Since its advent in 1992, the Law of Administrative Improbity, Federal Law 8.429, has evolved, either by the interpretation of our courts or by legislative reforms, in the search for a difficult balance: on one hand, to combat the public agent in bad faith and, therefore, to deter dishonest behavior or deviation from the principles that govern the Public Administration; on the other hand, not to restrain the well-intended public agent from making decisions in the performance of his duties aimed at the best public interest, even if such decisions do not prove to be the most effective or right in the future.
During the first years in which the law was in force, there was a higher perception of impunity. The pendulum was shifting to a gradual hardening of the norm. Laws of 2005, 2014, and 2015, for example, added new items to the illustrative list of acts of misconduct associated with illicit enrichment (art. 9), injury to the public treasury (art. 10), or violation of the principles of public administration (art. 11). Courts have established jurisprudence admitting the merely generic intent for acts of misconduct then based on necessarily intentional conduct (arts. 9 and 11). It was sufficient to show that the public servant had voluntarily incurred on a sanctioned conduct, regardless of bad faith or specific purpose.
The hardening of the Law of Improbity peaked during Operation Lava Jato, which generated a large number of demands and convictions.
However, if an increasing dose of the strictness of the law contributed to reducing the perception of impunity of the malicious public agent, on the other hand, generated a serious and undesirable side effect: administrative paralysis. Even the zealous public agent prefers not to make decisions, under the fear that he or she will be questioned by the control bodies and be subject to personal liability.
This blackout of pens causes great damage to the Public Administration, private agents, and society, because projects are paralyzed, and public services are precariously provided.
In reaction to this scenario, in April 2018, Law 13,655, called the Law on Legal Certainty, introduced new provisions in the Law of Introduction to The Rules of Brazilian Law. Among the innovations for the theme analyzed here, article 28 stands out, according to which "the public agent will be personally liable for his decisions or technical opinions (only) in case of misconduct or gross error."
Inspired by this article, Law 14.230/21 reinforced the fight against the aforementioned administrative paralysis. It brought new wording to the Law of Improbity to, among other changes, remove the penalties against negligent behavior, imposing sanctions only on intentional misconduct. Law 14.230/21 seems to have gone beyond Law 13.655/18 itself because it did not even refer to the gross error.
Several other changes promoted by the new law have also moved towards reducing the rigor of the law. Among them, the following stand out:
- The intentional conduct shall involve the specific purpose of achieving the illicit result (art. 1, §§2 and 3);
- The sanctions have also been eased. For example, in its previous wording, the Law of Improbity provided for fines of up to three times the value of the illicit enrichment, without prejudice to the obligation to repair the damage. Law 14.320/21 reduced the fine, as a rule, to the value of the illicit enrichment or relevant damage;
- The same unlawful act cannot lead to double civil or administrative penalties in the Improbity Law and other laws. Thus, for example, the acts criminalized by the Anti-Corruption Law (Law 12,846) cannot be criminalized by the Law of Improbity (art. 12, §7);
- Damage caused to public property must now be effectively proven, and no longer merely presumed (art. 17-C, I);
- Powers to bring a lawsuit under the law are now attributed only to the Public Prosecutor's Office, and no longer to the injured public entity.
The profound changes promoted in the Law of Improbity have provoked both applause and strong criticism. It is too early to know how our courts will react and interpret the new wording of the law and whether or not it will strike a better balance between combating impunity and defending the public agent acting in good faith.