Establishing an act of administrative improbity requires more than the mere status of public official; it is essential to show that the person departed from their duty while exercising their public function, using it to commit the unlawful act.
Although not explicitly worded in the Electoral Code (Law 4,737 of July 15, 1965), donating unreported funds to election campaigns is considered conduct in breach of article 350, which makes it a crime to “omit, in a public or private document, a statement that should be included in it, or to insert or cause to be inserted a false statement or one different from what should be written, for electoral purposes”.
Whether this conduct falls within the criminal offense has always been the subject of extensive legal debate, with a significant milestone being the “Mensalão” trial (criminal action 470 – STF), in which Supreme Court Justices established that undeclared donations, popularly known as “caixa dois” (slush funds), constitute an electoral crime, since both recipient and donor are required to declare, respectively, that they received and donated funds for the campaign of a candidate for elective office.
Since then, the issue has appeared increasingly often on the Judiciary’s agenda, especially since Operation Car Wash (Lava Jato), in which plea bargains and leniency agreements revealed the practice of undeclared donations of funds to the election campaigns of various candidates — elected or not.
As a result, oversight bodies and, in particular, the Public Prosecutor’s Office have been taking a series of measures to investigate and convict those who breach electoral legislation across the range of spheres surrounding the unlawful conduct — criminal, civil and administrative. One of these measures is, notably, the administrative improbity action, governed by Federal Law 8,429 of June 2, 1992, in which the Prosecution, upon finding evidence or proof of unreported donations to a given elected candidate, brings the claim against the then public official — and any intermediaries who contributed to the unreported donation on their behalf — and against the private agents who donated the funds.
However, it is important to stress and recall that the commission by a public official — or a candidate for public office — of the conduct classified in the Electoral Code will not always, automatically and necessarily, constitute an act of administrative improbity.
To understand the subject, it is essential to analyze the concept of administrative improbity set out in Federal Law 8,429/92 and whether the conduct of a public official or candidate for elective office in receiving, requesting or participating in unreported donations to election campaigns falls under the Administrative Improbity Law.
In this regard, in its very first articles, the statute defines acts of improbity as those “(…) committed by any public official, whether or not a civil servant, against the direct, indirect or foundational administration of any of the Branches of the Federal Government, the States, the Federal District, the Municipalities, a Territory, a company incorporated into public assets or an entity whose creation or funding the public treasury has contributed or contributes more than fifty percent of the assets or annual revenue” (art. 1), and its provisions also “(…) apply, as appropriate, to anyone who, even if not a public official, induces or contributes to the commission of the act of improbity or benefits from it in any direct or indirect way” (art. 3).
Next, Federal Law 8,429/92 lists, in articles 9, 10 and 11, the acts that characterize and constitute administrative improbity. A systematic reading of the Improbity Law shows that an unlawful act will only be characterized as administrative improbity if (1) committed intentionally by a public official or third party, (2) against the Administration, in all its spheres, bodies, companies and entities, and (3) it results in unlawful enrichment by virtue of the office held (art. 9), and/or (4) causes damage to the public treasury (art. 10), and/or (4) violates the principles of the Public Administration (art. 11).
WALDO FAZZIO JR explains that “the outline of administrative improbity denotes a failure to observe a duty, that of exercising public office for public purposes. The purposes of holding any administrative position point to the duty to give effect to the republican rights underpinning public service” and that “conduct stigmatized by the departure from the formal duties of a public office to obtain private financial benefits or prestige forms the most significant body of acts of administrative improbity” (FAZZIO JÚNIOR, 2016).
From the above teachings, therefore, one of the requirements for characterizing an act of improbity is the public official’s departure from their duty while exercising their function.
It follows that any unlawful act, whether civil or administrative, committed by a public official who is not exercising their public function cannot be characterized as an act of administrative improbity, since the element of departure from their official duty is required.
Having briefly introduced the concept and requirements for characterizing an act of administrative improbity under the statute, it is now necessary to analyze the definition and characteristics of unreported and undeclared donations (“caixa dois”) in election campaigns.
In this regard, as mentioned above, “caixa dois” refers to donations made by an individual or legal entity1 to a candidate (individual) for elective office that were not officially recorded and declared to the Electoral Courts.
It should be noted at this point that electoral “caixa dois”, although considered a crime, is not necessarily synonymous with corruption, also a criminal offense2. This is because, while caixa dois is an act classified in article 350 of the Electoral Code as the omission, in a public document, of a statement made to the Electoral Courts regarding the receipt, origin and use of funds in the campaign of a given candidate for elective office, the act of passive corruption is one committed by a public official who requests or receives an undue advantage by virtue of their public office, under article 317 of the Criminal Code.
Another point distinguishing these criminal offenses is the perpetrator. While “caixa dois” can be committed by anyone (a common crime) — for example, someone running for elective office who is therefore not considered a public or political official — passive corruption necessarily requires the act to be committed by a public official by virtue of their public office (a crime requiring a specific status).
Still on the clear distinction between these offenses, the public official’s motivation stands out. Where a donation is received by a private individual running for elective office, the amount is not recorded and it is intended exclusively to fund the election campaign, this constitutes electoral “caixa dois”. The opposite occurs in the crime of passive corruption, in which the public official receives, requests or accepts an undue promise, for themselves or for another, directly or indirectly, by virtue of their office, for having performed, or at least intending to perform, omit or delay an official act, in breach of official duty.
The following premises, important for analyzing the proposed subject, therefore emerge:
(i) An act of administrative improbity is one (1) committed intentionally by a public official in the exercise of their public function, (2) against the Administration, in all its spheres, bodies, companies and entities, and that (3) results in unlawful enrichment by virtue of the office held (art. 9), and/or (4) causes damage to the public treasury (art. 10), and/or (4) violates the principles of the Public Administration (art. 11);
(ii) An unreported donation, or “caixa dois”, is the act of a candidate for elective office — and therefore not yet considered a public or political official — receiving funds for an election campaign and not declaring them in their accounts submitted to the Electoral Courts, conduct classified in article 350 of the Electoral Code;
(iii) “Caixa dois” and “corruption” are criminal offenses which, although in some practical situations they may be present simultaneously, are distinct types, and it is important to note that the perpetrator of each also differs: while “caixa dois” does not require commission by a public official, an act of corruption must necessarily be committed by an individual holding public office and with a motivation related to it.
From the reasoning built so far, the conclusion is that “caixa dois” will not always automatically meet the requirements characterizing an act of administrative improbity.
This is because the perpetrator must necessarily be a public official, and the recipient of funds not recorded and declared to the Electoral Courts will not necessarily be a public official, at least while campaigning.
In this regard, CELSO ANTÔNIO BANDEIRA DE MELLO states that “[t]here are two requirements for characterizing a public official: one objective, that is, the state nature of the activity performed; the other subjective: investiture in it” (BANDEIRA DE MELLO, 2010. P. 244-245).
In other words, to characterize an individual as a public official, it must be determined whether (i) their activity is state in nature and whether (ii) that individual is invested in that function.
Since a candidate for elective office is someone seeking a mandate and public office, it follows that they cannot be characterized as a public official, since they do not yet perform any state activity, much less are they invested in the office or position to which they seek to be elected.
This is the literal meaning of article 9 of the Improbity Law, which confirms this reasoning by providing that “an act of administrative improbity resulting in unlawful enrichment consists of obtaining any type of undue financial advantage by virtue of the exercise of an office, mandate, function, job or activity in the entities mentioned in art. 1 (…)”.
It is therefore required not only that the perpetrator be a public official, but also that they be exercising their public office, mandate, function, job or activity.
A candidate for elective office, therefore, is not yet exercising their mandate, so the provisions of Federal Law 8,429/92 do not apply.
Finally, it is important to stress that the conclusion reached in this article does not apply to cases in which a public official, using their public function and their office or mandate, obtains, for themselves or for third parties, unreported donations to election campaigns. When we stress that the public official must actually be exercising their function and using it to commit the electoral criminal offense, through their office or mandate, we mean that it must be shown that they used the public machinery to which they belong and in which they have competence, decision-making power, legitimacy or influence to promise and grant a proven undue advantage to the private donor which, in return for the unreported donation, results in the public official’s unlawful enrichment and/or causes damage to the public treasury and public assets and violates the principles of the Administration.
The subject is still widely debated, but the conclusion reached is that undeclared donations of funds (“caixa dois”) in election campaigns will not always be classified as acts of administrative improbity; it is essential to analyze the conduct of the agents involved and the actual use of their public functions to determine whether the funds were obtained in exchange for an undue advantage to a private party, resulting in the public official’s unlawful enrichment, as well as damage to the public treasury or public assets and/or breach of the principles of the Public Administration.
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1 Since 2015, following the judgment of ADI No. 4650, the Federal Supreme Court has declared unconstitutional the donation of funds by legal entities for election financing.
2 In this regard, see Criminal Action No. 1,003, brought by the Public Prosecutor’s Office against Gleisi Hoffmann before the STF, in which the Reporting and Reviewing Justices reclassified the conduct from passive corruption and convicted her of “caixa dois”. They were outvoted and the Defendant was acquitted; however, the example is important to corroborate that one offense is not synonymous with the other, nor is it intrinsically linked to it.
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BANDEIRA DE MELLO, Celso Antônio. Curso de Direito Administrativo. 27th Edition. São Paulo: Malheiros, 2010.
FAZZIO JUNIOR, Waldo. Improbidade administrativa: doutrina, legislação e jurisprudência. 4th ed., rev., updated and expanded. São Paulo: Atlas, 2016.
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Article originally published on the Migalhas website (in Portuguese), on 06.17.2019.
