In June 2022, the Office of the Comptroller General (CGU) launched its Conflict of Interests Treatment Manual, whose objective is to help teams from agencies and entities of the Federal Executive Branch to carry out the analysis of risks of conflict of interests in the context of consultations or requests for authorization for private activity related to doubts raised by public officials during the exercise of office or employment in the Federal Executive Branch. Notwithstanding, the Conflict of Interests Treatment Manual provides private agents with important guidelines and details regarding the configuration of conflicts of interest, expressed in the items of art. 5 of Law No. 12,813/2013, serving as a guide for private companies in the preparation of its policies of conflicts of interest with the public administration in Brazil.
Initially, the CGU Manual clarifies that the situations which characterize conflict of interests apply to public officials even if they are on leave or absent. Regarding the configuration of a conflict of interests due to the disclosure or use of privileged information (article 5, item I of Law No. 12,813/2013), the fact that the information was obtained by the public official due to the exercise of its public tasks does not, by itself, characterize an information as privileged. Furthermore, even if the duties of the public position or job held by the agent allow access to privileged information, it is necessary to ascertain whether the public official in question has access to such information in the exercise of his activities, as well as whether such information could, in practice, be used by the interested party, for its own benefit or that of third parties, in its private activity. If the answer to such questions is affirmative, the CGU Manual indicates, as a possible mitigation measure, the segregation of the use of this information from the exercise of the private activity in question.
Regarding the situation of conflict of interests that arises from the rendering of services or maintenance of a business relationship with a person who has an interest in a decision by a public official (article 5, item II of Law No. 12.813/2013), in order to fall under such classification it is necessary, preliminarily, to identify a business relationship or the rendering of service by a public official to a third party in the private sector, not being necessary, however, that it is remunerated. Then, it is verified if the public official, effectively, exerts any influence (control or contribution) in the decision process that may be of interest to the contracting person, being essential to qualify if its participation is decisive and/or relevant to the directions of this process, whether it occurs individually or collectively, also considering whether its performance is subject to higher levels of review or approval. Furthermore, it is verified whether the decision-making power in question is discretionary or whether it is linked to specific rules and procedures and whether the public official could refrain from participating in the decision-making process that may benefit his private counterpart, or if, by taking such an attitude, the performance of its public function or the interests of its public agency or entity could be put in jeopardy.
In relation to the risk of conflict of interests provided for in item III of art. 5 of Law No. 12,813/2013 related to the exercise of a private activity that is incompatible with the attributions of the public position or job, the incompatibility derives not only from the very nature of the private activity to be carried out, which, confronted with the attributions and competences arising from the exercise of public office or employment, normally generates a risk of irremediable conflict of interests, but also of the correlation between the private activity that the public official intends to develop and the area of action of his public employer, when this correlation can compromise the collective interest or the performance of public function. In this case, as the incompatibility comes from the very nature of the activity, and not from the circumstances of its exercise, it hardly admits mitigation.
Concerning the situation of conflict of interest that involves the performance of a public official as a representative of private interests with any public body or entity of the direct or indirect Public Administration (article 5, item IV of Law No. 12.813/2013), CGU points out that the conflict can only materialize itself in those public bodies and entities with which the public official has some kind of influence due to his/her functional condition (position), thus, prohibiting conducts that evidence favors due to prestige, respect or special relationship with work colleagues, in order to protect impersonality and morality throughout the Public Administration.
Regarding the risks of conflict of interests present in the practice of an act that benefits a legal entity in which the public official himself or his spouse, partner or relative participates (article 5, item V of Law No. 12.813/2013), the CGU Manual warns that there is not necessarily a conflict of interest if the act indiscriminately benefits a wide universe of legal entities that are in the same situation, including a company in which the public official or his relative participates. In this way, there must be deliberate interference by the public official in a management act, in order to benefit a certain legal entity in which he or a close relative participates. It is understood that there is “participation in the legal entity” when the public official or his/her relative is the owner (shareholder, quotaholder) or acts in the management (officer) of the legal entity. Such a risk of conflict of interests can be mitigated if the public official’s participation in the decision-making process in question is linked to specific pre-defined rules and procedures, is subject to review and/or control and approval instances, or if the public official can refrain from participating in decision-making processes of interest of the legal entity in question without harming the performance of its public function or the interests of its public body or entity.
Regarding the conflict of interest related to the receipt of gifts from those who have an interest in a decision (article 5, item VI of Law 12.813/13), the CGU’s Manual makes some important observations. As it is regulated by Decree No. 10,889, of December 9, 2021, for such a situation of conflict of interest to be characterized, it is necessary for the federal public official to receive a gift whose donor is a person who has interests in his or her decision or that of a collegiate body in which he/she holds a position. However, such prohibition does not apply to the receipt of freebies, which are characterized as items of low economic value – those whose estimated value is less than R$ 392.93 (amount currently equivalent to one percent of the remuneration ceiling provided for in item XI of the main section of article 37 of the Federal Constitution) – that are distributed in a generalized way to several people and not only to the public official, as a courtesy, advertising or usual propaganda. The prohibition on all public officials of the Federal Executive Branch in relation to receiving bribes, commissions, gifts or advantages of any kind, due to their attributions, is maintained, given what is exposed in item XII of art. 117 of Law No. 8,112/1990. Thus, regardless of whether the donor has an interest in the decision of the public official, if the gift was offered due to the attributions of the public office, its acceptance is prohibited by the rule in question. The CGU Manual emphasizes, however, that although this prohibition is sufficient to deny the public official the acceptance of the gift, it should not be used to characterize a situation of conflict of interests, under the terms of Law No. 12.813/2013, being an impediment of another nature.
Finally, in relation to situations of conflict of interests involving the rendering of services to a company controlled, supervised or regulated by the entity to which the public official is bound (article 5, item VII of Law No. 12,813/2013), the CGU Manual clarifies that the prohibition is restricted only to situations involving the rendering of services to companies, not applying to the rendering of services directed to other entities such as NGOs, associations and private foundations, unless such entities represent the interests of controlled, supervised or regulated companies, since in this case the public official would indirectly provide services to these companies.
CGU’s Manual also provides suggestions for basic questions to be answered in order to relate the specific case to each of the conflict of interest’s situations described in art. 5 of Law No. 12,813/2013, thus indicating, depending on the answer, the hypotheses that give rise to the existence of relevant conflicts of interest, as well as the possibility of mitigating these risks, if any. As a consequence, CGU´s Conflict of Interests Treatment Manual provides CGU guidelines to private agents for updating and implementing internal compliance policies on how to identify, predict and mitigate situations in which there is a possibility of conflict of interest involving public officials.
For more information, please contact Saud Advogados.