TERMO DE AJUSTAMENTO DE CONDUTA E O DEVER DE APURAR NO SISTEMA CORRECIONAL DO SERVIÇO PÚBLICO FEDERAL: UM ESTUDO DE EFETIVIDADE À LUZ DAS INOVAÇÕES LEGISLATIVAS INCLUÍDAS NA LINDB

Abstract

Accountability in the administrative sphere of federal public officials through the traditional Administrative Disciplinary Process (PAD), currently governed by Law No. 8,112 of 1990, has been showing signs of exhaustion and limited effectiveness due to its low operability, resulting in high rates of prescription of penalties, particularly those of minor offensive potential. This undermines its punitive and educational character, calling for an urgent modernization. In this regard, aiming to modernize and streamline the procedures for holding public officials accountable for minor offenses, the Comptroller General of the Union (CGU), in pursuit of consensus and efficiency, has been developing and refining since 2017 the Conduct Adjustment Agreement (TAC). The TAC consists of a commitment to adjust conduct through which the public official acknowledges the commission of a minor offense and enters into an agreement with the administration to correct the behavior, assuming the duty to fulfill certain obligations within a specified timeframe, with the aim of repairing or mitigating the harm and serving as a pedagogical tool to prevent future infractions. Since it applies only to cases of minor functional offenses, the evaluation of the server's conduct in the preliminary analysis of admissibility is crucial. It is through this evaluation that the competent authority, in a summary manner, assesses the seriousness of the conduct, essentially involving an interpretative activity. In this context, Federal Law No. 13,655/18 introduced new legal provisions and interpretative parameters in the Law of Introduction to Brazilian Legal Norms (LINDB) based on pragmatism and consequentialism, which decisively influence the application of public law and, consequently, the admissibility assessment. Thus, considering the inherent benefits of resolving conflicts through self-composition, the problem this study seeks to address is: Is the Conduct Adjustment Agreement (TAC) being effectively used in the federal public service? Therefore, this study examined the Conduct Adjustment Agreement and the duty to investigate in the correctional system of the federal public service and its effectiveness through the study of all specific cases in which the tool was effectively used in a particular federal agency, as well as a statistical analysis of the case load of the correctional unit of the federal agency used as a model to assess the potential use of the tool, in light of the legislative innovations included in the LINDB. To this objective, the methodology used consisted of descriptive research with a qualitative and quantitative approach for a critical analysis of the data collected through bibliographic and documentary research, employing a deductive method. As a result, this study found that over 50% of the functional offenses investigated by the correctional body of the studied federal agency are of minor offensive potential, suitable for resolution through the Conduct Adjustment Agreement (TAC). Furthermore, it was observed that of the administrative procedures for investigating functional offenses in which a TAC was proposed, 75% of them were accepted by the involved public officials, highlighting the great potential for using the tool in the correctional activity within the federal public service