The public servant’s constitutional guarantee to segregate the contribution time for the concomitant activities and obtain the contribution time certificate

Abstract

This article analyzes the item I of article 195 of MTP Ordinance 1.467/2022 and the item II of article 96 of Federal Law 8213/1991 which prohibited the counting of time in public service with private activity, when concomitant, including cumulative positions, and the consequent issuance of a Certificate of Contribution Time. It verifies that numerous public servants are impacted by these fences. To do so, it uses the method of bibliographical collection, analysis of legislation and judicial decisions on the subject. First, it examines the doctrine and the constitutional rule of reciprocal counting of contribution time applied both to the insured associated to the General Social Welfare Policy and to the public servant bound to the Special Social Security Regime. The study identifies that this rule is fully effective and does not depend on legislation for its application. Then, it analyzes the infraconstitutional legislation such as the federal law, the Social Security Regulation, Normative Instruction and the MTP Ordinance applicable to the Special Social Security Regimes. Thus, the article explores the most recent infralegal guidelines regarding the Contribution Time Certificate. Finally, it explores the jurisprudence of the STF, STJ and regional courts. In view of the study, it certified the unconstitutionality of these legal provisions that prevent the full exercise of the constitutional right of reciprocal counting of contribution time when there are concomitant activities carried out by public servants.