Figura de fundo cinza com linhas na cores branca e vermelha.

Administrative Reform

During his electoral campaign, the President of the Republic Jair Bolsonaro signaled his intention to promote a downsizing in the State. Among the measures taken by the government, a Proposed Amendment to the Constitution (PEC) was sent to the House of Representatives in September 2020 to review provisions on civil servants, public employees, and the administrative organization under the allegation of conferring greater efficiency, effectiveness, and effectiveness to the action of the State.

The proposition is justified by the argument of a high cost for the State and low delivery of services to the population. The government also claims that the current structure is complex and not very flexible, making difficult adaptations and the implementation of quick solutions. Thus, the text has the following guidelines:

  1. modernize the State, giving greater dynamism, rationality, and efficiency to its actions;
  2. bring the Brazilian public service closer to the country's reality; and
  3. guarantee budgetary and financial conditions for the existence of the State and for the provision of quality public services.

It is worth noting that the Executive Branch defined its operating strategy in this phases:

  1. PEC 32/2020: New system of bonds, organizational change in the public administration and immediate end of some benefits.
  2. Regulation: bills and complementary bills will be presented to address performance management, career and position guidelines, functions and perks.
  3. NSP Proposition: the New Public Service Complementary Law Project (NSP) will be presented, dealing with rights and duties, remuneration structure and organization. of careers.

Proposed Amendment to the Constitution - Text of the Executive Branch

The proposal covers Executive, Legislative and Judiciary servers from the three spheres of the federation: Union, states and municipalities. In order not to affect the acquired rights of active employees, the proposal proposes that the new measures will be valid only for those who enter the public sector after the promulgation of the Constitutional Amendment.

The text of the PEC sent by the government does not include members of Power: parliamentarians, judges, judges, ministers of higher courts, prosecutors and attorneys. The government claimed that there would be a vice of initiative and could not propose changes for such types of public agents belonging to other Powers. The PEC also left the military out of the amendments.

One of the main innovations brought about by the proposal is the end of stability for civil servants who do not integrate the typical careers of the State, a group that, according to the PEC, will be defined by law at a later time. With this change, the text brings the possibility of a loss of position in two different situations:

  • For State career occupants: by administrative disciplinary process (PAD); by a final and unappealable court decision or by a collegiate decision; for insufficient performance, which will be regulated in the next phase of the reform.
  • The others (for those with an indefinite contract): there will be the possibility of dismissal in other cases provided for by law to be approved by Congress.

As for the legal links with the public administration, these would become five:

1. experience bond, which will provide the existence of an effective probationary period as a stage in the competition for entry into a position for an indefinite period or in a typical State position. It establishes a more comprehensive delimited framework for the evaluation and decision regarding the admission of the public servant in a position that makes up the permanent staff, considering the number of vacancies provided for in the public examination notice and the candidate's classification.

2. fixed term bond, which will allow the admission of personnel for specific needs and with a fixed deadline, to meet:

a. temporary need arising from calamity, emergency, stoppage in essential activities or transitory accumulation of service;

b. activities, projects or needs of a temporary or seasonal nature, with express indication of the duration of the contracts; and

c. activities or procedures on demand.

3. position with an indefinite relationship, for the performance of continuous activities, which are not typical of the State, covering technical, administrative or specialized activities and involving a greater number of people;

4. typical state position, with differentiated guarantees, prerogatives and duties, it will be restricted to servants whose attribution is the performance of activities that are specific to the State, sensitive, strategic and that represent, in large part, the extroversal power of the State (it constitutes, unilaterally, obligations for third parties); and

5. leadership and advisory position, will correspond not only to the current positions in commission and functions of trust, but also to other positions that justify the creation of a specific job post with strategic, managerial or technical attributions.

Focusing on flexibility and modernization of management, the Federal Government suggested that the President of the Republic be given the possibility, by means of a decree, to deal with:

a. extinction of Minister of State positions, commissioned positions, leadership and advisory positions and functions, occupied or vacant;

b. creation, joining, transformation or extinction of Ministries and bodies directly subordinate to the President of the Republic;

c. extinction, transformation and joining of entities of the autarchic and foundational public administration;

d. transformation of vacant effective positions and Minister of State, commissioned and leadership and advisory positions, functions of trust and bonuses of a non-permanent nature that are vacant or occupied, as long as it does not entail an increase in expenses and the same nature of the relationship is maintained;

e. change and reorganize effective public positions in the federal Executive Power and its attributions, according to the established restrictions.

These points extend the autonomy of the head of the Executive to change the design of public administration, without the need for a bill. These changes could not result in an increase in expenses, nor in the interruption or non-performance of the services provided. The creation of bodies or entities or the transformation that implies an increase in expenditure will continue to depend on approval by the Legislative. The changes aim to give more dynamism to management in cases where a rapid reconfiguration of skills, workforce or organizational arrangement is required, in line with the constitutional principle of efficiency.

The executive's PEC also introduces new principles for Public Administration. In addition to the existing principles (legality, impersonality, morality, publicity and efficiency), the principles of impartiality, transparency, innovation, responsibility, unity, coordination, good public governance, efficiency and subsidiarity.

Important Concepts

The term “public servants” is used in several senses by the Federal Constitution, sometimes in a broader sense, sometimes in a more restricted sense. Thus, scholars made a distinction between political agents, public servants, military and private in collaboration with the Public Power, all of these, species of the “Public Agent” genus. Following the teachings of Maria Sylvia Zanella Di Pietro (in her book Administrative Law – 27th Ed.), the distinction can be made as follows:

Public Agents: is every natural person who provides services to the State and to legal entities of the Indirect Administration (municipalities, public foundations, public companies and mixed capital companies);

a. Political Agents: in a broader sense, one can consider the Government components in the first levels invested in: positions, functions, mandates or commissions, by appointment, election, designation or delegation to exercise constitutional attributions. In this sense, in addition to the Heads of the Executive Branch of the three federative levels (and their auxiliaries), members of the Legislative Branch, the Magistracy, the Public Ministry, the Court of Auditors, diplomatic representatives and other authorities that act with functional independence, foreign to officialdom, are included. statutory.

b. Public servants: in a broad sense, they are individuals who provide services to the State (Direct and Indirect Administration), with employment relationship and for remuneration, and may be statutory servants (occupants of public positions), public employees (occupying public employment and hired through CLT regime) and temporary servers (for a fixed period to meet temporary needs).

c. Military personnel: individuals who provide services to the Armed Forces (army, navy and aeronautics), the military police and the military fire brigade, with a statutory relationship and their own legal regime.

d. Private individuals in collaboration with the Government: are those individuals who provide services to the State, without employment relationship, with or without remuneration.

Image 01: Types of public agents. Prepared by the author based on information from the book on Administrative Law by Maria Sylvia Zanella Di Pietro

Analysis by the Constitution and Justice and Citizenship Commission (CCJC)

The PEC was dispatched for analysis by the Committee on Constitution and Justice and Citizenship (CCJC) in February 2021, five months after the presentation by the Executive Branch and one week after the inauguration of Deputy Arthur Lira (PP/AL) as President of the House. After his election, the deputy declared that the matter would be one of his priorities, committing himself to taking the proposal to the Plenary.

The rapporteur appointed to prepare the opinion of the proposal in the CCJC was Deputy Darci de Matos (PSD/SC), who, after approximately three months of work, presented seem in favor of the admissibility – with suppressive amendments to clean up – of the Proposed Amendment to the Constitution (PEC) 32/2020.

The deliberation was permeated by obstruction – on the part of the opposition – in order to extend the vote on the admissibility of the PEC by the CCJC, under the allegation of the proposal's unconstitutionality and the Federal Government's attempt to dismantle the State.

In this sense, the parliamentarians of the Mixed Parliamentary Front in Defense of the Public Service (Servir Brasil) filed, in February this year, a writ of mandamus in the Federal Supreme Court (STF), against the processing of PEC 32/2020. The order aimed to access the documents that supported the PEC, alleging that the Ministry of Economy did not forward such documents to the Legislative power.

Despite attempts to obstruct the Commission, the President of the Commission – Bia Kicis (PSL/DF) –, who is part of the government's base, led the proceedings for a vote after a morning of debate between deputies.

The rapporteur's opinion was approved with three suppressive amendments to the text sent by the Executive Branch. Being them:

a. Removal of items that provided for the insertion of new principles of public administration: impartiality, transparency, innovation, responsibility, unity, coordination, good public governance and subsidiarity.

b. Removed from the passage that allowed the extinction of entities of the autarchic and foundational public administration, by the President of the Republic.

c. Item that prohibited servers occupying typical state positions engage in any other paid activity.

The changes made by the rapporteur were praised by deputies, including those in opposition. According to the CCJC rapporteur, the inclusion of the principles would open space for multiple and divergent interpretations, which would consequently result in provocations to the Federal Supreme Court (STF) to rule on their effective applicability in specific situations. It is worth mentioning the emphasis given by the opposition – during the debate – on the harmfulness of the delivery of public services, if the principle of subsidiarity were maintained, since the State would only act in areas that would not be of interest to the private sector.

Justifying the removal of the possibility of extinction of administrative entities by the President of the Republic, the rapporteur highlighted that, by the principle of separation of powers, these entities are linked and not subordinate to the ministries. The opposition, on the other hand, highlighted the risks of maintaining this provision, in view of the recent actions taken by members of the Executive Branch, especially regarding actions related to the environment.

One of the criticisms made to the reform is based on the scope of the proposal, since it does not reach the members of power and the military, where the greatest earnings of public agents are found. On this topic, Deputy Caroline de Toni (PSL/SC) declared that she has already proposed an amendment for such expansion, requesting the support of parliamentarians in signing the amendment.

The rapporteur of the PEC in the CCJC, Darci de Matos, recommended that the special commission include in the text the definition of typical careers, since it is not up to the CCJC to make such a change.

The opinion was approved with 39 votes in favor and 26 against. The following parties guided the “against” vote: PT, PSB, PDT, PROS, PSOL, PCdoB, Citizenship, Rede.

Graph 01: Prepared by the author

Bench Orientation

PSLYesPSDBYesPTB PATRIOT 
PTNotPSBNotHE CANReleasedPV 
PLYesDEM PSOLNotNETWORKNot
PPYesPDTNotNEWYesMajority 
PSDYesSOLIDARITY FORWARD MinorityNot
MDB PROSNotPCdoBNotOppositionNot
REPUBLICANSYesPSCYesCITIZENSHIPNotGovernmentYes
Table 01: Prepared by the author

Special Committee of PEC 32/2020

Temporary Special Commission that will analyze the merits of the proposal of PEC 32/2020 – Administrative Reform was installed in June of this year. Federal Deputy Fernando Monteiro (PP/PE) was elected chairman of the commission and Arthur Oliveira Maia (DEM/BA) was confirmed as rapporteur of the matter. The 1st, 2nd and 3rd vice presidents of the commission are, respectively, Tiago Mitraud (NOVO/MG), Samuel Moreira (PSDB/SP) and Alice Portugal (PCdoB/BA).

During his opening speech, the President of the Commission said that he will conduct the work with impartiality, promoting a broad, frank and open debate. He also mentioned that his guideline will be to build a “citizen reform”, in which public interests are served, mentioning that it will not be the best reform, but the best reform possible.

Rapporteur Arthur Maia said, during his speech, that the commission's responsibility is to qualify the public service. Also during his speech, he highlighted that the current administrative organization reflects an antithesis to the military period, that the current state is synonymous with inertia and the clauses on performance of public servants, stability and maintenance of commissioned and trustworthy positions will be debated.

Expectations

According to the rapporteur, the expectation for delivery of the final report is one week after the end of the hearings provided for in the work plan, which should take place in August 2021.

With the end of the work for analysis of merit, in the Special Committee, the PEC goes to plenary vote. To be approved, the text must have favorable votes of 3/5 of the deputies (308), in two rounds of voting. It is worth reinforcing that the intention of the President of the House, Arthur Lira (PP/AL), is for the PEC to be voted on in plenary this year.

If approved by the Plenary, the Proposal goes to the Federal Senate (SF), to be analyzed and voted on. If the SF fully agrees with the text, the text will proceed to promulgation in a session of the National Congress. If there is a change in the merits of the PEC, it will return to the initiating house, which will have to analyze the changes in the wording. There will only be promulgation if both Houses agree with the text.

The PEC has been suffering wear during its processing. The first of them was the publication of the ordinance that approves the so-called “duplex ceiling”, which authorizes retired federal employees and retired military personnel to receive salaries higher than the constitutional ceiling. This authorization had an impact on public coffers and has been used as an argument by the opposition. This circumstance was alleviated with the approval of the Bill that regulates the remuneration limit in the Public Administration (also called PL of super salaries). The vote was the result of an agreement reached between the Party Leaders under the justification of giving cohesion to the context of the Administrative Reform vote.

The episodes related to complaints, by public servants, of irregularities in public services and the consequences brought to public agents due to the application of sanctions intensify the climate for the PEC vote, as the opposition appropriates the facts to argue that , given the flexibility of stability, attitudes such as this should be discouraged due to the fear of reprisals against civil servants.

Another point that could weaken the Proposal for Amendment slips into the argument that there is no need to change the Constitution to modify the performance assessment points of servers, just regulating the device, taking advantage of texts that are already being processed in the House.

Opponents of the PEC allege that the Ministry of Economy has not informed the data on which the proposition was based. During the audience with the Minister of Economy, Paulo Guedes, he emphasized that there is no dogmatism on the part of the government about the reform and that the main objective is to guarantee the improvement and modernization of the quality of public service, in an efficient manner. The minister informed that the evaluation of servers will be carried out by each exclusive State career and defended the creation of a national digital identity, to facilitate access to public services (including social services).

In this regard, the rapporteur of the Special Committee text stated that points of changes were agreed with the government, so that technical and strategic positions are not occupied by people outside the administration and that there is a change in the nomenclature of "typical careers of State” to “EXCLUSIVE State careers”, in order to better define the idea of the text's intention. The change in the nomenclature occurs so that there is no doubt about which careers would fit into this cut. In other words, in order to understand that these careers refer to those positions which are not similar in the private sector.

The rapporteur understands that this is the essential point of the PEC, in which only the members of typical/exclusive State careers should enjoy stability. He also highlighted that the Complementary Law should establish the performance evaluation of public servants. Furthermore, there was a proposal, by the rapporteur, that the follow-up of the work focuses mainly on improving public services, emphasizing performance assessment and management, which may give less prominence to discussions of a fiscal nature. It is worth noting that the discourse around cost reduction has been losing ground to the argument for the modernization of the State, based on the use of new technologies and digitization of public services.

Despite the speed of reform in the House of Representatives, there are signs that the PEC will face greater resistance in the Senate. The President of the Federal Senate, Rodrigo Pacheco (DEM/MG), during his presentation at the event “Industry in Debate – Proposals for Brazil to overcome the crisis and return to growth”, promoted by the National Confederation of Industry – CNI, declared that there is a need to verify the Planalto's commitment to this reform in a pre-electoral year.

Senator Paulo Paim has already declared that the text of the Administrative Reform has vices that are difficult to clean up and criticized a device that restricts stability. Senator Antônio Anastasia (PSD/MG) – vice president of the Mixed Parliamentary Front for Administrative Reform – defends an in-depth debate on the topic, in which the reformulation should focus on delivering results and improving public management. Thus, the improvement in the delivery of public services should be measured by performance evaluation and not by the end of stability.

Wrote by Umbelino Lôbo Team: Walysson Barros

Share:

Share on facebook
Share on twitter
Share on linkedin
Share on whatsapp
Share on email

Related publications

Skip to content