Holding More Than One Public Office: The Cases the Constitution Allows

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

As a general rule, the Brazilian Constitution prohibits holding more than one paid public position at the same time, but the Federal Constitution itself lists the situations in which doing so is allowed. These exceptions are exhaustive and conditional. They require a precise fit and compliance with cumulative requirements that go beyond simply showing that the position is eligible.

The General Prohibition as a Starting Point

Article 37, item XVI, of the Federal Constitution prohibits holding more than one paid public office, public job, or public function, whether in the direct administration, in autarchies (government agencies with their own legal personality) and foundations, or in public companies, mixed-capital companies, and their subsidiaries, as item XVII of the same article provides. The rule is broad. It reaches all three branches of government and all three levels of the federation, so federal, state, and municipal public servants are all subject to the same prohibition.

Violating the constitutional prohibition is not a mere administrative irregularity. A public servant who holds two public positions outside the authorized exceptions commits a serious disciplinary offense, punishable by dismissal. The servant may also be required to repay the amounts received during the period of unlawful dual employment, based on the rule against unjust enrichment at the expense of the public treasury.

The Three Cases the Constitution Allows

The Constitution authorizes holding two positions in three exhaustive situations: two teaching positions; one teaching position combined with another of a technical or scientific nature; and two positions or jobs reserved for health professionals, provided the professions are regulated. Outside these three cases, there is no room for broad interpretation or reasoning by analogy. The prohibition is self-executing and takes effect immediately.

For any of these exceptions to apply, two requirements must be met at the same time: compatible work schedules between the two positions and compliance with the salary cap set by Article 37, item XI, of the Federal Constitution. Schedule compatibility requires objective documentary proof. The public servant’s own statement is not enough. It is up to the administration to verify, based on work schedules, official orders, and formal assignments, whether holding both positions at once is actually feasible.

Whether a position counts as technical or scientific depends on the duties the law assigns to it, not on the personal training of the public servant who holds it.

The combined pay from the two positions may not exceed the monthly subsidy of the Justices of the Supremo Tribunal Federal (Brazil’s Supreme Federal Court), which is the maximum limit set by the Constitution. Any excess must be returned to the public treasury regardless of good faith, except in exceptional situations recognized by case law in which the administration actively contributed to the public servant’s mistake.

What Counts as a Technical or Scientific Position

The Constitution does not expressly define the phrase “technical or scientific position,” so the courts have had to develop a consistent body of case law. The Supremo Tribunal Federal has held that a technical position is one whose performance requires specialized knowledge in a particular field and is tied to the public servant’s professional training. This sets it apart from positions that are purely clerical or operational.

Under this approach, engineers, physicians, psychologists, social workers, accountants, and other professionals with specific training who perform duties matching their field may, in principle, hold a technical position together with a teaching position. Whether a position is technical or scientific is determined by examining the duties set out in law or regulation, not by the title of the position or the public servant’s academic degree.

Management, executive, or advisory positions do not automatically qualify for the constitutional exception, even when held by highly qualified professionals. What matters is whether the work actually performed is technical or scientific, as opposed to a supervisory or coordinating role or a support activity of the public administration.

Frequently Asked Questions

Can a public servant hold a career position and a commissioned position at the same time?

Commissioned positions, which the government fills and ends at will, do not automatically fall within the exceptions in Article 37, item XVI, of the Federal Constitution. The case law of the Supremo Tribunal Federal allows a career position to be combined with a commissioned position only when the commissioned position is, in substance, a technical or scientific one, with duties that match the public servant’s specialized training, and only if the schedules are compatible and the salary cap is respected. Commissioned positions that are managerial or political in nature do not meet this requirement.

Can a retired health professional receive retirement benefits and also work in a new active position?

As a rule, the Federal Constitution prohibits receiving retirement benefits and the pay of an active position at the same time. The exception applies when the retired health professional returns to work in a position or job that falls within the cases in Article 37, item XVI. In that situation, the retirement benefits and the pay from the active position, taken together, must stay within the constitutional cap. Outside the authorized cases, returning to public service means the retirement benefits are suspended while the person is working.

Does the administration have to verify schedule compatibility formally?

Yes. Formal verification of schedule compatibility is the public administration’s duty and cannot be replaced by the public servant’s own statement. The necessary documentation includes work schedules, the official hours of each position, assignment orders, and any time-clock records. Informal or implied approval from an immediate supervisor does not satisfy the constitutional requirement. If there is no formal verification, responsibility for the improper dual employment falls on the public servant, who remains subject to disciplinary sanctions and to the duty to repay any amounts received improperly.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.