By: Leonardo Neri

The Chamber of Deputies approved bill 10.887/2018, which amends law 8.429/92, also known as the Administrative Misconduct Law – LIA, and which brings important changes to acts of misconduct committed by public agents.

A priori, it is important to emphasize that the acts of administrative impropriety provided for in Law 8,429/92 (articles 9, 10 and 11) are different from the crimes provided for in the Anti-Corruption Law, since the latter are crimes and the former are civil infractions. In corruption, the agent obtains an illicit advantage and in impropriety, the public agent causes some damage to the administration, as in the case of illicit enrichment (art. 9), damage to public assets (art. 10) and against the principles of public administration (art. 11).

It can even be said that every act of corruption and impropriety are considered acts of mismanagement of public affairs, however, corruption is provided for in the Penal Code (arts. 312, 313, 316, 317, 318, 319, 321, 337-A, B and C) and in some Special Laws, and will be used when the punishment of the agent in the administrative or civil sphere is not sufficient, therefore, it is necessary to use the ultima ratio, criminal punishment and, although distinct, are interconnected.

Thus, among the proposed changes, one of them is the punishment only of public agents who have acted with intent, that is, who acted with the intention of harming the public administration, due to the scope of article 10, which breeds excessive punishments, since the law currently punishes harm to public assets in the form of intent or negligence. Despite this, in the understanding of the STJ, it is essential that there be intent in the conduct described in articles 9 (illicit enrichment) and 11 (against the principles of public administration) and at least negligence in the cases of article 10 (harm to public assets), in which damage to the public treasury must be proven.

Another proposed change concerns the statute of limitations. The current law provides that the five-year statute of limitations will begin to run after the end of the term of office, position in commission or position of trust. The bill increases the statute of limitations to ten years, but the countdown begins when the wrongful act is committed.

Furthermore, the bill provides that the claim for compensation for damages and loss of assets and values of private origin (private companies that receive subsidies, benefits or incentives, whether tax or credit, from a public body, as well as those for whose creation or funding the public treasury has contributed or contributes less than 50% of the assets or annual revenue) is subject to a statute of limitations of twenty years, starting from the date of the event. This provision differentiates public companies from private companies, whereas the former is imprescriptible and, in the case of private companies, the term is 20 years.

There is still the need to discuss the penalties applied. For crimes committed in articles 9, 10 and 11, there is provision for the suspension of the political rights of the person responsible for the act of misconduct. Despite the increase in the maximum penalty provided for in the bill (article 9, the maximum penalty goes from 10 to 12 years; article 10, the maximum penalty goes from 8 to 10 years; in article 11, from 5 to 6 years), the legislator reduces the minimum penalty for all crimes, all with a minimum penalty of 4 years.

Finally, the text of the bill provides that the public manager will only lose his position if, at the time of conviction, he is still in the position he held when he committed the act of misconduct.

Thus, as can be seen from article 12 of the current LIA, the nature of the penalties applied to agents who committed improper acts is civil, with a view to the application of a civil fine, suspension of political rights, loss of public office, unavailability of assets and compensation to the public treasury. However, the act of administrative impropriety will be considered corruption when both are simultaneous, when it harms the public administration and someone benefits from it.

As rightly pointed out by Minister Carlos Velloso (Rapporteur of MS 23,242, DJ of 5/17/2002): “A public agent may commit, in the exercise of his/her duties, an administrative offense, a pure functional fault, which does not also constitute a criminal offense; but an administrative offense may also constitute a criminal offense. In the latter case, the public agent will be held liable for both administrative and criminal offenses before two instances, the administrative and the criminal, autonomous instances (Law 1,711/52, art. 200; Law 8,112, of 12/11/90, arts. 121 to 126).”

Article 37, paragraph 4 of the Federal Constitution determines that the law punishes corrupt public agents who use their position or public function to enrich themselves or cause harm to the public treasury and by allowing differentiated sanctions in other spheres, it denotes the need for more severe punishment when punishing the conduct of the public agent, aimed at corruption, as well as of those who assist them, to prevent and avoid the risk of an administration characterized by distrust and inefficiency.

It can be concluded that updating the legislation is important to clarify and follow the understandings of case law; however, in a time of distrust towards public agents, it may mistakenly demonstrate impunity to society. Without a doubt, the proposal could limit the state's power of ideologies in an objective manner, not allowing the subjectivity of judges to protect the unsuitable manager, as well as the judge to manipulate the legislation in favor of his ideology to punish the political adversary.