Lawyer gives an X-ray of new rules for administrative improbity

Administrative Sanctioning Law Law 14,230/21, which establishes new rules for administrative improbity proceedings, took effect this week.

Migalhas interviewed lawyer Fábio Medina Osório (Medina Osório Advogados), who highlighted important points of the largest reform of the law, which has been in force since 1992. Among them, the specialist stressed that the norm brought in constitutional principles of Administrative Sanctioning Law: an “extraordinary advance.”

Administrative Sanctioning Law

Fábio Medina Osório explains that the new administrative improbity law embraced the provision on the applicability of the constitutional principles of “Administrative Sanctioning Law.”

In a thesis the lawyer has long defended, Fábio Medina Osório states that on the sanctioning side of administrative sanction there should be not only the Public Administration but also the Judiciary. “For the first time, we argued for a break with a traditional concept of a Statutory Administrative Law,” he noted.

The lawyer understands that the enshrinement of the legal regime of Administrative Sanctioning Law for administrative improbity actions strengthens the constitutional guarantees of the accused, in general. “Extraordinary advance,” he called it.

Illegality x Improbity

For Fábio Medina Osório, the new administrative improbity law brought many advances, “with the provision of guarantees and fundamental rights for the accused in general.” Among other points, the lawyer highlighted that the law introduced the distinction between “illegality” and “improbity,” concepts that had been confused by the MP.

“Not every illegality is to be confused with improbity, because otherwise the judgment of a writ of mandamus would have to give rise to copies being sent to the Public Prosecution Service to prosecute the respondent authority.”

Gross error

With the reform, acts of administrative improbity came to depend on intentional conduct. For Fábio Medina Osório, the elimination of negligent improbity through gross error was a “setback.” The reason, according to Fábio Osório, is that “gross error” borders on intent.

However, Fábio Osório argues that there must indeed be a legally tolerable margin for each and every public manager.

“Although there has been a certain setback in the elimination of improbity by gross error, we understand that this ‘legally tolerable right to err’ is also fundamental to avoid paralysis in Public Administration.”

MP – Sole holder

The reform of the administrative improbity law established that the Public Prosecution Service becomes the only possible plaintiff in improbity actions. Under the previous rule, any legal entity could bring them. With the enactment of the new law, the Public Prosecution Service has one year to express interest in taking over cases already filed. Those not claimed will be dismissed.

According to Fábio Medina Osório, this provision “brings greater legal certainty”. However, the lawyer makes some considerations on the subject:

Article taken from the website Migalhas.com.br