REVISTACIENTIFICAMULTIDISCIPLINARNUCLEODOCONHECIMENTO

The public servant and administrative probity

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ORIGINAL ARTICLE

NUNES,  Antônio José Ribeiro [1]

NUNES,  Antônio José Ribeiro. The public servant and administrative probity. Revista Científica Multidisciplinar Núcleo do Conhecimento. Year. 07, Ed. 06, Vol. 07, p. 50-63. June 2022. ISSN: 2448-0959, Access link: https://www.nucleodoconhecimento.com.br/business-administration/administrative-probity

ABSTRACT

The Public Power has been promoting changes in legislation aimed at curbing harmful conduct practiced by agents, which cause damage to the treasury and violate the principles of public administration. Given this context, this article aimed to answer the following guiding question: what changes were introduced in the Law of Administrative Misconduct in relation to intent? Therefore, the objective of this article is to identify the changes applied to the new Law of Administrative Misconduct, focusing on the issue of intent. Thus, to respond to the objectives of the study and the problem pointed out, it was decided to carry out a bibliographic research based on theoretical foundations of authors, administrative and civil law books, in addition to the analysis of the commented Law of Administrative Misconduct. It was also intended to analyze the importance and political-legal character of Public Administration, to point out the characteristics of Law 8.429/1992; define the crime of administrative improbity and demonstrate the innovations brought by Law 14.230/2021. The results point to the changes applied to the new Law of Administrative Misconduct, focusing on the issue of intent, showing that the new law determined the specification of intent in the crime of administrative improbity, being interpreted as a factor of bad faith in the exercise of the function, removing the notion of imprudence, negligence and gross errors. Under this legal view, the exclusion of the culpable modality is analyzed, maintaining the intentional modality, establishing that the axis of the law is to avoid corruption, gain through illicit and improper means. Therefore, questions of guilt regarding agents who perform their function poorly do not fit into this area, although they can be punished in another sphere. The legislator’s intention was to create a specific intent for the disreputable public agent who acts trying to obtain benefits at the expense of illegal actions. Finally, it is understood that, currently, this characterization logically separates the negligent and reckless agent from the corrupt and disloyal agent. Regarding the innovation brought by Law 14.230/2021, it was found that it was, especially, the specification of the notion of intent, determining only the existence of the willful modality for crimes of administrative improbity, based on the notion of punishment to the illicit will of the public agents.

Keywords: Administrative Misconduct, Intention, Intentional Modality, Public Administration, Innovations.

1. INTRODUCTION

Public administration is the ordering, direction and control of government services, at the federal, state and municipal levels, according to the precepts of law, morals and in accordance with legal structures. Therefore, public administration depends on budgetary resources, human and material resources that are part of a set of actions planned to fulfill government programs and policies. According to Medeiros (2013), this public administration organization aims at qualified service to society’s desires, based on the efficient and ethical application of resources.

According to Oliveira (2014), the Public Power consists of a set of administrative and legal actions that have their own services, through the bodies of the Direct Administration or through the autonomous, foundational and state-owned companies of indirect administration. In this context, administrative functions supported by state and municipal laws began to share important public functions, previously centralized at the federal level.

The subject of this article deals with the public servant and administrative improbity, considering the new changes in the Law of
Administrative Misconduct (LIA) proposed by the Public Ministry and applied in the current government, determining innovations in Law 8.429/92, which deals with actions of public impropriety (BRAZIL, 1992).

In 2021, significant innovations were sanctioned with Law 14,230/21, which reforms the previous Law of Administrative Misconduct, with relevant changes in relation to the old law (BRASIL, 2021).

The guiding question of the research presents the following question: what changes were inserted in the Law of Administrative Improbity in relation to willful misconduct?

The assumptions of the study indicate that due to the changes implemented resulting from the current reform, there is only the administrative improbity originated from an intentional act, and the culpable modality has been extinguished.

The purpose of this article is to identify the changes applied to the new Law of Administrative Misconduct, focusing on the issue of intent. It was intended to analyze the importance and political-legal character of Public Administration, to point out the characteristics of Law 8.429/1992 (BRASIL, 1992); define the crime of administrative improbity, demonstrate the innovations brought by Law 14.230/2021 (BRASIL, 2021).

To respond to the objectives of the study and the problem pointed out, it was decided to carry out a bibliographic research based on theoretical foundations of authors, administrative and civil law books, in addition to the analysis of the commented Law of Administrative Misconduct.

The choice of topic is justified based on the assumption that this change in the previous law brought innovations in relation to the legal analysis that it is the conscience itself that characterizes the willful conduct, therefore, if the agent is aware that a certain The act has the configuration of a crime and still practices it, it does so from a willful conduct.

According to Pazzaglini Filho (2018), in public administration, administrative improbity is seen from the theory of the will that seeks the result, so that the agent performs the act intentionally, having absolute awareness of its result and the consequences of its practice. In the assent theory, the possibility of a harmful result resulting from risky conduct is foreseen, even if it is not directly.

The relevance of the study is to demonstrate that the change in the Law of Administrative Misconduct constitutes the so-called specific intent that characterizes acts such as bad faith, lack of zeal with the responsibility of the public service, the posture of negligence, in some cases, the disreputable act can be punished in another sphere, outside the legal meaning of Administrative Law, thus ceasing to be simply an act of administrative improbity, such as conspiracy and money laundering.

2. DEVELOPMENT

2.1 IMPORTANCE AND POLITICAL-LEGAL CHARACTER OF PUBLIC ADMINISTRATION

Public administration is of great social and political importance in the Brazilian legal system, whose function is to give sustainability to the conditions of improvement of populations in terms of services, which are subject to the internal and external control of regulatory and inspection bodies so that the proposals are in line with constitutional precepts and normative acts (PAZZAGLINI FILHO, 2018).

Administrative improbity is an issue that involves multiple processes that determine the pressing need for surveillance, guidance, correction and control against corruption, the use of the public machine for the benefit of public agents (servants and political representatives) (PAZZAGLINI FILHO, 2018).

Bezerra Filho (2019, p. 33) assesses that:

Nessa perspectiva, existe a necessidade de manter o controle da administração pública através de órgãos especializados acerca de todas as atividades com aplicação de verbas públicas com a finalidade de determinar mecanismos de legitimidade em todas as medidas administrativas, conforme estabelece a legislação, a defesa dos direitos dos que são administradores e a postura adequada dos agentes públicos.

Public authorities began to exercise the functions of remodeling public structures, from the public exercise of legality to have mechanisms referring to the delegation of competence within the limits of the Constitution. According to Bezerra Filho (2019), through legal exercise, the federal, state and municipal public administration has the right to tax and regulate economic activities that have profound repercussions both on the current functioning of the system and on its long-term evolution in terms of the flow of consumer goods and services, as well as the creation of productive capacity in charge of activities related to public administration, such as basic sanitation, infrastructure, public health assistance and other services.

The volume of State responsibilities required internal and external control variables for the development of public administration, in this aspect, the State began to develop a legal-administrative apparatus and several entities, such as secretariats, ministries, welfare institutes and other autarchies, public companies etc. – distributed by the various political-administrative levels (Union, States and Municipalities) (BEZERRA FILHO, 2019).

For Bezerra Filho (2019), public policies began to develop regulatory regimes guided by inspection, whose contemporary phenomenon tends to expand in various ways, taking a modern configuration.

Regulatory activities involve constitutional principles that maintain the guidelines of the legal order. The processes are carried out based on technical provisions in the field of control that are carried out in the regulatory bodies to avoid deviations or administrative impropriety related to public administration (PAZZAGLINI FILHO, 2018).

The Law of Administrative Misconduct (LIA) No. 8,429/92, defined the acts of administrative improbity, which has under its precept the question of bad faith, the practice of acts that give rise to illicit enrichment, cause damage to the public treasury or violate the principles of public administration, defined in art. 37, among which morality is included, alongside legality, impersonality and publicity, in addition to others that are distributed throughout the Federal Constitution (BRASIL, 1992).

According to the Law of Administrative Misconduct (LIA) No. 8,429/92, these acts performed by public agents (servants in general and political representatives) imply the suspension of political rights, the loss of public function, the unavailability of assets and the reimbursement to the public purse, in accordance with the legal form and gradation in the legal system (BRASIL, 1992).

According to Osório (2020, p. 56), the act of administrative improbity constitutes “an act of immorality, in doctrine, an affront to honesty, good faith, respect for equality, the norms of conduct accepted by the subjects, the duty loyalty, human dignity and other ethical and moral postulates”.

According to Pazzaglini Filho (2018, p. 112), “the crime is configured both in the misuse of goods and in sales or services and in these cases there is profit, in the use of public resources such as average balance or interest and monetary correction, there is crime”.

Public services cannot be placed as a function of merely private interests (BEZERRA FILHO, 219, p. 19).

Osório (2020), also analyzes another form of administrative improbity that can also be represented by the act of nepotism, which is characterized by the use of the power of the function to benefit relatives, resulting in personal favoring, making the administration a hanger of jobs without legal support through illegal hiring.

Law 8429/1992 establishes criminal liability in cases of administrative improbity related to public agents, pointing out acts considered unlawful as enrichment at the expense of the usufruct of public resources (BRASIL, 1992). In this process of advantages over access to public office, the law also directs the following illicit way:

Receber vantagem econômica, direta ou indireta, para facilitar a aquisição, permuta ou locação de bem móvel ou imóvel, ou a contratação de serviços pelas entidades referidas no art. 1° por preço superior ao valor de mercado; facilitar a alienação, permuta ou locação de bem público ou o fornecimento de serviço por ente estatal por preço inferior ao valor de mercado; utilizar, em obra ou serviço particular, veículos, máquinas, equipamentos ou material de qualquer natureza, de propriedade ou à disposição de qualquer das entidades mencionadas no art. 1° desta lei, bem como o trabalho de servidores públicos, empregados ou terceiros contratados por essas entidades; etc. (BRASIL, 1992, p. 1).

In this sense, the public agent inattentive to the Law of
Administrative Misconduct (LIA) No. 8.429/92, has civil and criminal liability in cases of illicit actions against the public treasury, based on the immediate verification of the facts that, in the case of civil servants federal agencies, and, in the case of a military employee, in accordance with the respective disciplinary regulations. And in case of culpability, the confiscation of the assets of the agent or third party that has unlawfully enriched or caused damage to public property occurs, through the blocking of assets, bank accounts and financial investments held by the accused abroad, under the terms of the law and of international treaties (BRAZIL, 1992).

In this context, when it comes to a situation that involves an act harmful to administrative morality, the common citizen can propose a popular action, with the objective of annulling the harmful measures to the public treasury. In this process, it is necessary to prove the bad faith and the occurrence of the damage to the public property, by willful action or omission (from the new Law 14.230/2021) of the agent or the third party, full compensation will be given of the damage. And in the previous Law, there was both the intentional modality and the culpable modality, which was extinguished with the changes from Law 14.230/2021 (JÚNIOR, 2021).

The intent presupposes the intention to practice the administrative illicit act, in Law 8.429/92, it determined that the agent would act culpably, when due to malpractice, negligence or recklessness he fails to perform an administrative act, generating an act harmful to someone or public property. So, regardless of whether public administration accounts are approved or disapproved by the bodies responsible for internal control and the Board of Accounts (NEVES; OLIVEIRA, 2022).

In the previous Law, there is no need for damage to public resources so that in the legal system in the administrative sphere it is characterized as an improper act, insofar as this is just a kind of classification of misconduct (NEVES; OLIVEIRA, 2022).

According to Berti (2016, p. 2):

Em que pese tratar-se de uma ação que tramita na esfera cível, parece razoável defender que os princípios que devem nortear o processo são os do processo penal e não os do processo civil, tendo vista que as sanções disciplinadas pelo art. 12 da Lei 8.249/92 possuem, sem dúvida alguma, natureza sancionatória penal. Explica-se: a LIA tem viés eminentemente sancionador/penalizador. Suas penas, não raro, são até mais severas do que aquelas previstas no Código Penal. Daí porque as regras que devem prevalecer no ambiente processual são as que balizam o processo penal e não o processo civil.

So that, according to OAB-MS[2] (2003), the:

discussão sobre a natureza da sanção da perda de função pública na Lei nº 8.429/92, se civil ou criminal, embora ainda exista, aos poucos vem perdendo a razão de ser, com o aprofundamento da análise do tema por juristas e tribunais. A dúvida começa a se dissipar no próprio texto da lei.

Although sanctions have a civil and administrative nature, criminal sanctions are not excluded, which implies the responsibility of the agent for his own acts. In this regard, the legal system is based on a guideline that tends to exclude the possibility of including the criminal modality, which means that the penalties provided for must be instituted independently of the occurrence of criminal actions (BERTI, 2016).

The creation of the Fiscal Responsibility Law n. 101/2001 or Complementary Law no. 101, of May 4, 2001, originated in the project sent by the National Congress, within 180 days, contained in Constitutional Amendment No. 19 of June 4, 1998, which required a supplementary law to deal with various matters that strengthened the Administrative Improbity Law.

So that the matters that deal with public finances and public debt were contemplated in the law, bringing as an axis the fiscal responsibility that is the object of legal discipline, also in other countries. With this law in place, it can be said that it concerns public policies, major and profound changes were being carried out in public administration, such as the balance of public accounts, a fact that contributes to the public power managing budget resources (LOHBAUER et al., 2021).

According to Bezerra Filho (2019, p. 44):

In the evolution of the processes, one has with

o marco principal as razões fundamentais para a existência do planejamento e do orçamento no âmbito do setor público, pois estes mecanismos são as principais ferramentas para a consecução de políticas condizentes com as exigências de uma sociedade democrática e participativa, cujos membros devem ser partes integrantes do processo de gestão dos recursos públicos.

The Fiscal Responsibility Law (LIA) 14.230/2021, brought new perspectives in the field of guidelines on financial rules that imposes responsibility on tax management processes, in this perspective, the rules bring provisions on administrative punitive acts in case of administrative improbity (BRAZIL, 2021).

In this perspective, the institution of the law aimed to apply legal norms to ensure that the application of the public purse is carried out based on transparency, planning, control and accountability (PAZZAGLINI FILHO, 2018).

The application of the law is timely insofar as it has best governance practices in public administrations, presenting guidelines that must be taken to implement effective controls and preventive measures against corruption in the public administration, minimizing illicit procedures or acts of improbity.

Failure to comply with the regulations, in addition to causing the personal sanctions of the agent from whom the act contrary to the legal provision that imposes compliance as a condition of effectiveness of the act, and cominate the penalty of nullity for what is practiced with transgression of its precept ( OSÓRIO, 2020).

2.2 CHANGES IN THE LAW OF ADMINISTRATIVE MISCONDUCT

In 2021, Law 14,230/2021 was enacted, which determined changes to Law 8,429/1992 or the Law of Administrative Misconduct (LIA), which began to establish significant changes in the responsibility associated with the practices of public agents in the act of administrative improbity. Among the change process, innovations such as the inclusion of the presence of intent stand out so that in legal terms the action of improbity can be configured (NEVES; OLIVEIRA, 2022).

The substantial changes with the new Law, represents a renewal in legal terms in the treatment of administrative improbity, highlighting the exclusion of the culpable modality, determining only the prevalence of the intentional modality that implies a specific intention for the characterization of the practice of improbity, in which it refers to the notion of bad faith by the public agent.

In this sense, with Law 14.230/2021, acts of negligence and imprudence in the administrative function will not cease to be legally an illicit act, but they will not be jurisprudential in the administrative sphere, therefore, they do not constitute elements that are part of the characteristics of improbity. From this perspective, an intentional act is characterized in this aspect, a set of actions that denote collusion between agents for their own benefits, bad faith in the function, using the public machine to obtain advantages from third parties and the intention to harm (NEVES; OLIVEIRA, 2022).

In the interpretation of the new Law of Administrative Misconduct, the agent’s intent is specifically represented by the conditions of existence of conscience associated with the will and objective of obtaining one’s own benefit, acting improperly with a focus on privileges.

The difference is that the Law wants to punish dishonest and corrupt public agents, but prefers to leave out those who act with incompetence and unpreparedness (CINTRA; SPAZIANTE, 2022). In a way, the Courts of Justice had the notion of the need to specify the specific intentional modality of administrative improbity, the intention being bad faith.

Under this new legal field, administrative improbity represents the free and conscious will to obtain financial results and benefits during the usufruct of the function, which implies an illicit posture, generating eventual willful misconduct. While, in the case of guilt, there is the legal act of exclusion, therefore, the law determines the liability of the public agent who practices the illicit act, removing the reckless or incompetent public agent from this field (CINTRA; SPAZIANTE, 2022).

Cintra and Spaziante (2021) state that although being a reckless and negligent agent in the administrative function can cause harm to others, due to ineffectiveness in the processes, even if consciously, there is no misconduct in the interpretation of the new law, taking into account that the framework refers to corrupt and dishonest agents.

According to Lohbauer et al. (2021), it can be said that a typology of intent was created, the specific one for cases of administrative improbity, with the intention of punishing and preventing the expansion of these proven acts as disreputable, from the chain that focuses on a subjective element logically consecrated by the conscious will to obtain results through illegal actions.

In both laws, the characterization of intent in the position of the public agent is evident, in the doctrinal interpretation, the element of guilt was present in law 8.429/1992. Therefore, with the changes from the new Law 14.230/2021, we sought to specify the intent, based on the notion of improbity as an act of bad faith. In this aspect, currently there is only the intentional modality as a characterization of administrative improbity, removing the culpable modality from the law (BRASIL, 2021).

3. CONCLUSION

From the perspective of the following guiding question: what changes were inserted in the Law of Administrative Misconduct in relation to intent? This article aimed to identify the changes applied to the new Law of Administrative Misconduct, focusing on the issue of intent.

Thus, from the enactment of the new Law of Administrative Misconduct (LIA), this study showed that probity began to define the duties applied to public servants, imposing sanctions on violators for the practice of acts in disagreement.

The study showed that the new law determined the specification of intent in the crime of administrative improbity, being interpreted as a factor of bad faith in the exercise of the function, removing the notion of recklessness, negligence and gross errors.

Under this legal view, the exclusion of the culpable modality is analyzed, maintaining the intentional modality, establishes that the axis of the law is to avoid corruption, gain through an unlawful and disreputable act. Therefore, questions of guilt regarding agents who perform their function poorly do not fit into this area, although these may be punished in another sphere.

The legislator’s intention was to create a specific intent for the disreputable public agent who acts trying to obtain benefits at the expense of illegal actions. So it is understood that currently this characterization logically separates the negligent and reckless agent from the corrupt and disloyal agent.

The legal regime is in place to discipline negligent administrative actions that involve their own or others’ interests in the use of public resources for their own enrichment, or misuse of resources of which they are only a representative.

The creation of improbity laws (previous and current), as well as the Fiscal Responsibility Law, was of great political-legal importance for the Brazilian public administration, which must be regulated and exercised within the scope of the Federal Constitution and its complementary laws. The Administration is granted rights, but limits are established, and they should never be extrapolated. Law 8429/1992 presents itself as the first to be defined as a law of administrative improbity, which is the technical designation for the so-called administrative corruption, which, in different ways, promotes the distortion of Public Administration and affronts the core principles of the Legal Order.

The crime of administrative improbity is configured with actions that determine the obtaining of undue patrimonial advantages at the expense of the treasury, for the harmful exercise of public functions and jobs, clientelism, for the peddling of influence in the spheres of Public Administration, increase and fixation of subsidy to increase their own salaries and favoring the few to the detriment of the interests of society, by granting unlawful gifts and privileges or by improperly using public goods, income or services for their own benefit or others.

The innovations brought by Law 14.230/2021, was especially the specification of the notion of intent, determining only the existence of the intentional modality for crimes of administrative improbity, based on the notion of punishment to the illicit will of public agents.

REFERENCES

BERTI, Márcio Guedes. A Natureza Penal da Lei de Improbidade Administrativa. JUzVoz – Revista Jurídica, 2016. Disponível em: <https://www.jusvox.com.br/revista/edicoes-anteriores/item/151-a-natureza-penal-da-lei-de-improbidade-administrativa.html>. Acesso em: 28 mar. 2022.

BEZERRA FILHO, Aluízio. Processo de improbidade administrativa anotado e comentado. 2. ed. São Paulo: JusPODIVM, 2019.

BRASIL. Lei n. 8.429, de 2 de junho de 1992. Presidência da República: Casa Civil. 1992. Disponível em: <www.planalto.gov.br/ /ccivil_03/leis/l8429.htm>. Acesso em: 26 mar. 2022.

BRASIL. Lei nº 14.230, de 25 de outubro de 2021. Presidência da República: Casa Civil, 2021. Disponível em: <http://www.planalto.gov.br/ccivil_03/_Ato2019-2022/2021/Lei/L14230.htm>. Acesso em: 26 mar. 2022.

CINTRA, Rodrigo Suzuki; SPAZIANTE, Ana Clara. O dolo específico na nova lei de improbidade administrativa. Migalhas, fevereiro de 2022. Disponível em: <https://www.migalhas.com.br/depeso/360052/o-dolo-especifico-na-nova-lei-de-improbidade-administrativa>. Acesso em: 27 mar. 2022.

JÚNIOR, Janary. Mudanças na Lei de Improbidade Administrativa entram em vigor. Câmara dos Deputados, 2021. Disponível em: <https://www.camara.leg.br/noticias/820702-mudancas-na-lei-de-improbidade-administrativa-entram-em-vigor/>. Acesso em: 26 mar. 2022.

LOHBAUER, Rosane et al. Comentários sobre as mudanças na Lei de Improbidade Administrativa. Consultor Jurídico, novembro de 2021. Disponível em: <https://www.conjur.com.br/2021-nov-13/opiniao-comentarios-mudancas-lei-improbidade>. Acesso em: 27 mar. 2022.

NEVES, Daniel Amorim Assumpção; OLIVEIRA, Rafael Carvalho Resende. Comentários à reforma da Lei de Improbidade Administrativa. Rio de Janeiro: Forense, 2022.

OABMS. Natureza civil das sanções da lei de improbidade. Ordem dos Advogados do Mato Grosso do Sul, 2003. Disponível em: <https://oabms.org.br/natureza-civil-das-sancoes-da-lei-de-improbidade />. Acesso em: 27 jun. 2022.

OLIVEIRA, Ricardo de. Gestão pública: Democracia e eficiência – uma visão prática e política. 1. ed. São Paulo: FGV, 2014.

OSÓRIO, Fábio Medina. Teoria da Improbidade Administrativa: Má gestão, corrupção e ineficiência. 5. ed. São Paulo: Revista dos Tribunais, 2020.

PAZZAGLINI FILHO, Marino. Lei de Improbidade Administrativa Comentada. 1. ed. São Paulo: Atlas, 2018.

APPENDIX – FOOTNOTE

2. Brazilian Bar Association – Mato Grosso do Sul.

[1] Postgraduate in Auditing, Management and Environmental Expertise, Postgraduate in Occupational Safety Engineering, Specialist in Mineral Resources – Mining Engineer. ORCID: 0000-0003-0973-939X

Sent: June, 2022.

Approved: June, 2022.

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