The dishonest “option” offered by paragraph 5 of article 133 of Law 8112/1990 to those who illicitly hold more than one public position or job concurrently

Abstract

The Brazilian Constitution, in general, forbids holding more than one public position, job or function
concurrently. The purpose is to preserve principles and behaviors that govern a democratic and
republican State: i impersonality, isonomy, deconcentration of power, separation of functions,
morality and efficiency. The same Constitution makes an exception for the accumulation of two
jobs in the fields of health, teaching, , magistracy, prosecution or in the technical-scientific area,
under the terms of article 37, subsections XVI and XVII, article 95, sole paragraph, subsection I,
and article 128, paragraph 5, subsection II, item d. This exception is made due to the shortage of
human resources in the areas susceptible to accumulation and the correlation and synergy between
them. The accumulation of jobs was also conditioned by the Constitution to the compatibility of the
working hours. Accumulation of public jobs outside these parameters defies the wording and
purposes of such constitutional provisions and must be treated accordingly. A legal provision that
characterizes good faith of the employee who chooses one of the positions to hold only after being
summoned by the Administration, and which does not consider the previous acts of the employee,
goes against the constitutional principles of reasonableness and proportionality. In practice, it can
also conflict with the principles of morality, efficiency and other related principles. In addition, such
legal provision ends up encouraging the recurrence of the constitutional prohibition infringement,
insofar as it makes its administrative and even judicial punishment more difficult. It is imperative to
correct such provision and make it sustainable and useful to control instead of an encouragement
to the illegal accumulation of public positions, jobs or functions.