Over the last few years, the (Federal Supreme Court) has consolidated its understanding against the use of penduricalhos in the public service, but decisions and uncertainties on the subject have opened a space for the proliferation of these extra funds.
Survey conducted by Sheet shows that the court’s jurisprudence moves towards preventing the constitutional ceiling from being emptied through terminological devices. The general trend, however, contrasts with sometimes faltering implementation.
The court’s plenary will once again look into the issue this Wednesday (25) for the judgment of the minister’s (provisional) referendum that suspended suspensions in the three Powers and limited remuneration to the constitutional ceiling.
In it, Dino states that “the STF has already been called upon to decide hundreds (perhaps thousands) of times constitutional controversies caused by repeated paths to exceeding the salary ceiling”. A survey as an example of the Sheet counted 484.
The keywords “constitutional ceiling” or “remuneration ceiling” plus the terms “remuneration funds” or “compensation funds”, considering plurals or synonyms, were used in the jurisprudence search tab provided by the court.
This is a non-exhaustive search and does not aim to exhaust the topic. From it, however, it is possible to make a general analysis regarding the Supreme Court’s jurisprudential evolution on the matter and what the current situation is.
In February last year, for example, ministers overturned a law in Goiás that authorized public agents to receive payments above the ceiling. The text provided that, if part of the amount to be received exceeded the limit, it would be classified as compensation.
This is a classic case of pendulication. Compensation funds are not included in the ceiling, because they serve as a form of non-salary compensation. Therefore, benefits are listed as compensation, despite being part of the remuneration, to escape the limit.
The minister defines it as follows: “The remuneration amount is paid as consideration for the service provided. The compensation portion is intended to compensate for the expense spent by the server as a necessary condition for the effective provision of the service.”
Henrique Apolinario, lawyer at Justa, an organization that analyzes judicial management and financing, states that the Supreme Court has a consolidated position, especially with regard to the remuneration ceiling. The limit applies not only to salary, but to other remuneration funds.
“To compensate is to leave unharmed, without damage. If there was no damage, there is no need to talk about compensation, obviously. However, under the name of compensation, what is not owed is paid”, stated the minister in a trial on the matter in 2015.
At the time, she said that, when she was attorney general of Minas Gerais, she proposed publishing all paycheck amounts in the Official Gazette. There were five requests for her to be dismissed. Exoneration was easier than publication, he said.
Apolinario (Justa platform) says that the trinkets go as far as your imagination allows — through travel, accumulation of processes, days worked — and that, in the last 20 years, the Supreme Court has been called upon to decide several times.
But the application of these understandings was not always firm. The case of the minister’s 2014 injunctions that guaranteed members of the judiciary is well known. They were, which only came after laws restored the subsidy.
This is not an isolated fact. At the end of 2023, a decision by the (Federal Audit Court) that suspended the payment of the additional payment for time of service to magistrates — the so-called five-year period — was revoked and the procedures were terminated.
The Union appealed, arguing “risk of immediate, serious damage that would be difficult to repair”. The case was brought to trial in the Second Panel of the STF, but the minister requested a review, as he did in the plenary, in another action against the five-year period, of . Both cases have not yet been judged.
This is the same Gilmar who, this Monday (23), expressed his “perplexity regarding the disorder we are experiencing with regard to the remuneration of public agents in general and, in particular, of members of the Judiciary and the “.
The same goes for decisions that did not actually authorize frills, but served as arguments to inflate remunerations, such as the one that reaffirms the principle of irreducibility, widely used to justify the payment of retroactive benefits.
For Rafael Viegas, researcher and postgraduate professor at FGV and Enap, the STF’s jurisprudence was marked by a pendulum movement, with the court moving from a more rigid position to one that started to allow certain portions to escape the ceiling.
According to him, the gaps arose, firstly, from the expansion of the concept of compensation; second, the courts and Public Ministries, which began to establish advantages for themselves; and, finally, federative fragmentation, with each State creating its own group.
Professor Humberto Falcão, from the Public Management area at Fundação Dom Cabral, talks about an animus of creating penduricalhos. “The ceiling doesn’t work, because there are loopholes out there. So, confusing legislation means this: it can’t, but it can.”
Falcão states that the solution would be to severely curb and restrict these payments, with a strict definition of what constitutes remuneration and what constitutes compensation. “It’s not that it has to end (…), that wouldn’t be possible or reasonable, but the cases have to be reduced.”
The executive director of Transparência Brasil, Juliana Sakai, says that pressure from the STF is important in this sense, cites an omission by Congress and defends the approval of a clear law for these compensations — which must be occasional and linked to reimbursement.
Dino’s decision is already a step in that direction. “We hope that the regulation of this law can effectively control these trinkets”, says Sakai. “And as a society, we have support from the STF to ensure that these payments do not occur.”
