Direito Administrativo - Servidores Públicos - Cargo, Emprego e Função - I Aula 193 - Eduardo Tanaka

Summary

In this lesson on administrative law, Professor Eduardo Tanaca discusses the concepts of public servants, focusing on public positions, employment, and functions. He explains the distinctions between statutory positions (regulated by laws like the 8112), and positions held in public companies governed by labor laws (CLT). Tanaca uses relatable analogies, such as comparing public positions to a chair, to clarify the differences between effective and commission-based roles. The lesson emphasizes the importance of understanding these distinctions for public exams and highlights that public servants’ roles depend on the legal framework and the nature of their employment, whether statutory or contractual.

Takeaways

• 😀 Public servants in Brazil are defined as individuals occupying a position, job, or function within the public sector, with different legal frameworks for each.
• 😀 A public servant can either occupy a public position (cargo), a public job (emprego), or a public function (função), depending on their legal relationship with the public administration.
• 😀 The concept of 'cargo público' refers to a public position that entails a statutory link, regulated by a legal framework such as Brazil's Law 8112/1990, which governs public servant relations at the federal level.
• 😀 Unlike a contractual relationship in private employment, a statutory link for public servants is unilaterally defined by law and can be modified without the servant's consent.
• 😀 A public position (cargo público) has defined responsibilities and tasks, which vary by role, such as an auditor's duties in monitoring tax compliance.
• 😀 Public positions can be classified as 'effective' or 'commissioned.' Effective positions require competitive exams, while commissioned positions are based on trust and do not require a public contest.
• 😀 'Effective positions' (cargo efetivo) provide job security, but the public servant is not immediately stable—they must first complete a probationary period.
• 😀 'Commissioned positions' (cargos em comissão) are based on free appointments and can be filled by individuals not necessarily from the public sector; they do not offer job stability.
• 😀 The distinction between 'effective' positions and 'stability' is crucial: having an effective position does not automatically grant stability until after the probationary period.
• 😀 Employment in public entities such as state-owned companies (e.g., Caixa Econômica Federal) is governed by labor laws (CLT), not statutory regulations, and employees in these roles are considered to hold public jobs (emprego público), not public positions (cargo público).

Q & A

What is the definition of a public servant according to De Pietro?

According to De Pietro, a public servant is someone who holds a public position, whether it be a public office, job, or function. The specific classification depends on the legal relationship between the individual and the public administration.

What is the difference between statutory and contractual links in public service?

A statutory link is unilateral, established through a law or statute, whereas a contractual link is bilateral, based on an agreement between the employer and employee. In public service, statutory links are more common, regulated by specific public service laws such as the Federal Law 8112.

How are public positions regulated in Brazil?

Public positions in Brazil are regulated by laws like the Federal Law 8112, which establishes a statutory regime for public servants. Each state or municipality may have its own similar statute, but they are all based on the same general principles.

What is the significance of the Federal Law 8112 in relation to public service?

Federal Law 8112, established in 1990, regulates the statutory framework for federal public servants. It outlines rights, duties, and other important regulations that govern public servants, and it serves as a model for the laws in states and municipalities.

What is the distinction between an effective public position and a commissioned public position?

An effective public position is one that is acquired through a public competition, with long-term stability after a probationary period. A commissioned public position, on the other hand, is a trust-based position appointed by a superior without the need for a public competition.

What does the term 'vacancy of a public position' refer to?

The term 'vacancy of a public position' refers to the situation where a public servant leaves their position, whether due to retirement, death, or other circumstances, and the position becomes available for another person to fill.

What does 'stability' in public service mean?

Stability in public service refers to the assurance a public servant has of remaining in their position after completing a probationary period (typically 3 years). Once stable, they can only be dismissed under specific legal conditions.

How does a commissioned public position differ from an effective public position in terms of stability?

A commissioned public position does not provide stability. It is a position of trust, subject to the discretion of the appointing authority, which can appoint and dismiss the occupant freely. In contrast, an effective position provides long-term stability after the probationary period.

Can a person with a commissioned public position ever gain stability?

No, a person with a commissioned public position does not gain stability. Stability is only granted to those occupying effective public positions after they successfully complete the probationary period.

What is the role of a public employee in a state-owned company?

Public employees in state-owned companies, such as the Banco do Brasil or Petrobras, are hired through a public competition. They are governed by labor laws (CLT), unlike public servants who are governed by statutory regimes. These employees hold public jobs but are subject to the same labor laws as private sector employees.