Conflict of Interest Law completes 10 years with gaps – 02/13/2023 – Power

Find out if you can become an employee of a private company or act as a private consultant in the same area in which you made your career in the public service or even become a partner in a private business.

These three questions top the list of questions when federal public servants or employees seek information with the intention of migrating from the government to the private sector, respecting Law 12,813/2013, also known as the Conflict of Interests Law.

In July, the law completes ten years, and the search for boundaries between public and private, portrayed by these consultations, is interpreted as one of the gains of the legislation.

During this period, workers would have incorporated the concern of not transiting in any way through the so-called revolving door, the coming and going from one sector to another, and vice versa, with leaks of privileged information, gains for individuals and their companies, to the detriment of of the public interest.

“From the perspective of the consultations, we have indications that there is concern in following the law, which is very positive”, says Minister Vinícius Marques de Carvalho, of the CGU (Controladoria Geral da União).

The CGU is one of the law enforcement agencies. But she shares responsibility with the Public Ethics Commission of the Presidency of the Republic.

The commission is responsible for monitoring the risk of conflict of interest at the top of the federal service pyramid, which includes workers from DAS 5 (Superior Management and Advisory Level 5) upwards, as well as ministers, secretaries, presidents of state-owned companies. The CGU takes care of the cases of the other workers.

The assessment, however, is that some points of regulation need to advance. In a broad sense, the law, for example, only covers the sphere of the Executive. Does not include judiciary or states. Within its scope, there are also gaps.

Former commission counselor Erick Vidigal claims that the law has already built a good legacy, but it would be more effective if its text minimally regulated some issues relating to the commission. In 2020, he resigned from the commission after publicly questioning the lack of transparency of the work.

The term of office of counselors, for example, is not defined in the law, but only in the bylaws. Thus, the president can change the members if he deems necessary. President Luiz Inácio Lula da Silva (PT) has just replaced three advisers appointed by his predecessor, Jair Bolsonaro (PL).

From the political point of view, this lack of definition can weaken the occupants of the position in a discussion that displeases the President of the Republic and also open space for interference in decisions or alignment between the commission and the Executive.

Survey carried out by Sheet in 2021 indicated the existence of this risk. It showed that members of the Ministry of Economy, the Central Bank and federal banks were achieving an increasing number of favorable decisions during the Bolsonaro government.

In 2018 and 2019, pro-economic team decisions were no more than 39% of the total. In 2019, the index rose to 73%, reaching 84% in 2020.

The law also does not define parameters of transparency for the commission’s activities. How, if and when its decisions will be disclosed to society depend on who occupies the presidency of the body. There is no external control over the distribution of processes.

One of Vidigal’s criticisms, before leaving the body, dealt precisely with the lack of definition about how the rapporteur of the process that evaluated the conduct of former Minister of Justice Sérgio Moro had been chosen.

The law also leaves open the criteria for defining who should or should not be entitled to a six-month paid quarantine, explains Vidigal.

“In practice, several public agents began to earn paid vacations, due to decisions that recognized a potential conflict of interests. There were cases of quarantine even for public servants who returned to their positions, where they should already maintain the duty of secrecy.”

Recently, the release for ministers to assume positions in large companies without going through quarantine has also generated debate. The position of minister is considered one of the most sensitive, given the volume of information they can accumulate, and quarantine is recommended for them.

Bruno Bianco, former Attorney General of the Union, and Fábio Faria, former Minister of Communications, for example, accepted an invitation from BTG released from quarantine.

The bank operates in different business segments, including fiber optics, a topic followed by Faria in the government. Marcelo Sampaio, former Minister of Infrastructure, goes to Vale, owner of railways and ports, also without quarantine.

According to Raquel Pimenta, a professor at FGV Direito who researches anti-corruption and conflict of interest, the quarantine discussion is one of the most sensitive items in the public ethics debate.

“The construction of legislation on conflict of interest is gradual in Brazil, and it deals with how to enter the public service, how to perform the function and also the exit”, he explains.

“This part of the exit is very delicate because it is necessary to find a balance between work in the private sector, freedom of employment and restrictions to preserve the public interest. dedicated and competent people.”

Part of the functions of the CGU have not yet been fully regulated by law, explains Minister Carvalho.

“The debate on the definition of how agents submit themselves to the CGU is something that is still quite broad. This has never been regulated. There is no decree that establishes how the CGU will act. It is a debate that needs to be held”, he says.

Anyone who takes on a position in the federal government from DAS 5 upwards, for example, needs to declare a conflict of interest and eventually even consult the Ethics Commission.

“It’s as if there was prior control, but it is restricted to a limited number of people. All the rest of the Esplanada do Ministério is without prior control”, says Carvalho.

There are also still gaps in the management of daily work, when numerous delicate situations can occur.

Another example: a civil servant works at the ANM (National Mining Agency) and his brother gets a job at a mining company regulated by the agency. It would be best if he communicated the potential risk. But there is no way to monitor something like that.

“In fact, it is a difficult control here anywhere in the world, which is a matter of discussion even in private companies, which are concerned with the reputational risk and, in some cases, with the corruption that this can generate”, says Carvalho.

“That’s why there are investments in the self-declaration and consultation systems, so that people feel limited by the values ​​that the law wants to convey.”

Currently, queries on sensitive topics can be made through the SeCI (Electronic System for the Prevention of Conflicts of Interest).

Created and monitored by the CGU, it is one of the tools that were instituted to make law enforcement feasible. Duly organized, consultations also serve as a database to measure how the law advances.