O direito ao erro do administrador público no Brasil: contexto, fundamentos e parâmetros

Abstract

Public accountability is source of costs and benefits and it is important to avoid its overload. Brazilian public accountability is sometimes intolerant to errors committed by public managers. However, the commitment of an error is, in a certain way, inevitable. Most of the decisions taken by managers are directed to complex systems or environments permeated by risks and uncertainties. In addition, managers have a limited rationality, being unable to capture, understand and perfectly process the information made available. In Administrative Law, the error is defined as an unintentional unconformity between the reason on which the manager based his action and the factual or legal reality. The potential consequences of its commitment are the nullity of the acts issued by the State and the exclusion of the manager´s liability. The public manager´s lack of liability in case of an excusable mistake is based on the absence of guilty and the subjective nature of his liability. It is also justified by Article 28 of the Law of Introduction to the Norms of Brazilian Law, which restricts the public manager´s liability to the hypotheses of malice and gross error, as well as by constitutional principles of administrative efficiency and economy. The fear arising from errors intolerance brings serious damage to the manager's decision-making process. It discourages innovations and institutional experimentalism, impairs risk management, postpones administrative decisions beyond their optimum time, and keeps good professionals away from public sector. Standards related to manager s liability due to errors committed must be interpreted in a restrictive and retrospective manner. They must also consider the objective peculiarities of the case and the specific requirements of the position held. The first standard is the attendance to a minimum degree of diligence, which is influenced by the urgency and relevance of the decision to be made and by the existence of material obstacles to obtain information. The second is the specific requirements of the position held. The further the error from the knowledge required, the greater the legal tolerance to errors. The third standard is the degree of uncertainty involved in the decision. The more intense, the greater the error legal tolerance must be. The fourth and last standard is the degree of adherence of the choice made in relation to the data collected. The more coherent the decision is in relation to the information obtained, the greater should also be the tolerance to mistakes.