The Liability of the Delegator for the act of Delegate in the Inspection Government Agencies: gross error, guilt in vigilando and guilt in eligendo as parameters of accountability

erro grosseiro, culpa in vigilando e culpa in eligendo como parâmetros da responsabilização

Abstract

The management administration model has led to the urgent need to deconcentrate the responsibilities of the public machine, through delegations of competences, with a view to obtaining efficiency. However, the absence of reliable parameters in legislation and jurisprudence generated legal uncertainty for public managers, which became part of the so-called "administrative law of fear", with the consequent jamming of the progress aimed by the new management model. Many public managers were held responsible only because they delegated competences, without having caused, even if culpably, the illicit practices. The modifications promoted in the Federal Law 13.655/2018 (Introductory Law to the Norms of Brazilian Law), regulated by Federal Decree 9,830/2019, brought to the jurisprudence of the government inspection agencies clearer parameters of accountability of the delegator for acts of the delegates. It was possible to evidence a laudatory evolution in the judgments that began to guarantee legal certainty from the legal meaning of gross error, guilt in vigilando and guilt in eligendo, in order to guarantee adequate and reasonable penalties only to those who in fact share the responsibility for illegal and harmful practices to the public interest. The guilt in vigilando, whose configuration began to require intent or gross error – legally defined as that manifest, evident and inexcusable grave negligence -, was delineated as omission in the duty of supervision of the acts of the delegated agent by the delegator. In turn, guilt in eligendo was characterized as the choice of inappropriate and unprepared people to perform a certain task through the delegation of competence.