Regime jurídico dos instrumentos consensuais no sistema disciplinar do estado de São Paulorazões, instrumentos e perspectivas

Resumo

The scope of this work is to analyze the introduction of consensus in administrative disciplinary processes in the State of São Paulo, a task that demands the accomplishment of a historical record on how consensus entered the system through the normative reform of São Paulo State, presenting the consensual instruments created by the Complementary Law number 1,361, dated of October 21st, 2021 and its legal regimes. Therefore, it will be important to contextualize this new consensual pattern in administrative disciplinary processes in view of the existing legislation, especially for the purpose of identifying other consensual instruments and the rationality of legality for practical use in administrative disciplinary processes (PADs) in the State of São Paulo, which will allow to present recommendations for conduct so that there is an effective application of consensus in the referred processes, overcoming the dogma of strict legality and seeking the improvement in the normative disciplinary pattern. The prediction of consensual mechanisms in the São Paulo disciplinary system comes from discovering that the exclusively sanctioning solution is no longer adequate to solve all existing conflicts between the Public Administration and its servers, which brings the need to rethink the system, with the implementation of new consensual and complementary tools against the imposition of sanctions. These new instruments improve enforcement and allow the public manager to find the most appropriate solution to their conflict, especially for infractions with less harmful potential. Although there were already provisions for consensual instruments in infra-legal norms by other federated entities, it was with the implementation of the Complementary Law number 1,361/2021, that the State of São Paulo began to make substitute agreements with its servants in disciplinary proceedings, but not without relevant legal doubts and the challenge of optimizing the use of these instruments and others provided by the legislation. Therefore, this dissertation examines the new consensual instruments provided by the Complementary Law number 1,361/2021 (self-composition practices, term of conduct adjustment and conditional suspension of the investigation), considering its legal regime and practical use in disciplinary proceedings, with concrete examples. From this analysis, it will be possible to catalog the main bottlenecks to the effective introduction of consensus in the disciplinary area and propose conduct recommendations for greater effectiveness of the instruments provided by the Complementary Law number 1,361/2021, taking advantage of other agreements provided by law and even the regulatory reform of the public disciplinary system in the State of São Paulo. Taking that into consideration, the work suggests a normative draft containing the provision of 9 a new mechanism for the celebration of collaborative agreements for more serious infractions: the Disciplinary Non-Pursuit Agreement.

Ficha do documento

Tipo

Dissertação

Ano

2022

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/32830

Temas

Administração Pública

Palavras-chave

Administrative disciplinary process in the State of São PauloConsensusSubstitute AgreementsDisciplinary non-pursuit agreementProcesso administrativo disciplinar no Estado de São PauloConsensualidadeAcordos substitutivosAcordo de não persecução disciplinarDireitoProcesso administrativo - São Paulo (Estado)Organização judiciáriaContratos consensuaisAdministração públicaSão Paulo (Estado). [Lei n. 1.361, de 21 de outubro de 2021].