The Court of Justice of Rio de Janeiro (TJ-RJ) declared unconstitutional sections of a law from São Gonçalo that created thousands of commissioned positions for Head of Department and authorized the payment of certain bonuses outside the public service pay ceiling. The decision was taken unanimously by the Court's Special Body this Monday (1st).
This measure could have a direct impact on the city hall's administrative structure, since the court ordered the dismissal of all those holding positions deemed irregular within 30 days of the final judgment, when no further appeals are possible.
Court finds irregularity in the creation of the positions.
The case originated from a lawsuit filed by the Public Prosecutor's Office of the State of Rio de Janeiro (MPRJ), which questioned the creation of Department Head positions through Municipal Law No. 1.416/2022. According to the MPRJ, the law created more than 3 commissioned positions.
According to the case's rapporteur, Judge André Ribeiro, the positions were created as freely appointed roles, but without minimum qualification requirements compatible with leadership responsibilities.
During the trial, the judge emphasized that the legislation only required individuals to be over 18 years of age and have completed high school to perform the duties.
According to the rapporteur, the lack of technical and professional requirements demonstrated that the creation of the positions did not meet the criteria established by the Constitution for management and leadership roles, making the regulation incompatible with constitutional rules.
With this decision, the current occupants will have to be dismissed, and the city hall will be prohibited from making new appointments to the same positions.
Bonuses will now be included in the calculation of the salary cap.
Another point analyzed by the court involved rules that allowed certain bonuses to be paid without being considered in the calculation of the municipality's salary cap.
Among the benefits achieved by the decision are:
- Productivity bonus;
- Bonuses paid to school principals;
- Bonuses for deputy directors;
- Bonuses for shift supervisors;
- Bonuses for school secretaries.
The Special Body concluded that these funds are of a remunerative nature and, therefore, must be included in the calculation of the constitutional salary cap for civil servants.
The decision stipulates that these amounts will be retroactively applied for all purposes related to the salary cap.
There will be no refunds.
Despite the declaration of unconstitutionality, the court decided that there will be no refund of the amounts already received by the employees.
The measure applies both to those occupying the positions that will be eliminated and to employees who received bonuses exceeding the salary cap.
The understanding was that the payments were made based on laws that were in effect at the time, thus eliminating the need for reimbursement to public funds.
The action was brought by the Public Prosecutor's Office.
In the lawsuit, the Public Prosecutor's Office argued that the municipal legislation created a kind of exception to the salary cap by removing certain bonuses from the maximum remuneration limit for public employees.
Furthermore, the agency argued that the Department Head positions had predominantly technical and administrative characteristics and, therefore, could not be filled by free appointment without a public competition.
According to the MPRJ (Rio de Janeiro State Public Prosecutor's Office), the regulations violated constitutional principles related to public administration, administrative morality, and equal access to public office.
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