by Camillo Giamundo and Leonardo Muradian Cundari
With the amendment of the Administrative Improbity Law (by Law 14,230/2021), some provisions, features and institutions specific to this statute were updated; others, however, remained essentially the same.
One of the continuities in relation to the former wording of Law 8,249/1992 is the absence of a clear and express legal definition of administrative improbity. Rather than characterizing it in general and abstract terms or through a key concept, the law defines the act of improbity on the basis of three descriptive types: (a) unlawful enrichment of the public official; (b) damage to the public treasury; and (c) violation of the principles of the Public Administration.
The absence of an express constitutional and legal definition of improbity led case law and legal scholarship to examine the phenomenon in order to provide it with more solid and complex requirements and prerequisites.
In this regard, Professor José Roberto Pimenta de Oliveira teaches that the body of values shaping the classification of conduct deemed improbity derives from a systematic interpretation of the Federal Constitution (OLIVEIRA, José Roberto Pimenta. Improbidade administrativa e sua autonomia constitucional. Belo Horizonte: Fórum, 2009. p. 159), and it is fair to say that its definition is closely linked to the concept and application of the principle of morality.
It is from this understanding that José Afonso da Silva defines administrative probity as a form of morality, consisting of the public servant’s duty to serve the Administration honestly, without taking advantage, for themselves or for anyone they wish to favor, in the exercise of their functions, of the powers or facilities arising from them (SILVA, José Afonso da. Curso de direito constitucional brasileiro. São Paulo: Malheiros, 2005. p. 669).
It follows that administrative improbity is the performance of an unlawful administrative act, qualified by the immorality, dishonesty and bad faith of the public official in the performance of their public function and of what is expected of them.
Bringing the concept and definition into the practice of our legal system, administrative improbity — enshrined in article 37, §4, of the 1988 Constitution as a reflection of the constituent legislator’s concern that the legal system have constitutional support to respond adequately to acts against administrative morality — came to be regulated by Law 8,429/92, which sets out not only its substantive law aspect for characterizing such an act, but also defines procedural rules, with the subsidiary application of the Code of Civil Procedure.
In general terms, the law governing and providing for the sanctions applicable for acts of administrative improbity sets out a series of necessary premises for characterizing the unlawful act, both substantive and procedural.
Having understood the constitutional relevance of punishing acts of improbity and the specialized nature of the procedural rite that ultimately characterizes them as such, it must be affirmed that there is not, and cannot be, any declaration or attribution of an act of improbity without prior due process of law, in the manner provided for in the Law, through an improbity action or, as is also accepted, through a public civil action for an act of improbity [1].
In practice, this means that those with standing to bring an administrative improbity action and/or an action for reimbursement to the public treasury do not have the competence or power to presume that the commission of a given act can be characterized as administrative improbity.
Considering the limitation periods provided for in the law, imagine a scenario in which the punitive claim for the act of improbity is time-barred, but the interested and/or injured public entity shows an intention to seek judicial relief for reimbursement of what it considers damage to the public treasury.
In this case, choosing to file a public civil action or a reimbursement action without observing the procedural requirements of the Improbity Law leads to the conclusion that such a claim will be inept, since the act has not been characterized and declared as administrative improbity, which would justify the interested party’s reimbursement claim, and without which the claim exemplified above would be legally impossible.
In other words: reimbursement to the public treasury based on an act of administrative improbity necessarily presupposes a declaration by the competent Court, observing the substantive and procedural rules set out in the Improbity Law. It is therefore not for the entity with standing to proceed with reimbursement without first observing this constitutional and legal guarantee.
In this sense, the STJ had already held, regarding the wording of Law 8,249/1992, that “it is lawful to combine claims of a condemnatory, declaratory and constitutive nature in this (public civil) action, when based on the provisions of Law 8,429/1992” (STJ, REsp 1,660,381/SP, Reporting Justice HERMAN BENJAMIN, SECOND PANEL, DJe of 11/26/2018). Also in this sense: STJ, AgInt nos EDcl no AREsp 437,764/SP, Reporting Justice SÉRGIO KUKINA, FIRST PANEL, DJe of 03/12/2018.
To clarify the idea set out above, take the same example of reimbursement to the public treasury: the STF settled the understanding, crystallized in Theme No. 897, that “actions for reimbursement to the public treasury based on an intentional act classified in the administrative improbity law are not subject to limitation”.
Such non-applicability of limitation, in addition to requiring the subjective element of intent to be established — which, with the new wording of the Improbity Law, has become a basic and mandatory requirement for imposing any punishment arising from this act — also requires proof of a typical act classified as an act of administrative improbity. Without this final judicial declaration, the reimbursement claim will have to be based on grounds other than the act of improbity, losing its non-time-barred nature.
By analogy, it is important to point out that the STF, in respect of the principles of full defense, adversarial proceedings and access to justice, established in Theme 899 that “a claim for reimbursement to the public treasury based on a decision of a Court of Accounts is subject to limitation”.
That is, without going into the particularities of the proceedings and procedural rules of the Courts of Accounts, it can be said that there must, above all, be a specific attribution of one of the types of conduct described in the Law as improbity, with the constitutional guarantees of adversarial proceedings and full defense having been observed, in accordance with the procedure provided for in the Improbity Law, in order for this claim to be possible under that statute.
It is not for such bodies to prosecute and judge an act of improbity per se, but rather to audit public accounts, so that, in order to support the non-applicability of limitation, the Judiciary must be called upon regarding the commission of such an act and, ultimately, with adversarial proceedings respected and if the claim is upheld, declare the act to be improbity, with the consequent appropriate sentence, through the proper procedural route.
As for reimbursement to the public treasury, the analysis of each specific case will determine whether it is possible to file a reimbursement action for the commission of an unlawful act that gives rise to restitution to the public coffers. It should be recalled that not every unlawful act will necessarily be an act of administrative improbity, the two being related only as genus and species, respectively.
However, attributing an act of administrative improbity, even if the other sanctions are time-barred, entails a series of much more severe requirements for the public official and third parties (private individuals, private companies, etc.) who contributed to the act than mere mismanagement, inefficiency or negligence — which would fall under the negligence-based modality, now considered a non-typical act due to the 2021 legislative amendment. In this vein, as rightly pointed out by Justice Alexandre de Moraes of the Federal Supreme Court:
“This is not a mere action for reimbursement or damages brought on the basis of strict or fault-based liability for the commission of another unlawful act not classified as an act of administrative improbity; on the contrary, regardless of the limitation of the other sanctions, the plaintiff will be attributing to the defendant the commission of acts of administrative improbity, and must therefore describe them in the complaint, pointing out and proving the commission of specific typical conduct, under penalty of serious harm to the right to a full defense, since the non-applicability of limitation to the damage pursued in court stems directly from the attribution of an act of administrative improbity.” [2]
Therefore, in respect of the fundamental constitutional principles and the provisions of the Improbity Law, it is concluded that an unlawful act cannot be considered improbity without first allowing the accused parties to exercise their defense in the form and within the limits of the proper procedure, drawing the constitutional parallel with the presumption of innocence, guaranteed by article 5, item LVII, until proven otherwise and, going further, until a final judicial ruling, only upon which administrative improbity would be effectively established, attributed to the public and private agent based on one of the acts classified in articles 9 to 11 of the Administrative Improbity Law.
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NOTES:
[1] STJ Theme 1,089: In a public civil action for an act of administrative improbity, the claim may proceed to seek reimbursement for damage to the public treasury, even if the other sanctions provided for in art. 12 of the Administrative Improbity Law are declared time-barred.
[2] MORAES, Alexandre de. A necessidade de ajuizamento ou de prosseguimento de ação civil de improbidade administrativa para fins de ressarcimento ao erário público, mesmo nos casos de prescrição das demais sanções previstas na Lei nº 8.429/1992. In: MARQUES, Mauro Campbell (Coord.). Improbidade administrativa: temas atuais e controvertidos. Rio de Janeiro: Forense, 2017. p. 19-37.
Article originally published on Consultor Jurídico (in Portuguese), on 06.26.2023.
