Wyoming False Claims Act.

WORKING DRAFT
2007
STATE OF
WYOMING
07LSO-0071

HOUSE BILL
NO.
HB0167

Wyoming
False Claims Act.

Sponsored by:
Representative(s) Lubnau, Brown, Iekel and Landon and Senator(s) Burns and Decaria

A BILL

for

AN ACT relating to civil actions, creating the Wyoming False Claims Act; authorizing actions by the government or private individuals for false claims filed against governmental entities as specified; specifying procedures; providing for the burden of proof; authorizing settlements; providing penalties; providing for distribution of damages and penalties; providing government employee remedies as specified; conforming provisions; and providing for an effective date.

Be It Enacted by the Legislature of the State of
Wyoming
:

Section 1.
W.S. 9
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11
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201 through 9
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11
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212 are created to read:

ARTICLE 2
WYOMING
FALSE CLAIMS ACT

9
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11
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201.

Short title.

This act shall be known and may be cited as the "Wyoming False Claims Act".

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11
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202.

Definitions.

(a)

As used in this act:

(i)

"Claim" means any request or demand for money, property or services made to an employee, officer or agent of a governmental entity or to a contractor, grantee or other recipient, whether under contract or not, if any portion of the money, property, or services requested or demanded issued from, or was provided by, a governmental entity;

(ii)

"Government attorney" means:

(A)

The chief attorney for a governmental entity; or

(B)

The attorney general with respect to the state
.

(iii)

"Governmental entity" means:

(A)

The state;

(B)

A city, town, county, school district, tax or assessment district or other political subdivision of the state; or

(C)

The
University
of
Wyoming
.

(iv)

"Knowingly" means that a person, with respect to information, does any of the following:

(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.

(v)

"Person" means as defined in W.S. 8
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1
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102(a)(vi);

(vi)

"This act" means W.S. 9
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11
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201 through 9
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11
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212.

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11
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203.

False claims, procedures; penalties.

(a)

A person causing damages in excess of five hundred dollars ($500.00) to a governmental entity is liable, as provided in W.S. 9
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11
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210 and 9
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11
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211, for any of the following acts:

(i)

Knowingly presenting or causing to be presented to an officer or employee of the governmental entity a false claim for payment or approval;

(ii)

Knowingly making, using or causing to be made or used a false record or statement to get a false claim paid or approved by the governmental entity;

(iii)

Conspiring to defraud the governmental entity by getting a false claim allowed or paid by the governmental entity;

(iv)

Having possession, custody or control of public property or money used or to be used by the governmental entity and knowingly delivering or causing to be delivered less property or money than the amount for which the person receives a certificate or receipt;

(v)

Being authorized to make or deliver a document certifying receipt of property used or to be used by the governmental entity and knowingly making or delivering a receipt that falsely represents the property used or to be used;

(vi)

Knowingly buying or receiving as a pledge of an obligation or debt public property of the governmental entity from any person who may not lawfully sell or pledge the property;

(vii)

Knowingly making, using or causing 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 governmental entity or its contractors; or

(viii)

As a beneficiary of an inadvertent submission of a false claim to the governmental entity, subsequently discovering the falsity of the claim and failing to disclose the false claim to the governmental entity within thirty (30) days after discovery of the false claim.

(b)

In a civil action brought under W.S. 9
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11
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205 or 9
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11
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206, a court shall impose a civil penalty of not less than five thousand dollars ($5,000.00), nor more than ten thousand dollars ($10,000.00) for each act and shall assess three (3) times the amount of damages that a governmental entity sustains because of the person's act, along with costs and attorney fees. The court may assess a civil penalty of two (2) times the amount of damages that a governmental entity sustains because of the person's act, along with costs and attorney fees, if the person who violated W.S. 9
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11
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203 complies with all of the following:

(i)

The person committing the act furnished the government attorney with all information known to that person about the act within thirty (30) days after the date on which the person first obtained the information;

(ii)

The person fully cooperated with any investigation of the act by the government attorney;

(iii)

At the time that the person furnished the government attorney with information about the act, a criminal prosecution, civil action or administrative action had not been commenced with respect to the act and the person did not have actual knowledge of the existence of an investigation into the act.

(c)

Liability under this section is joint and several for any act committed by two (2) or more persons.

(d)

This section does not apply to claims, records or statements made in relation to claims filed under the Wyoming Employment Security Law or the Wyoming Worker's Compensation Act under title 27 of the Wyoming statutes, or to claims, records, payments or statements made under the tax laws contained in title 39 of the Wyoming statutes, or to fraudulent or substantial misrepresentation in obtaining a license under title 23 of the Wyoming statutes.

(e)

A private citizen may not file a complaint or civil action under this act:

(i)

Against a governmental entity or an officer or employee of a governmental entity arising from conduct by the officer or employee within the scope of the officer's or employee's duties to the governmental entity;

(ii)

That is based upon allegations or transactions that are the subject of a civil suit or an administrative civil penalty proceeding in which an agency of the governmental entity is already a party;

(iii)

That is based upon the public disclosure of allegations or transactions in a criminal, civil or administrative hearing or in an investigation, report, hearing or audit conducted by or at the request of the legislature, the state auditor, the auditor or legislative body of a political subdivision or the news media, unless the private citizen has direct and independent knowledge of the information on which the allegations are based and, before filing the complaint or civil action, voluntarily provided the information to the agency of the governmental entity that is involved with the claim that is the basis for the complaint or civil action and unless the information provided the basis or catalyst for the investigation, report, hearing or audit that led to the public disclosure; or

(iv)

That is based upon information discovered by a present or former employee of the governmental entity during the course of employment unless the employee first, in good faith, exhausted existing internal procedures for reporting and seeking recovery of the falsely claimed sums through official channels and the governmental entity failed to act on the information provided within a reasonable period of time.

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204.

Limitation of actions.

A complaint or civil action may not be filed under W.S. 9
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11
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205 or 9
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206 more than three (3) years after the date on which an official of the governmental entity charged with responsibility to act in the circumstances discovers the act or more than ten (10) years after the date on which the act occurred, whichever occurs first.

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205.

Investigation and civil action by government attorney.

A government attorney may investigate an alleged violation of W.S. 9
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203 and file a civil action for that violation.

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206.

Complaint by private citizen; civil action.

(a)

Except as provided in W.S. 9
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203(e), a private citizen may file with the government attorney a notice alleging a violation of W.S. 9
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11
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203 against a governmental entity of which the private citizen is a resident. If the private citizen files a complaint with the court alleging violations of W.S. 9
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203, the private citizen shall serve notice of the complaint as provided in the Wyoming Rules of Civil Procedure with the government attorney that includes a written disclosure of material evidence and information alleging violations of W.S. 9
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203. The complaint shall be filed in camera, shall remain under seal for at least sixty (60) days and shall not be served on the defendant until the court so orders.

(b)

Within sixty (60) days after receiving a notice and complaint under subsection (a) of this section, the government attorney shall elect whether to file a civil action and may, for good cause shown, move the court for extensions of the time for filing an action.

(c)

If the government attorney files a civil action, the private citizen may enter the action as a coplaintiff, but the government attorney shall have control of the plaintiffs' strategy, tactics and other decision

making. If the government attorney does not file a civil action within the time allowed under subsection (b) of this section, the private citizen may proceed with the civil action under this act.

(d)

The court shall permit the government attorney to intervene in an action that the government attorney declined to file under subsection (b) of this section if the court determines that the interests of the governmental entity are not being adequately represented by the private citizen. If intervention is allowed, the private citizen retains principal responsibility for and control of the action and any damages, civil penalty, costs and attorney fees shall be awarded under W.S. 9
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11
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210 and 9
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211 as if the government attorney had not intervened.

(e)

After a private citizen files a civil action, no other private citizen may file a civil action based on the facts underlying the pending action.

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207.

Dismissal of private citizen's civil action.

On the motion of a government attorney, the court may dismiss a private citizen's civil action for good cause. If an intervening government attorney seeks dismissal of a private citizen's civil action, the private citizen shall be notified by the government attorney of the filing of the motion to dismiss and shall be given an opportunity to oppose the motion and present evidence at a hearing.

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208.

Settlement.

An action may be settled if the court determines after a hearing that the proposed settlement is fair, adequate and reasonable under all the circumstances. In a private citizen's action in which the government attorney intervened and seeks a settlement, the private citizen may present evidence at the settlement hearing.

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209.

Burden of proof.

(a)

The plaintiff in an action filed under W.S. 9
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11
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205 or 9
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11
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206 shall prove each essential element of the cause of action, including damages, by a preponderance of the evidence.

(b)

A person convicted of or who pleaded guilty or nolo contendere to a criminal offense may not deny the essential elements of the offense in an action filed under W.S. 9
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11
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205 or 9
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11
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206 that involves the same event or events as the criminal proceeding.

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11
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210.

Distribution of damages and civil penalty.

(a)

If an action under this act is settled or the governmental entity or private citizen prevails in the action:

(i)

If the action was filed by a governmental entity under W.S. 9
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11
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206(b) and the private citizen elected not to enter the action as a coplaintiff, except as provided in paragraph (iii) of this subsection, the private citizen is entitled to not less than fifteen percent (15%), as determined by the court, of any damages and civil penalty awarded the governmental entity in the settlement or judgment;

(ii)

If the action was filed by a private citizen either as plaintiff or as coplaintiff, except as provided in paragraph (iii) of this subsection, the private citizen is entitled to not less than twenty-five percent (25%), as determined by the court, of any damages and civil penalty awarded the governmental entity in the settlement or judgment; and

(iii)

If a private citizen referred to in paragraph (i) or (ii) of this subsection participated in the act or acts found to be in violation of W.S. 9
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11
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203, an award of damages and civil penalty to the private citizen are at the discretion of the court.

(b)

The governmental entity is entitled to any damages and civil penalty not awarded to a private citizen and the damages and civil penalty shall be deposited in the general fund of the governmental entity, except that if another fund of the governmental entity suffered a loss as a result of the defendant's actions, the other fund shall first be fully reimbursed for the loss and the remainder of the damages and any civil penalty shall be deposited in the general fund of the governmental entity.

(c)

Unless otherwise provided, the remedies or penalties provided by this act are cumulative to each other and to the remedies or penalties available under all other laws of the state.

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211.

Costs and attorney fees.

A governmental entity in an action in which its government attorney filed a civil action under this act or intervened is entitled to its reasonable costs and attorney fees if the action is settled favorably for the governmental entity or the governmental entity prevails. In an action in which outside counsel represents a governmental entity, the costs and attorney fees awarded a governmental entity shall equal the outside counsel's charges reasonably incurred by the governmental entity for costs and attorney fees in prosecuting the action. In any other actions under this act in which costs and attorney fees are awarded a governmental entity, they shall be calculated by reference to the hourly rate charged by the office of the attorney general for the provision of legal services to state agencies, multiplied by the number of attorney hours devoted to the prosecution of the action, plus the actual cost of any expenses reasonably incurred in the prosecution of the action. A private citizen who is a plaintiff or coplaintiff is entitled to reasonable costs and attorney fees if the action is settled favorably for the governmental entity or the governmental entity prevails in the action. A person who is the subject of a civil action and who prevails in an action that is not settled and that the court finds was clearly frivolous or brought solely for harassment purposes is entitled to his reasonable costs and attorney fees, which shall be equitably apportioned against all plaintiffs in the action.

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212.

Prohibition on employers; employee remedies.

(a)

A governmental entity may not adopt or enforce a rule, regulation or policy preventing an employee from disclosing information to a government or law enforcement agency with regard to or from acting in furtherance of an investigation of a violation of W.S. 9
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11
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203 or an action brought pursuant to W.S. 9
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205 or 9
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206.

(b)

A governmental entity may not discharge, demote, suspend, threaten, harass or deny promotion to or in any other manner discriminate against an employee in the terms and conditions of employment because of the employee's disclosure of information to a government or law enforcement agency pertaining to a violation of W.S. 9
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203.

(c)

A governmental entity that violates the provisions of subsection (b) of this section is liable for:

(i)

Reinstatement to the same position with the same seniority status, salary, benefits and other conditions of employment that the employee would have had but for the discrimination;

(ii)

Back pay that the employee would have had but for the discrimination;

(iii)

Compensation for any special damages sustained by the employee as a result of the discrimination; and

(iv)

Reasonable court or administrative proceeding costs and reasonable attorney fees incurred by the employee as a result of the discrimination.

(d)

An employee may file an action for the relief provided in subsection (c) of this section.

Section 2.
W.S. 6
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5
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303(b), 9
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11
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101 and 9
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11
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102(a)(intro) are amended to read:

6
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5
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303.

False swearing in nonjudicial or nonadministrative proceeding; false claims or vouchers; penalties.

(b)

A
person is guilty of a felony punishable by imprisonment for not more than two (2) years, a fine of not more than two thousand dollars ($2,000.00), or both, if he knowingly submits a false claim or voucher with intent to defraud.
A person who submits a false claim or voucher as provided in the
Wyoming
False Claims Act shall be subject to the provisions of W.S. 9
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11
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201 et seq. and shall not be prosecuted under this subsection.

ARTICLE 1
STATE GOVERNMENT FRAUD REDUCTION ACT

9
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11
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101.

Short title.

This
chapter
article
may be cited as the "State Government Fraud Reduction Act."

9
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11
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102.

Definitions; applicability.

(a)

As used in this
chapter
article
:

Section 3.
This act applies to all causes of action if the act giving rise to the cause of action occurred on or after July 1, 2007.

Section 4.
This act is effective July 1, 2007.

(END)

1
HB0167