We previously addressed the topic of administrative misconduct in an article on the IDP Blog . Following the proposed theme, we covered everything from what constitutes an act of administrative misconduct to its most recent legislative changes.
But if you missed this article, don't despair. In this text, we recap important points so that lawyers and legal professionals can understand in a practical way how the action responsible for investigating acts of administrative misconduct works.
Firstly, it is important to highlight that administrative misconduct encompasses any act committed by public officials that violates fundamental principles of Public Administration, namely legality, impartiality, morality, transparency, and efficiency.
The law on administrative misconduct, which provides for the sanctions applicable due to the practice of acts of administrative misconduct, in addition to conceptualizing and defining these acts, has its constitutional basis in § 4 of article 37 of the Federal Constitution.
However, Law No. 14.230 was published on October 25, 2021, which significantly altered Law No. 8.429 (LIA). From then on, the law on administrative misconduct underwent changes in almost its entirety. We will address each point in more detail below.
What is an action for administrative misconduct and what are its main characteristics?
According to the author Daniel Amorim, the term "corruption" refers to the phenomenon by which a public official is led to act in a way that deviates from the normative standards of the system, favoring private interests in exchange for rewards.
In this sense, corruption becomes one of the main enemies of the Republic, since it signifies the private use of public resources, when the basic characteristic of republicanism is the pursuit of the "common good," with a distinction between public and private spaces.
As a general rule, the investigation of functional infractions is formalized through a disciplinary process, the procedure for which is provided for in laws and other regulatory norms, generally of a statutory nature. An action for administrative misconduct is the necessary mechanism for proper investigation.
To truly combat corruption in Brazil, it is necessary to reflect on the need for a series of cultural and institutional transformations. Furthermore, it is essential to strengthen the control mechanisms of the administrative machinery, increasing transparency, accountability, and social oversight.
Any disciplinary action, even of a minor nature, presupposes the initiation of due administrative disciplinary proceedings, in which the right to a fair hearing and full defense is guaranteed to the employee accused of committing an act considered by law to be punishable. This is stipulated in Article 5, LV, of the Constitution.
Of particular note in the regulatory framework is the institutionalization of mechanisms for controlling probity in public administration, such as Law 8.429/1992 (Law on Administrative Impropriety – LIA), amended by Law 14.230/2021, and the Anti-Corruption Law.
With the reform of the LIA (Law of Administrative Improbity), administrative impropriety will only be characterized if the specific intent of the public agent or third party is proven. Therefore, the initiation of an action for administrative impropriety will depend on the established intent. Thus, there is no negligent form of impropriety, even if the negligence is "serious" or the error is "gross."
Any person may file a complaint with the competent administrative authority so that an investigation may be initiated to ascertain the practice of an act of impropriety. The complaint, which must be written or reduced to writing and signed, shall contain the complainant's identification, information about the fact and its authorship, and an indication of the evidence of which they are aware.
In an action for administrative misconduct, a request for the freezing of the defendants' assets may be made, either as a preliminary matter or as an incidental matter, in order to guarantee the full recovery of public funds or the increase in assets resulting from illicit enrichment.
The court to file the lawsuit referred to should be the court of the location where the damage occurred or where the injured legal entity is located. Regarding the foreseen nature, according to article 17-D of Law 8.429:
Article 17-D. Actions for administrative misconduct are repressive, of a sanctioning nature, intended for the application of personal sanctions provided for in this Law, and do not constitute civil actions, and their filing is prohibited for the control of the legality of public policies and for the protection of public and social assets, the environment, and other diffuse, collective, and homogeneous individual interests.
What procedure is followed in an administrative misconduct lawsuit?
The investigation of disciplinary infractions must be carried out in a regular manner, normally with the formalities that allow for the precise verification of the facts, and always permitting ample opportunity for defense on the part of the employee accused of committing the infraction.
Chapter V of Law 8.429/1992 deals with "administrative procedure and judicial process," with the so-called "administrative procedure" being regulated by articles 15 and 16 of said law.
Although not mandatory, the initiation of administrative proceedings or a civil investigation appears to be quite interesting as a preparatory step for an action for administrative misconduct, especially in light of the rule established in Article 17, § 6, of Law 8.429/1992.
Once a complaint has been submitted to the administrative authority, it is the authority's duty to initiate the administrative process, even if it is to reject it outright, which should also be reserved for exceptional situations.
Thus, after the administrative procedure has passed and the case falls under judicial jurisdiction, pursuant to Article 17, paragraph 1, of the LIA (Law of Administrative Improbity), the action will follow the common procedure foreseen in the Code of Civil Procedure. Law 14.230/2021 brought about a significant modification regarding the requirements of the initial petition in an action for administrative improbity, both in terms of its content and its documentation.
Section 6-B of Article 17 of the LIA (Law of Administrative Improbity) provides for three grounds for rejecting the initial petition, suggesting that it is a summary rejection, that is, a judgment is issued even before the defendant is summoned. The grounds for dismissing a petition provided for in Article 330 of the CPC (Code of Civil Procedure), however, are fully applicable to actions for administrative improbity, as they always have been.
Since this is not a case for summary dismissal, the defendants will be summoned, pursuant to § 7 of Article 17 of the LIA (Law of Administrative Improbity). In this regard, a period will be granted for the opposing party to file a response. After the response is filed, §§ 10-B and 10-C of Article 17 of the LIA provide for certain measures to be taken by the court of first instance.
Next, we will have a deadline for the reply, taking into account the rules of the Code of Civil Procedure. The reply is a response from the plaintiff to the defendant's answer, applicable only when the defenses include preliminary objections, indirect defenses on the merits, or the submission of documents (articles 350, 351, and 437, caput, of the CPC).
Article 17, § 10-C, of the LIA (Law of Administrative Improbity) provides for a decision exclusive to the procedure of the administrative improbity action. Before the case management and, especially, the organization of the process, the judge will have to issue a decision in which he will precisely indicate the classification of the act of administrative improbity attributable to the defendant. In issuing this decision, the court will be bound by the main fact and the legal classification presented by the plaintiff.
After the decision classifying the defendant's conduct is issued, the parties will be notified to specify the evidence they intend to produce. According to the general rule established by the articles of the CPC (Code of Civil Procedure), the burden of proof lies with the plaintiff to prove the facts constituting their right; that is, they must prove the factual matter presented in their initial petition, which serves as the origin of the legal relationship brought before the court.
Thus, the evidentiary phase will begin, responsible for the possible production of oral evidence, interrogation and personal testimony, presentation of objects or documents, as well as the adoption of necessary decisions related to the specific case. After the evidentiary phase, the judgment will be pronounced.
The conclusion of the discovery phase of an administrative misconduct lawsuit is reached through a judgment, which can be either a final judgment (Article 485 of the CPC) or a definitive judgment (Article 487 of the CPC). The possibility of a partial summary judgment on the merits, under Article 356 of the CPC, is not ruled out; however, even in this case, a remaining portion of the merits will be judged on its merits at the end.
The appropriate appeal against a judgment rendered in an administrative misconduct case is an appeal, pursuant to Article 1.009, caput, of the CPC (Code of Civil Procedure). Furthermore, there is no room in the appeal for challenging an interlocutory decision, due to the provisions of Article 17, § 21, of the LIA (Law of Administrative Improbity).
What are the penalties foreseen in an action for administrative misconduct?
In cases of administrative misconduct, the penalties are set forth in Article 12 of the LIA (Law of Administrative Improbity). According to a more established understanding in the Superior Court of Justice, there is no obligation to accumulate the sanctions provided for by law; everything depends on the specific case.
The first "penalty" foreseen by article 12 of Law 8.429/1992, in its three clauses, in reality has no punitive nature whatsoever. The loss of assets and values illicitly added to the defendant's patrimony has a compensatory nature, so much so that there will be succession in this obligation in the event of the death of the dishonest agent, according to article 9 of the LIA (Law of Administrative Improbity).
The full compensation for damages foreseen in article 12 of the LIA (Law of Administrative Improbity) is the same as that existing in any collective action whose object is an act harmful to public assets. Therefore, there will be no difference in the condemnation of the defendants to full reparation of the damage in an action for administrative improbity, in a popular action, or in a public civil action.
Just as with the loss of assets and valuables, full compensation for damages is not a penalty, but rather a reparative measure. However, the loss of public office extinguishes the legal relationship between the corrupt agent and the public or private legal entity listed in Article 1 of Law 8.429/1992.
Naturally, this sanction is inapplicable to a third-party beneficiary of the act of impropriety, or even to a participant who has no legal connection whatsoever with the public legal entity, the same applying to the legal entity that commits the act of impropriety.
Furthermore, according to Article 15 of the Federal Constitution, the revocation of political rights is prohibited; their loss or suspension will only occur in the following cases:
- Cancellation of naturalization by a final and unappealable court decision;
- Absolute civil incapacity;
- A final criminal conviction, for as long as its effects last;
- Refusal to fulfill an obligation imposed on all or to provide an alternative service, under the terms of Article 5, VIII; and
- Administrative misconduct, pursuant to Article 37, § 4.
In this sense, the main function of a civil fine is to discourage the practice of acts of administrative misconduct, serving as a lesson to everyone that, in addition to all other penalties, this type of act will have repercussions on the assets of the corrupt agent due to the conviction and payment of the fine.
Furthermore, there are penalties such as being prohibited from contracting with the Public Authorities or from receiving tax or credit benefits or incentives, directly or indirectly, even through a legal entity in which they are the majority shareholder.
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