Brazil’s 1992 Administrative Improbity Law, which authorized severe sanctions on government agents who commit “acts against the public administration,” was the first Brazilian statute specifically targeted at government corruption. Last year, Brazil adopted extensive amendments to this law, many of which were controversial. In a recent post, I criticized the amendment that reduced the number of institutions responsible for enforcing the Improbity Law. But other controversial amendments to the law are, in my view, positive developments. In particular, I want to defend two other amendments that critics have asserted weaken the law:
- First, under the original version of the Improbity Law, a public official could be sanctioned for negligent behavior that caused damage to the public treasury. Under the amended version of the law, only intentional acts can be considered administrative improbity punishable under this statute.
- Second, the original version of the law listed ten forms of administrative misconduct that would constitute “violations of the principles of public administration,” but, importantly, that list was not exclusive. Rather, the listed forms of misconduct were presented only as examples. This meant that law enforcers could, and often did, bring an action under the Improbity Law for conduct that, in the enforcer’s view, violated a “principle of public administration,” such as morality and equity, even if the particular form of alleged improbity was not included as one of the specifically listed forms of misconduct in the statute. The amended law constrains enforcement discretion by establishing a well-defined and restricted list of acts that qualify as violations of the principles of public administration.
Critics, including many anticorruption advocates, assert that these changes unduly narrow the scope of the law, thereby undermining one of Brazil’s most important anticorruption instruments. These concerns, while understandable, are misplaced: Both of the above amendments improve the law by ensuring that it is administered fairly and used to target serious corrupt acts, rather than being wielded as a political weapon to punish partisan adversaries for good-faith mistakes.
Consider first the addition of a requirement that administrative improbity offenses must be intentional rather than negligent. Critics argue that this change will make it too difficult to prove misconduct—because intent is harder to prove than negligence—thus weakening the law’s deterrent effect. The problem, though, is that under the previous version of the law, public officials could be, and often were, sanctioned for administrative mistakes and other minor misconduct that could not plausibly be characterized as corruption. Treating all such mistakes as “improbity” was counterproductive, wasting resources on costly lawsuits involving minor cases, and often leading to the imposition of unfairly harsh sanctions on government officials who made administrative errors but who did not seek to enrich themselves or otherwise behave dishonestly. This severe approach is especially inappropriate in a country like Brazil, where many government entities, especially at the local level, have limited resources and lack specialized personnel. In this environment, administrative mistakes are relatively common, and often result from lack of legal and management knowledge rather than bad faith or serious malfeasance.
Moreover, the waste of resources on Administrative Improbity cases that do not involve corruption is not costless. According to an official report released last year by the Brazilian Judiciary, barely more than a third of the 177,921 administrative improbity suits filed up to 2018 have been resolved. Judicial and prosecutorial resources should be targeted on cases of actual corruption, not dissipated on cases that involve mere mismanagement. (it’s also worth noting that this amendment to the Administrative Improbity Law does not mean that negligent public officials won’t face any sanctions. Depending on the circumstances, a negligent official might still face disciplinary action under the Civil Servants’ Statute, and there are other judicial mechanisms for ordering restitution for damages to the public treasury.)
As for the amendment narrowing the scope of administrative improbity offenses to a list of specifically enumerated forms of misconduct, here critics worry that depriving law enforcers of the flexibility to go after new and perhaps unforeseen forms of misconduct will limit the law’s effectiveness. That argument might sound plausible in the abstract, but Brazil’s experience under the original version of the Administrative Improbity Law has highlighted the price of giving law enforcers such flexibility. Law enforcers can, and unfortunately do, use this discretion for purposes other than fighting corruption—such as harming political adversaries or punishing minor misconduct that could be addressed through administrative disciplinary actions. A recent study of Superior Court of Justice decisions found that over half of administrative improbity suits filed against mayors between 2005 and 2018 were for unspecified “acts against the principles of public administration,” a figure that suggests that, rather than using the law’s flexibility to go after novel and unforeseen forms of misconduct, law enforcement bodies have instead been using the open-ended prohibition on “acts against the principles of public administration” as a license to go after government officials who could not credibly be accused of specific forms of misconduct. Limiting the application of the Improbity Law to a list of punishable conduct will allow a more rational use of the punitive power of the law, prevent abuses, and provide legal certainty.
For these reasons, these two amendments to the Administrative Improbity Law are welcome changes. While it is understandable that anticorruption advocates would be worried about any changes that limit the scope of this important law, these particular restrictions will increase the law’s overall effectiveness by ensuring that scarce enforcement resources will be targeted toward the investigation and prosecution of actual corruption cases.