The Clean Record Law and the Role of Municipal Councils

Under art. 1, I, g of Complementary Law 64/90, as amended by the Clean Record Law (LC 135/2010), those whose accounts relating to the exercise of public offices or functions have been rejected for an incurable irregularity constituting an intentional act of administrative improbity, by an unappealable decision of the competent body, are ineligible, unless that decision has been suspended or annulled by the Judiciary, for the elections held in the following 8 (eight) years, counted from the date of the decision, applying the provisions of item II of art. 71 of the Federal Constitution to all authorizing officers of expenditure, with no exclusion of elected officials who have acted in that capacity.” In this context, the question is: does a decision of a Court of Accounts rejecting a mayor's accounts automatically produce the effect of ineligibility? There is much concern about this subject in political circles, generally speaking.

The first aspect to consider concerns the characterization of the willful act of administrative improbity. Originally, improbity is defined in Article 37, paragraph 4, of the Constitution, and in Law 8,429/92, but we are not here dealing with the effects arising from a conviction in an improbity action. We are speaking of the concept of improbity used within a decision of the Court of Accounts. A rejection of accounts is not enough; it is necessary that the TCE judgment establish the link between the rejected accounts and a willful act that constitutes, in theory, administrative improbity. In Electoral Special Appeal number 233-83.2012.6.16.0046 – Class 32 – Foz do Iguaçu/PR, reported by Justice Arnaldo Versiani, judged on 30.08.2012, the TSE made clear the understanding that “if the decision rejecting accounts does not indicate circumstances showing that the respective irregularity is serious, nor impute a debt to the person responsible, it must be concluded that the ineligibility of the aforementioned subparagraph g does not apply, whose new wording came to require the existence of a willful act of improbity”. The case involved the issuance of a commitment in an amount exceeding the budget appropriations. The TSE considered it important to assess the mismanagement of the resources used and the extent of the irregularity. It noted that it would be necessary to prove actual harm to the public treasury.

Another relevant point concerns the body competent to judge the accounts of Municipal Mayors, capable of producing the electoral ineligibility effect we are addressing. In fact, the Superior Electoral Court (TSE) holds that the rejection of a mayor's accounts by the Court of Accounts does not trigger the ineligibility provided for in Article 1, I, g, of LC 64-90, since final competence for rejecting the accounts belongs to the Municipal Councils. See, in this regard, the judgment of 12/12/2012, reported by Justice Dias Toffoli, which establishes that, “notwithstanding the final proviso contained in subparagraph g of item I of Article 1 of LC No. 64/90, as amended by LC No. 135/2010, the judgment of the accounts of a mayor acting as manager or authorizing officer of expenditures falls within the competence of the Municipal Council”. The judgment continues, noting that, “according to the case law of this Court, the ineligibility of Article 1, I, g, of LC No. 64/90 does not apply if the Municipal Legislative Body has approved the accounts of the head of the Executive, even if the Court of Accounts has issued an opinion recommending disapproval”. It should be said, in the same direction, that the STF, in REXT 132747, judged on 17.06.1992, reported by Justice Marco Aurélio, settled that “the Legislative Branch is competent to judge the accounts of the Head of the Executive, considering the three levels – federal, state and municipal. The Court of Accounts emerges as a mere auxiliary body, acting in an advisory sphere”, according to “the meaning of Articles 11 of the Transitional Constitutional Provisions Act, 25, 31, 49, item IX, 71 and 75, all of the permanent body of the 1988 Charter”.

Many Mayors, then, question the effects of the decisions of the Courts of Accounts, but they must not forget the importance of the Municipal Councils, with solid legal grounding, since it is they who ultimately define whether the accounts will be valid or not. However, the legislative bodies may not act arbitrarily, and must justify their pronouncements in this special field. Moreover, once decisions have been issued by the Courts of Accounts, room remains to debate the scope of the so-called intentional act of administrative improbity before the Regional Electoral Courts and the Superior Electoral Court. Of course, it must be recalled that convictions issued in administrative improbity actions, governed directly by Law 8,429/92, are not subject to this same logic, since there it is a matter of complying with a judicial order of a collegiate body, once res judicata has occurred.