Vínculos não estatutários no serviço público: uma análise à luz dos princípios administrativos e constitucionais

Abstract

The Constitution of the Republic allows the public administrator to carry out certain types of exceptional hiring, characterized by the formation of a temporary relationship between the Public Administration and third parties, generally taking two main forms: temporary hiring due to exceptional public interest and outsourcing. In addition to temporary and outsourced contracts, there is also a significant number of appointments to commissioned positions – ad nutum. These types of hiring are marked by the considerable discretion of the administrator, who has the power to place in public administration, in positions of leadership, management, and advisory, virtually anyone of their choosing, with loyalty and trust often cited as the sole requirements. Currently, the irregular hiring of labor in the public sector, alongside the large number of commissioned officials, has reached considerable levels, often drawing public attention, while the appointment to positions through public civil service exams is becoming increasingly rare. This highly discretionary scenario has given rise to widespread opportunities for the politicization and manipulation of public administration by individuals pursuing obscure interests and personal gain, who use their appointment power to fill the public sector with political allies and trade positions as bargaining chips. Within this context, the present work aims to analyze the growth of non-permanent forms of staffing within the Public Administration, which have become increasingly frequent in the reality of Brazilian public administration. It seeks to investigate the compatibility of such practices with public service, in light of the constitutional principles that govern public activity. The study also questions the legality of these types of employment relationships adopted by the State, comparing them with constitutional principles and the requirement of public entrance examinations, based on existing doctrinal and jurisprudential perspectives.