THE GROSS ERROR AND ACCOUNTABILITY OF PUBLIC AGENTS: A NEW PERSPECTIVE FOR THE JURISPRUDENCE OF THE TCU

Abstract

This article analyzes the constitutionality of Article 28 of Law No. 13,655/2018, which introduced the concept of “gross error” as a condition for holding public officials personally liable, in light of Article 37, § 6 of the 1988 Brazilian Federal Constitution. The study explores the compatibility between the State’s strict liability and the subjective liability of public agents, focusing on the role of audit courts. Its objective is to assess whether Article 28 of the LINDB enshrines an implicit fundamental right to tolerance of administrative error and whether this standard has been incorporated into the jurisprudence of the Federal Court of Accounts (TCU). A qualitative methodology was adopted, involving documentary research and case law analysis of TCU decisions issued between 2018 and 2023, selected through the search terms "erro adj grosseiro" and "culpa adj grave" in the Court’s official repository, prioritizing cases in which the concept was directly addressed in the leading opinion. The analysis shows that the Court has equated gross error with gross negligence, applying the concept mainly in sanctioning proceedings but only partially in reimbursement claims. It concludes that expanding the use of the gross error standard to include financial liability could enhance the legal protection of public managers, encouraging administrative innovation and preventing decision-making paralysis.