Retroactivity of the new administrative improbity law

It is worth recording that the Reform of the Improbity Law was the result of a series of abuses in its use.

I. ON THE ROLE OF THE OAB IN COMBATING ARBITRARINESS

First, I thank colleagues President Felipe Santa Cruz, José Alberto Simonetti and Anderson Prezia for the opportunity to collaborate in the Presidency of the National Commission on Administrative Sanctioning Law of the OAB, where I have been able to exchange ideas and reflections of the greatest importance with colleagues from all over Brazil on administrative sanctioning law.

The OAB, under the leadership of President Felipe Santa Cruz, and consequently this was also the keynote of the seminars that guided our Commission, was guided by the fight against arbitrariness.

I bring these present reflections as president of the Administrative Sanctioning Law Commission of the national OAB and scholar of the subject, so that we may debate the scope of the New Administrative Improbity Law in Brazil, notably as to its retroactive effects.

II. ON THE REPEALED SANCTIONING OFFENSES: GENERAL CONSIDERATIONS

On October 25 of this year, federal law 14,230/21 was published, which brought about profound changes to law 8,429/92, with express repeal of negligence-based improbity, in the following terms:

Art. 2 Law No. 8,429, of 2 June 1992, comes into force with the following amendments:

“Art. 1 The system of liability for acts of administrative improbity shall protect probity in the organization of the State and in the exercise of its functions, as a means of ensuring the integrity of public and social assets, under the terms of this Law.

Sole paragraph. (Repealed).

§ 1 Acts of administrative improbity are considered to be the intentional conduct defined in arts. 9, 10, and 11 of this Law, except for offenses provided for in special laws.

§ 2 Intent is the free and conscious will to achieve the unlawful result defined in arts. 9, 10 and 11 of this Law, the agent’s voluntariness not being enough. In art. 10 of the previously effective Improbity Law there were multiple forms of conduct harmful to the public treasury that admitted negligent forms. Such typical conduct has been repealed.

Thus, all offense definitions that contemplated negligent forms and that were the subject of punitive public civil actions must be reached by rescissory actions or requests for summary judgment, owing to a supervening law that declared lack of typicity of the fact (legal impossibility of the claim). Of course, the legal period for a rescissory action must be observed.

The new law also provides, in the new § 8 of art. 2, that “an action or omission resulting from an interpretive divergence over the law, based on case law, even if not settled, does not constitute improbity, even if it does not subsequently prevail in the decisions of the control bodies or the courts of the Judiciary.”

There were, regrettably, many convictions involving administrative acts grounded on legal opinions. Not infrequently, the manager performed an act in good faith, based on case law, doctrine, laws and legal opinions, but unluckily at odds with the understanding of the Public Prosecution Service. In such cases, a conviction for administrative improbity could occur – and in fact did occur. Such convictions, under the new law, must be reviewed, whether in ongoing proceedings or through rescissory actions.

This is a new element of a criminal-type offense, which interferes retroactively in the rules produced by interpreters, given the Legislator's express option for the cultural element associated with the concept of improbity. I have maintained, moreover, since 2006, that “the violation of controversial rules, in which the very legality of the public agent's conduct is openly disputed, could not, a priori, lead to a judgment of serious functional dishonesty. The logic of the reasonable and of rationality brings together vectors of the greatest importance in configuring the factual and normative basis of serious functional dishonesty. For this reason, the relevance of the legally reasonable guise of the conduct pointed to as unlawful arises. If the person is basing his conduct on highly controversial rules that are being disputed in court, one cannot seek to censure him through the application of improbity offenses. Of course we are speaking of legitimate discussions and controversies, not of the mere filing of reckless suits lacking plausibility (…). One cannot ignore that cultural norms produce effects in reducing the protection of certain fundamental rights”.

This content was originally published on the Migalhas portal

In the cited link: https://www.migalhas.com.br/depeso/354112/retroatividade-da-nova-lei-de-improbidade-administrativa

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