by Camillo Giamundo and Gabriela Soeltl
Two years have passed since the reform of the Administrative Improbity Law (LIA). Although celebrated by part of administrative law scholarship, which pointed to the legislator’s willingness to curb certain excesses committed by those applying the law, a brief assessment of how the changes have played out since then is needed.
Enacted more than 30 years ago, the Administrative Improbity Law (Federal Law 8,429/1992) was a major milestone in creating mechanisms against corruption involving public officials and private agents, at a time marked by the experience of a newly won democracy and the first years of a Constitution that had broad popular participation, innovated in its structure compared to previous ones, and came to be known as the Citizen Constitution, in the words of Ulysses Guimarães, then president of the National Constituent Assembly.
As a result of this new Constitution, which brought inalienable guarantees, the Administrative Improbity Law emerged as a legitimate instrument, grounded in due process of law, to tackle acts of corruption without stripping away relevant rights and guarantees. Since then, through abstract references to the purpose of the law, the LIA came to be applied in excessive situations, even when the absence of administrative improbity and intentional conduct was clear.
In the face of criticism that the legislation is not aimed at incompetent managers or at the slightest reprehensible acts of public officials, these last two points were catalysts for the reform of the LIA. It can also be said that the new legislation required more accurate provisions regarding the values it protects, to ensure that its prohibitive and punitive dimension would not serve stillborn proceedings, merely through the generalized application of, for example, the principle of in dubio pro societate.
Over the 30 years of the Improbity Law, although it is an important mechanism against corruption and damage to the public treasury, a series of injustices and abuses against public managers, private individuals and companies was seen, and the reform of the law was more than necessary to correct mistaken interpretations and illegitimate convictions.
The elimination of the negligence-based modality, for example, achieved part of these objectives, with the law recognizing that negligent acts fall outside the concept of administrative improbity and do not serve as grounds for lawsuits based on the LIA. This does not prevent liability through other means, but makes the punitive claim more specific and technical, requiring that any conviction be reserved for agents who deliberately engaged in the conduct described in arts. 9, 10 and 11.
Regarding this amendment to the Improbity Law, there is still some resistance from those with standing to sue — the Public Prosecutor’s Office and interested legal entities (ADI 7042) — to stop using the administrative improbity action as an instrument to combat irregularities or as a means of controlling administrative activity. Even in the case of irregular conduct that does not meet the requirements of the law, especially regarding the requirement of intent, lawsuits seeking to punish incompetent agents are not uncommon, merely with the intention of obtaining a conviction, especially from the standpoint of reimbursement to the public treasury.
It should be noted that legal scholarship, based on the law itself, has established that administrative improbity is an act committed in bad faith, with dishonesty and with the intent (dolo) of the public manager to enrich themselves unlawfully by virtue of their public office; to cause damage to the public treasury and public assets; and to disregard the principles governing the Public Administration, violating the duties of honesty, impartiality and legality.
However, while other paths already existed to ensure this measure, the amendments to the Improbity Law confirm this possibility with the express provision of art. 17, §16, which authorizes the judge, at any time, to convert the administrative improbity action into a public civil action, governed by Federal Law 7,347/1985, providing greater certainty as to the consequences of a given irregularity, but not from the perspective of the new legislation.
This is one of the points that requires further maturing of judicial experience with the amendments to the LIA, in order to reduce resistance and, at the same time, consolidate it faithfully to its true purposes. It should be recalled that the administrative improbity action is “repressive, of a sanctioning nature” (art. 17-D), so that the new limits on its use did not exclude other forms of liability, which remain possible regardless of the LIA.
What has been seen so far from the amendments made is that those with standing to sue — the Public Prosecutor’s Office and interested legal entities — still need to understand the concept of specific intent and reflect, with great seriousness and commitment to constitutional guarantees, on the excessive and unjustified filing of administrative improbity actions based on mere management errors, which have not necessarily caused damage to the public treasury, or that misuse this route in situations for which the legal system provides less burdensome and even faster solutions for all parties.
There is still a long way to go for the law’s objectives to be fully achieved and its guarantees broadly respected, and all those involved in handling these actions – lawyers, attorneys, prosecutors and judges – will be responsible for contributing to the improvement of this important mechanism for fighting corruption in the Public Administration. This is what is expected of everyone, regardless of which side they are on in an administrative improbity action, with Law and Justice above any cause or interest.
Article originally published on 12/08/2023, in the Fausto Macedo column of Estadão (in Portuguese).
