See the options to undertake as a public servant – 05/29/2023 – Mpme

A Sheet heard from three specialists to answer the question “what entrepreneurial options does the federal public servant have to set up a legal entity that does not violate law nº 8.112/1990?”, submitted by a reader.

Direct answer: Yes, as long as they do not perform administration or management activities.

“No command function is allowed; otherwise, the server could respond to a disciplinary process”, says Vivian Lima López, professor of administrative law at PUCPR (Pontifical Catholic University of Paraná).

The restriction mentioned by the expert is provided for in article 117 of law 8.112/1990 —which is known as the Statute of Public Servants. Item X prohibits civil servants from managing or administering a private company and exercising commerce.

The same passage opens a gap for the positions of “shareholder, shareholder or partner”. That is, a person can acquire shares in a company, own a part of its equity or hold a portion of its investments without infringing the legislation. And, in these positions, you can also practice commercial activities.

The main practical possibility is the opening of an Eireli (Individual Company of Limited Responsibility) — a company with closed quotas and that does not require partners, but allows the appointment of a non-tenured administrator.

But you have to be careful with the business segment. “It is fundamental that the branch has no relation with the professional exercise in the federal public administration, which can configure a conflict of interest”, says the professor of public management at USP Fernando Coelho.

The deputy manager of public policies at Sebrae (Brazilian Support Service for Micro and Small Companies), Elias Guimarães Borges Filho, points out that other entrepreneurship options include participation in foundations, cooperatives or associations and in boards of directors and supervisory bodies of companies in the which the Union holds part of the share capital.

The federal civil servant may also request unpaid leave for private interests and open a company. In this case, according to Borges, there is no prohibition on managing the business. “It is necessary, however, to pay attention to the return of public activities after the end of the license and the conflict of interest legislation.”

Professor Fernando Coelho recommends that, in order to avoid infringements, the process of opening a legal entity be accompanied by a specialist. “The options must be evaluated individually and, preferably, with the support of an accountant to verify the modalities that do not require any acts of management and administration.”

There is also a bill pending in the Senate that proposes that civil servants can also be individual micro-entrepreneurs.

Currently, there is no specific ban on MEI in the public servant’s statute, but all activities —including administrative ones— must be carried out by the CNPJ holder, which makes it impossible for the entrepreneur to delegate management functions.

Author of the project, senator Nelsinho Trad (PSD-MS) argues that the impossibility of being a micro-entrepreneur is an unfavorable distortion for those in public service.
“Public servants are prohibited from legitimately supplementing their income and ensuring better living conditions for themselves and their families,” he told Agência Senado in September last year.

PL 2332/2022 is awaiting the designation of a rapporteur in the Economic Affairs Committee.

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