(In) segurança jurídica na acumulação de cargos com dedicação exclusiva no magistério superior: interpretação do art. 37, XVI, ‘a’, da Constituição Federal de 1988 para a formação de um Precedente Judicial

Abstract

Article 37, XVI, of the Constitution of the Federative Republic of Brazil of 1988, adopts as an exceptional measure the possibility of accumulating public positions for teachers, delimiting it in the aspect of hourly compatibility between the cumulative posts. On the one hand, teachers under the regime of exclusive dedication accumulate the position in the teaching based on the permissive constitutional. On the other hand, Decree n. 9,464 / 87 and Law no. 12,772 / 12 prohibit the accumulation of positions for teachers who opt for the exclusive dedication regime, as a result, the Public Administration punishes the public agents who accumulate two positions of teachers and one of them is bound to the work regime of exclusive dedication. Regarding the subject of the discussion, the theme reached the Judiciary to direct the possibility or not of accumulation of positions when the teacher registers the exclusive dedication. Thus, among the High Courts, the Courts of Justice and the Federal Regional Courts, there are differences of understanding, thus creating instability of legal security in the teaching of higher education. It is therefore intended to construct arguments that legitimize the accumulation of positions in the higher teaching for teachers included in the regime of exclusive dedication, based on doctrinal thinking, judgments and interpretation according to the Constitution, in order to maintain intact, uniform and stable Judicial precedents.