In December 2020, the Federal Government issued the Anticorruption Plan which established initiatives supporting the fight against corruption that shall be implemented between 2020 and 2025. The Plan aims to structure and implement actions to improve, within the Federal Executive Branch, the mechanisms for prevention, detection, and accountability for corruption acts, improving the enforcement of anti-corruption legislation and compliance with international recommendations.
As part of the commemoration International Day of Fight Against Corruption held on December 09, 2021, the first anniversary of the Anticorruption Plan, the Federal Government disclosed the results of its first year of implementation. Initially, 84 actions to improve the mechanisms for prevention and accountability were foreseen to be implemented during the Plan’s first year. However, another 6 actions were included by CICC Resolution No. 3, of December 7, 2021, resulting in a total of 90 actions scheduled to be implemented in the first year of the Anti-Corruption Plan. During the presentation of the results, it was informed that 60 actions were implemented during this period, and, therefore, the remaining actions had their deadlines extended. Thus, the Federal Government has concluded a total of 67% of the actions planned for the first year and 39% of the actions planned for the entire Plan. Among the main initiatives that were implemented during the first year are the enactment of the Federal Decrees about the protection of whistleblowers who report illicit acts and irregularities committed against the public administration and about the disclosure of the agenda of public officials within the Federal Executive branch.
During the event, the Decree No. 10,889 and Decree No. 10,890 were signed as additional measures to reaffirm the Federal Government’s commitment to make the Government efficient in preventing, detecting, and holding accountable for corruption acts.
Decree No. 10,890 amended Decree No. 9,492 and Decree No. 10,153, establishing new rules in connection with the protection of whistleblowers who report illicit acts and irregularities committed against the public administration. Among the changes made, the one that deserve highlight is the attribution of capability to the Office of the Comptroller General (CGU) to (i) maintain the Integrated Report system and Information Access Platform – “Fala.BR” respecting the rules of confidentiality regarding the identity of whistleblowers; (ii) receive and investigate complaints regarding retaliation by public official against whistleblowers; (iii) suspend administrative acts practiced in retaliation to the report and (iv) edit administrative acts aiming to protect the whistleblower. In addition, the Decree maintained the provision that establishes that the whistleblowers will have their data and identities preserved until the end of the process and will only be revealed if needed to verify the report. Nevertheless, the Decree establishes that the Government bodies that have access to those data, will need to adopt measures to protect the data from being accessed by non-authorized persons.
On the other hand, Decree No. 10,889 provides for the disclosure of the agenda of public commitments and of the participation of public officials, within the Federal Executive branch, aiming to increase the transparency and to regulate the provisions of the Federal Law No. 12,813/13 regarding the matter. The main innovations established by the Decree include (i) the creation of the electronic system “E-Agendas”, which will be the main platform for the registration and disclosure of information related to the public commitments of public officials, with mandatory use by agencies and entities of the direct federal public administration, and optional use by state-owned companies and mixed capital companies – who have the obligation to disclose their agendas, but can use different systems to do it; (ii) the attribution of authority to manage and maintain the “E-Agendas” to the CGU; and (iii) the obligation of public officials to record and publish their participation in a public appointment.
According to the Decree 10,889, are considered public commitments the activities in which the public official participates due to his position, function or employment , including (a) public hearing; (b) events such as congress, seminars, conventions, courses, solemnities, forums, conferences and similar; (c) meeting (work meeting between the public official and one or more individuals that are not from the same public entity and that do not represent private interests); (d) hearing (appointment in which a public official participates and there are individuals representing private interests); and (e) internal order – meeting between public officials from the same body or entity.
In addition, the Decree 10,889 also provides for guidelines regarding the public official’s obligation to register the hospitality and gifts received from a private individual, and travels made in the exercise of his/her public functions, whose expenses are paid by a private individual as well as the procedures and limitations to receive gifts and hospitality from private agents. As a innovation, the Decree 10,989 establishes that regarding the receipt gifts, are considered items of low value the ones with amount lower than one percent of the salary ceiling for federal public officials.
Finally, the Decree 10,889 also provides the responsibility of public officials for the accuracy, completeness, and timely record and disclose of the provided information.
Notwithstanding, the provisions of Decree No. 10,889/2021 will not become enforceable at the same time. Two different periods of vacatio legis were established: a) Chapters II and III of the Decree, which have provisions related respectively to the e-Agendas System and the register and disclosure of agendas of public appointments, enter into force on October 9, 2022; and b) Chapter IV (related to the participation in hearings, public consultations and public hearings), Chapter V (related to the receipt and destination of gifts) and Chapter VI (related to the offering of hospitality by a private agent) in addition to the preliminary and final provisions came into effect on February 9, 2022.
For more information, please contact Saud Advogados.