Administrative misconduct refers to the conscious and serious violation of the duties of honesty, legality, and loyalty to public institutions. It is behavior that contradicts the fundamental principles of Public Administration and causes harm to public funds, unduly enriches the agent, or violates administrative morality.
With the enactment of Law No. 14.230/2021, the legislation now requires that, to consider an act as improper, the agent must commit it with the free and conscious will to cause harm, and not merely through negligent conduct or technical error. Thus, mere voluntariness or the simple exercise of a function is not sufficient; intent is essential.
Administrative misconduct is one of the main mechanisms for holding public officials accountable in Brazil. The definition of its subjective elements underwent significant transformations with the enactment of Law No. 14.230/2021, which profoundly altered the old Administrative Misconduct Law (Law No. 8.429/1992).
One of the most important aspects of this reform was the exclusion of the negligent form of acts of misconduct.
The end of guilt in administrative misconduct.
Before the 2021 reform, the law provided for the possibility of liability for negligent acts, especially in article 10 of the LIA (Law of Administrative Improbity). However, the new legislation expressly eliminated this possibility, requiring, in all cases, proof of intent.
This change reflects the constitutional interpretation adopted by the Supreme Federal Court. In October 2024, when judging Extraordinary Appeals 610.523/SP and 656.558/SP, the STF established a general repercussion thesis recognizing the unconstitutionality of the negligent modality in acts of administrative misconduct.
Brazilian Supreme Court: Intent as a Constitutional Requirement
The understanding of the Brazilian Supreme Court (STF) is clear: it is not possible to hold an agent liable for administrative misconduct without proof of intent. The conduct must be intentional, with a deliberate violation of the duty of honesty and loyalty to the Public Administration.
The established legal principle states that Article 37, § 4 of the Constitution requires intent for an act of administrative misconduct to be considered. Therefore, the provisions of the original wording of Law No. 8.429/92 that stipulated negligence (such as Articles 5 and 10) are unconstitutional.
An act of impropriety should not be confused with an administrative error.
At this point, it is essential to differentiate between an act of impropriety and administrative error, since liability for impropriety cannot be confused with administrative failures. Other means, such as public civil actions, can hold an inattentive, negligent, or technically unskilled agent accountable. However, without intent, there is no impropriety.
The rapporteur for the Supreme Court case highlighted that administrative misconduct requires dishonest conduct; mere incompetence or recklessness is insufficient. This distinction is fundamental to avoiding disproportionate punishments.
The 2021 reform: confirmation of the constitutional understanding.
Law No. 14.230/2021 merely consolidated what was already required by the Constitution: the presence of intent. The new wording of the LIA (Law of Administrative Improbity) eliminated the possibility of liability for negligence, adjusting the legal norm to the understanding of the STF (Supreme Federal Court).
The legislator recognized that, due to the seriousness of the misconduct and the severe sanctions it imposes – such as the loss of public office and the suspension of political rights – it should only be applied when the agent's bad faith is proven.
Practical example: the inapplicability of bidding requirements.
A landmark case discussed by the Supreme Federal Court (STF) involved the hiring of a law firm without a bidding process, based on articles 13, V, and 25, II of the former Law No. 8.666/93. The hiring was challenged by the Public Prosecutor's Office on the grounds of the absence of a bidding process and the allegation that the hiring caused harm to public funds.
The Supreme Federal Court (STF), however, deemed these provisions constitutional, provided that the contracting meets objective criteria: uniqueness of the service, recognized expertise of the contractor, lack of technical capacity of the Administration's legal department, and price compatibility.
Want to read more about this topic? Check out this article: Administrative Impropriety: The Role of the Public Prosecutor's Office in Defending the Public Interest
Theses established by the STF (Supreme Federal Court)
- Fraud is necessary. for the configuration of any act of administrative misconduct.
- It is unconstitutional the negligent form of the offense as defined in Articles 5 and 10 of Law No. 8.429/92.
- The waiver of bidding requirements is constitutional. for the contracting of legal services, provided that strict criteria of legality and reasonableness are observed.
Retroactivity of Law No. 14.230/2021 and legal certainty.
The enactment of Law No. 14.230/2021 brought to the forefront the discussion about its retroactive application. The Supreme Federal Court, when judging Topic 1.199 of general repercussion, recognized the possibility of retroactive application of the rules most beneficial to the defendant in cases of administrative misconduct.
This means that ongoing cases, in which there was no proof of intent, can be reviewed or even dismissed. This decision reinforces legal certainty and prevents the perpetuation of convictions based on negligent conduct, now considered unconstitutional.
Impacts on Public Administration and the Performance of Public Officials
The requirement of intent to constitute acts of administrative misconduct has significant impacts on the Public Administration and public officials. On the one hand, it avoids the excessive penalization of public servants for administrative errors or failures resulting from negligence, recklessness, or incompetence.
On the other hand, it reinforces the need for ethical and transparent conduct, since proof of illicit intent becomes essential for the application of the sanctions foreseen in the LIA (Law of Administrative Improbity). This also helps to mitigate the phenomenon of "pen paralysis," encouraging managers to make legitimate and responsible decisions without fear of disproportionate punishments.
The closing thought
The requirement of intent to commit administrative misconduct represents progress in legal certainty and protection against abuses in holding public officials accountable. The Supreme Federal Court, in its decision and with the support of the new legislation, reinforces the idea that only intentional acts, committed dishonestly, deserve the sanctions of administrative misconduct.
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References
CAVALCANTE, Márcio André Lopes. Even before Law 14.230/2021, the provision for an act of administrative misconduct committed through negligence was unconstitutional; intent is necessary for the configuration of any act of administrative misconduct. Dizer o Direito Search Engine, Manaus. Available at: https://www.buscadordizerodireito.com.br/jurisprudencia/detalhes/1ee3007cbbde3c57c6013b98fe9421a5.
The Brazilian Supreme Court (STF) requires intent to characterize administrative misconduct. Committing an illegal act is essential to characterize administrative misconduct, declaring the negligent form unconstitutional. Migalhas , November 9, 2024. Available at: https://www.migalhas.com.br/quentes/419656/stf-exige-dolo-para-caracterizar-improbidade-administrativa.
OLIVEIRA, Rafael Carvalho Rezende. STF, unconstitutionality of culpable misconduct and legal certainty. Consultor Jurídico, Dec. 26, 2024. Available at: https://www.conjur.com.br/2024-dez-26/stf-inconstitucionalidade-da-improbidade-culposa-e-seguranca-juridica/.
