Public Administration

Section 1: General Provisions

Article 37. The governmental entities shall obey the principles of lawfulness, impersonality, morality, publicity, and efficiency, and:

1. public offices accessible to all Brazilians and foreigners

2. investiture in a public office or position depends on previously passing an entrance examination consisting of tests or tests and presentation of academic and professional credentials, according to the nature and the complexity of the office or position, as provided by law, except for appointment to a commission office declared by law as being of free appointment and discharge;

3. the period of validity of a public entrance examination shall be up to 2 years, extendable once for a like period of time

4. during the unextendable period established in the public call notice, a person who has passed a public entra nce examination of tests, or of tests and presentation of academic and professional credentials, shall be called with priority over newly approved applicants, to take an office or position in the career

5. positions of trust, exercised exclusively by public employees holding an effective post, and commission offices, to be exercised by career employees in the cases, under the conditions and within the minimum percentages established in law, are reserved exclusively for the duties of directors, chiefs of staff, and assistants

6. the right to free union association is guaranteed to civil servants;

7. the right to strike shall be exercised in the manner and within the limits defined by a specific law;

8. the law shall reserve a percentage of public offices and positions for handicapped persons and shall define the criteria for their admittance;

9. the law shall establish the cases of hiring for a limited period of time to meet a temporary need of exceptional public interest;

10. the remuneration of Government employees and the compensation referred to in paragraph 4 of article 39 may only be established or altered by means of a specific law, with due regard for the exclusive capacity to introduce a law in each case, an annual general review being ensured, always on the same date and without distinction between the indices;

11. the remuneration and the compensation of the holders of public offices, functions, and positions in governmental entities, associate government agencies, and foundations; of the members of any of the Powers of the Union, of the States, the Federal District, and the Municipalities; of the holders of elective offices, and of any other political agent, as well as the pay, pension, or other type of remuneration, earned on a cumulative basis or not, including advantages of a personal nature or of any other nature, may not be higher than the monthly compensation, in legal tender, of the Justices of the Supreme Federal Court, and the following limits shall be applied: in Municipalities, the compensation of the Mayor; in the States and in the Federal District, the monthly compensation of the Governor in the sphere of the Executive Branch, the compensation of State and Federal District Deputies in the sphere of the Legislative Branch, and the compensation of the Judges of the State Court of Justice, limited to ninety and twenty-five hundredths percent of the monthly compensation, in legal tender, of the Justices of the Supreme Federal Court in the sphere of the Judicial Branch, this limit being applicable to the members of the Office of the Public Interest Attorney, to Prosecutors, and to Public Legal Defenders;

12. the salaries for positions of the Legislative and Judicial Powers may not be higher than those paid by the Executive Power;

13. the linkage or equalization of any type of pay for purposes of the remuneration of the personnel in the public services is forbidden;

14. the pecuniary raises received by a government employee shall not be computed or accumulated for purposes of granting subsequent raises;

15. the compensation and the salaries of holders of public offices and positions may not be reduced, except for the provisions of items XI and XIV of this article and of articles 39, paragraph 4, 150, II, 153, III, and 153, paragraph 2, I;

16. remunerated accumulation of public offices is forbidden, except, when there is compatibility of working hours, and with due regard, in any instance, for the provision of item 11: a) of two teaching positions; b) of one teaching position with another technical or scientific position; c) of two positions or jobs which are exclusive for health professionals, with regulated professions;

17. the prohibition to accumulate extends to positions and functions and includes associate government agencies, foundations, public enterprises, joint stock companies, their subsidiary companies, and companies controlled either directly or indirectly by the Government;

18. the financial administration and its revenue officers shall, within their spheres of authority and jurisdiction, have the right to precedence over the other administrative sectors, as the law provides;

19. the creation of an associate Government agency and the establishment of a public enterprise, a joint stock company, and a foundation may only take place by means of a specific law, and, in the latter case, a supplementary law shall specify the areas of operation;

20. the creation of subsidiaries of the agencies mentioned in the preceding item depends on legislative authorization, in each case, as well as the participation by any of them in a private company;

21. with the exception of the cases specified in law, public works, services, purchases and disposals shall be contracted by public bidding proceedings that ensure equal conditions to all bidders, with clauses that establish payment obligations, maintaining the effective conditions of the bid, as the law provides, which shall only allow the requirements of technical and economic qualifications indispensable to guarantee the fulfilling of the obligations;

22. the tax administrations of the Union, of the States, the Federal District, and the Municipalities, whose activities are essential for the operation of the State and are exercised by employees of specific careers, shall have priority funds for the implementation of their activities and shall work in an integrated manner, including the sharing of tax rolls and fiscal information, under the terms of the law or of a covenant. Paragraph 1. The publicity of the acts, programmes, public works, services and campaigns of Government agencies shall be of educational, informative or social orientation character, and shall not contain names, symbols or images that characterize personal propaganda of Government authorities or employees. Paragraph 2. Non-compliance with the provisions of items II and III shall result in the nullity of the act and punishment of the responsible authority, as the law provides. Paragraph 3. The law shall regulate the forms of participation of users in governmental entities and in entities owned by the Government, especially as regards:

23. claims relating to the rendering of public services in general, the provision of user services being ensured, as well as periodical assessment, both external and internal, of the quality of services;

24. the access of users to administrative records and to information about Government initiatives, with due regard for article 5, items X and XXXIII;

25. the rules of a complaint against negligence or abuse in the exercise of an office, position or function in government services. Paragraph 4. Acts of administrative dishonesty shall result in the suspension of political rights, loss of public function, prohibition to transfer personal property and reimbursement to the Public Treasury, in the manner and grading established by law, without prejudice to the applicable criminal action. Paragraph 5. The law shall establish the limitations for illicit acts, performed by any agent, whether or not a Government employee, which cause losses to the Public Treasury, without prejudice to the respective claims for reimbursement. Paragraph 6. Public legal entities and private legal entities rendering public services shall be liable for damages that any of their agents, acting as such, cause to third parties, ensuring the right of recourse against the liable agent in cases of malice or fault.

Paragraph 7. The law shall establish the requirements and restrictions regarding the holder of an office or position, in governmental entities and entities owned by the government, which provides access to inside information.

Paragraph 8. The managerial, budgetary and financial autonomy of governmental agencies and entities, as well as of entities owned by the Government, may be extended by means of a contract, to be entered into by their administrators and the Government, with a view to the establishment of performance goals for the agency or entity, and the law shall provide for:

1. the term of the contract;
2. the controls and criteria for the appraisal of performance, rights, duties, and liability of managing officers;
3. the remuneration of the employees. Paragraph 9. The provision of item XI applies to the public enterprises and to joint stock companies and their subsidiary companies which receive funds from the Union, the States, the Federal District, or the Municipalities for the payment of personnel expenditures or of general expenses. Paragraph 10. Receiving retirement pensions arising from article 40 or from articles 42 and 142, while at the same time receiving the remuneration of a public office, position or function is forbidden, with the exception of offices that may be accumulated under the terms of this Constitution, elective offices, and commission offices declared by law as being of free appointment and discharge. Paragraph 11. The compensatory amounts set forth in law shall not be computed for the purposes of the remuneration limits referred to in item XI of the head paragraph of this article.

Paragraph 12. For the purposes provided by item XI of the head paragraph of this article, the States and the Federal District may stipulate, within their own sphere, by means of an amendment to their respective Constitutions and Organic Law, as a single limit, the monthly compensation of the Judges of the respective State Court of Justice, limited to ninety and twenty-five hundredths percent of the monthly compensation of the Justices of the Supreme Federal Court, and the provision of this paragraph shall not be applied to the compensation of State and Federal District Deputies and of City Councilmen.

Article 38. The following provisions are applicable to public employees holding elective offices in a governmental entity, an associate government agency, and a foundation: (CA No. 19, 1998)

1. in the case of a federal, state or district elective office, he shall leave his office, position or function;
2. if vested with the office of Mayor, he shall take leave from his post, position or function and he may opt for the corresponding remuneration;
3. if vested with the office of City Councilman, if there is compatibility of working hours, he shall receive the benefits of his post, position or function, without prejudice to the remuneration of his elective office and in the case there is no such compatibility, the provisions of the preceding item shall be applied;
4. in any case requiring leave of absence for the exercise of an elective office, his time of service shall be counted in full, for all legal effects, except for promotion by merit;
5. for purposes of social security benefits, in the case of leave of absence, the amounts shall be established as if he were in activity.

Section 2: Government Employees

Article 39. The Union, the States, the Federal District and the Municipalities shall institute a board of administration policy and personnel remuneration policy, composed of public employees appointed by the respective Branches. (CA No. 19, 1998) Paragraph 1. The stipulation of pay levels and of other components of the remuneration system shall comply with:

1. the nature, the level of responsibility, and the complexity of the posts of each career;
2. the requirements for investiture;
3. the specific characteristics of each post.

Paragraph 2. The Union, the States, and the Federal District shall establish government schools for the education and further development of public employees, and participation in such courses shall be one of the requirements for promotion in the career, the signing of agreements or contracts among federated units being therefore allowed.

Paragraph 3. The provisions of article 7, IV, VII, VIII, IX, XII, XIII, XV, XVI, XVII, XVIII, XIX, XX, XXII, and XXX shall apply to employees holding public offices, and the law may stipulate differentiated requirements for admission when the nature of the office so demands.

47Paragraph 4. A member of one of the Branches, the holder of an elective office, the Ministers of State, and the members of State and Local Cabinets shall be remunerated exclusively by means of a compensation consisting of one sole item, the addition of any extra benefit, additional pay, bonus, award, representation allowance, or other type of remuneration being forbidden, with due regard, in any of the cases, for the provisions of article 37, X and XI.

Paragraph 5. The legislation of the Union, the States, the Federal District, and the Municipalities may establish the proportion between the highest and the lowest remuneration of public employees, with due regard, in any of the cases, for the provision of article 37, XI

Paragraph 6. The Executive, Legislative and Judicial Branches shall publish the amounts of the compensation and of the remuneration of public offices and positions each year.

Paragraph 7. The legislation of the Union, the States, the Federal District, and the Municipalities shall regulate the utilization of the budgetary funds deriving from savings in current expenditures in each agency, associate government agency and foundation, to be used in the development of programs of quality and productivity, training and development, modernization, re-equipping and rationalization of public services, including as additional pay or productivity award.

Paragraph 8. The remuneration of public employees organized in a career may be established under the terms of paragraph 4.

Article 40.

Employees holding effective posts in the Union, the States, the Federal District, and the Municipalities, therein included their associate government agencies and foundations, are ensured of a social security scheme on a contributory and solidary basis, with contributions from the respective public entity, from the current employees, retired personnel, and pensioners, with due regard for criteria that preserve financial and actuarial balance and for the provisions of this article.

Paragraph 1. The employees covered by the social security scheme set forth in this article shall go into retirement, their pensions being calculated according to the amounts stipulated under the terms of paragraphs 3 and 17:

1. for permanent disability, with a pension in proportion to the period of contribution, except when such disability results from a work-related injury, a professional disease, or a serious, contagious, or incurable illness, under the terms of the law;
2. compulsorily, at seventy years of age, with a pension in proportion to the period of contribution;
3. voluntarily, upon completing at least ten years of effective exercise in public administration and five years in the effective post from which retirement is going to take place, with due regard for the following conditions: a) sixty years of age and thirty-five of contribution, if a man, and fifty-five years of age and thirty of contribution, if a woman; b) sixty-five years of age, if a man, and sixty, if a woman, with pay in proportion to the period of contribution.

Paragraph 2. At the time they are granted, retirement pensions and other pensions may not exceed the remuneration of the respective employee in the effective post from which he retired or which was taken as a parameter for the granting of the pension. Paragraph 3. The calculation of the retirement pension, at the time retirement is granted, shall take into account the remunerations used as basis for the contributions of the employee to the social security schemes mentioned in this article and in article 201, under the terms of the law. Paragraph 4. The adoption of differentiated requirements and criteria for the granting of retirement to those covered by the scheme set forth in this article is forbidden, with the exception of the cases, as defined by supplementary laws, of employees:

1. with disabilities;

2. engaged in hazardous activities;

3. engaged in activities carried out under special conditions which are harmful to health or to physical wholeness. Paragraph 5. The requirements concerning age and period of contribution will be reduced by five years, as regards the provision of paragraph 1, item III, letter a, for teachers who document exclusively a period of effective exercise of teaching functions in children education and in elementary and secondary education. Paragraph 6. With the exception of the cases of retirement from posts that can be accumulated under the terms of this Constitution, receiving more than one retirement pension charged to the social security scheme set forth in this article is forbidden. Paragraph 7. The law shall provide for the granting of the benefit of a death pension, which will be equal to:

4. the total amount of the retirement pension of the deceased employee, up to the maximum limit established for the benefits of the general social security scheme referred to in article 201, increased by seventy percent of the amount in excess of this limit, if the employee had already retired on the date of his death; or

5. the total amount of the remuneration of the employee in the effective post he was holding on the date of his death, up to the maximum limit established for the benefits of the general social security scheme referred to in article 201, increased by seventy percent of the amount in excess of this limit, if the employee was in active service on the date of his death.

Paragraph 8. Readjustment of the benefits is ensured, to the end that their real value is permanently maintained, in accordance with criteria established by law.

Paragraph 9. The period of contribution in a federal, state, or municipal post shall be computed for the purpose of retirement, and the corresponding period of service shall be computed for the purpose of placement on paid availability.

Paragraph 10. The law may not establish any method of computation of fictitious periods of contribution.

Paragraph 11. The limit set forth in article 37, XI, applies to the total amount of the retirement pension and other pensions, including those resulting from the accumulation of public posts or positions, as well as from other activities which must contribute to 49the general social security scheme, and to the amount resulting from the addition of pensions and the remuneration of a post which may be accumulated under the terms of this Constitution, a commission office declared by law as being of free appointment and discharge, and an elective office.

Paragraph 12. In addition to the provisions of this article, the social security scheme of government employees who hold effective posts shall comply, whenever appropriate, with the requirements and criteria stipulated for the general social security scheme.

Paragraph 13. The general social security scheme applies to employees who hold exclusively commission offices declared by law as being of free appointment and discharge, as well as other temporary posts or public positions.

Paragraph 14. The Union, the States, the Federal District, and the Municipalities, provided that they establish a complementary social security scheme for their respective employees who hold effective posts, may stipulate, for the amount of retirement pensions and other pensions to be granted by the scheme referred to in this article, the maximum limit set forth for the benefits of the general social security scheme referred to in article 201.

Paragraph 15. The complementary social security scheme referred to in the previous paragraph shall be instituted by an act of the respective Executive Power, with due regard for the provisions of article 202 and its paragraphs, insofar as pertinent, through closed private pension plan companies, of a public nature, which will offer to their respective participants benefit plans exclusively in the defined contribution mode.

Paragraph 16. The provisions of paragraphs 14 and 15 may be applied to an employee who has entered public administration on or before the date of publication of the act which instituted the corresponding complementary social security scheme only if such employee has previously expressed such option.

Paragraph 17. All remuneration amounts taken into account in the calculation of the benefit set forth in paragraph 3 shall be duly updated, under the terms of the law.

Paragraph 18. A contribution shall be levied on retirement pensions and other pensions granted by the scheme referred to in this article if such pensions exceed the maximum limit established for the benefits of the general social security scheme mentioned in article 201, at a percentage equal to the one established for employees holding effective posts.

Paragraph 19. Employees referred to in this article who have fulfilled the requirements for voluntary retirement stipulated in paragraph 1, III, a, and who choose to remain working shall be entitled to a continuous activity bonus equivalent to the amount of their social security contribution until such date as they fulfill the requirements for compulsory retirement set forth in paragraph 1, II.

Paragraph 20. The establishment of more than one special social security scheme for employees holding effective posts, and of more than one unit to manage the respective scheme in each state is forbidden, except for the provision of article 142, paragraph 3, X.

Paragraph 21. The contribution set forth in paragraph 18 of this article shall be levied only on the portions of retirement pensions and other pensions which exceed an amount equal to twice the maximum limit established for the benefits of the general social security scheme mentioned in article 201 of this Constitution, if the beneficiaries, under the terms of the law, suffer from incapacitating diseases.

Article 41.

Servants who, by virtue of public entrance examinations, are appointed to effective posts, acquire tenure after three years of actual service. (CA No. 19, 1998) Paragraph 1. A tenured public employee shall only lose his office:

1. by virtue of a final and unappealable judicial decision;
2. by means of an administrative proceeding, in which he is assured of ample defense
3. by means of a procedure of periodical appraisal of performance, under the terms of a supplementary law, ample defense being assured.

If the dismissal of a tenured public employee is voided by a judicial decision, he shall be reinstated, and the occupant of the vacancy, when tenured, shall be led back to his original office, with no right to indemnity, taken to another office or placed on paid availability with a remuneration proportional to his length of employment.

If the office is declared extinct or unnecessary, a tenured public employee shall remain on availability, with a remuneration proportional to his length of employment, until he is adequately placed in another office.

As a requirement to acquire tenure, a special appraisal of performance by a committee created for this purpose is mandatory.

Section 3: The Military of the States

Article 42. The members of the Military Police and of the Military Fire Brigades, institutions whose organization is based on hierarchy and discipline, are military of the States, of the Federal District and of the Territories.

Paragraph 1. The provisions of article 14, paragraph 8; article 40, paragraph 9; and of article 142, paragraphs 2 and 3, apply to the military of the States, of the Federal District, and of the Territories, in addition to other provisions that the law may establish, it being incumbent upon specific state legislation to provide for the matters of article 142, paragraph 3, item X, the ranks of the officers being awarded by the respective State Governors.

Paragraph 2. The provisions that may be established by a specific act of the respective state shall apply to the pensioners of the military of the States, of the Federal District, and of the Territories.

Section 4: The Regions

Article 43

For administrative purposes, the Union may coordinate its action in one same social and geoeconomic complex, seeking to attain its development and to reduce regional inequalities.

A supplementary law shall provide for:

1. the conditions for the integration of developing regions;
2. the composition of the regional agencies which shall carry out, as provided by law, the regional plans included in the national social and economic development plans approved concurrently.

The regional incentives shall include, besides others, as prescribed by law:

1. equality of tariffs, freight rates, insurance and other cost and price items which are within the responsibility of the Government;
2. favoured interest rates for the financing of priority activities;
3. exemptions, reductions or temporary deferment of federal taxes owed by individuals or by legal entities;
4. priority in the economic and social use of rivers and dammed or dammable water masses in low-income regions subject to periodical droughts.

• The Union shall grant incentives to the recovery of arid lands and shall cooperate with small and medium-size rural landowners in the implementing of water sources and small-scale irrigation in their tracts of land.