DIREITO ADMINISTRATIVO - GM 08/12 - PROF. JOÃO TAYAH

Name: DIREITO ADMINISTRATIVO - GM 08/12 - PROF. JOÃO TAYAH
Uploaded: 2026-02-03T23:59:53.000Z
Duration: 3 h 42 min 52 s

What are Public Agents?

Definition of Public Agents

Public agents refer to any individual who performs a public function, encompassing all persons engaged in services for the state.

Classifications of Public Agents

The first classification is political agents, which includes elected officials such as senators, deputies, mayors, governors, and the president. Additionally, political appointees like ministers and secretaries fall under this category.

Understanding Political Agents

Characteristics of Political Agents

Political agents also include positions directly subordinate to executive leaders (e.g., ministers and secretaries) who can appoint relatives if they possess the necessary qualifications. This is not subject to binding precedent number 13.

Inclusion of Judicial Ministers

Some scholars argue that ministers from higher courts (e.g., STF and STJ) should also be classified as political agents due to their significant roles in governance.

Other Classifications of Public Agents

Honorary Agents

Honorary agents are individuals performing public functions typically through judicial appointment for temporary roles, such as election poll workers or jury members. They are sometimes referred to as private individuals collaborating with the state.

Delegated and Collaborative Agents

These agents may also be termed delegated or collaborative agents working alongside the state but do not hold formal public service status.

Public Servants: A Key Category

Definition of Public Servants

The next classification involves public servants, also known as administrative agents, who will soon belong to this category upon employment in governmental roles. They are divided into two subcategories: effective servers and public employees.

Effective Servers vs Public Employees

Effective Servers

Effective servers work within political entities (e.g., municipal guards), while they can also be found in public law administrative entities like autarchies and foundations established by law. Examples include Manaus Preve and Fundação Doutor Thomas.

Employment Context for Public Employees

In contrast, public employees operate within state-owned enterprises (e.g., Banco do Brasil, Petrobras) or professional councils (e.g., accounting councils). Recent competitions have been held for these positions across various professional fields like medicine and accounting.

Stability Differences Between Server Types

Stability Acquisition

A key distinction between effective servers and public employees lies in stability; effective servers gain stability after a three-year probation period while public employees do not acquire such stability due to their legal framework being aligned with private sector regulations (CLT).

Legal Framework Implications

Effective servers follow a statutory regime granting them rights specific to their career paths whereas public employees adhere to labor laws applicable in private sectors without provisions for job security post-probationary periods.

Statutes and Employment Types in Brazilian Public Service

Overview of Statutes for Different Federative Entities

Each federative entity has its own statute governing public servants. For example, the speaker is governed by the State of Amazonas' law 17.686, while municipal employees follow law 1118 for Manaus, and federal employees adhere to law 8.192.

Differences Between Statutory and Selective Employment

All effective public servants are statutory, whereas public employees are selective. The Supreme Federal Court (STF) recently allowed both employment types to coexist within the same organization, which was previously restricted.

Current Legal Framework for Employment Types

It is now legally permissible for municipalities to conduct separate competitions for effective and selective positions within the same body. This change reflects a significant shift in legal interpretation by the STF at the end of last year.

Stability and Job Security in Public Positions

Although Petrobras employees do not have stability as they are classified under CLT (Consolidação das Leis do Trabalho), they must still pass a public competition to be hired. The STF mandates that even without stability, these employees cannot be dismissed without due process or just cause.

Practical Implications of Employment Status

In practice, despite lacking formal stability, many public employees remain in their positions long-term due to job security practices that resemble stability; however, this should not be confused with actual legal protections against dismissal. The speaker shares personal experiences from working at Correios illustrating this point.

Understanding Commissioned Positions vs Functions of Trust

Definition and Nature of Commissioned Positions

Commissioned positions are designated roles such as directors or advisors that do not require a competitive examination for entry; they can be freely appointed or dismissed by authorities without any formal process or justification required beyond personal discretion.

Characteristics of Commissioned Roles

These roles are characterized by "ad nutum" appointments—meaning they can be terminated at will without notice or justification—highlighting their lack of job security compared to statutory roles where processes must be followed for termination.

Comparison with Functions of Trust

Unlike commissioned positions, functions of trust require individuals to already hold effective status as civil servants; thus only those who have passed competitive exams can occupy these roles despite also being related to leadership responsibilities similar to commissioned posts.

Understanding Public Administration Positions

Types of Positions in Public Administration

In public administration, not all positions require being a permanent civil servant. For example, the role of Secretary of Public Security can be filled by anyone, as it is a commissioned position.

Commissioned roles allow for broader eligibility; however, trust functions are restricted to effective career servants only.

The Governor has the authority to appoint individuals to specific roles such as the General Delegate of Civil Police, but this role is classified as a trust function.

To hold the position of General Delegate, one must be an effective career delegate within the police force; thus, not everyone can occupy this trust function.

The Federal Constitution allows laws creating positions to specify that a minimum percentage of commissioned roles must be filled by effective civil servants. For instance, 50% of commissioned positions at the Amazonas Court must be held by career civil servants.

Compensation Structures

Employees typically receive two paychecks: one for their effective position and another for their commissioned role. Each paycheck includes base salary and additional benefits.

Generally, employees must choose which salary they wish to receive; they cannot accumulate both salaries simultaneously.

Temporary Contracts in Public Service

Temporary contracts are defined by their limited duration and cannot extend indefinitely within an organization. Despite this rule, some temporary workers remain employed for many years illegally.

Examples of temporary positions include census takers and substitute teachers who are hired based on specific needs rather than through competitive exams.

Temporary hiring often occurs during exceptional circumstances that serve public interest—such as hiring healthcare professionals during a pandemic when immediate staffing needs arise.

Accessing Public Positions

According to the Federal Constitution, public positions in Brazil are accessible to all citizens meeting legal requirements and certain foreigners under specified conditions.

The phrase "in accordance with law" indicates that there is a need for regulatory legislation governing these rights for foreigners seeking public employment in Brazil.

Principles of Public Service in Brazil

Legal Organization of Public Service

The principle of legal organization dictates that the creation of public positions must be established by law, which includes defining job responsibilities and remuneration.

Every public position requires a specific law for its existence, detailing the functions and salary associated with that role. Additionally, it outlines the necessary qualifications for candidates.

Requirements for Public Positions

Candidates may need to meet various requirements such as educational qualifications (higher or secondary education), physical tests, psychological evaluations, and social investigations; these must be specified in advance by law.

The public administration can only impose requirements in job announcements if they have been previously outlined in the relevant legislation. If not included in the law, they cannot be demanded in the announcement.

Case Studies on Job Announcements

An example from a 2009 police competition highlighted an illegal requirement for three years of professional experience that was not mandated by law; this led to intervention from the Public Ministry to rectify the situation.

A similar issue arose during a 2022 DETRAN competition where psychotechnical testing was invalidated because it was not legally required prior to being included in the job announcement. This emphasizes adherence to legal stipulations when creating job criteria.

Entry into Public Service

Generally, entry into public service occurs through competitive examinations; however, this is not an absolute rule as some positions do not require such processes (e.g., commissioned roles or temporary contracts).

Competitive exams can consist solely of tests or a combination of tests and titles; understanding this distinction is crucial for candidates preparing for public service roles.

Examination Structure and Validity

The examination phase serves both classificatory and eliminatory purposes: it ranks candidates while also disqualifying those who fail to attend or achieve minimum scores set forth in the announcement.

Title evaluation phases are merely classificatory—candidates without additional qualifications will not be eliminated but may rank lower compared to those with higher credentials recognized by the exam's scoring system.

Misconceptions about Competitions

It is incorrect to state that competitions can be solely based on titles; they must either involve only tests or both tests and titles combined—never just titles alone. This clarification helps prevent misunderstandings regarding competition formats among candidates.

Duration of Competitions

All competitive examinations have a validity period up to two years, which can typically be extended once for an equal duration; municipal competitions often follow this guideline closely with common validity periods being two years plus one extension option.

Understanding the Validity Period of Public Service Exams

The Start of the Validity Period

The validity period for a public service exam is four years, beginning with the official approval (homologação) of the competition results. This approval occurs after all stages of the exam are completed, including objective tests and physical evaluations.

Rights to Appointment

Candidates who pass within the number of vacancies specified in the announcement have a subjective right to be appointed. For instance, if there are 590 positions available and a candidate ranks 400th, they are considered classified and entitled to appointment during the four-year validity period.

Obligations of the Mayor

Regardless of who holds office as mayor, there is an obligation to appoint candidates ranked within the available positions. If not appointed within this timeframe, candidates can file a legal action (mandado de segurança) to compel their appointment based on their rights.

Situations Outside Available Vacancies

Candidates ranking outside available vacancies (e.g., position 600 when only 590 positions exist) do not have a subjective right to appointment but rather hold an expectation that may or may not materialize. The mayor has discretionary power regarding these appointments unless circumstances change significantly during the validity period.

Factors Leading to Appointment Rights

Jurisprudence indicates that any clear demonstration by public administration showing a need for additional appointments can create rights for those approved outside initial vacancies. For example, if some appointees do not take up their roles, those next in line may gain entitlement to appointment based on demonstrated needs by the municipality.

Examples Illustrating Appointment Needs

If 590 individuals are appointed but 50 do not assume their roles, candidates ranked from position 591 onward would then have rights to be appointed due to this demonstrated need for personnel in municipal services like public safety or municipal guard duties. This reflects how actual staffing needs can influence appointment decisions beyond initial vacancy counts.

Implications for Future Appointments

The municipality's responsibility extends beyond merely filling stated vacancies; it must ensure adequate staffing levels through effective appointments even if it means exceeding initially advertised numbers (e.g., appointing more than 590). Understanding this dynamic is crucial for candidates navigating competitive exams and potential future employment opportunities in public service sectors.

Discussion on Public Service Positions and Recruitment

Overview of Current Job Openings

The speaker discusses the availability of 200 job openings in the environmental sector, emphasizing the need for more recruitment efforts.

Physical tests are highlighted as a significant barrier to entry, with many candidates failing due to social investigations and psychological evaluations.

Challenges in Police Recruitment

A large reserve list for police positions is mentioned, indicating that while there are many applicants, not all will be selected.

The speaker notes that the police force in Piauí has a larger functional framework compared to other regions, which affects recruitment dynamics.

Issues with Public Administration and Appointments

The speaker shares personal experience regarding delays in appointments after passing a public service exam for Caixa Econômica, where no vacancies were available despite being on a reserve list.

There is criticism directed at Caixa Econômica for hiring private legal firms instead of appointing successful candidates from their own exams.

Legal Implications of Hiring Practices

The Ministry of Labor intervened when it was discovered that Caixa was employing external lawyers rather than appointing those who passed their exams.

It is argued that hiring external professionals creates an obligation to appoint those who have already been approved through competitive examinations.

Rights to Appointment and Vacancies

The discussion emphasizes that merely having vacant positions does not automatically grant rights to appointment; administrative actions must demonstrate the need for filling these roles.

Any maneuver by administration that precludes appointed candidates from receiving their rightful positions can create new rights for them.

Quotas and Reserved Positions

The conversation shifts towards quotas for people with disabilities (PcD), explaining legal requirements regarding minimum and maximum percentages reserved in job postings.

Clarification is provided on how small numbers of vacancies affect the obligation to reserve spots for PcD candidates; if only one position exists, it cannot exceed set percentage limits.

Personal Experience with Quota Implementation

An example from a past competition illustrates how quota regulations impacted candidate selection based on limited vacancies available.

Despite being placed fifth overall in a competitive exam, the speaker recounts how subsequent appointments favored higher-ranked candidates from general competition over those qualifying under specific quotas.

Name of the Nomination Process

Overview of Nominations

The speaker reflects on preparing for a trip to Pará, indicating that they are next in line for a nomination after their sister.

Initially, there were three vacancies without positions for PCD (people with disabilities), but the edital mandated 20% of vacancies be reserved for them. This percentage must be adhered to in every five nominations.

Details on Nominations and Locations

The speaker discusses their experience working in Taituba after being nominated fifth and seventh in the broad competition, covering various regions like Digarim and Jacareacanga.

Emphasizes that reserved vacancies must follow a specific percentage logic applicable to both PCD and racial quotas as per constitutional guidelines.

Prioritization in Public Service Appointments

Constitutional Guidelines

The Constitution states that candidates approved in previous competitions have priority over those from later ones when it comes to appointments.

If a municipal competition is still valid with unappointed candidates, those individuals must be appointed before new candidates can be considered.

Rights of Public Servants

Association and Union Rights

All civil servants have the right to association and unionization; unlike military personnel who cannot form unions but can have associations.

Highlights the difference between civil servants' rights compared to military personnel regarding union representation.

Right to Strike

The Constitution guarantees civil servants the right to strike, which is not extended to military personnel due to constitutional prohibitions.

Due to legislative omission by Congress regarding public servant strikes, unions filed an injunction with the STF (Supreme Federal Court).

Impact of STF Decisions on Strikes

Limitations Imposed by STF

Currently, public service strikes are governed by private sector strike laws due to lack of specific legislation for public employees.

The STF has restricted strike rights significantly; one decision allows salary deductions for striking workers unless deemed illegal actions by authorities justify otherwise.

Prohibition on Security Personnel Strikes

A critical ruling from the STF prohibits all security personnel from striking based on their essential role in society's safety.

Despite constitutional provisions allowing certain groups like police forces some rights, it was ultimately the STF that imposed this prohibition.

Consequences of Strike Restrictions

Recent Developments

In 2017 or 2018, attempts were made by police forces to organize strikes against government decisions but faced immediate legal repercussions based on prior STF rulings.

Understanding Public Servants' Salaries and Legal Framework

Breakdown of Salary Components

Public servants will soon receive a detailed paycheck from the municipality, outlining their monthly earnings, including base salary, bonuses, and additional payments that contribute to total remuneration.

For example, if a public servant has a base salary of 1,000 BRL with additional bonuses totaling 5,000 BRL, their total remuneration would be 6,000 BRL.

Constitutional Rights and Salary Minimum

The constitution guarantees all public servants the right to at least the minimum wage; no one can earn less than this amount.

Many public servants have contested in court that since their base salary is used to calculate financial benefits, it must meet or exceed the minimum wage.

Supreme Court's Interpretation

The Supreme Federal Court (STF) ruled that while public servants have a right to minimum wage, their base salary can be below this threshold as long as total remuneration meets or exceeds it.

Therefore, if a paycheck shows a lower base salary but total earnings surpass the minimum wage requirement according to STF guidelines, it is considered compliant.

Types of Remuneration: Subsidy vs. Salary

Municipal guards and some other public employees receive remuneration; however, not all civil servants do—political agents typically receive compensation through subsidies.

A subsidy is defined as a single payment without itemized components like salaries or bonuses. It cannot include various allowances or additional payments.

Indemnity Payments Explained

Indemnity payments are reimbursements for expenses incurred while performing public duties. For instance, transportation costs may be reimbursed when using personal vehicles for work-related tasks.

These indemnity payments are unique because they do not count towards the overall remuneration cap set by law.

Remuneration Caps and Current Issues

All salaries and bonuses are subject to an overall remuneration cap; currently set around 48 thousand BRL per month for most public sector employees in Brazil.

However, indemnity payments are excluded from this cap allowing certain officials (like judges and politicians) to potentially earn significantly more through these reimbursements.

Recent Developments on Indemnities

There have been reports of judicial officials earning over 1 million BRL monthly due to these indemnity loopholes despite legal caps on salaries.

Recent legislative actions aim to regulate these indemnities more strictly following concerns about excessive earnings among judges and political figures.

Legislative Context

The Brazilian Congress has prioritized discussions on urgent issues related to public servant compensation amidst ongoing debates about transparency in financial practices within government sectors.

Understanding Legal Remuneration and Tiers

The Concept of Retroactive Payments

The discussion begins with the notion that retroactive payments are generally not permissible prior to legal requirements being established. There are instances where some officials may attempt to create dubious retroactive payments.

Indemnities and Salary Definitions

Indemnity payments are highlighted as the only type of remuneration not counted towards salary caps, unlike salaries, bonuses, or additional compensations which are included.

Terminology in Public Service Compensation

A distinction is made between "salary" and "remuneration," emphasizing that public servants receive remuneration rather than a salary as defined by labor laws (CLT).

Understanding Salary Caps Across Different Government Levels

The concept of salary caps is explained: at the federal level, no one can earn more than the highest paid minister. States can have multiple caps for different branches (executive, legislative, judicial).

Unique State Regulations on Salary Caps

States may adopt a single cap for all government employees based on the highest judicial position's compensation. For example, Amazonas has a unified cap based on the judge's salary.

Salary Cap Implications for Multiple Positions

Individual Analysis of Salary Caps

When holding multiple public positions, each position's salary cap is assessed individually rather than cumulatively; thus, it’s possible to exceed the mayor’s salary when combining two roles.

Constitutional Restrictions on Pay Equivalences

The Constitution prohibits any law or judicial decision from creating pay equivalences or linkages between different public positions to prevent fiscal disorder.

Consequences of Pay Equivalence Laws

Examples of Prohibited Pay Linkages

An explanation is provided regarding how linking salaries to indices like minimum wage or other public positions creates unconstitutional situations due to potential cascading effects on public finances.

Case Study: Police Peritos vs. Delegados

A specific case involving police peritos who attempted to equate their salaries with those of federal delegates illustrates how such attempts violate constitutional provisions against pay equivalence.

Understanding Public Sector Salary Equivalence and Accumulation of Positions

The Concept of Salary Equivalence

The speaker discusses the recent law that equalized salaries between two groups, emphasizing that while one group received a raise, it does not automatically trigger another raise for the other group due to constitutional limitations on salary equivalence.

It is clarified that the constitution allows certain types of salary equivalences, such as those established for specific positions like ministers in different courts, but prohibits equivalences created by laws or judicial decisions.

Accumulation of Public Positions

The discussion shifts to the rules surrounding the accumulation of public positions, noting that generally, individuals cannot hold more than one public position simultaneously unless exceptions apply.

The speaker outlines that accumulation is typically prohibited across all public institutions in Brazil; however, there are exceptions based on compatibility of schedules.

Exceptions to Accumulation Rules

Specific scenarios where accumulation is allowed include holding two teaching positions or a teaching position alongside a technical or scientific role.

Additionally, professionals in regulated health professions (e.g., doctors and nurses) can hold multiple public roles if they meet compatibility requirements.

Compatibility and Work Hours

It is emphasized that accumulated roles can be within the same governmental entity (municipality/state/federal level) or across different entities as long as work hours do not conflict.

A critical point made is about the absence of a constitutional limit on weekly working hours when accumulating positions; what matters is ensuring no schedule conflicts exist between roles.

Misconceptions About Hour Limits

The speaker addresses common misconceptions regarding maximum working hours for accumulated roles, clarifying there are no set limits as long as schedules align properly.

Retirement and Proventos

Upon retirement, individuals transition from receiving salaries to receiving retirement benefits (proventos), which cannot be combined with other public remuneration except under specific conditions.

Conditions for Accumulating Proventos

Three scenarios allow for this accumulation:

Holding previously compatible positions (e.g., retired teacher taking another teaching role).

Accepting commissioned roles after retirement.

Being elected to political mandates post-retirement while retaining pension benefits.

Political Mandates and Employment Status

When an individual holding a public position is elected to a federal or state mandate (like senator or governor), they must resign from their current job and will only receive compensation from their new political role.

Understanding Municipal Guard Mandates and Stability

Overview of Municipal Guard Mandates

During a municipal guard's term, they do not receive additional compensation; they only receive the salary associated with their elected position.

A city councilor is unique in that if there is a compatibility of schedules, they can hold both positions (councilor and another role) and receive salaries from both.

If a municipal guard takes on the role of mayor, they must choose which salary to accept; this choice does not apply if they remain in both roles due to schedule compatibility.

Rules Regarding Licenses and Vacancies

If elected, an individual remains licensed from their original position for the duration of their mandate; this does not create a vacancy in their previous role.

The concept of "vacancy" applies only under specific circumstances such as death or resignation; being on leave does not constitute a vacancy.

Effects of License on Employment Benefits

Time spent in an elected position counts towards various employment benefits like vacation time and retirement but does not count towards merit-based promotions.

The rules discussed are applicable solely to civilian public servants, while military regulations differ significantly.

Understanding Stability vs. Vitality

After three years of effective service, civil servants can achieve stability in public service, which differs from vitality held by judges and prosecutors who have lifetime tenure.

Stability allows for loss of position under three constitutional conditions: judicial sentence, administrative disciplinary process, or performance evaluation.

Differences Between Dismissal Types

Civil servants can lose their jobs through judicial sentences or disciplinary actions; however, vitalic employees can only lose theirs through final court rulings.

Key distinctions include:

Demission: Punitive action against permanent staff.

Exoneration: Non-punitive separation from service.

Destruction: Punishment for commissioned officers.

Common Misunderstandings About Exoneration

Media often misrepresents situations where an employee commits misconduct as exoneration when it should be termed demission due to punitive reasons.

Exoneration occurs under specific conditions such as voluntary resignation or failure during probationary periods.

Exoneration and Dismissal in Public Service

Grounds for Exoneration

Exoneration occurs under specific conditions: failure to take office within the legal timeframe, being dismissed during probation, or not entering into service as required.

Commissioned employees can be exonerated without cause; this process is discretionary and does not require justification.

Causes for Dismissal

Serious misconduct leading to dismissal includes crimes against public administration, habitual absenteeism, and physical assault while on duty.

A recent incident involving a police officer harming an animal exemplifies public conduct that could lead to dismissal due to social outrage.

Impact of Conduct on Public Image

Municipal guards must be cautious about their actions both in and out of service, as these reflect on the institution they represent.

If a commissioned employee commits serious misconduct, they may be removed from their position but not necessarily dismissed outright.

Retirement Regulations for Public Servants

Types of Retirement

Upon entering public service, individuals join either a specific pension scheme or the general social security system (INSS).

Employees in commissioned roles typically fall under the general regime managed by INSS rather than a specific pension plan.

Retirement Eligibility Criteria

There are three main types of retirement available: compulsory retirement at age 75 for certain positions, disability retirement due to health issues, and voluntary retirement after meeting contribution requirements.

Voluntary retirement generally requires 40 years of contributions with minimum ages set at 65 for men and 62 for women.

Changes Post-Pension Reform

The pension reform enacted in 2019 has made it more challenging to retire voluntarily due to stricter rules regarding age and contribution years.

Special Retirement Conditions

Special Categories for Early Retirement

Certain groups are eligible for special retirement provisions allowing them to retire earlier with fewer contributions. This includes people with disabilities and those exposed to harmful working conditions.

Specific Examples of Special Provisions

For instance, municipal police officers may have favorable pension laws allowing them easier access to early retirement compared to standard regulations.

Career Advantages in Policing

Special Retirement Benefits

The speaker highlights a significant advantage of a police career: the right to special retirement benefits, which is emphasized as a major perk for officers.

A total of 10 questions will be assigned for self-study, indicating an interactive approach to learning and reinforcing knowledge.

The next class will focus on correcting these questions, suggesting an emphasis on understanding and applying concepts rather than rote memorization.

Following the correction session, the discussion will transition to a new topic related to "impropriety in public service," indicating a structured curriculum that builds upon previous lessons.