Da condenação por ato de improbidade administrativa: uma análise sobre (im) possibilidade de manutenção do Prefeito no cargo após suspensão dos direitos políticos.

Abstract

Nepotism violates the constitutional principles of morality and impersonality, and may constitute an act of administrative improbity provided for in Law n.º 8.429/92. Among the applicable sanctions there is the suspension of political rights, whose implementation restricts the right to vote and be voted. Considering that the elective mandate is given to those who are in full enjoyment of political rights, it is asked: is it possible for the mayor to remain in office after the definitive condemnation of the suspension of political rights for an act of administrative impropriety? This research is justified by the losses caused to the public management and to the citizens due to the legal insecurity and instability of the judicial decisions. The present work seeks to analyze the legal basis that allowed the continuation of the elective term of the Mayor of Aparecida-PB, after the definitive condemnation to the suspension of political rights for an act of administrative improbity. Its specific objectives are to identify the constituent elements of the unlawful act and the applicability of Law n.º 8.429/92 to political agents; understand the practice of nepotism in Public Administration and the Mayor's accountability; and to study the positions of the Courts on the possibility of retaining the unlawful agent in office. For that, the deductive approach method is used, through a qualitative analysis, starting from a general study of the acts of administrative improbity until the analysis of Public Civil Action nº 0004535-15.2012.815.0371. The research technique is classified as exploratory, based on bibliographic literature and legal documents. The procedural methods used were historical-evolutionary and exegetical-legal, based on the relevant legislation and jurisprudence. The eminently majority understanding indicates the loss of public service as a logical consequence of the suspension of political rights, due to the absence of eligibility conditions. In the case of the municipal manager of Aparecida-PB, it appears that the loss of the elective mandate would be disproportionate to the unreasonable act practiced, and that the judgment quo could not innovate in compliance with the sentence to apply a penalty not imposed in the decision. The judge's intention, in this case, was to prevent the practice of future acts whose requirement is the exercise of political rights. Therefore, considering the divergences regarding the effectiveness of the sanctions, it is necessary to standardize the real scope of the sanction to suspend political rights.