Administrative misconduct compromises the integrity of public management, negatively affecting society's trust in institutions. In this scenario, the Public Prosecutor's Office stands out as an essential body in the oversight and repression of illicit practices, acting independently to ensure compliance with constitutional principles and the protection of public assets.
What is administrative misconduct?
Administrative misconduct occurs when public officials or third parties engage in acts that violate the principles of public administration. Such conduct can result in illicit enrichment, harm to public funds, or a breach of the duties of honesty and legality.
Public administration must act in the interest of the collective. Therefore, acts that compromise the integrity of public service are punished based on Law No. 8.429/1992 – amended by Law 14.230/2021, known as the Administrative Improbity Law (LIA).
Concept and legal basis of administrative misconduct.
The LIA (Law of Administrative Improbity) regulates article 37, §4, of the Federal Constitution, establishing rules to punish practices that cause harm to the administration. Its objective is to protect morality and efficiency in public management.
The principle of administrative morality requires public officials to act ethically and transparently. According to Hely Lopes Meirelles, morality is not limited to the distinction between good and evil, but includes the legality and purpose of administrative acts.
Law No. 14.230/2021 brought important changes. Now, for an act to be considered improper, it is necessary to prove specific intent, that is, the clear intention to commit the infraction. Previously, simple negligence could already lead to liability.
Examples of acts of administrative misconduct
The law classifies administrative misconduct into three categories:
- Illicit enrichment (Art. 9) This occurs when a public official or third party obtains undue financial advantages, such as bribes and misappropriation of funds.
- Damage to public funds (Art. 10) – When there is damage to public funds through contract fraud, overpricing, or waste of funds.
- Violation of administrative principles (Art. 11) – This includes practices related to the violation of principles such as nepotism, undue favoritism, and lack of transparency.
The reform of the LIA (Law of Administrative Improbity) made punishment more selective. Only acts that have a significant impact on public administration can be sanctioned.
Consequences for public officials and third parties
Those who engage in administrative misconduct may face severe penalties, such as:
- Loss of public office – The agent may be removed from the position held at the time of the act.
- Suspension of political rights – It can last from 3 to 14 years, depending on the infraction.
- Civil fine – The amount is proportional to the damage caused to public funds.
- Prohibition on contracting with the public sector – Companies and individuals involved are prohibited from entering into administrative contracts.
- Reimbursement to the public treasury – The person responsible must return the embezzled funds.
Law No. 14.230/2021 also seeks to prevent the so-called "pen paralysis," a phenomenon in which fear of punishment causes managers to avoid important decisions. The goal is to balance the fight against corruption with legal certainty for public officials.
The Public Prosecutor's Office and its role in investigating corruption.
The Public Prosecutor's Office (MP) plays an essential role in combating administrative misconduct. As the guardian of the law, it is responsible for investigating and bringing actions against public officials and third parties involved in illegal acts.
Its role is outlined in the 1988 Federal Constitution , which grants the Public Prosecutor's Office functional independence and administrative autonomy. This ensures that its actions are impartial and focused exclusively on defending the public interest.
Constitutional basis for the Public Prosecutor's Office in combating corruption.
Article 127 of the Federal Constitution defines the Public Prosecutor's Office as a permanent institution essential to justice. Its objective is to guarantee respect for the laws and protect public assets against illicit practices.
Article 129 establishes its main functions, including defending the legal order and overseeing public administration. This responsibility allows the Public Prosecutor's Office to act against irregularities and seek to hold those involved accountable.
In cases of administrative misconduct, the Public Prosecutor's Office has a duty to investigate, file lawsuits, and adopt preventive measures. This includes freezing assets, removing public officials from office, and filing lawsuits to recover funds for the public treasury.
Powers of the Public Prosecutor's Office in the investigation of corruption.
To ensure the effectiveness of investigations, the Public Prosecutor's Office has several powers, including:
- Request for documents and information The Public Prosecutor's Office can request data from public and private bodies, such as contracts, financial statements, and financial records.
- Initiate civil investigations. – The civil investigation allows for the collection of evidence and the hearing of witnesses before the filing of an action for administrative misconduct.
- Signing Terms of Adjustment of Conduct (TACs) – In some cases, the Public Prosecutor's Office can reach agreements to correct irregularities without the need for legal action.
- To promote public civil action. – When there is strong evidence of misconduct, the Public Prosecutor's Office can file a lawsuit in court to apply the sanctions provided for in Law No. 8.429/1992.
These tools ensure that the Public Prosecutor's Office acts effectively in preventing and suppressing corruption , protecting the collective interest.
Cooperation of the Public Prosecutor's Office with other oversight bodies
Combating corruption requires collaboration between different institutions. The Public Prosecutor's Office works together with bodies such as the Comptroller General of the Union (CGU), Courts of Auditors, and the Federal Police to deepen investigations and collect evidence.
The CGU (Comptroller General of the Union) conducts audits and oversees the use of public funds, providing essential information for investigations. The Courts of Accounts, on the other hand, analyze financial irregularities, issuing technical opinions that serve as the basis for actions by the Public Prosecutor's Office.
Furthermore, in cases involving crimes against public administration, the Public Prosecutor's Office can count on the support of the Federal Police and Specialized Police Stations to carry out investigations and operations.
Measures taken by the Public Prosecutor's Office to combat corruption.
The Public Prosecutor's Office (MP) plays a fundamental role in combating administrative misconduct, using various measures to investigate and hold accountable those involved in illegal acts.
Initiation of a civil investigation and action for administrative misconduct.
To investigate possible acts of misconduct, the Public Prosecutor's Office can initiate a civil inquiry, an investigative procedure aimed at collecting evidence and clarifying the facts. During the inquiry, the Public Prosecutor's Office can request documents, hear witnesses, and carry out other necessary investigations.
If sufficient evidence of irregularities is found, the Public Prosecutor's Office may file a lawsuit for administrative misconduct. This legal action seeks to apply the sanctions provided for by law to those responsible for the illegal acts.
Precautionary measures and asset freeze
To ensure the effectiveness of the process and prevent the misappropriation of public funds, the Public Prosecutor's Office may request the Judiciary to adopt precautionary measures. Among these, the freezing of assets stands out , preventing the dissipation of the defendants' assets before the final judgment.
Furthermore, the Public Prosecutor's Office may request the temporary removal of the public official involved, in order to prevent him from interfering in the investigations or continuing to commit acts that are harmful to public administration.
Application of sanctions and reimbursement to the public treasury.
According to Law No. 8.429/1992, known as the Administrative Impropriety Law, agents who commit acts of impropriety are subject to various sanctions, such as:
- Loss of public office: removal from office of the convicted agent.
- Suspension of political rights: inability to exercise political rights for a specified period.
- Civil fine: Payment of a monetary amount determined by the court.
- Prohibition on contracting with the public sector: inability to enter into contracts or receive government benefits.
In addition to the aforementioned sanctions, full compensation for the damage caused to public funds is essential, ensuring that the misappropriated public resources are recovered.
The closing thought
The Public Prosecutor's Office plays a vital role in ensuring integrity and transparency in public administration, effectively combating administrative misconduct. For professionals wishing to deepen their knowledge in this area, the IDP Postgraduate Program in Administrative Law offers comprehensive and up-to-date training, enabling them to face the challenges of public management with excellence.
References
JUSTEN FILHO, Marçal. Reform of the Law on Administrative Impropriety – Comparative and Annotated. São Paulo: Forense, 2022. E-book.
MENDONÇA, Matheus Santos; DE CARVALHO, Matheus Silva. The New Law on Administrative Impropriety: Reflections based on the phenomenon of the so-called "Pen Paralysis". Avant Magazine, v. 6, n. 1, 2022.
NEVES, Daniel Amorim Assumpção. Administrative Impropriety: Substantive and Procedural Law. – 9th ed. – Rio de Janeiro: Forense, 2022.
