does not proceed with an action under the Miami False Claims Ordinance
and the defendant is the prevailing party, the court shall award the defendant reasonable
attorneys' fees and costs against the Person bringing the action.
(4) No liability shall be incurred by the City for any expenses, attorneys' fees, or other
costs incurred by any Person in bringing or defending an action under this Section,
except as otherwise specifically provided by law.
(i) Exemptions to civil actions.
(1) In no event may a Person bring an action under the Miami False Claims Ordinance
based upon allegations or transactions that are the subject of a civil action or an
administrative proceeding in which the City is already a party.
No court shall have iurisdiction over an action brouaht under the Miami False Claims
Ordinance based upon the public disclosure of allegations or transactions in a criminal,
civil, or administrative hearing; in a legislative or administrative action; in a report,
hearing, audit, or investigation by the City's Independent Auditor General; or from the
news media unless the action is brought by the City or unless the Person bringing the
action is an Oriainal Source of the information.
(3) No court shall have jurisdiction over an action where the Person bringing the action
under the Miami False Claims Ordinance is:
A. Acting as an attorney for the City; or
B. An employee or former employee of the City,
and the action is based, in whole or in part, upon information obtained in the course or
scope of City employment.
(4) No court shall have jurisdiction over an action where the Person bringing the action
under the Miami False Claims Ordinance obtained the information from an employee or
former employee of the City.
(i) 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 the Miami False
Claims Ordinance, including investigation for, initiation of, testimony for, or assistance in an
action filed or to be filed under this Section shall have a cause of action under the State of
Florida "Whistle -blower's Act." Section 112.3187. Florida Statutes.
(k) Burden of proof, presumption of false Claim.
(1) Whenever practicable, bid specifications for City contracts shall contain a
reauirement that the successful bidder maintain. as a condition arecedent to submittin
Claim aaainst the Citv. a final Bid Takeoff. The final Bid Takeoff shall contain a line item
for allocation of overhead costs.
(2) Upon request from the City, a contractor making a claim against the City for delay or
other damages shall submit, within twenty (20) days of the City's request, 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 delav or other damaaes. The
City of Miami File ID: 3887 (Revision: 8) Printed On: 1211112018
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;
(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
anv such Claim for Extended Overhead is not false.
(1) Innocent Claimant affirmative defense.
The provisions of the Miami False Claims Ordinance shall not apply if the Claimant can
demonstrate by a areaonderance of the evidence each of the followina facts:
(1) The Claimant submitted or caused to have submitted the Claim to or against the City
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 (5) business
days of discovering the falsity of the Claim, took immediate steps to modify, correct, or
withdraw such Claim and provided the City with immediate notice thereof.
*„
Section 3. If any section, part of a section, paragraph, clause, phrase, or word of this
Ordinance is declared invalid, the remaining provisions of this Ordinance shall not be affected.
Section 4. This Ordinance shall become effective thirty (30) days after final reading and
adoption thereof.2
2 This Ordinance shall become effective as specified herein unless vetoed by the Mayor within ten (10)
days from the date it was passed and adopted. If the Mayor vetoes this Ordinance, it shall become
effective immediately upon override of the veto by the City Commission or upon the effective date stated
herein, whichever is later.
City of Miami File ID: 3887 (Revision: 8) Printed On: 12/11/2018
APPROVED AS TO FORM AND CORRECTNESS:
ria ndez, ity ttor ey 6/5/2018ria ' ndez, ity ktor ey 6129/2018
City of Miami File ID: 3887 (Revision: 8) Printed On: 1211112018