Setback in combating improbity
Article in Estadão (Fausto Macedo's blog), on 04/12/2020, warning of the risk of a setback in the fight against administrative improbity.
Translated from the original.
In a contribution to Fausto Macedo's blog, in O Estado de S. Paulo, Medina Osório wrote the article “Setback in the fight against improbity.” See the full text:
Setback in combating improbity
Fábio Medina Osório*
04 December 2020 | 09:40
Fábio Medina Osório.
There is no doubt that there is a risk of setback in the fight against administrative improbity, arising from the progress of the reforms sought in Law 8,429/92. There are several provisions altered by the commission of jurists that proposed the reform, and some points deserve in-depth analysis, to prevent loopholes from emerging in the new law.
Several topics could be mentioned. However, we will stick to a few of them, truly essential, the importance of debating them being undeniable, in order to prevent new delays in the Brazilian anti-corruption agenda.
It is known that improbity is a pathology that, besides including corruption, defines poor public management broadly, also encompassing endemic inefficiency. And the reform of the law, in this sense, seeks to alter the very concept of improbity.
Consider the case of the suggested elimination of negligent improbity, when it is known that, under the case law of the Superior Court of Justice and by force of the Law of Introduction to the Norms of Law, only gravely negligent conduct may be punished (the law speaks of gross administrative error).
The literature specialized in combating corruption treats the grossly negligent offense as an authentic cancer in public administration, and it would be a step backward to cease punishing it as improbity. Obviously, no one is defending the sanctioning of the ordinary or common error of the public manager, insofar as any administrator has a right to a legally tolerable margin of human error. What is to be repudiated is gross error and inexcusable fault. And precisely such categories may be removed from the scope of application of the new law.
On the other hand, the bill intends to eliminate the so-called improbity by violation of principles, which is nothing more than an administrative irregularity that results neither in harm to the public treasury nor in unlawful enrichment.
It has been said that no improbity conduct can be defined while abstracting from the violation of legal provisions underlying the Improbity Law, such that there is no improbity by mere violation of principles. This elimination has already occurred in the scholarship and in the case law of the STJ.
However, improbity that takes the form of poor management – and that dispenses with illicit enrichment or harm to the Treasury – can be as serious as or more serious than other forms harmful to the duty of probity.
It is not a loophole, but a true avenue, through which unlawful acts may escape. Imagine the case of public agents who stray from their legal duties in order to persecute people? Or public servants who solicit undue advantages without obtaining them? The conduct of malfeasance, influence peddling, trading on prestige and abuse of authority may escape the meshes of the law.
Finally, there are other very important topics targeted in the reform, but it is essential to point out, at least, these serious possibilities of setbacks in the fight against administrative improbity.
*Fábio Medina Osório is a lawyer and former minister of the Office of the Attorney General of the Union (AGU)