STJ decides that payment of jetons in state-owned companies can exceed constitutional ceiling

The second panel of the Superior Court of Justice (STJ) decided, this Tuesday (23), that the payment of so-called “jetons” to ministers of State who participate in fiscal or administrative councils in public or mixed economy companies may exceed the ceiling constitutional remuneration, of R$ 41.6 thousand – equivalent to the remuneration of Ministers of the Federal Supreme Court (STF).

The jetons are a kind of gratuity paid to federal civil servants who participate as representatives of the Union in the councils, and whose performance “undeniably generates an extra workload”, according to the judges’ decision. The justices considered that the Federal Supreme Court (STF) has already recognized the constitutionality of the accumulation of ministerial and advisory functions in state-owned companies.

The accumulation of salary and jetons above the remuneration ceiling, however, is valid only for public companies and mixed economy companies that are self-sufficient, that is, that do not use funds from the Union, states and municipalities for the payroll.

“A contrario sensunot applicable [teto remuneratório] to self-sufficient state-owned companies, which do not receive public funds to pay personnel expenses or general expenses”, said Minister Francisco Falcão, rapporteur for the action that questions the payment of bonuses.

Also according to the magistrate, an opposite decision would create two different classes of directors: those who did not come from the public administration would normally receive the jetons, while the others would work without pecuniary compensation.

“And there is no mention that such attributions would already be covered by the subsidy, since this refers specifically to the retribution for the exercise of the position of Minister of State, not covering extra attributions, such as that of adviser”, concluded the minister.

Popular action led to questioning the payment of jetons

The decision on the payment of jetons and the accumulation above the constitutional ceiling was given based on a popular action proposed in 2012 against 13 people who held positions of ministers at the time, in addition to the Union, and 14 public institutions linked to the federal government, such as Petrobras, the National Bank for Economic and Social Development (BNDES), the Post Office and the Brazilian Communication Company (EBC).

In the first instance, the judge declared unconstitutional the cumulative receipt of remuneration for the position of minister and the jetons, for violating the principle of administrative morality and for violating the remuneration ceiling of the public sector.

Subsequently, the STF established that the authorization given by Law 9.292/1996, for public servants to participate in boards of directors and supervisory bodies of the state structure, does not contradict the prohibition of remunerated accumulation of positions, jobs and public functions.

Despite the decision, and even with the departure of the ministers of public functions, the parties to the process manifested themselves in favor of continuing with the popular action so that the decision would take effect in future cases.