The administrative disciplinary process is an instrument by which the public administration exercises its power and duty to investigate functional infractions. It also applies penalties to its agents and to those who have a legal relationship with the public administration.

Here on the IDP Blog, we've already discussed how the law on administrative misconduct came about , its function, and how it is structured. In this article, we will address how the disciplinary administrative process works and its specificities. Come along!

What is an administrative disciplinary process?

The Administrative Disciplinary Process – PAD – is a tool used by the public administration to investigate possible irregularities committed by public servants.

The administrative disciplinary process is based on the Federal Constitution and its main regulation is Law No. 8.112, of December 11, 1990, in its Titles IV (Disciplinary Regime, articles 116 to 142) and V (administrative disciplinary process, articles 143 to 182).

Article 143 of Law No. 8.112: The authority that becomes aware of irregularities in the public service is obliged to promote their immediate investigation, through an inquiry or disciplinary administrative process, ensuring the accused the right to a full defense.

The procedure may be initiated by an authority from a body or entity other than the one in which the irregularity occurred, provided that the latter has specific competence for this purpose.

Reports of irregularities will be investigated, provided they include the identification and address of the complainant, as well as written documentation.

This power may be delegated on a permanent or temporary basis by the President of the Republic, the presidents of the Houses of the Legislative Branch and Federal Courts, and the Attorney General of the Republic, within the scope of their respective powers.

What actions can be investigated by the PAD (Administrative Disciplinary Proceeding)?

A federal public servant who improperly performs their duties may be held liable for the act in civil, criminal, and administrative proceedings (Article 121 of Law No. 8.112/90).

The civil liability of a public servant consists of compensating for damages caused to the Public Administration or to third parties as a result of an act of omission or commission, whether intentional or negligent, in the exercise of their duties (Article 122 of Law No. 8.112/90 and Article 37, § 6, of the Federal Constitution).

The criminal liability of a public servant arises from the commission of criminal offenses (art. 123) and subjects the servant to criminal prosecution and to bear the legal consequences of the conviction.

The commission of functional infractions, by action or omission carried out in the performance of the duties of the position or function, or which are related to these duties, generate administrative liability (articles 124 and 148).

Therefore, the following penalties are foreseen:

Article 127. The following are disciplinary penalties:
I - warning;
II – suspension;
III – dismissal;
IV – revocation of retirement or availability benefits;
V – removal from a commissioned position;
VI – removal from a commissioned position.

In this sense, the following are criminal offenses:

Article 117. The following is prohibited for public servants:
I – to be absent from work during working hours without prior authorization from the immediate supervisor;
II - to remove, without prior authorization from the competent authority, any document or object from the office;
III - to refuse to recognize public documents;
IV – to offer unjustified resistance to the progress of a document or process or the execution of a service;
V – to promote expressions of appreciation or disapproval within the premises of the office;
VI – to assign to a person outside the department, except in cases provided for by law, the performance of a task that is the responsibility of the department itself or its subordinate;
VII – to coerce or entice subordinates to join a professional or trade union association, or a political party;
VIII – to have under their immediate supervision, in a position or function of trust, a spouse, partner, or relative up to the second degree of consanguinity;
IX – to use one's position to obtain personal gain or gain for others, to the detriment of the dignity of the public function;
X – to participate in the management or administration of a private company, incorporated or unincorporated, to engage in commerce, except in the capacity of a shareholder, partner or limited partner;
XI – to act as a representative or intermediary with public offices, except when dealing with social security or welfare benefits for relatives up to the second degree, and for a spouse or partner;
XII – to receive bribes, commissions, gifts or advantages of any kind, by reason of their duties;
XIII – to accept a commission, employment or pension from a foreign state;
XIV – to practice usury in any of its forms;
XV – to act negligently;
XVI – to use personnel or material resources of the department for private services or activities;
XVII – to assign to another employee duties unrelated to the position they hold, except in emergency and temporary situations;
XVIII – to engage in any activities that are incompatible with the performance of the duties of the position or function and with the working hours;
XIX – Refusing to update your registration information when requested.

Furthermore, failure to comply with the functional duties listed in Article 116 of Law No. 8.112/90 may also give rise to the initiation of disciplinary administrative proceedings.

What are the stages of the administrative disciplinary process?

The disciplinary process unfolds in the following phases:

Article 151. The disciplinary process unfolds in the following phases:
I – establishment, with the publication of the act that constitutes the commission;
II – administrative inquiry, which includes investigation, defense, and report;
III – Judgment.

The initiation of an Administrative Disciplinary Proceeding (PAD) under the ordinary procedure is an act exclusive to the authority with regulatory or legal competence and is carried out through the publication of an order designating the disciplinary committee that will act in the investigation.

The order must contain the functional data of the commission members (three tenured civil servants), indicating which of them will serve as president and the process that will be analyzed.

The investigation phase, in turn, is the one in which the designated investigating trio will ascertain the facts using all means of proof admitted by law.

Therefore, it is at this moment that the commission, adhering to the principles of adversarial proceedings and the right to a full defense, will produce or gather all the evidence of authorship and materiality to reach its conviction. Still within the investigation phase, three sub-phases occur: instruction, defense, and report.

This corresponds to the production of evidence, the presentation of a written defense by the employee indicted by the commission, the possible perpetrator of irregular conduct, and the pronouncement of the final decision by the disciplinary board.

The evidence produced by the disciplinary committee, that is, the evidence necessary to clarify the facts, is obtained through investigation, due diligence, document analysis, expert examination, acquisition of borrowed evidence, hearing of witnesses, confrontation, and finally, interrogation of the accused.

The aforementioned defense, after due consideration, will be the subject of a Final Report. This report, which must always be conclusive regarding the guilt or innocence of the accused employee or the innocence of an employee who has not been accused, is sent to the authority that initiated the disciplinary proceedings, thus beginning the trial phase.

Regarding the deadline for the conclusion of the disciplinary process, this shall not exceed 60 (sixty) days, counted from the date of publication of the act that constitutes the commission, with the possibility of extension for an equal period, when circumstances so require.

How can a lawyer act effectively in an administrative disciplinary proceeding?

A lawyer can provide specialized legal advice in disciplinary proceedings, operating from preliminary investigations and inquiries to the administrative disciplinary process itself.

When the technical defense is carried out by competent administrative lawyers , through specialized and efficient work, there is a possibility of obtaining dismissals, annulments, acquittals, or even a reduction in the imposed penalty.

Defending against someone in an administrative misconduct lawsuit is a very delicate and important moment, after all, it represents years of dedication to enter public service. If the defense is not carried out correctly, it can affect an entire career in public service.

The duties of a lawyer include having full access to the case file, verifying whether the statute of limitations has expired, and participating in all procedural acts (hearings, expert opinions, among others). They also seek procedural nullities due to possible infringement of the right to a fair hearing and full defense, or analyze the potential disproportion between the imposed penalty and the offense committed.

Therefore, various defense arguments can be raised, and the safest strategy should be analyzed on a case-by-case basis, considering the procedural stage. For this reason, it is very important to opt for specialized legal services, especially in cases of administrative misconduct.

A defense attorney can prevent unfair accusations from leading to the loss of office, the deterioration/reduction of assets, and the suspension of political rights. Such is their importance; always seek a specialized attorney for the best possible defense.

References

Office of the Comptroller General of the Union. Manual of Disciplinary Administrative Procedure. Brasília, 2022.