Under the strong defense of President Arthur Lira (PP-AL), the Chamber approved the basic text of the bill that updates the Administrative Misconduct Law and which now requires proof of the intention to harm the public administration so that the accusation formalized by the Prosecutor’s Office is received.
The base text was approved by 408 votes in favor of 67 against. Deputies will now consider proposals for changes to the bill, which will then go to the Senate.
The project was presented in 2018 by deputy Roberto de Lucena (Podemos-SP) and was being processed in a special commission, where it was discussed by jurists, lawyers, specialists and deputies. The report was delivered to Deputy Carlos Zarattini (PT-SP). In October last year, he presented a preliminary opinion, which was criticized for excluding an article on acts of administrative improbity that violate the principles of public administration.
In view of the criticisms received, Zarattini reformulated his opinion so that it could be voted on by the collegiate. Lira, however, decided to withdraw the project from the special committee and take the vote directly to the plenary.
The president of the Chamber has already been convicted in two actions for administrative improbity in the Alagoas Court and may benefit from any changes in the punishment rules.
Before the vote, Lira made a speech defending the changes. “Some will say that what we do is rush. Others will say it’s easing. They will always say something,” he said. “But the important thing is not what they say. It’s our acts. If they are beneficial to the country, they help to improve people’s lives.”
Lira called the current legislation outdated, antiquated and said that it stifles good public managers. Furthermore, he recognized that the text could be improved in the future.
In his speech, the deputy accused the Attorney General of the State of São Paulo Luiz, Mário Luiz Sarrubbo, of having gone to his office in February to ask him not to guide the super-salary bill that is being processed in the Chamber.
“This is the role of the Attorney General for the State of São Paulo. That today it claimed the right to say on social networks that this project is the project of impunity. We will deal in a few days with what impunity is in Congress, in the plenary of this House, with an absolute majority of deputies deliberating.”
In a statement, the Public Ministry of São Paulo affirms that the Attorney General of Justice is responsible for “dealing directly with the State Powers on matters of interest to the Public Ministry”.
“The hearing referred to by the eminent president of the Chamber, Deputy Arthur Lira, took place precisely in this context. The institutional dialogue on matters that affect the Public Ministry configures something absolutely republican,” he said in a note.
“It is exactly this dialogue that the MPSP advocates, at this time, with regard to Bill 10887/2018, whose terms can transform the Impropriety Law into the Impunity Law, something that directly contradicts the interests of society, the ultimate recipient of the performance of our institution.”
The Impropriety Law was enacted in 1992 amid accusations of corruption in the government of Fernando Collor (1990-1992), with the objective of penalizing public agents involved in misuse in the civil area.
The main problem pointed out by critics is that the current rules leave a wide margin of interpretation on what constitutes an act of improbity.
In his report, Zarattini returned the article that deals with acts that violate the principles of public administration and included among the actions nepotism and the practice of advertising that personalizes programs or services of public bodies.
Initially, some deputies claimed that the definition of nepotism used allowed the interpretation that it would be possible to employ relatives, provided they were qualified for the position.
After criticism, the rapporteur decided to maintain the understanding of the STF (Supreme Federal Court), which is more rigid and prohibits appointments in direct and indirect public administration in any of the Powers of the Union, states and municipalities, among other conditions.
The text provides that the improbity will only be considered when it is “proved to obtain an undue benefit or benefit for oneself or for another person or entity”. Under the current law, the manager can be punished for a negligent act, without intention, but that harms the public administration.
Marcelo Bessa, lawyer and member of the Penal Guarantees Institute, defends the change. “As Article 11 was written before, any culpable act by a mayor entailed actions of improbity, which caused panic among managers, especially in the interior,” he said. “Nobody wanted to perform any act before having several opinions, which ended up hampering the public administration itself.”
For deputy Kim Kataguiri (DEM-SP), the change is negative. “The report legalizes negligence in public administration. Politicians who make gross mistakes with public affairs are given immunity. It is a mockery,” he said.
Zarattini changed provisions dealing with penalties and removed the minimum penalty. In acts involving illicit enrichment, he extended the suspension of political rights to 14 years—in current law, the period is 8 to 10 years. In penalties for misconduct that cause damage to the treasury, the suspension of political rights goes from 5 to 8 years to up to 12 years.
He removed the penalty of suspension of political rights for those who violate the article that provides for acts of administrative improbity that violate the principles of public administration. The reporting judge also reduced the civil fine, which went from up to 100 times the amount of remuneration received to up to 24 times.
Sanctions can only be carried out with the final and unappealable decision of the condemnatory sentence.
The rapporteur also determined that the Public Ministry has exclusivity to propose actions of administrative improbity, which received criticism.
“The intention of the Chamber of Deputies to update the Administrative Impropriety Law is fundamental to ensure greater legal certainty for public managers. However, the text presents a major setback for society, as it deprives the injured party of the possibility of seeking reparation for the damage and punishment of improbable acts”, said Vicente Braga, president of Anape (National Association of State and Federal Attorneys ).
According to Zarattini, the sentence in the misconduct proceedings must precisely indicate the grounds that demonstrate the act performed, “which cannot be presumed”.
The statute of limitations becomes eight years “from the occurrence of the fact or, in the case of permanent infractions, from the day on which the stay ended”. In addition, it establishes a period of 180 calendar days for the civil investigation to determine the act of improbity to be concluded, “which may be extended only once for an equal period, upon justified justification”.
After that, if you do not opt for filing, the action must be proposed within 30 days.
What can change in the Impropriety Law
Description of misconduct
How is today The text of the law is very generic about situations that may constitute improbity, leaving room for even administrative decisions and errors to be included in the legislation
what can change The bill provides more precise definitions on the cases of improbity and provides that the action or omission resulting from the divergence of interpretation of the law does not constitute improbity.
Guilty form of misconduct
How is today The law establishes that negligent acts, in which there was recklessness, negligence or malpractice may be punishable
what can change The proposal leaves in the law only the malicious modality (situations in which there was an intention to practice a conduct harmful to the administration). Measure should promote a significant reduction in punishments, as it is much more difficult to present to the Court evidence that the public agent acted consciously to violate the law
How is today The Public Prosecutor’s Office and other public bodies, such as the AGU (General Attorney of the Union) and the municipal attorneys’ offices may file misconduct actions in court
what can change The Public Prosecutor’s Office will have exclusivity for bringing actions according to the proposal in progress in the Chamber of Deputies