Administrative Improbity: Changes Under Law 14.230/2021

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

Law 14.230/2021 profoundly reformed the administrative improbity regime in Brazil. Here are the main changes and how they affect public employees and public managers.

The new administrative improbity regime

Law 14.230/2021 substantially amended Law 8.429/1992, which governs acts of administrative improbity (improbidade administrativa, a form of misconduct in public office). The reform is considered the most significant on the subject since the original law was enacted. It changed fundamental aspects of the regime: the mental element required to establish improbity, the statute of limitations, who has standing to bring the action, and the applicable penalties.

The reform’s most important change was the elimination of negligent improbity. Before Law 14.230/2021, acts that caused loss to the public treasury could be punished even when committed without intent, as long as the official had been negligent, reckless, or lacked the necessary skill. Under the new law, every type of improbity requires intent (dolo), meaning the conscious will to commit the unlawful act.

In Theme 1199 of general repercussion (repercussão geral, the mechanism by which the court sets a binding precedent on issues of broad national importance), Brazil’s Supreme Federal Court upheld the constitutionality of requiring intent for all types of improbity, including acts that cause loss to the public treasury. That decision cemented the reform and ended the debate over whether negligent improbity could exist in Brazilian law.

The reform also changed the concept of intent for purposes of improbity, defining it as the free and conscious will to bring about the unlawful result described in the statute. The official’s intent must be proven. It is not enough that the conduct was voluntary. This definition significantly narrows the reach of improbity actions.

The three types of improbity and their penalties

Law 8.429/1992, as amended by Law 14.230/2021, retains three categories of administrative improbity: unlawful enrichment (article 9), loss to the public treasury (article 10), and violation of the principles of public administration (article 11). The penalties for each category are proportional to its seriousness.

Unlawful enrichment occurs when a public official obtains an improper financial advantage, for himself or herself or for someone else, by virtue of holding a position, mandate, function, job, or public activity. Penalties include forfeiture of the assets or amounts unlawfully added to the official’s estate, loss of public office, suspension of political rights for up to 14 years, a fine equal to the amount of the increase in assets, and a ban on contracting with the government for up to 14 years.

Loss to the public treasury occurs when an official’s intentional act or omission damages public property. Penalties are forfeiture of the assets or amounts unlawfully added to the official’s estate, loss of public office, suspension of political rights for up to 12 years, a fine equal to the amount of the damage, and a ban on contracting with the government for up to 12 years.

Law 14.230/2021 eliminated negligent administrative improbity: without proven intent, the act is no longer improbity.

Violation of the principles of public administration, the least serious type, occurs when an official intentionally acts or fails to act in a way that undermines the principles of legality, impersonality, morality, publicity, and efficiency. Penalties include a civil fine of up to 24 times the official’s compensation and a ban on contracting with the government for up to four years. After the reform, loss of public office and suspension of political rights no longer apply to this type.

Statute of limitations and key procedural points

Law 14.230/2021 significantly changed the statute of limitations for administrative improbity actions. The limitations period is now eight years, counted from the date the act occurred or, for continuing offenses, from the day the offense ended. The earlier law set varying periods tied to the end of the official’s term or time in office.

The reform also introduced intercurrent limitations (prescrição intercorrente), which runs out when an improbity case sits idle for more than four years. This change aims to keep improbity cases from dragging on indefinitely and creating legal uncertainty for everyone involved.

The STF (Brazil’s Supreme Federal Court) has held that the new improbity law applies retroactively in defendants’ favor, wherever it is more favorable to them. As a result, cases based on negligent improbity that were pending have been dismissed, and the new limitations periods benefit officials who had not yet received a final conviction.

Another important procedural change was the removal of the Public Prosecutor’s Office’s (Ministério Público) authority to enter into a civil non-prosecution agreement without the consent of the injured public entity. Law 14.230/2021 also gave the Public Prosecutor’s Office exclusive standing to file the improbity action, removing that option from the public-law entities concerned.

Defending public officials in improbity cases

Defending an administrative improbity action requires a carefully developed technical strategy, especially after the recent legislative reform. The first point to examine is the mental element: the action must show that the official acted with specific intent, not merely with fault or negligence. Failure to prove intent is grounds for dismissing the action or acquitting the defendant.

The statute of limitations is another important line of defense. The attorney must check whether the eight-year period has already run since the act was committed, or whether intercurrent limitations has run because the case sat idle for more than four years. The STF’s decision guarantees retroactive application of the more favorable periods.

The type of conduct must also be examined. Law 14.230/2021 narrowed the types of improbity, requiring a precise match between the official’s conduct and the situations the statute describes. Conduct that was previously considered improbity may no longer fit the statutory definition after the reform.

If you are facing an administrative improbity action, or have received notice from the Public Prosecutor’s Office of an investigation in this area, seek specialized legal counsel immediately. A defense handled by attorneys experienced in administrative law is essential to ensure that current legislation is applied correctly and your rights are protected.

Frequently Asked Questions

Can a public manager who makes an unintentional mistake be held liable for improbity?

Under Law 14.230/2021, a manager who makes a mistake without intent cannot be held liable for administrative improbity. The reform eliminated negligent improbity and requires proof that the official acted with the conscious will to commit the unlawful act. Mistakes caused by negligence or inexperience may lead to other forms of liability, such as administrative or civil liability, but they are not improbity.

Were improbity cases already pending before the reform affected?

The STF has held that the more favorable provisions of Law 14.230/2021 apply retroactively to pending cases. Actions based solely on negligent conduct must be dismissed. The new limitations periods benefit defendants in cases that have not yet concluded. However, the more burdensome provisions, such as the increase in some penalties, do not apply retroactively to the official’s detriment.

What is a civil non-prosecution agreement in improbity cases?

A civil non-prosecution agreement (acordo de não persecução civil) is a tool introduced by Law 14.230/2021 that allows the Public Prosecutor’s Office to enter into an agreement with an official who is under investigation or being sued for improbity. Under the agreement, the official commits to repay the damage, pay a fine, and meet other obligations, which avoids continuing the lawsuit. The agreement requires the consent of the injured public entity and must be approved by the court.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.