Interview: Commission must explain ministers without quarantine – 02/14/2023 – Power

Even due to the lack of transparency in recent years, it is not possible to say that the Public Ethics Commission unlocked the so-called revolving door for authorities to move freely between the public and private sectors, but it is certain that it now has the opportunity to clarify the decisions identified as dubious. The assessment is by lawyer Mauro Menezes, former president of the control body.

Linked to the Presidency of the Republic, the commission was created in 1999 to prevent and punish cases of conflict of interest, in addition to recommending punishments for deviations committed by high-ranking public servants, especially ministers and secretaries.

“We are identifying a malaise related to the revolving door and the application of the Conflict of Interests Law”, says Menezes.

It caused strangeness, for example, that ministers of Bolsonarist management were released to occupy positions in private companies without exercising the quarantine, the six-month paid rest that seeks to prevent authorities from sharing strategic government information with new employers.

Bruno Bianco, former Attorney General of the Union, and Fábio Faria, former Minister of Communications, accepted invitations from BTG. 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, which owns railways and ports.

“The Ethics Commission will have the mission of promoting a careful analysis, case by case, and verifying if there were distortions and vices, promoting the necessary corrections and rendering accounts to society”, says Menezes.

At the turn of the presidential term, the Public Ethics Commission made decisions that fueled debates. It granted a large number of paid quarantines while freeing up ministers to go directly to the private sector. Mr. Do you consider atypical decisions? It is the commission’s jurisprudence to grant quarantine without presenting a job proposal in notorious cases, such as that of Minister of Finance and president of the Central Bank. There is no charge in this instance that they seek proposals from a financial institution, for example, so that they can enjoy the quarantine. Quarantine is a result of this sphere of responsibility.

Now, if you talk to me about a DAS 5 or 6 (Superior Management and Advisory Level 5 and 6, higher positions of trust), in most cases, the applicant is expected to bring evidence that he was invited to work in a certain role in a private company; and any conflict will be evaluated.

In the case of releasing ministers from quarantine, there is greater attention, and it seems to me that they generate more tension.

In fact, it is necessary to verify how the processes in which a financial institution hires two ministers who are not even from the financial area were handled. In the same way, it is also necessary to see how an infrastructure minister goes to a corporation like Vale without complying with quarantine.

Nobody is saying that they cannot work in these institutions. They can. However, law 12,813 provides for a six-month quarantine for sensitive cases. A minister has information that could result in economic-financial gain and public procurement opportunities immediately after leaving. After six months, everything changes a lot, and this is no longer such an important value.

In short, I would need to look at it on a case-by-case basis to make a judgement. Open the envelope and look at the vote, as it needs to be made available after the consultation process. But, in principle, I do not see atypicality.

Why is this information not public? Once the process is completed, it is public under the Freedom of Information Act.

But they are not available on the Commission’s website, for example. Can be sued. According to a device in the commission’s bylaws, the processes are confidential while they are being processed. During the procedure, before, the Commission disclosed the progress —the rapporteur of the case is so-and-so, the date of the trial is such-and-such.

Once the process ends, there is no impediment to access.

The commission also used to release the remaining vote. It contains the grounds for the decision. To preserve some intimate circumstance, of a private or commercial nature, a stripe was used in these sensitive passages.

Those who follow this topic say that the Ethics Committee has become less transparent in recent years, for different reasons, but also because it has reduced the disclosure of information such as that that you have mentioned. mentioned. Do you agree with this perception? There was, in fact, a change in the way the Commission views the issue of transparency and, consequently, the publicity of its decisions. At the beginning, he was a little too sober. In the last decade, starting in 2012, it has experienced greater openness, committed itself to social examination, often through analyzes made even by the press.

The Ethics Committee has the purpose and the obligation to cast an ethical eye on public activity and its relations with the private sector. It acted as a check and balance. In the government of Dilma Rousseff, ministers received sanctions, were compelled to leave their positions. In the government of Michel Temer as well.

The Bolsonaro government, in several respects, has weakened the tools of control. Questions of public ethics, many of them raised by the press itself, were neglected. The news is full of examples. Thus, the commission submerged and little dialogue with society for the fulfillment of its role.

Lack of data does not allow comparisons to be made over time, such as whether the number of quarantine releases has increased or decreased. However, those who follow the theme assess that there was a kind of “general release” in the Bolsonaro government. Mr. do you agree? I have no elements to say that there has been a greater number of concessions without criteria. I do not see this phenomenon. I have already been on the commission and I can say that it needs to enforce the quarantine. Properly imposed, it is not a benefit due to the fact that there is a compensatory remuneration, but a protection of information that may generate conflict of interest in the private sector.

I reinforce this because the release of the quarantine not only for ministers, as it is now, but even for other levels, drew attention. Citing a well-known public example, Diogo Mac Cord left as Special Secretary for Privatization of the Ministry of Economy and the following day became a partner of the EY consultancy, authorized by the commission. So it is. Therefore, it is necessary to open up the content of decisions. We have situations that jump out at the eyes.

You followed what happened with the Freedom of Information Act. Cases of secrecy multiplied, which reduced transparency. I participated in the government transition as rapporteur for the working group on transparency, integrity and control. The coordinator was the current Minister Jorge Messias [Advocacia-Geral da União].

There was widespread uneasiness about secrecy. The transition group prepared a work that was used by the CGU [Controladoria-Geral da União]. A few days ago, the chief minister of the CGU released a list of 12 criteria for re-examining these secrets, as well as possible impositions of new secrets. Based on them, they identified more than 200 cases in which secrecy was outside these criteria. There will be a case-by-case analysis and eventual disclosure.

This goes for the Public Ethics Commission.

We are identifying a malaise related to the revolving door and the application of the Conflict of Interests Act. There would be two addictions, in two different poles. Authorities, with high potential for holding privileged information, would have been released to work in sensitive sectors. But they also question the granting of quarantines to authorities that would not need it, with the inadequate release of compensatory remuneration and unnecessary burden on the treasury.

The Ethics Commission will have the mission, as happened at the CGU in relation to the Access to Information Law, to promote a careful analysis, case by case, and verify if there were distortions and vices, promote the necessary corrections and render accounts the society.

Following the case of the ministers, Lula replaced three advisers who, according to the regiment —not the law— have a three-year mandate. What is your assessment of this gesture? I don’t think there is a cause and effect relationship there. There are incompatibilities. Fábio Prieto was on the commission and took over, in January, as secretary of Justice and Citizenship for the state of São Paulo — a position trusted by the governor in another unit of the federation. It seems to me incompatible that he accumulate functions. It is a federal restriction.

The Public Ethics Commission is governed by Decree 6029, which regulates the ethics management system. Although in the third article it says that the members have a mandate of three years, in the tenth article, it considers impartiality and independence indispensable for the exercise of the function. As secretary of the state of São Paulo, Prieto no longer holds the impartiality for the function.

Furthermore, the mandate of the members of the commission has no basis in law, if not in this decree and in another. Therefore, there is no vested right arising from the law. His dismissal was a logical and legally justified act.

Former Presidents of the Republic have a staff of advisors who take care of their day to day, who provide institutional support and are subordinated to the authority of that former President. João Henrique Nascimento was appointed in December as Bolsonaro’s adviser.

It is evident that, in this position, he cannot act as a member of a commission that controls the conduct of the members of the newly elected government. I even presume that this was done with the intention of promoting a kind of long manus of a government that closes on a government that is inaugurated.

Célio Faria Júnior was former president Bolsonaro’s chief of staff. When he was appointed to the commission, he held the position of chief minister of the Government Secretariat, right there in the Planalto Palace. His nomination was already vitiated in the death throes of the government. A Minister in office cannot be appointed to a role which controls the conduct of all other Ministers of State.

That was an aberration from a legal point of view and aimed, once again, at distorting the exempt character of the commission.

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X-RAY | Mauro Menezes, 56

Graduated in law from UFBA (Federal University of Bahia), master in the area from UFPE (Federal University of Pernambuco) and doctor in legal and political sciences from Pablo de Olavide University, in Seville, Spain. He was a visiting professor at the University of Castilla-La Mancha (Spain). He served as advisor and also chairman of the Public Ethics Commission, and was a member of the Public Transparency Council. Currently he is general director of Mauro Menezes & Advogados