Nepotism: What the law says about appointments of relatives – 01/27/2023 – Power

The appointment of relatives in different degrees to public positions (a practice known as nepotism) is regulated by Brazilian law, but there are gray areas and ways to circumvent legal restrictions.

The theme gained prominence this year with five governors filling positions of trust with family members — cases of Paulo Dantas (MDB), in Alagoas; Fábio Mitidieri (PSD), in Sergipe; Marcos Rocha (União Brasil), in Rondônia; Antônio Denarium (PP), in Roraima; and Raquel Lyra (PSDB), in Pernambuco.

The governor of São Paulo, Tarcísio de Freitas (Republicans), even appointed a brother-in-law to his administration, but later withdrew. The other governors argue that the nominations responded to technical criteria and are not irregular, since the positions are considered to be of a political nature.

Understand what the law says about nepotism:

What is nepotism and what does the legislation say about it?

Nepotism, a term used to define the use of a position, by a public agent, to appoint or favor relatives, has been prohibited by law since 1990, when the appointment of a spouse, partner or relative to positions or positions of trust was prohibited until the high school.

In Brazilian law, the family line has two forms of visualization — vertical, looking at the ascendants, such as parents, grandparents and great-grandparents, and horizontal, consisting of brothers, uncles and nephews, for example. There is also the degree of affinity, considering the spouse and their relatives, or stepfathers, stepmothers and stepchildren.

The text, however, is generic, and had to be defined more strictly by the STF (Federal Supreme Court), which did so by binding precedent number 13, of 2008.

According to Matheus Herren, lawyer and professor of law at PUC-SP, even if the appointment of relatives is not covered by the existing legal apparatus, the practice can lead to the accountability of those who appointed the family member to the position for administrative impropriety.

What was the understanding of the STF?

The court extended the degree of kinship to the third degree both vertically and horizontally, also including affinity.

The legislation was interpreted by the Supreme Court as national, that is, in force for the Union, states and municipalities. This means that the rule applies both to the President of the Republic and to governors and mayors.

There was also an interpretation of the principle of public administration efficiency when there are cases of nepotism —in addition to violating the principle of impersonality, if the person is not qualified to hold the position, efficiency is also violated, another base factor for the civil service, according to the Constitution.

The principles of legality and morality, also in the Magna Carta, will be similarly violated, according to the Court, since the appointment of family members is illegal.

Are there other regulations on the subject?

There are still other resolutions and laws on the subject, for bodies such as the Public Prosecutor’s Office and for Judiciary officials, in a resolution of the CNJ (National Council of Justice).

In 2010, then-president Luiz Inácio Lula da Silva (PT) issued a decree extending the understanding of the Supreme Court to all public administration, direct and indirect.

What ways are sometimes used to circumvent legal restrictions?

There are still some issues that remain outside the legislation and jurisprudence, such as cross nepotism, when the public agent appoints the relative of another public servant, and this civil servant appoints a relative of the first agent.

There is also the thesis that differentiates public positions of a technical nature and those of a political nature —while the first is created by law and comprises lower scales of the administrative hierarchy, the second appears in the Constitution and aims to compose higher levels, as head of secretariats, planning actions of government and assisting the heads of Powers.

Although there is no strict decision on these two types of positions, the Supreme Court has validated the interpretation and decided in favor of some indications of family members —in 2009, for example, the court decided on the appointment of Ivo Gomes, brother of the then governor of Ceará Cid Gomes (PDT), to the chief of staff.

Is there anything in progress to better regulate the issue?

There is an appeal lodged in the STF against the unconstitutionality of a law enacted in Tupã, a city 514 km from the capital of São Paulo. The text did not consider the appointment of relatives to positions of a political nature as nepotism.

The Court decided that the case will have general repercussions, that is, it will serve as a parameter for future judgments on the same subject, and will consolidate the court’s interpretation of the nature of public functions.

What challenges does nepotism pose to politics?

Professor of administrative law at UFMG (Federal University of Minas Gerais) Onofre Alves Batista Jr. says that favoring family members is not a problem exclusive to Brazil, but that it is difficult to face a moral problem with legislation rigidly regulating a fluid issue, with various political and social nuances.

Baptist Jr. also cites the need to create exceptions when there is competence of the relative appointed to perform the function, better visualizing the concrete case to avoid, for example, the crossing of benefits between influential families in the administration, such as those of politicians, judges, among others.