DIREITO ADMINISTRATIVO - GUARDA MUNICIPAL - PROF. JOÃO TAYAH

Introduction to Public Agents

Welcome and Overview

• The session begins with a warm welcome to future municipal guards, setting a positive tone for the class.

• The instructor congratulates students for attending the final lesson and acknowledges online participants.

Review of Previous Lesson

• A recap of the last class focused on public agents, preparing students for today's corrections and new topics.

• Students were assigned ten questions regarding public agents from their study materials to be corrected in this session.

Correction of Questions on Public Agents

First Question Insights

• The first question is addressed, focusing on Esté's role as a juror in a trial, identifying her function as an honorary agent collaborating with the state.

• The correct answer is confirmed as "A," emphasizing that jurors are considered honorary agents.

Categories of Public Agents

• Discussion on different categories of public agents: political agents (e.g., elected officials), public servants (future guards), employees under labor laws, and temporary contracted agents.

Understanding Temporary Contracted Agents

• Clarification about temporary contracted agents who do not undergo competitive exams but rather simplified selection processes to meet exceptional public needs.

Detailed Analysis of Agent Definitions

Misconceptions About Temporary Contracts

• Explanation that temporary contracted agents do not participate in regular civil service exams; they are selected through simplified processes.

Legal Framework for Public Servants

• Reference to Law 8112/1990 governing federal civil servants, contrasting it with local statutes like those in Amazonas and other municipalities.

Further Clarifications on Employment Types

Characteristics of Effective Statutory Employees

• Distinction made between effective statutory employees governed by specific statutes versus temporary contractors lacking job stability under labor laws.

Third Question Examination

Functionality of Effective Employees

• Confirmation that Mévio can hold positions of trust due to being an effective employee after passing his exam. Functions requiring trust are exclusive to effective staff.

Errors in Other Options

• Identification of errors in alternative answers regarding the validity period for competitions and eligibility for commission roles.

Key Takeaways:

1. Understanding Roles: Jurors serve as honorary agents; clarity around their classification is essential.

2. Public Agent Categories: Familiarity with various types helps distinguish responsibilities and legal frameworks governing them.

3. Legal Knowledge: Awareness of relevant laws ensures comprehension of employment rights and obligations within public service contexts.

Understanding Public Employment in Brazil

Eligibility of Foreigners for Public Positions

• Foreigners can occupy certain public positions in Brazil as specified by federal legislation, particularly in roles such as teachers and researchers.

• It is incorrect to claim that foreigners cannot hold any public office; they are eligible under specific legal conditions.

Differences Between Municipal Employment Types

Employee vs. Statutory Server

• Stability: Municipal employees (seletistas) do not have constitutional stability, while statutory servers gain stability after three years of effective service and a favorable evaluation. This statement is true.

• Entrance Requirements: Both municipal employees and statutory servers must pass a public competition to enter the municipal service, contradicting the notion that only one type requires it. This statement is false.

• Legal Framework: Employees are governed by the CLT (Consolidação das Leis do Trabalho), whereas statutory servers follow a specific municipal statute, highlighting differences in their legal regimes rather than salary disparities.

Principles of Public Administration

• All agents within public administration, including both types of employees, must adhere to principles outlined in Article 37 of the Constitution—legalidade, impessoalidade, moralidade, publicidade e eficiência—as well as implicit principles like razoabilidade and proporcionalidade. The assertion that only statutory servers are bound by these principles is false.

Case Study on Public Service Rules

Priority in Job Assignments

• In scenarios where multiple competitions occur simultaneously or consecutively, candidates from earlier competitions have priority over new candidates for job assignments; thus claiming equality among all candidates during this period is incorrect. This highlights an important aspect of employment law regarding candidate rights and priorities based on timing of competition results.

Priority in Public Service Appointments

Priority for Previous Exam Candidates

• The approved candidates from the previous public service exam have priority in appointments. New appointments can only occur after all candidates from the prior exam are named.

• Although the Constitution states that if a new exam is launched within the validity period of another, those approved in the first have priority, this rarely happens in practice.

Functions of Trust and Commissioned Positions

• Functions of trust must be filled exclusively by effective career servers, while commissioned positions should also be filled by career servers as per legal stipulations.

• This aligns with Article 37, Section 22 of the Federal Constitution, which specifies that both roles are designated for leadership and advisory responsibilities.

Remuneration Regulations

• It is prohibited to create any remuneration linkages or equivalences for public service personnel. This prohibition applies to both legislative and judicial decisions.

• The assertion regarding remuneration linkages being forbidden is confirmed as true according to constitutional guidelines.

Understanding Administrative Law

Access to Public Positions

• Public positions are accessible to Brazilians who meet legal requirements, including foreigners under specific conditions as stated in Article 37, Section 1 of the Constitution.

Requirements for Employment

• Appointment to public jobs requires passing a competitive examination based on either tests or qualifications, except for positions declared as free appointment and dismissal by law (Article 37, Section 2).

Validity Period of Competitions

• The claim that a public competition's validity can be extended twice for equal periods is false; it can only be extended once.

Stability and Dismissal Conditions

Stability After Probationary Period

• Public servants with effective positions gain stability after completing their probationary period. They can only be dismissed under specific circumstances outlined by law.

Legal Grounds for Dismissal

• A stable server may lose their position due to a final judicial decision. This aligns with Article 41 of the Federal Constitution regarding loss of office.

Misconceptions About Exoneration and Dismissal

• There are significant errors in understanding exoneration versus dismissal; one cannot simply be exonerated without due process or evidence of wrongdoing.

Importance of Due Process

• No one can face dismissal without undergoing an administrative disciplinary process; mere allegations do not suffice for termination.

This structured summary captures key insights from the transcript while providing timestamps for easy reference.

Understanding the Differences Between Afastamento Cautelar and Demissão

Key Definitions

• Afastamento Cautelar: Temporary suspension of a public servant while receiving their salary during an investigation to prevent interference.

• Demissão (DMC): Permanent dismissal from public service due to serious misconduct.

Evaluation for Stability

• Stability is not automatic after three years; it requires a favorable evaluation from the Special Performance Assessment Commission.

• Decisions regarding probation approval or disapproval must be well-founded based on performance evaluations over the three-year period.

Process of Investigation

• The existence of a PAD (Processos Administrativos Disciplinares) does not automatically lead to disapproval in probation; it serves as an investigative tool.

• If a public servant is acquitted after a PAD, they can still pass their probation successfully.

Consequences of Serious Misconduct

Grounds for Dismissal

• A public servant can only be dismissed after proven serious misconduct through disciplinary processes, even post-stability.

• Serious offenses like administrative improbity or crimes against public administration can lead to dismissal regardless of stability status.

Probationary Period Insights

• During the probationary period, poor performance evaluations can result in dismissal, but this changes once stability is achieved.

Legal Framework Regarding Public Servants' Work Hours

Case Study: Adriano's Employment Situation

• Adriano holds two positions: lawyer (20 hours/week) and professor (30 hours/week), both within legal limits despite municipal law stating maximum 40 hours weekly.

Constitutional Considerations

• The Supreme Court's understanding allows accumulation of roles if there’s no conflict in working hours between them.

Misinterpretations About Salary Caps and Work Hours

Salary Cap Clarifications

• The salary cap applies individually per position rather than cumulatively across multiple roles held by an individual public servant.

Legal Obligations Regarding Job Choices

• Claims that Adriano must choose one job due to exceeding 40-hour work week are incorrect according to higher court interpretations.

Understanding Public Administration and Compatibility of Roles

Constitutional Limits on Work Hours

• The Constitution does not impose a maximum weekly work limit for public servants; any claim stating otherwise is incorrect.

• It is permissible for an individual, such as Adriana, to hold multiple paid public positions (e.g., lawyer and professor) as long as their schedules are compatible.

Analyzing Hypothetical Cases in Public Administration

• A public servant receiving travel indemnity will not have this amount counted towards the remuneration ceiling, which is correct.

• Indemnities are excluded from the remuneration cap, allowing individuals to receive substantial amounts without affecting their salary limits.

Misconceptions About Salary Components

• Agents cannot combine subsidies with additional payments or gratifications; only indemnities can be included in the subsidy total.

• A retired public servant from a lower-level position cannot accumulate benefits with a higher-level position like engineering due to incompatibility rules.

Elected Positions and Remuneration Options

• If an agent becomes a councilor, they may retain their original job if there’s compatibility in schedules; otherwise, they must choose one role.

• A federal deputy must vacate their previous position upon election and can only receive compensation from one source.

Implications of Holding Multiple Positions

• There are no scenarios where an individual can work in two roles simultaneously while receiving pay from both; this applies universally across public service roles except for councilors under specific conditions.

Improbidade Administrativa: Importance in Public Service

Significance of Improbidade Administrativa

• The topic of administrative improbity is crucial within public administration studies, highlighted by its prevalence in recent examinations.

• In past assessments, half of the questions related directly to improbity issues, emphasizing the need for thorough understanding among students preparing for similar evaluations.

Improbidade Administrativa e suas Consequências

Base Constitucional da Improbidade

• A improbidade é fundamentada no artigo 37, parágrafo 4º da Constituição, que estabelece a suspensão dos direitos políticos como consequência de atos de improbidade.

• É comum confundir a suspensão com cassação ou perda dos direitos políticos; desde a superação da ditadura militar, essas penalidades não existem mais no Brasil.

Penalidades Previstas

• A suspensão dos direitos políticos é sempre provisória e determinada pelo juiz na sentença condenatória. Nunca há perda ou cassação definitiva.

• Além da suspensão, uma das consequências é a perda da função pública, que pode ocorrer independentemente do tipo de cargo ocupado (agente político, temporário ou comissionado).

Indisponibilidade e Ressarcimento

• A indisponibilidade dos bens ocorre quando o juiz congela os bens do acusado para garantir que possam ser utilizados para ressarcir o erário em caso de condenação.

• O ressarcimento ao erário refere-se à devolução aos cofres públicos do prejuízo causado pela prática de improbidade. Isso está previsto constitucionalmente no mesmo artigo mencionado anteriormente.

Esferas de Responsabilidade

• Os atos de improbidade são considerados ilícitos administrativos e podem resultar em responsabilidades civil, penal e administrativa; estas esferas são independentes e cumulativas.

• A Constituição menciona "sem prejuízo da ação penal cabível", indicando que um ato pode gerar tanto uma ação por improbidade quanto uma ação penal se for considerado crime sob o Código Penal.

Sujeitos Passivos da Improbidade

• Qualquer entidade pública (executivo, legislativo, judiciário) ou administração direta/indireta em todos os níveis (União, estados, municípios e Distrito Federal) pode ser sujeito passivo de atos de improbidade.

• Importante notar que a improbidade não se limita à administração pública; também pode ser praticada contra entidades que lidam com recursos públicos.

Understanding Improbidade Administrativa

Subjective Passive Entities in Improbidade

• The law identifies private entities receiving public subsidies, benefits, or fiscal incentives as potential passive subjects of improbidade.

• Private companies with tax exemptions for specific activities or NGOs funded by public resources can also be liable for acts of improbidade.

• Any entity whose existence relies on public funds may be subject to liability, limited to the damages caused to public coffers.

• This includes all private entities benefiting from public money, not just public administration.

Active Subjects of Improbidade

• Generally, the active subject committing an act of improbidade is a public agent defined broadly by the law.

• Anyone performing a public function—whether paid or unpaid—can be considered an active subject, including temporary roles like election officials and jurors.

• Various employment types (permanent staff, contracted employees, interns) are included as potential active subjects of improbidade.

Political Agents and Legal Accountability

• Historically, political agents were thought immune from improbidade actions due to their accountability under different laws (e.g., crimes of responsibility).

• The principle of "non bis in idem" prevents double punishment for the same act; however, this was re-evaluated regarding political agents' accountability under both laws.

• Recent rulings clarify that political agents can face both improbidade actions and crimes of responsibility since they pertain to different legal spheres.

Special Case: President's Immunity

• The only political figure exempt from being processed for improbidade is the President of Brazil; such cases must go through impeachment proceedings in Congress instead.

• Other political figures (senators, deputies) remain liable for acts of improbidade without similar protections as the president enjoys.

Independence of Legal Spheres

• Different legal spheres operate independently; individuals can face varying outcomes across them (convicted in one sphere but acquitted in another).

Impeachment and Improbity in Public Administration

The Nature of Impeachment

• There may be exceptions regarding impeachment that do not necessarily involve criminal acts; they can also pertain to administrative improbity.

• Dilma Rousseff's impeachment was based on a specific crime of responsibility related to fiscal maneuvers, which previous presidents had also committed without facing similar consequences.

• The process of impeachment is inherently political, with Congress having the discretion to decide whether to initiate proceedings against a president.

• The judgment surrounding impeachment involves both legal and political considerations, differing from standard legal studies focused solely on jurisprudence.

Accountability for Improbity

• Any public agent can face charges of improbity; even private individuals can be implicated if they induce or collaborate with public agents in committing acts of improbity.

• A private individual may be held accountable for improbity if they either instigate a public agent or participate alongside them in an act deemed improper.

Conditions for Improbity

• For an act to qualify as improbity, there must be involvement from a public agent; mere actions by private individuals without such involvement do not constitute improbity.

• An example illustrates that four individuals colluding to commit fraud would not be liable under the law of improbity since no public agent was involved.

Legal Implications for Private Individuals

• If private individuals engage in fraudulent activities like exam cheating, they are subject to other legal repercussions but not under the law governing improbity due to lack of public agent involvement.

• Cases involving fraud where only private parties are involved do not meet the criteria for improbable conduct because there is no inducement or collaboration with a public official.

Recent Changes in Improbity Law

• In 2021, amendments were made to the law concerning improbability, establishing that specific intent (dolo específico) is required for actions deemed illicit under this framework.

• Understanding concepts like "dolo" (intentional wrongdoing), as opposed to negligence or imprudence, is crucial when discussing accountability within public administration.

Improbidade Administrativa e Dolo

Conceito de Improbidade

• A improbidade administrativa requer dolo, ou seja, a intenção de realizar um ato ilícito. Se não houver dolo, não se configura improbidade.

• Desde 2021, não existe mais a modalidade culposa de improbidade; atos praticados com negligência não são considerados improbidade.

Consequências da Conduta Culposa

• Indivíduos que agem culposamente podem enfrentar consequências disciplinares, como advertências ou suspensões, mas isso não implica em improbidade.

• A lei exige dolo específico para caracterizar a improbidade; ações negligentes não se enquadram nessa definição.

Revisão Judicial e Retroatividade

• Tribunais superiores estão analisando casos de condenações anteriores a 2021 onde apenas existia modalidade culposa para atos que causam lesão ao erário.

• Muitos condenados estão buscando revisões judiciais baseadas na retroatividade da lei mais benéfica após as mudanças de 2021.

Exemplos Práticos de Improbidade

• Um exemplo discutido foi o caso de uma prefeita que contratou temporariamente agentes públicos dentro das hipóteses legais. O uso do termo "doloso" pode induzir à confusão sobre a configuração da improbidade.

• O dolo deve ser entendido como a intenção de realizar um ato ilícito; contratações feitas legalmente não configuram improbidade.

Modalidades dos Atos de Improbidade

• Os atos de improbidade incluem: enriquecimento ilícito, danos ao erário e atentados contra princípios administrativos.

• É crucial ler os artigos 9º (enriquecimento ilícito), 10º (dano ao erário), e 11º (atentado aos princípios administrativos) da Lei nº 8429/92 para entender as definições legais.

Jurisprudência e Tipificação

• A jurisprudência tem considerado os rol dos artigos 9º e 10º como exemplificativos, enquanto o artigo 11 é taxativo em relação às condutas que configuram improbidade.

• Questões em provas frequentemente pedem para identificar condutas que caracterizam lesão ao erário; é importante focar nas definições contidas nos três artigos mencionados.

Enriquecimento Ilícito Definido

• Enriquecimento ilícito ocorre quando um servidor público utiliza sua função para obter vantagens econômicas indevidas. Exemplo: receber dinheiro por omissão em investigações.

Illicit Enrichment and Public Service Ethics

Understanding Illicit Enrichment

• The concept of illicit enrichment is introduced, emphasizing that receiving economic advantages for neglecting one's duties constitutes a violation of ethical standards.

• It is highlighted that any external compensation for performing or failing to perform official duties is generally considered an act of impropriety, which can include gifts or benefits beyond the official salary.

• The discussion notes that there are varying degrees of severity in misconduct classifications, with illicit enrichment being one of the most serious offenses.

Legal Implications and Classifications

• A comparison is made between different types of legal violations, indicating that more severe offenses absorb lesser ones; thus, if a police officer receives money from a criminal organization, it falls under illicit enrichment rather than merely violating principles.

• The speaker reinforces the idea that in legal terms, the most serious offense takes precedence over lesser charges when classifying misconduct.

Practical Challenges in Enforcement

• Real-world applications of these laws are discussed, noting how professionals in education and healthcare often receive gifts from service users despite legal prohibitions against such practices.

• Examples are provided where individuals may receive small tokens like cakes or coffee without facing prosecution due to cultural norms surrounding gift-giving.

Consequences of Misconduct

• The speaker outlines potential penalties for engaging in actions detrimental to public funds, including suspension of political rights and fines.

• Specific examples illustrate how failure to follow proper procedures can lead to financial losses for public coffers without necessarily resulting in personal gain.

Broader Context on Public Integrity

• The misuse of public resources for personal benefit is identified as another form of illicit enrichment. This includes using government vehicles for private errands.

• Despite widespread occurrences of such behavior leading to no punishment, it remains classified as serious misconduct under public integrity laws.

Political Rights and Penalties

Limits on Political Rights

• The limit for political rights suspension is set at 12 years, with no suspension for those who violate principles.

• Civil fines can reach the value of illicitly acquired assets or up to 24 times the public agent's salary.

Improbity and Legal Consequences

• Public servants using government property for personal gain may face charges of peculato (embezzlement), which incurs both administrative and criminal penalties.

• Judges have discretion in applying penalties either individually or cumulatively based on the severity of the offense.

Judicial Authority in Sanctions

• Most penalties require a judicial order; however, loss of public office can occur through an administrative disciplinary process (PAD) without court intervention.

• The only punishment that can be applied without a judicial decision is dismissal via PAD.

Case Study: Enrichment Illicit

Real-Life Example

• A notable case involves a domestic worker whose child died due to negligence while she was required to work during lockdown, highlighting issues of responsibility and safety.

Misuse of Public Resources

• The employer, linked to a mayor, employed a public servant for private services, constituting illicit enrichment as taxpayer money funded her salary.

Legal Implications

• Engaging public employees for private tasks is considered illicit enrichment under law.

Understanding Improbity Law

Application of Sanctions

• Sanctions under improbity laws do not depend on actual damage to public funds; even if no direct theft occurs, violations can still lead to consequences.

Types of Offenses

• Only acts causing actual harm to public resources necessitate proof of damage; other forms of misconduct do not require this evidence.

Discussion on Ethical Conduct

Professional Conduct Standards

• Public servants are prohibited from owning businesses; they must choose between being an employee or an entrepreneur.

Discussion on Police Misconduct and Improbity

Police Involvement in Private Security

• The speaker discusses the issue of police officers who own private security companies, highlighting a conflict of interest when they are also responsible for law enforcement duties.

• An example is given where a victim of car theft approaches a police officer at the station, only to be told that their case will take time unless they pay for expedited service through the officer's private company.

• This practice is labeled as unethical, as it exploits the state’s resources while providing services that should be part of public duty.

Legal Definitions: Improbity vs. Illegality

• The distinction between illegal acts and acts of improbity is clarified; not all illegal actions constitute improbity, which specifically involves public officials.

• It is emphasized that while all acts of improbity are illegal, not every illegal act qualifies as improbity—illustrating this with examples like fraud in competitions involving private individuals.

Public Service Regulations

• The speaker asserts that public servants must choose between being an employee or an entrepreneur; mixing both roles leads to legal issues.

• A discussion on how enriching oneself illegally (e.g., stealing a notebook) can lead to charges of illicit enrichment but does not necessarily equate to other forms of wrongdoing.

Ownership Restrictions for Public Officials

• It is stated that public officials cannot own businesses directly related to their duties; however, some circumvent this by transferring ownership to family members.

• While police officers can provide personal security services during their off-duty hours, they cannot operate a security business under their name due to potential conflicts.

Accountability and Reporting Mechanisms

• There are consequences for those involved in misconduct; both the official and anyone facilitating such actions may face legal repercussions.

• The timeline for transferring business ownership before assuming office is crucial; penalties for impropriety can occur regardless of prior approval from oversight bodies like the Tribunal de Contas.

Authority in Improbity Cases

• Any individual can report suspected impropriety to relevant authorities, initiating investigations into misconduct within public offices.

• However, only specific entities—primarily the Public Ministry and designated representatives—can formally initiate legal action against alleged improprieties committed by public officials.

Legal Framework of Improbity Actions

Nature and Purpose of Improbity Actions

• The Public Ministry or the Attorney General's Office (PGE) can propose actions related to improbity, which are aimed at penalizing individual agents for misconduct.

• These actions are not collective but rather focus on applying personal sanctions against the agent deemed guilty of impropriety.

Agreement for Non-Prosecution in Improbity Cases

• The "anti-crime package" introduced by Sérgio Moro allows for agreements that prevent civil prosecution in cases of improbity.

• Such an agreement requires the agent to fully compensate any damages caused to public funds and relinquish illicitly acquired assets.

Legal Requirements for Agreements

• The law mandates that any agreement must ensure full restitution of damages, meaning if a million was lost, it must be returned entirely.

• Additionally, any profits gained from illicit activities must also be forfeited to the affected legal entity.

Penalties and Judicial Process

• Certain penalties under the improbity law require a final judgment before they can be enforced, specifically loss of public office and suspension of political rights.

• A provisional measure allows for a 90-day precautionary suspension without loss of salary while awaiting judicial decisions.

Interplay Between Criminal and Administrative Law

• If an individual is acquitted in criminal proceedings by a collegiate body, this decision impacts their ability to face administrative improbity charges.

• This establishes a connection between criminal absolution and potential outcomes in administrative actions regarding improbity.

Statute of Limitations and Heir Liability

• There is an eight-year statute of limitations for prosecuting acts of improbity; after this period, claims become invalid.

• Heirs may be held liable up to the value inherited from an agent found guilty of impropriety, ensuring accountability even posthumously.

Jurisdictional Considerations in Improbity Actions

• Unlike other legal matters where privileged jurisdiction applies based on position (e.g., governors), all improbity actions start at first instance court level regardless of the accused's status.

• This emphasizes that there is no special forum privilege in cases concerning administrative impropriety.

Investigation Powers of the Federal Police

Scope of Investigation by the Federal Police

• The discussion begins with the assertion that any individual can be investigated by the Federal Police if they are suspected of committing a crime within its jurisdiction.

• It is emphasized that, regarding crimes under the purview of the Federal Police, anyone can be subject to investigation, although certain legal protections may apply based on their position or function.

• Clarification is made that the individual in question is not being judged for administrative misconduct (improbidade), but rather for criminal charges before the Supreme Court (STF).

• The speaker notes that questions about why a case has reached the STF instead of a lower court should be directed to an expert in criminal law, as it pertains specifically to penal law and democratic order violations.