Chief among my stated goals in starting this blog was to provide practical examples of how the VFATA can and should be used to protect the public fisc and improve public services in the Commonwealth.  I will title these entries "practice examples" and I hope they will be useful to my fellow Virginia practitioners and to the public at large. 

Today's example comes from a January 5, 2007 Opinion Letter written by the Virginia Office of the Attorney General in response to a series of questions from a member of the House of Delegates.  Note please that I do not intend to criticize AG McDonnell—much to the contrary, VFATA recoveries have jumped to hundreds of millions of dollars a year under Bob McDonnell, and Virginia is one of the few states that has an OAG qui tam committee that meets on a regular basis. 
The opinion letter deals with Va. Code § 22.1-296.1, which provides that all school board employees in the Commonwealth are required to certify, at the time they apply for employment, that they have not been convicted or certain crimes of moral turpitude.  Specifically, the letter addresses 22.1-296.1(C), which extends the certification requirement to contractors providing services to local school boards.  Subsection (C) provides as follows:  
  
   C. As a condition of awarding a contract for the provision of services that require the contractor or his employees to have direct contact with students on school property during regular school hours or during school-sponsored activities, the school board shall require the contractor to provide certification that all persons who will provide such services have not been convicted of a felony or any offense involving the sexual molestation or physical or sexual abuse or rape of a child.

The Opinion Letter is divided into six different parts, and the most relevant here are parts five and six.  Part five confirms what the statute already makes clear—that the certification of lack of a criminal history is a "condition of participation;" that is, without the affirmative certification required by the statute (i.e., a certification by each employee that he or she has not been convicted of a felony or any offense involving sexual molestation or physical or sexual abuse or rape of a child), a contractor is not eligible to enter into a contract with a local school board. 

The final issue addressed in the Opinion Letter is whether the school system has sole authority to enforce Va. Code 22.1-296.1.  By failing to recognize that the statute may be enforced by anyone in the Commonwealth, the OAG missed an opportunity to demonstrate the utility of the statute.
Because the certification required by 22.1-296.1(C) is a condition of participation, every invoice paid by the school board to this particular contractor would be subject to trebling, and then an additional civil penalty of between $5,000 and $10,000 dollars would be added for each invoice the contractor submitted to the school board.
Any person in the Commonwealth with information that a contractor to a school board is employing anyone who has been convicted of any offense involving child abuse or a felony (or not obtaining these certifications from its employees, or is knowingly accepting false certifications from employees, for example) can come forward, hire a private lawyer with experience in qui tam litigation, and begin a qui tam action on behalf of the Commonwealth as well as themselves. 

Like its federal counterpart (the Federal False Claims Act, found at 31 U.S.C. 3729 et seq.) the VFATA creates a mechanism for private individuals to bring suit on behalf of the Commonwealth.  Any parent would agree, I think, that people who have been convicted of the horrible crimes listed above have no place around children; and so it stands to reason that we should enforce laws such as Va. Code 22.1-296.1 with everything at our disposal when a contractor thumbs his or her nose at the safety of our children.
Any person coming forward with this evidence would be eligible to receive an award of between 15% and 30% of the total amount recovered by the Commonwealth, plus all attorney's fees and costs incurred in bringing the action.     

Private law enforcement actions using the VFATA cost the Commonwealth nothing in terms of state resources, and one judgment for treble damages, civil penalties, and attorney’s fees and costs would force all school contractors sit up and pay close attention to the protections we afford our schools in the Commonwealth.  Private law enforcement also would be considerably more likely, as the Commonwealth’s Attorneys throughout the Commonwealth are, without exception, overworked, underfunded and understaffed. 
Thoughts?

ZAK