Disabled by the TCU, Mantega will volunteer in the transition; experts differ

Former Minister Guido Mantega (Farm) will join the government transition team as a volunteer, as he is unable by the TCU (Union Court of Auditors) to hold a commission or position of trust in the Federal Public Administration due to punishment involving the case of tax pedaling.

Mantega was announced by the vice president-elect, Geraldo Alckmin (PSB), as a member of the technical group responsible for planning, budgeting and management in the transition team, last Thursday (10th).

In 2016, the former minister lost the right to assume public office for five years. He was also fined R$54,820.84. A 2018 ruling extended the sanction to eight years, a period that began to run from February 25, 2022, when the case became final. As a result, the former minister would be disqualified from holding a commission or position of trust in the Public Administration until February 25, 2030.

The legislation dealing with transitional governments establishes that up to 50 positions may be created to compose the team, the so-called CETG (Special Governmental Transition Positions). The remuneration for these positions ranges from R$2,700 to R$17,300.

In a statement, the transitional government stated that he will act as a volunteer. “Former Minister Guido Mantega will act as a voluntary collaborator in the Technical Group for Planning, Budget and Management, as provided for in the legislation that established the Transition Cabinet.”

The Novo party announced that it is considering taking legal action against Mantega’s appointment, considering that the former minister is disqualified by the TCU from holding public office.

“Lula brings a person convicted of tax fraud to the budget transition team and then is amazed at the market’s reaction,” said party president Eduardo Ribeiro. “The PT hasn’t even taken over yet and it already seems to want to act outside the law. We won’t let it.”

So far, the appointments of eight people who will integrate the transition team in these positions have already been published in the Official Gazette, on a paid basis. One of them is vice president-elect Geraldo Alckmin (PSB), who will coordinate the transition team.

Also appointed were the executive coordinator of the transitional government, Floriano Pesaro, former Minister of Planning Miriam Belchior, among others. The other nominees to compose the transitional government, in principle, will not be remunerated and will act as volunteers, such as parliamentarians, academics and people from the private sector.

Like Mantega, former BNDES president Luciano Coutinho had been disqualified by the TCU. However, the executive managed to reverse the decision in court. Coutinho will also act as a volunteer, at your request.

By appointing Mantega as a volunteer, the transition team argues that it is not infringing the punishment applied by the TCU. However, experts differ.

Constitutional law professor Lenio Streck says there is no relationship between disqualification and Mantega’s participation in the transition.

“Participating in a transition program like this is not equivalent to what public office is about disqualifications. They are different things. You can’t equate situations”, says Streck.

Other professors of administrative law have a similar opinion to Streck and see the possibility of the former minister’s participation in the transition as long as he is not paid.

There are, however, experts who disagree. Vera Chemim, a specialist in constitutional law and a master’s degree in public law from FGV, believes that Mantega’s participation is allowed if he works “informally”, that is, without any formal link with the Public Administration.

“What is not legally allowed is the exercise of a commissioned position or function of trust, as can be seen from its insertion in the ordinance.”

Cristiano Vilela, a partner at Vilela, Miranda e Aguiar Fernandes Advogados, also follows the same line.

“I understand that the disqualification falls to the exercise of public function. Although he will not hold a commission position, I understand that he is fulfilling the exercise of a public function, as he was appointed by decree 10 of 11/ 11/2022 to compose the Technical Planning, Budget and Management Group of the Government Transition Office.”

In his assessment, it is a borderline case, with a gap for double interpretation. “But in this specific case, I would advise the team coordinator, in this case Vice President Geraldo Alckmin, not to appoint the former minister.”

For Alexys Lazarou, criminal lawyer at Cascione Pulino Boulos Advogados, the STF (Federal Supreme Court) should address the issue and give a definitive interpretation.

“It is worth remembering that, as far as we know, Guido Mantega was not held criminally responsible for the facts of the fiscal pedaling. The corresponding inquiries were shelved, which means that there is no proof of administrative impropriety practiced by him. His disqualification by the TCU, although eventually prevents him from making the team, does not mean that he has committed any crime.”