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In 2016, at the beginning of the Michel Temer administration, Fábio Medina Osório was appointed Attorney-General of Brazil. In that capacity, he helped structure the transition and the beginning of Michel Temer’s government. In this article, originally published on the Conjur portal, Fábio Medina Osório talks about his term as the head of the Federal Attorney General´s Office.
Our term at the Attorney General´s Office (AGO) was centered on the pursuit to consolidate the AGO as a State body, prioritizing its institutional character and strict compliance with its constitutional and legal contours. In this regard, during our term, President Michel Temer never used the Office to defend his personal interests and never interfered or tried to interfere in the institution. For the purposes of transparency, I must register that our departure from the government was marked by political grievances and divergences with another Minister of State regarding the AGO´s role in the collection of funds to reimburse the treasury for losses. Nonetheless, our excellent relationship with President Michel Temer, whom I deeply admire and respect, was preserved.
Essentially, I established two main management goals, which were to improve the Office´s institutional performance and strengthen its structure, which includes the careers it comprises and the respective administrative framework.
Regarding the AGO´s concrete achievements during my administration, the restructuring and empowerment of the Federal Chamber of Conciliation and Arbitration (CCAF) was noteworthy and promoted the culture of conciliation and the realization of numerous agreements. In this scope, I would like to highlight the authorization to make agreements with individuals, which was essential for the resolution of conflicts with federal civil servants and retirees and pensioners from the INSS (Brazilian Social Security System). Also very important was the referral of a draft norm regulating Law 13.140/2015 (mediation), after in-depth analysis by the AGO’s technical staff.
Other important measures were the filing of misconduct lawsuits and the restructuring of the group for combating corruption and misconduct. The former were claims filed against companies and individuals investigated in the scope of Operation Lava Jato, which were vigorously presented by the AGO, with international repercussions, to independently collect funds to compensate the losses to the public treasury. At the present time, with the recent recognition by the Federal Supreme Court of the active legitimacy of public attorneys, and especially federal prosecutors, to present misconduct claims (Direct Actions of Unconstitutionality no. 7042 and 7043), the initiative by the Attorney General´s Office at that time becomes even more significant, especially in view of the large sums involved.
Also with regard to institutional performance, we sought to constantly follow up on major cases involving the Federal Government in the Superior Courts and other judicial jurisdictions, thus considered those with great economic or social repercussion or with a multiplying effect, as is the case of GEAP pension funds (alterations in its bylaws that resulted in financial impacts on GEAP’s funding rules). Likewise, the follow-up of the cases before the Federal Court of Accounts (Brazilian Federal Audit Court) was increased, through hearings with the Judges, presentation of briefs and oral arguments in the court´s judgement sessions. The AGO had an important participation in the inter-ministerial group created for the 2016 Olympics in Brazil, which included judicial and advisory actions. In general, this form of action has effectively improved the defense of the Union’s interests, which took on a combative and proactive character.
It is also worth mentioning the effective participation of the AGO in the working group that analyzed the new legal framework for leniency agreements, especially with regard to contemplating the performance of the various competent agents in this area (Court of Accounts -TCU, Public Prosecutor´s Office – MPF, Attorney General´s Office – AGO and the Ministry of Transparency at the time). And we cannot forget the largest leniency agreement made in the country, involving SBM Offshore, with decisive participation of the AGO, which unfortunately was not ratified by the Federal Public Prosecutor’s Office at the time, but ended up being materialized later on under another administration.
Regarding the structuring of the AGO, the major milestone was the intense and decisive action for the approval of Law 13,327, of July 29, 2016, which provided for attorney fees for members of legal careers in the federal level. It is important to note that such action not only succeeded in recognizing this right for retirees, who were excluded from the original project, but also avoided the presidential veto through legal analysis that demonstrated that the fee does not have the nature of a public revenue, but rather of an income, and, therefore, is not subject to the same budgetary limitations as the former. To achieve the approval of this law, I engendered special efforts, including hearings with the bill’s rapporteur and many other senators in Parliament, seeking to explain the just character and relevance of the bill, which was approved and sanctioned, with payment of fees to all members of the legal careers as of August 2016. The work that began under the administration of Justice Luís Inácio Lucena Adams was thus successfully concluded, with the awarding of this very important right to members of the public legal careers at the federal level. This was a fundamental goal of our term, encouraged from the start by the Class Associations that were our partners in this effort.
Another decisive achievement in our administration was maintaining the Attorney General´s status of minister. When we took office, there was an unequivocal political will from Minister Eliseu Padilha in the sense of suppressing the AG´s minister status, but maintaining the special jurisdiction for prerogative of function. However, after our studies, we concluded that the suppression of the Minister status would be incompatible with the maintenance of the special jurisdiction. On the other hand, we sustained that the special jurisdiction is essential to the legal security and tranquility of the work performed by the Attorney General. In this context, we opposed any change in the AG´s status as minister. At the beginning of the government, however, we faced a number of problems as a result of this political clash, including in official events, when the Attorney General was often not treated as a minister, by order from the then Chief of Staff, Minister Eliseu Padilha.
Another essential achievement for the Attorney General´s Office was the substantial budget increase obtained from the Ministry of Planning, Development, and Management, of approximately 64%, which contributed decisively to improving the body´s structure in subsequent years. In this regard, it is important to note that the AGO suffered, year after year, from a lack of budgetary and financial availability, due to the increase in its organizational structure, which was required by its territorial growth and institutional importance in addition to the natural increase in prices and inflation rates, there was an accumulation/increase of the so-called expenses from previous years. When we took over the AGO’s management, the situation of signed contracts, for example, was critical and many times defaulted. Supported by an in-depth technical analysis within the AGO, I held meetings with then Minister Dyogo Henrique de Oliveira, and was able to obtain a significant budget expansion, which changed the paradigm of the AGO’s budget and financial management.
Other measures taken were the forwarding of bills of interest to civil servants, which were discussed internally with transparency, and studies for the elaboration of the AGO´s internal regulations.
Moreover, improvements were made to the correctional system, essentially adopting a preventive and pedagogical posture, which contributed to a more effective internal compliance. Also a working group was formed to implement a system of integrity and prevention of risk and illicit activities in the institution, whose activities began during my administration.
Particularly, I choose the approval of the law on attorney fees for members of legal careers and the filing of misconduct claims by the AGO as the two main milestones of my term, since they changed the paradigm of compensation for National Treasury Attorneys, Federal Attorneys, Central Bank Attorneys and Federal Prosecutors, and also the role of the Treasury in the recovery of losses resulting from acts of misconduct. The effects of these changes are felt to this day and have consolidated relevant rights both for the dedicated servants of the AGO and for the public interest underlying the actions of the institution. This new compensation level, which should be even higher, were it not for the limit set by the spending cap, prevented a historic flight of professionals to other careers in the public sector. Currently, the careers linked to the Federal Attorney General´s Office are some of the most attractive in the legal sphere, not only due to the tasks and duties they perform, but also for the remuneration compatible with the high responsibilities they bear.
By Fábio Medina Osório, Former Federal Attorney General. PhD in Administrative Law from the Complutense University of Madrid.