The law on administrative misconduct defines and establishes applicable sanctions for acts of administrative misconduct, with its constitutional basis in § 4 of article 37 of the Federal Constitution.
Administrative misconduct is any act committed by a public official that violates the fundamental principles of Public Administration, namely legality, impartiality, morality, transparency, and efficiency.
That being said, 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.
Almost all chapters have undergone significant changes, so it is essential that legal professionals stay updated on these changes. This article will take a closer look. Shall we begin?
How did the law against administrative misconduct come about, and what are the penalties it entails?
The law on administrative misconduct came to regulate paragraph 4 of article 37 of the Federal Constitution, which stipulates that anyone who commits an act of administrative misconduct will be subject to the appropriate penalties, as follows:
Art. 37. The direct and indirect public administration of any of the Powers of the Union, the States, the Federal District and the Municipalities shall comply with the principles of legality, impartiality, morality, publicity and efficiency, and also with the following:
§ 4. Acts of administrative misconduct shall result in the suspension of political rights, the loss of public office, the freezing of assets, and restitution to the public treasury, in the manner and gradation provided for by law, without prejudice to any applicable criminal action.
In this sense, the law against administrative misconduct emerged to regulate how penalties would be applied if someone were to commit an act of misconduct.
According to article 12, we have sanctions provided for by law that may be added to other penalties applied in other instances of judgment, as corroborated by:
Article 12. Regardless of full compensation for property damage, if any, and of the common criminal and civil and administrative liability sanctions provided for in specific legislation, the person responsible for the act of impropriety is subject to the following penalties, which may be applied individually or cumulatively, according to the seriousness of the act.
Regarding penalties, the most important changes are related to the suspension of political rights and the loss of public office.
The suspension of political rights, due to legislative updates, has altered the maximum suspension period, which previously had a maximum limit of 10 years, and can now reach up to 14 years (Article 12, I of Law 8.429).
Regarding the loss of office, there is no provision for cases in which the agent acts against the principles of Public Administration, only for those that constitute illicit enrichment or harm to the public treasury. (Article 12, § 1 of Law 8.429)
What constitutes an act of administrative misconduct?
Acting with probity means acting honestly, while the idea of impropriety is linked to dishonest conduct.
According to the definition provided in the Oxford Languages dictionary, impropriety means absence of probity; dishonesty. Its etymological origin is the Latin *improbitis, atis*, meaning bad quality, perversity, and bad customs.
The law in question, duly updated on October 25, 2021, following the publication of Law 14.230, only allows for the liability of agents in cases where intent has been demonstrated, that is, when the agent commits a willful act.
Article 1. The system of accountability for acts of administrative misconduct shall protect probity in the organization of the State and in the exercise of its functions, as a way to ensure the integrity of public and social assets, in accordance with this Law.
§ 1. Acts of administrative misconduct are considered to be the intentional conduct typified in articles 9, 10 and 11 of this Law, except for types provided for in special laws.
§ 2. Intent is considered to be the free and conscious will to achieve the unlawful result typified in articles 9, 10 and 11 of this Law, the agent's voluntariness not being sufficient.
Here I will discuss one of the changes that occurred, which was extremely important, if not the most important, for the interpretation of the law on administrative misconduct.
This is because, prior to the 2021 amendment, the law provided for the possibility of liability for negligence in some cases, where the agent did not intend to commit such an act, but there was a lack of care on their part.
Currently, there is no question of holding an agent liable for negligent conduct, but only for intentional conduct, and it is necessary to prove that the agent did indeed intend to commit such conduct.
Therefore, for an act of administrative misconduct to be established, there must be intent. As per the article cited above, we will discuss the legislative changes regarding acts of misconduct foreseen in the legislation (articles 9, 10, and 11), and we will analyze:
Illicit enrichment
As stipulated in Article 9 of Law 8.429, the main change was the more precise definition of criminal conduct in its intentional form, bringing 12 clauses that describe the illicit practices. In general, the changes regarding illicit enrichment came to directly attack the different forms of corruption.
Damage to public funds
As stipulated in Article 10 of Law 8.429, its objective is to punish public officials who have caused proven harm to public finances. It is important to remember, as previously stated, that the primary purpose of public funds is to safeguard public and social assets.
The peculiarity here is the need to demonstrate actual asset loss, and not just generic and presumed intent. In total, the law includes more than 20 clauses to cover all the acts.
An attack against the principles of Public Administration.
Described in article 11 of law 8.429, the particularity of this amendment is the configuration of the intentional modality for deviating from the principles of public administration.
Thus, the clauses were almost entirely revoked by the new law on administrative misconduct, for the most part, clauses that provided for overly generic or negligent conduct.
What is the purpose of the law against administrative misconduct?
The purpose of the law against administrative misconduct is outlined in Article 1 of Law 8.429 and its main objective is to ensure the integrity of public and social assets, as follows:
Article 1. The system of accountability for acts of administrative misconduct shall protect probity in the organization of the State and in the exercise of its functions, as a way to ensure the integrity of public and social assets, in accordance with this Law.
Furthermore, the legal text was created to contribute to the promotion and respect for the public interest that these positions demand. In another sense, it also serves to define the applicable punishments for any acts of administrative misconduct.
What were the main changes?
In addition to the changes already mentioned, it is worth highlighting the change in procedural rules. The Administrative Impropriety Law previously stipulated that an action for administrative impropriety could be brought by either the Public Prosecutor's Office or a legal entity.
With the changes to the law on administrative misconduct, this provision is altered, now giving exclusivity to the Public Prosecutor's Office, as demonstrated:
Article 7. If there is evidence of an act of impropriety, the authority that becomes aware of the facts shall report it to the competent Public Prosecutor's Office for the necessary measures to be taken.
(...)
Article 17. The action for the application of the sanctions referred to in this Law shall be brought by the Public Prosecutor's Office and shall follow the common procedure provided for in Law No. 13.105, of March 16, 2015 (Code of Civil Procedure), except as otherwise provided in this Law.
Why do professionals in the field need to keep an eye on new developments in the law?
Legal professionals need to keep an eye on legislative changes, whether for public service exams that include knowledge of legislative changes in their tests or for lawyers who handle investigations and administrative disciplinary proceedings (PADs).
Furthermore, lawyers can advise private companies that enter into contracts and partnerships with public entities, which is very common given the high state demand for private labor, thus mitigating the risk of impropriety.
Another possibility is the involvement of public attorneys in contentious proceedings related to administrative misconduct that are processed in the judiciary. In this regard, it is of utmost importance that the professional is always up-to-date and has a thorough understanding of the law.
References
Fachini, Tiago. Administrative Impropriety: General Rules and New Law. Projuris, 2022.
Sant'ana, Juliana SB De Melo. New Improbity Law. Gov, 2022.
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