Law on Pub Officer Summary

8/2/2019 Law on Pub Officer Summary

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PUBLIC OFFICERS

PUBLIC OFFICE AND OFFICERS

Public Office

Definition

A public office is the right, authority and duty created and conferred by law, by which for a given period, either fixed by law orenduring at the pleasure of the appointing power, an individual is invested with some portion of the sovereign functions of thegovernment, to be exercised by him for the benefit of the public. (Mechem)

Purpose and Nature

A public office is created to effect the end for which government has been instituted which is the common good; not profit, honor,or private interest of any person, family or class of persons (63 A Am Jur 2d 667)

Nature: (1) A public office is a public trust. (Art. XI, Sec. 1, 1987 Consti)(2) It is a responsibility and not a right. (Morfe v. Mutuc)

Elements

(1) Must be created either by (a) the Constitution, (b) the Legislature, or (c) amunicipality or other body through authority conferred by the Legislature;

(2) Must possess a delegation of a portion of the sovereign power ofgovernment, to be exercised for the benefit of the public;

(3) The powers conferred and the duties discharged must be defined, directly orimpliedly by the Legislature or through legislative authority;

(4) The duties must be performed independently and without control of asuperior power other than the law;

Exception: If the duties are those of an inferior or subordinate office, created or authorized by the Legislature and by itplaced under the general control of a superior office or body;

(5) Must have some permanency and continuity

Note: This is not to be applied literally. The Board of Canvassers is a public office, yet its duties are only for a limited

period of time.

(cf. Barney v. Hawkins)

Public Officer v. Public Employment

Public employment is broader than public office. All public office is public employment, but not all publicemployment is a public office.

Generally, a position is a public office when it is created by law, with duties cast upon the incumbent which involvethe exercise of some portion of the sovereign power, and in the performance of which the public is concerned. Public employmentis a position which lacks one or more of the foregoing elements.

Public Office v. Public Contract

Public Office Public Contract

Creation Incident of sovereignty Originates from will of contracting parties

Object Carrying out of sovereign as well asgovernmental functions affecting even personsnot bound by the contract

Obligations imposed only upon the personswho entered into the contract

Subject Matter Tenure, duration, continuity Limited duration

Scope Duties that are generally continuing andpermanent

Duties are very specific to the contract

Where duties aredefined

The law Contract

No vested right to public office


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GENERAL RULE: A public office, being a mere privilege given by the state, does not vest any rights in the holder of theoffice. This rule applies when the law is clear.

EXCEPTION: When the law is vague, the persons holding of the office is protected and he should not bedeprived of his office.

Segovia v. Noel

It is a fundamental principle that a public office cannot be regarded as the property of the incumbent and that apublic office is not a public contract. Nonetheless, Act. No. 3107 should be given a prospective effect in the absence of legislativeintent to the contrary. Although there is a vested right to an office, which may not be disturbed by legislation, yet the incumbent

has, in a sense, a right to his office. If that right is to be taken away by statute, the terms should be clear.

Agcaoili v. Suguitan

The Supreme Court held that Agcaoili had not ceased to be a justice of the peace by operation of Act No. 3107. TheSegovia ruling was reiterated, i.e. Act No. 3107 should be given prospective effect only, as there was no express statement makingthe law applicable retroactively.

Public Office not property

A public office is not the property of the public officer within the provision of the Constitution against deprivation ofproperty without due process of law or within an agreement in a treaty not to impair the property or rights of private individuals.

Exceptions:

(1) In quo warranto proceedings relating to the questionas to which of 2 persons is entitled to a public office

(2) In an action for recovery of compensation accruing by virtue ofthe public office

Cornejo v. Gabriel

Due process is violated only if an office is considered property. However, a public office is not property within theconstitutional guaranties of due process. It is a public trust or agency. As public officers are mere agents and not rulers of thepeople, no man has a proprietary or contractual right to an office. Every officer accepts office pursuant to law and holds office as atrust for the people whom he represents.

Abeja v. Tanada

Public office being personal, the death of a public officer terminates his right to occupy the contested office andextinguishes his counterclaim for damages. His widow and/or heirs cannot be substituted in the counterclaim suit.

Modes of Creation of Public Office

(1) by the Constitution(2) by statute / law(3) by a tribunal or body to which the power to create the office has been delegated

Scope and Extent of Power of legislature

GENERAL RULE: The creation of a public office is primarily alegislative function.

Exceptions: (1) where the offices are created by theConstitution;

(2) where the Legislature delegates such power.

Delegation of power to create public office

Q: What is the effect where an office is created pursuant to illegally delegated powers?

A: The office would have no existence.

U.S.T. v. Board of Tax Appeals

The authority given to the President to "reorganize within one year the different executive departments, bureausand other instrumentalities of the Government" in order to promote efficiency in the public service is limited in scope and cannot


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be extended to other matters not embraced therein. Therefore, an executive order depriving the Courts of First Instance ofjurisdiction over cases involving recovery of taxes illegally collected is null and void, as Congress alone has the "power to define,prescribe and apportion the jurisdiction of the various courts."

Methods of Organizing offices

(1) Single-head: one head assisted by subordinates. Swifter decision andactions but may sometimes be hastily made.

(2) Board System: collegial body in formulating polices and implementingprograms. Mature studies and deliberations but may be slow in

responding to issues and problems.

Modification and Abolition

GENERAL RULE: The power to create an office includes the power to modify or abolish it. (i.e., this is generally a legislativefunction)

EXCEPTIONS:

(1) Where the Constitution prohibits such modification / abolition;(2) Where the Constitution gives the people the power to modify or abolish the office;

Ocampo v. Secretary of Justice

The legislative power to create a court carries with it the power to abolish it. When the court is abolished, anyunexpired term is abolished also.

Zandueta v. De la Costa

RULE: When a public official voluntarily accepts an appointment to an office newly created by law -- which newoffice is incompatible with the former -- he will be considered to have abandoned his former office.

Exception: When the non-acceptance of the new appointment would affect public interest, and the public official isthereby constrained to accept.

Estoppel to deny existence of office

Q: When is a public officer estopped from denying that he has occupied a public office?

A: When he has acted as a public officer, esp. where he has receivedpublic monies by virtue of his office.

Public Officer

Volunteer Service under RA 6713

Definition

A public officer is one who performs public functions / duties of government by virtue of direct provision of law, popular el ection,or appointment by competent authority. His duties involve the exercise of discretion in the performance of the functions of thegovernment, and are not of a merely clerical or manual nature. (See Sec. 2 (14), E.O. 292)

Note: For the purpose of applying the provisions of the Revised PenalCode, employees, agents, or subordinate officials, of any rank or class, who perform public duties in the

government or in any of its branches shall be deemed as public officers.

Illustrations:

In the case of Maniego v. People, a laborer who was in charge of issuing summons and subpoenasfor traffic violations in a judge's sala was convicted for bribery under RPC 203. The court heldthat even temporary performance of public functions is sufficient to constitute a person as apublic official.

In the case of People v. Paloma, a sorter and filer of money orders in the Auditor's Office of theBureau of Posts was convicted for infidelity in the custody of documents. The court pointed outthat the sorting and filing of money orders in the Bureau of Posts is obviously a public functionor duty.

Who are not considered public officers?

Special policemen salaried by a private entity and patrolling only the premises of such private entity (Manila Terminal Co. v.


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CIR);

Concession forest guards (Martha Lumber Mill v. Lagradante);

Company cashier of a private corporation owned by the government (Tanchoco v. GSIS)

May a person be compelled to accept a public office?

GENERAL RULE: NO.

EXCEPTIONS:

(1) When citizens are required, under conditions provided by law,to render personal military or civil service (Sec. 4, Art. II, 1987 Const.);

(2) When a person who, having been elected by popular election to a public office, refuses withoutlegal motive to be sworn in or to discharge the duties of said office (Art. 234, RPC; Note: the penaltyshall be either arresto mayor, or a fine not exceeding P 1,000.00, or both)

No presumption of power

Villegas v. Subido

Nothing is better settled in the law than that a public official exercises power, not rights. The government itself ismerely an agency through which the will of the state is expressed and enforced. Its officers therefore are likewise agentsentrusted with the responsibility of discharging its functions. As such, there is no presumption that they are empowered to

act. There must be a delegation of such authority, either express or implied. In the absence of a valid grant, they are devoid ofpower.

Classification of Public Offices and Public Officers

Creation

(1) Constitutional(2) Statutory

Public Body Served

(1) National(2) Local

Department of government to which their functions pertain

(1) Legislative(2) Executive(3) Judicial

Nature of functions

(1) Civil(2) Military

Exercise of Judgment or discretion

(1) Quasi-judicial(2) Ministerial

Legality of Title to office

(1) De Jure(2) De Facto

Compensation

(1) Lucrative(2) Honorary

DE FACTO OFFICERS

De Facto Doctrine


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Q: What is the de facto doctrine?

A: It is the principle which holds that a person, who, by the proper authority, is admitted and sworn into office is deemed to berightfully in such office until:

(a) by judicial declaration in a proper proceeding he is ousted therefrom; or(b) his admission thereto is declared void.

Q: What is the purpose for the doctrine?

A: It is to ensure the orderly functioning of government. The public cannot afford to check the validity of the officer's title eachtime they transact with him.

De Facto Officer defined

Q: When is a person a de facto officer?

A: Where the duties of the office are exercised under any of the following circumstances:

(1) Without a known appointment or election, but under such circumstances of reputation or acquiescence as werecalculated to induce people, without inquiry, to submit to or invoke his action, supposing him to the be theofficer he assumed to be; or

(2) Under color of a known and valid appointment or election, but where the officer has failed to conform to someprecedent requirement or condition (e.g., taking an oath or giving a bond);

(3) Under color of a known election or appointment, void because:

(a) the officer was not eligible;(b) there was a want of power in the electing or appointing body;(c) there was a defect or irregularity in its exercise;

such ineligibility, want of power, or defect being unknown to the public.

(4) Under color of an election or an appointment by or pursuant to a public, unconstitutional law, before the same isadjudged to be such.

Note: Here, what is unconstitutional is not the act creating the office, but the act by which the officer is

appointed to an office legally existing. (Norton v. County of Shelby)

Officer De Jure v. Officer De Facto

De Jure De Facto

Requisites (1) Existence of a de jure office;

(2) must possess the legal qualifications for theoffice in question;

(3) must be lawfully chosen to such office;

(4) must have qualified himself to perform theduties of such office according to themode prescribed by law.

(1) De jure office;

(2) Color of right or general acquiescence by thepublic;

(3) Actual physical possession of the office ingood faith

Basis of Authority Right: he has the lawful right / title to the office Reputation: Has the possession and performs theduties under color of right, without beingtechnically qualified in all points of law to act

How ousted Cannot be ousted. Only by a direct proceeding (quo warranto); notcollaterally

Validity of official acts Valid, subject to exceptions (e.g., they were donebeyond the scope of his authority, etc.)

Valid as to the public until such time as his title tothe office is adjudged insufficient.

Rule on Compensation Entitled to compensation as a matter of right;

The principle of "no work, no pay" is notapplicable to him.

Entitled to receive compensation only during thetime when no de jure officer is declared;

He is paid only for actual services rendered byhim.

Officer De Facto v. Intruder


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De Facto Intruder

Nature Officer under any of the 4 circumstancesdiscussed under Part II (above).

One who takes possession of an office andundertakes to act officially without any authority,either actual or apparent

Basis of authority Color of right or title to office None. He has neither lawful title nor color ofright or title to office.

Validity of "official" acts Valid as to the public until such time as his title tothe office is adjudged insufficient

Absolutely void; they can be impeached at anytime in any proceeding (unless and until hecontinues to act for so long a time as to afford a

presumption of his right to act)

Rule on compensation Entitled to receive compensation only during thetime when no de jure officer is declared;

He is paid only for actual services rendered byhim.

Not entitled to compensation at all.

Q: Can an intruder / usurper ripen into a de facto officer?

A: Yes. With the passage of time, a presumption may be created in the minds of the public that the intruder has a right to act as apublic officer.

Q: Is good faith a factor in the ripening of intruder status into de facto status?

A: Yes. HOWEVER, it must be noted that the good faith must be on the part ofthe public; not on the part of the intruder.

Elements of a De Facto Officership

(1) De jure office(2) Color of right or general acquiescence by the public;(3) Actual physical possession of the office in good faith

Note: This is not absolutely true. An intruder / usurper may ripeninto a de facto officer.

Examples of De Facto Officers

A judge who continued to exercise his duties after his appointment was disapproved by the CA according to a newspaper report, but beforereceiving the official notification regarding the rejection of his appointment (Regala v. Judge of CFI);

A lawyer instructed by the Acting Provincial Governor to file an information for homicide, where the latter had no authority to designatehim as assistant fiscal, and where the DOJ had not authorized him to act as such (People v. Penesa);

A third-ranking councilor who is designated to act as mayor by an officer other than the proper appointing authority prescribed by law, andlacking the consent of the Provincial Board (Codilla v. Martinez)

Examples of those not considered as De Facto Officers

A judge who has accepted an appointment as finance secretary and yet renders a decision after having accepted such

appointment (Luna v. Rodriguez);

A judge whose position has already been abolished by law, and yet promulgates a decision in a criminal case after theabolition and over the objection of the fiscal (People v. So)

Legal Effect of Acts of De Facto Officers

As regards the officers themselves

GENERAL RULE: A party suing or defending in his own right as apublic officer must show that he is an officer de jure. It is not sufficient that he bemerely a de facto officer.


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As regards the public and third persons

GENERAL RULE: The acts of a de facto officer are valid as to third persons and the public until his title to office is adjudgedinsufficient.

Official Acts of De Facto Officers not subject to collateral attack

RULE: The title of a de facto officer and the validity of his acts cannot be collaterally questioned in proceedings to which he is not aparty, or which were not instituted to determine the very question.

REMEDY: Quo warranto proceedings

Who may file:

(1) The person who claims to be entitled to the office;(2) The Republic of the Philippines, represented by

(a) the Solicitor-General; or(b) a public prosecutor

Nueno v. Angeles

In this case, there were four (4) petitioners seeking to oust six (6) Board Members. The Court held that this could not be

done unless all 4 of them were entitled to the offices of the 6.

Liabilities of De Facto Officers

The liability of a de facto officer is generally held to be the same degree of accountability for official acts as that of a de jureofficer.

The de facto officer may be liable for all penalties imposed by law for any of the following acts:

(a) usurping or unlawfully holding office;(b) exercising the functions of public office without lawful right;(c) not being qualified for the public office as required by law.

The de facto officer cannot excuse his responsibility for crimes committed in his official capacity by asserting his de factostatus.

ELIGIBILITY AND QUALIFICATIONS

Definition

Eligibility, which is the term usually used in reference to the Civil Service Law, refersto the endowment / requirement / accomplishment that fits one for a public office.

Qualification generally refers to the endowment / act which a person must do beforehe can occupy a public office.

Power to Prescribe Qualifications

GENERAL RULE: Congress is empowered to prescribe the qualifications for holding public office, subject to the following

restrictions:

Congress cannot exceed its constitutional powers;

Congress cannot impose conditions of eligibility inconsistent with constitutional provisions;

The qualification must be germane to the position ("reasonable relation" rule);

Congress cannot prescribe qualifications so detailed as to practically amount to making an appointment. (Legislativeappointments are unconstitutional and therefore void for being a usurpation of executive power.);

Where the Constitution establishes specific eligibility requirements for a particular constitutional office, theconstitutional criteria are exclusive, and Congress cannot add to them except if the Constitution expressly orimpliedly gives the power to set qualifications.


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Q: What legislative enactments are tantamount to legislative appointments?

A: Extensions of the terms of office of the incumbents;

The People's Court Act, which provided that the President could designate Judges of First Instance, Judges-at-large of FirstInstance or Cadastral Judges to sit as substitute Justices of the Supreme Court in treason cases without them necessarilyhaving to possess the required constitutional qualifications of a regular Supreme Court Justice. (Vargas v. Rilloraza);

A proviso which limits the choices of the appointing authority to only one eligible, e.g. the incumbent Mayor of Olongapo City

(Flores v. Drilon);

A legislative enactment abolishing a particular office and providing for the automatic transfer of the incumbent officer to anew office created (contemplated in Manalang v. Quitoriano);

A provision that impliedly prescribes inclusion in a list submitted by the Executive Council of the Phil. Medical Association asone of the qualifications for appointment; and which confines the selection of the members of the Board of MedicalExaminers to the 12 persons included in the list (Cuyegkeng v. Cruz) ;

Manalang v. Quitoriano

Congress cannot either appoint a public officer or impose upon the President the duty to appoint any particular person to an office. Theappointing power is the exclusive prerogative of the President, upon which no limitations may be imposed by Congress, except those resultingfrom:

(1) the need of securing the concurrence of the Commission on Appointments; and

(2) the exercise of the limited legislative power to prescribe thequalifications to a given appointive office.

Cuyegkeng v. Cruz

The power of appointment vested in the President by the Constitution connotes necessarily a reasonable measure of freedom, latitude, ordiscretion in the exercise of the power to choose appointees.

Flores v. Drilon

Where only one can qualify for the posts in question, the President is precluded from exercising his discretion to choose whom toappoint. Such supposed power of appointment, sans the essential element of choice, is no power at all and goes against the very nature itself ofappointment.

Time of Possession of Qualifications

Q: When must the qualifications be possessed?

A: Where the time is specified bythe Constitution or law: At the time specified

Where the Constitution or law is silent:

There are 2 views:

(1) qualification must be at the time of commencement of term or induction into office;

(2) qualification / eligibility must exist at the time of the election or appointment

* Eligibility is a continuing nature, and must exist throughout the holding of the public office. Once the qualifications are lost, then

the public officer forfeits the office.

Castaneda v. Yap

Knowledge of ineligibility of a candidate and failure to question such ineligibility before or during the election is not a bar toquestioning such eligibility after such ineligible candidate has won and been proclaimed. Estoppel will not apply in such a case.

Frivaldo v. COMELEC

The citizenship requirement must be met only on election day. While the Local Government Code requires one year residencyimmediately preceding election day and the prescribed age on election day, no date is specified for citizenship. The purpose of the citizenshiprequirement is to ensure leaders owing allegiance to no other country. Such purpose is not thwarted, but instead achieved by construing therequirement to apply at time of proclamation and at the start of the term.


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Qualifications usually prescribed

a) President (Sec. 2, Art. VI, Constitution)Vice President (Sec. 3, Art. VII, Constitution)

Natural-born citizen 40 years old on day of election resident of the Philippines for at least 10 yrs immediately preceding election day

b) Senator (Sec. 3, Art. VI, Constitution)

Natural-born citizen 35 years old on day of election able to read and write registered voter resident of the Philippines for not less than two years immediately preceding election day

c) Congressmen (Sec. 6, Art. VI, Constitution)

Natural-born citizen 25 years old on day of election able to read and write registered voter in district in which he shall be elected resident thereof for not less than one year immediately preceding election day

d) Supreme Court Justice

Natural born citizen at least 40 years old 15 years or more a judge or engaged in law practice of proven CIPI (competence, integrity, probity and independence)

e) Civil Service Commissioners (Sec. 1 [1], Art. IXB. Constitution)

Natural-born citizen 35 years old at time of appointment proven capacity for public administration not a candidate for any elective position in elections immediately preceding appointment

f) COMELEC Comm. (Sec. 1[1], Art. IXC)

Natural-born citizen 35 years old at time of appointment college degree holder not a candidate for elective position in election immediately preceding appointment chairman and majority should be members of the bar who have been engaged in the practice of law for at least 10 years (See Cayetano v.

Monsod)

g) COA Commissioners

Natural-born citizen 35 years old at time of appointment CPA with >10 year of auditing experience or Bar member engaged in practice of law for at least 10 years Not have been candidates for elective position in elections immediately preceding appointment

Cayetano v. Monsod Practice of law means any activity, in or out of court, which requires the application of law, legalprocedure, knowledge, training and experience. Generally, to practice lawis to give notice or render any kind of service which requires the use inany degree of legal knowledge or skill.

Aquino v. COMELEC: Residency of not less than 1 year prior to the elections for the position of Congressman. In election law,residence refers to domicile, i.e. the place where a party actually orconstructively has his permanent home, where he intends to return. Tosuccessfully effect a change of domicile, the candidate must prove anactual removal or an actual change of domicile. Here, it was held thatleasing a condominium unit in the district was not to acquire a newresidence or domicile but only to qualify as a candidate.

Marcos v. COMELEC: Domicile, which includes the twin elements of actual habitual residence, and animus manendi, theintention of remaining there permanently. It was held that domicile oforigin is not easily lost, and that in the absence of clear and positive proofof a successful change of domicile, the domicile of origin should bedeemed to continue.


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Religious Test or Qualification

No religious test shall be required for the exercise of civil or political rights. (Art. III, Sec. 5, 1987 Constitution)

FORMATION OF OFFICIAL RELATION

Modes of Commencing Official Relation

(a) Election

(b) Appointment

(c) Others:(i) Succession by operation of law;

(ii) Direct provision of law, e.g. ex-oficio officers

Election: Selection or designation by a popular vote

Appointment

Definition

Q: Distinguish between designation and appointment.

Designation Appointment

Definition Imposition of additional duties upon anexisting office

Selection of an individual to occupy a certainpublic office by one authorized by law tomake such selection

Extent of Powers Limited Comprehensive

Security of tenure? No. Yes.

When deemedabandonment of prior office

Assumption of a designated position is notdeemed abandonment of the 1stposition

Assumption of a 2nd appointive position isusually deemed abandonment of the firstoffice.

Nature of Appointing Power

The power to appoint is intrinsically an executive act involving the exercise of discretion. (Concepcion v. Paredes)

The power and prerogative to a vacant position in the civil service is lodged with the appointing authority.

Constitutional Provisions

Q: Who can the President nominate and appoint with the consent of theCommission on Appointments?

A:

Heads of the executive departments (Art. VII, Sec. 16,1987 Const.);

Ambassadors (ibid);

Other public ministers and consuls (ibid);

Officers of the armed forces from the rank or colonel or naval captain (ibid);

Other officers whose appointments are vested in him by the Constitution (ibid), including ConstitutionalCommissioners (Art. IX-B, Sec. 1 (2) for CSC; Art. IX-C, Sec. 1 (2) for COMELEC; Art. IX-D, Sec. 1 (2) for COA).


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Q: Who can the President appoint without the need for CA approval?

A: All other officers of the government whose appointments are not otherwise provided for by law;

Those whom he may be authorized by law to appoint;

Members of the Supreme Court;

Note: To be appointed from a list of at least 3 nominees prepared by the Judicial and Bar Council (Art.VIII, Sec. 9, 1987 Const.)

Judges of lower courts;

Note: To be appointed from a list of at least 3 nominees prepared by the Judicial and Bar Council (Art.VIII, Sec. 9, 1987 Const.)

Ombudsman and his deputies

Note: To be appointed from a list of at least 6 nominees prepared by the Judicial and Bar Council, andfrom a list of 3 nominees for every vacancy thereafter (Art. XI, Sec. 9, 1987 Const.)

Q: Does the President have the power to make appointments whenCongress is in recess?

A: Yes. However, such appointments shall be effective only until:

(1) disapproval by the Commission on Appointments; or

(2) the next adjournment of the Congress (Sec. 16, Art. VII, 1987 Const.)

Q: What is the effectivity of appointments extended by an ActingPresident?

A: Such appointments shall remain effective unless revoked by the elected President within 90 daysfrom his assumption or reassumption of office. (Sec. 14, Art. VII, 1987 Const.)

Qualification Standards and Requirements under the Civil Service Law

Qualification Standards:

Express the minimum requirements for a class of positions in terms of education , training and experience, civilservice eligibility, physical fitness, and other qualities required for successful performance. (Sec. 22, Book V,EO 292)

A statement of the minimum qualifications of a position which shall includeeducation, experience, training, civil service eligibility, and physicalcharacteristics and personality traits required by the job. (Sec. 2, Rule IV,Omnibus Rules)

With respect to a particular position, such qualification standards shall serve as the basis for the determinationby the appointing authority of the degree of qualifications of an officer or employee (ibid);

Shall be used as basis for civil service examinations for positions in the career service, as guides inappointment and other personnel actions, in the adjudication of protested appointments, in determiningtraining needs, and as aid in the inspection and audit of the agencies' personnel work programs (ibid);

Shall be administered in such manner as to continually provide incentives to officers and employees towardsprofessional growth and foster the career system in the government service (ibid);

It shall be the responsibility of the departments and agencies to establish,administer and maintain the qualification standards on a continuing basis as anincentive to career advancement. (Sec. 7, Rule IV, Omnibus Rules)

Their establishment, administration, and maintenance shall be the responsibility of the department / agency,with the assistance and approval of the CSC and in consultation with the Wage and Position ClassificationOffice (ibid);

Whenever necessary, the CSC shall provide technical assistance to departmentsand agencies in the development of their qualification standards. (Sec. 5, Rule IV,Omnibus Rules)

Shall be established for all positions in the 1stand 2nd levels (Sec. 1, Rule IV, Omnibus Rules);


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Political Qualifications for an Office

GENERAL RULE: Political qualifications are not required for public office.

Exceptions: (1) Membership in the electoral tribunals of either the House of Representatives or Senate (Art.VI, Sec. 17, 1987 Const.);

(2) Party-list representation;

(3) Commission on Appointments;

(4) Vacancies in the Sanggunian (Sec. 45, Local Government Code)

Property Qualifications

In the cases of Maquera v. Borra and Aurea v. COMELEC, the Supreme Court struck down R.A. 4421 which required candidates fornational, provincial, city and municipal offices to post a surety bond equivalent to the one-year salary or emoluments of the position to which heis a candidate, which shall be forfeited in favor of the govt. concerned if the candidate fails to obtain at least 10% of the votes cast.

The Supreme Court held that property qualifications are inconsistent with the nature and essence of the Republican systemordained in our Constitution and the principle of social justice underlying the same. The Court reasoned out that:

"Sovereignty resides in the people and all government authority emanates from them, and this, in turn, impliesnecessarily that the right to vote and to be voted shall not be dependent upon the wealth of the individual

concerned. Social justice presupposes equal opportunity for all, rich and poor alike, and that, accordingly, no personshall, by reason of poverty, be denied the chance to be elected to public office."

Aliens not eligible to public office

This is self-explanatory.

Effect of removal of qualifications during the term

Q: What happens if the qualification is lost which the officer is holding office?

A: The officer must be terminated.

Effect of pardon upon the disqualification to hold public office

GENERAL RULE: A pardon shall not work the restoration of the right tohold public office. (Art. 36, Revised Penal Code)

Exceptions: (1) Where such right to hold public office is expressly restored by the terms of the pardon (Art. 36,RPC);

(2) When a person is granted pardon because he did not commit the offense imputed tohim (Garcia v. Chairman, COA)

Rules governing effects of pardon:

(1) A public official who has been convicted of a crime but has been pardoned must secure a reappointment beforehe / she can reassume his / her former position. (Monsanto v. Factoran)

Note: Acquittal is the only ground for automatic reinstatement of a public officer to his / her former

position.

(2) Pardon does not exempt the culprit from payment of the civil indemnity imposed upon him / her by thesentence. (Art. 36, par. 2, RPC)

(3) A convicted public official who has been pardoned is not entitled to backpay and other emoluments due to himduring the period of his suspension pendente lite. (Monsanto v. Factoran)

Discretion of appointing official

Discretion, if not plenary, at least sufficient, should thus be granted to those entrusted with the responsibility of administering theofficers concerned, primarily the department heads. They are in the most favorable position to determine who can best fulfill thefunctions of the office thus vacated. Unless, therefore, the law speaks in the most mandatory and peremptory tone, considering allthe circumstances, there should be, as there has been, full recognition of the wide scope of such discretionary authority. (Reyes v.Abeleda)


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Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to this bestlights, the only condition being that the appointee should possess the qualifications required by law. (Lapinid v. CSC)

The only function of the CSC is to review the appointment in the light of the requirements of the Civil Service Law, and when it finds theappointee to be qualified and all other legal requirements have been otherwise satisfied, it has no choice but to attest to theappointment. It cannot order the replacement of the

appointee simply because it considers another employee to be better qualified. (Lapinid v. CSC)

To hold that the Civil Service Law requires that any vacancy be filled by promotion, transfer, reinstatement, reemployment, orcertification in that order would be tantamount to legislative appointment which is repugnant to the Constitution. The

requirement under the Civil Service Law that the appointing power set forth the reason for failing to appoint the officer next inrank applies only in cases of promotion and not in cases where the appointing power chooses to fill the vacancy by transfer,reinstatement, reemployment or certification, not necessarily in that order. (Pineda v. Claudio)

The CSC is not empowered to change the nature of the appointment extended by the appointing officer, its authority being limited toapproving or reviewing the appointment in the light of the requirements of the Civil Service Law. When the appointee is qualifiedand all the legal requirements are satisfied, the CSC has no choice but to attest to the appointment. (Luego v. CSC)

Appointment is a political question.

Where the palpable excess of authority or abuse of discretion in refusing to issue promotional appointment would lead to manifestinjustice, mandamus will lie to compel the appointing authority to issue said appointments. (Gesolgon v. Lacson)

Effectivity of Appointment

Q: When does an appointment take effect?

A: Immediately upon its issuance by the appointing authority. (Rule V, Sec. 10, Omnibus Rules).

When appointment becomes complete, final and irrevocable

GENERAL RULE: An appointment, once made, is irrevocable and not subject to reconsideration.

Qualification: Where the assent, confirmation, or approval of some otherofficer or body is needed before the appointment may be issue and be deemed complete.

Exceptions: (1) When the appointment is an absolute nullity (Mitra v. Subido);

(2) When there is fraud on the part of the appointee (Mitra v. Subido);

(3) Midnight appointments

A completed appointment vests a legal right. It cannot be taken away EXCEPT for cause, and with previous notice and hearing(due process).

Midnight appointments

A President or Acting President is prohibited from making appointments 2 months immediately before the next presidentialelections and up to the end of his term. (Art. VII, Sec. 15, 1987 Const.)

Exception: Temporary appointments to executive positions when continued vacancies therein will prejudice publicservice or endanger public safety.

ASSUMPTION AND TERM OR TENURE OF OFFICE

Qualification to Office

Appointment and Qualification to Office Distinguished

Appointment and qualification to office are separate and distinct things. Appointment is the act of being designated to a public office bythe appointing authority. Qualification is the act of signifying one's acceptance of the appointive position. This generally consists of the taking /subscribing / filing of an official oath, and in certain cases, of the giving of an official bond, as required by law. (Mechem)

No one can be compelled to accept an appointment.

Lacson v. Romero

The appointment to a government post involves several steps: (1) the President nominates; (b) the Commission on Appointmentsconfirms the appointment; and (c) the appointee accepts the appointment by his assumption of office. The first 2 steps are mere offers to


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the post but the last step rests solely with the appointee who may or may not accept the appointment.

Borromeo v. Mariano

A judge may not be made a judge of another district without his consent. Appointment and qualification to office are separate anddistinct things. Appointment is the sole act of the appointee. There is no power which can compel a man to accept the office.

Effect of Failure to Qualify

Failure to qualify is deemed evidence of refusal of the office.

It is a ground for removal:

If qualification is acondition precedent: Failure to qualify ipso facto deemed

rejection of the office

If not condition precedent: Failure is notipso facto rejection

Justifiable reasons for delay in qualifying include sickness, accident, and other fortuitous events that excuse delay.

The Omnibus Election Code provides that the officer must qualify (i.e., take his oath of office and assume office) within 6months from proclamation. Otherwise, the position will be deemed vacant.

Exception: If the non-assumption of office is due to a causebeyond his control.

Qualification is significant because it designates when security of tenure begins.

Oath of Office

An oath is an outward pledge whereby one formally calls upon God to witness to the truth of what he says or to the fact that he sincerely intendsto do what he says.

Although the law usually requires the taking of an oath, it is not indispensable. It is a mere incident to the office and constitutes no part of theoffice itself. However, the President, Vice-President and Acting President are required by the Constitution (Art. VII, Sec. 5) to take an oath oraffirmation before entering into the execution of their office. Such oath-taking is mandatory.

Q: Who are authorized to administer oaths?

A: (1) Notaries public;(2) Judges;(3) Clerks of court;(4) Secretary of House / Senate;(5) Secretary of Exec. Departments;(6) Bureau Directors;(7) Register of Deeds;(8) Provincial governors;(9) City mayors;(10) Municipal mayors;

(11) Any other officer in the service of the government of the Philippineswhose appointment is vested in the President;

(12) Any other officer whose duties, as defined by law or regulation,require presentation to him of any statement under oath

Q: Who are obliged to administer oaths in all instances, and not just in matters of official business?

A: (1) Notaries public;(2) Municipal judges;

(3) Clerks of court

Time of Taking the Oath of Office

A public officer must take his oath of office before entering upon the discharge of his duties.

Requalification

If a public officer is re-elected or re-appointed, he must take another oath and fulfill the other condition precedents beforeassuming office. The oath and other qualifications made prior to assumption of his previous office will not be valid for subsequent terms ofoffice.

Giving of Bonds


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Persons required to give bond

Q: Who are the public officers generally required to give a bond?

A: (1) Accountable public officers or those to whom are entrusted the collection and custody of public money;

(2) Public ministerial officers whose actions may affect the rights and interests of individuals.

The bond is in the nature of an indemnity bond rather than a penal or forfeiture bond.

The bond is also an obligation binding the sureties to make good the officers default. It is required not for the benefit of theoffice holder, but for the protection of the public interest and is designed to indemnify those suffering loss or injury by reason of

misconduct or neglect in office.

Effect of Failure to Give Bond within the Prescribed Period

If not condition precedent: Failure to give bond merely constitutes a ground forforfeiture of the office; it is not forfeiture of the office ipso facto.

IF condition precedent: Failure to give bond within the prescribed periodrenders the office vacant.

Term and Tenure of Office

Term of Office and Tenure of Office Distinguished

Term of Office Tenure of Office

De jure De facto

Fixed and definite period of time Period during which the incumbentduring which the officer may actually holds the office. It may be

claim to hold the office as of right shorter than the term.

Alba v. Evangelista

It is only in those cases in which the office is held at the pleasure of the appointing power and where the power of removal isexercisable at its mere discretion that the officer may be removed without notice or hearing.

Power of the Legislature to Fix and Change the Term of Office

RULES:

Where the term is fixedby the Constitution: Congress has no power to alter the term.

However, such term of office can be shortened or extendedby the vote of the people ratifying a constitutional amendment.

Where the term is not fixed: Congress may fix the terms of officersother than those provided for in the Const.

Congress has the power to change the tenure of officers holding offices created by it. However, if the term islengthened and made to apply to the incumbents, this could be tantamount to a legislative appointment which is null and void.

When Term of Office Dependent upon "Pleasure of the President"

Congress can legally and constitutionally make the tenure of certain officials dependent upon the pleasure of the President. (Albav. Evangelista)

Where the office is held at the pleasure of the appointing power and such appointing power can exercise the power of removal athis mere discretion, the public officer may be removed without notice or hearing. (Alba v. Evangelista)

No Vested Interest in Term of Office

Public office is a privilege revocable by the sovereignty at will. An incumbent cannot validly object to the alteration of his termsince he has no vested right in his office. (Greenshow v. U.S.)


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Term of Office Not Extended by Reason of War

There is no principle, law or doctrine by which the term may be extended by reason of war. (Nueno, et al. v. Angeles)

Doctrine of Holdover

Q: What is the doctrine of hold-over?

A: A public officer whose term has expired or services have been terminated is allowed to continue holding his office until his successor isappointed or chosen and had qualified. (Mechem)

Purpose of the Hold-Over Rule

Public interest. It is to prevent a hiatus in the government pending the time when a successor may be chosen and inducted intooffice.

Holding-Over Rules

(1) Where the law provides for it: The office does not become vacant upon the expiration of the term if there is no successorelected and qualified to assume it. Incumbent will hold-over even if beyond the term fixed by law.

(2) Where the law is silent: Unless hold-over is expressly or impliedly prohibited, incumbent may hold-over.

(3) Where the Constitution limitsthe term of a public officer anddoes not provide for hold-over: Hold-over is not permitted.

Commencement of Term of Office

RULES:

(1) Where the time is fixed: The term will begin on the specified date.

(2) Where no time is fixed: The term will generally begin on the dateof the election or the appointment.

POWERS AND DUTIES OF PUBLIC OFFICERS

Source of Government Authority: The people, the sovereignty.

Scope of Powers of a Public Officer

Lo Cham v. Ocampo

The duties of a public office includes all those which truly are within its scope:

(1) those which are essential to the accomplishment of the main purpose for which the office was created; or

(2) those which, although incidental or collateral, are germane to and serve to promote the accomplishment of theprincipal purpose.

Territorial Extent of Powers of Public Officer

GENERAL RULE: Where a public officer is authorized by law to perform the duties of his office at a particular place, action at a place notauthorized by law is ordinarily invalid. (Note: This rule is applicable to all public officers whose dutiesare essentially local in nature, e.g. judges.)

EXCEPTIONS: (1) Consuls;

(2) Police officers, who may arrest persons for crimes committed outside Philippineterritory;

(3) Doctrine of hot pursuit

Duration of Authority of Public Officers

The duration of the authority of public officers is limited to that term during which he is, by law, invested with the rights and duties of the office.

Construction of Grant of Powers


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Strict construction. Will be construed as conferring only those powers which are expressly imposed or necessarily implied.

Classification of Powers

Discretionary Ministerial

Definition Acts which require the exercise of reason indetermining when, where, and how to exercise thepower

Acts which are performed in a given state of facts, in aprescribed manner, in obedience to the mandate oflegal authority, without regard to or the exercise ofhis own judgment upon the propriety or improprietyof the act done (Lamb v. Phipps)

Can be delegated? Generally, NO.

Exception: When the power to substitute / delegatehas been given

Generally, YES.

Exception: When the law expressly requires the actto be performed by the officer in person and / orprohibits such delegation

When is mandamus proper? Only if the duty to do something has been delayed foran unreasonable period of time.

In all cases.

Is public officer liable? Generally not liableExceptions: if there is fraud or malice

Liable if duty exercised contrary to the mannerprescribed by law.

Discretion; Discretionary Power

Ministerial Duty

Q: What is discretion?

A: Discretion, when applied to public functionaries, means a power or right conferred upon them by law of acting officially in certaincircumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience ofothers. (Lamb v. Phipps)

Q: What is a ministerial act?

A: A purely ministerial act is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, inobedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon thepropriety or impropriety of the act done. A ministerial act is one to which nothing is left to the discretion of theperson who must perform. It is a simple, definite duty arising under conditions admitted or proved to exist andimposed by law. It is a precise act, accurately marked out, enjoined upon particular officers for a particularpurpose. (Lamb v. Phipps)

Lamb v. Phipps

Auditors and comptrollers, as accounting officers, are generally regarded as quasi-judicial officers. They perform mereministerial duties only in cases where the sum due is conclusively fixed by law or pursuant to law. Except in such cases, the actionof the accounting officers upon claims coming before them for settlement and certification of balances found by them to be due, isnot merely ministerial but judicial and discretionary. Mandamus will therefore not issue.

Torres v. Ribo

The powers of the Board of Canvassers are quasi-judicial and therefore discretionary.

Aprueba v. Ganzon

Mandamus will not issue to control or review the exercise of discretion of a public officer where the law imposes on him the

right or duty to exercise judgment in reference to any matter in which he is required to act.

The privilege of operating a market stall under license is not absolute but revocable under an implied lease contract subject tothe general welfare clause.

Mandamus never lies to enforce the performance of contractual obligations.

Miguel v. Zulueta

Public officers may properly be compelled by mandamus to remove or rectify an unlawful act if to do so is within their officialcompetence.


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Q: When will the writ of mandamus issue?

A:

To correct a gross abuse of discretion, a palpable excess of authority resulting in manifest injustice (Gesolgon v.Lacson);

Where the question of constitutionality is raised by the petitioner (Cu Unjieng v. Patstone);

Q: When will the writ of mandamus never issue?

A: (1) To control discretion;

(2) When another adequate remedy exists;

(3) To enforce the performance of contractual obligations, as in theissuance of a license / permit (Aprueba v. Ganzon);

Q: In filing a mandamus suit, when does a taxpayer not have to show that hehas any legal or special interest in the results of such suit?

A: When the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, such asthe observance of the law. (Miguel v. Zulueta)

Time of Execution of Powers

Where not indicated: Within a reasonable time

Where indicated: Merely directory

Exceptions:

(1) When there is something in the statute which shows a different intent (Araphoe City v. UnionPac);

(2) Where a disregard of the provisions of the statute would injuriously affect a public interest orpublic right;

(3) When the provision is accompanied by negative words importing that the acts shall not be done inany other manner or time than that designated.

Ratification of Unauthorized Acts

If act was absolutely voidat the time it was done: Cannot be ratified

If merely voidable: Can be ratified and rendered valid

Where superior officers have authority to ratify the acts of their inferiors, they are restricted to the ratification of acts and contracts whichthey themselves are empowered to make.

It is not enough that the public officer acted beyond his powers in order that he may be held liable for damages. If the act committed isreasonably related to his duties and the officer was in good faith, he will not be held liable.

Government not estopped by the unauthorized or Illegal acts of officers

As between an individual and his government, the individual cannot plead the void act of an official to shield him from the demand of thegovernment that he (the individual) fulfill an obligation which he has contracted with the government, after the benefits accruing to himas a result of that obligation have been received. The government can neither be estopped nor prejudiced by the illegal acts of itsservants. (Government v. Galarosa)

Hilado v. Collector

A tax circular issued on a wrong construction of the law cannot give rise to a vested right that can be invoked by a taxpayer .

Accountability and Responsibility of Public Officers and Employees

Norm of Performance of Duties


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Q: What are the standards of personal conduct provided for in Sec. 4, RA 6713?

A: (1) Commitment to public interest;(2) Professionalism;

(3) Justness and sincerity;(4) Political neutrality;(5) Responsiveness to the public;(6) Nationalism and patriotism;(7) Commitment to democracy;(8) Simple living

RIGHTS AND PRIVILEGES OF PUBLIC OFFICERS

Right to Office

The right to office is the right to exercise the powers of the office to the exclusion of others.

Right to Salary or Compensation

GENERAL RULES:

A public officer is not entitled to compensation for services rendered under an unconstitutional statute or provision thereof.

Exception: If some other statute provides otherwise.

If no compensation is fixed by law, the public officer is assumed to have accepted the office to serve gratuitously.

After services have been rendered by a public officer, the compensation thus earned cannot be taken away by a subsequentlaw. However, he cannot recover salary for a period during which he performed no services.

One without legal title to office either by lawful appointment or election and qualification is not entitled to recover salary orcompensation attached to the office.

One who intrudes into or usurps a public office has no right to the salary or emoluments attached to the office.

Compensation not an element of public office

Compensation is not indispensable to public office. It is not part of the office but merely incident thereto. It is sometimesexpressly provided that certain officers shall receive no compensation, and a law creating an office without any provision for compensation maycarry with it the implication that the services are to be rendered gratuitously.

Salary, Wages, and Per Diems Defined and Distinguished

Salary: time-boundWages: service-boundPer Diem: allowance for days actually spent for special duties

Salary of Public Officer Not Subject to Attachment

The salary of a public officer or employee may not, by garnishment, attachment, or order of execution, be seized before beingpaid by him, and appropriated for the payment of his debts.

Money in the hands of public officers, although it may be due government employees, is not liable to the creditors of theseemployees in the process of garnishment because the sovereign State cannot be sued in its own courts except by expressauthorization by statute. Until paid over by the agent of the government to the person entitled to receive it, public fundscannot in any legal sense be part of his effects subject to attachment by legal process. (Director of Commerce and Industry

v. Concepcion)

Future or Unearned Salaries Cannot be Assigned

The salary or emoluments in public office are not considered the proper subject of barter and sale. (22 R.C.L. 541)

Agreements Affecting Compensation Held Void

An agreement by a public officer respecting his compensation may rightfully be considered invalid as against public policy whereit tends to pervert such compensation to a purpose other than that for which it was intended, and to interfere with the officer's free andunbiased judgment in relation to the duties of his office. (This is usually with reference to unperformed services and the salary or fees attachedthereto.)

Right to Recover Salary: De Jure Officer and De Facto Officer


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Monroy v. CA and del Rosario

Where a mayor filed a certificate of candidacy for congressman then withdrew such certificate and reassumed theposition of mayor, thus preventing the vice-mayor from discharging the duties of the position of mayor, the mayor shouldreimburse to the vice-mayor, as the right rightful occupant of the position of mayor, the salaried which he had received.

Rodriguez v. Tan

Where a duly proclaimed elective official who assumes office is subsequently ousted in an election protest, theprevailing party can no longer recover the salary paid to the ousted officer. The ousted officer, who acted as de facto officer during

his incumbency, is entitled to the compensation, emoluments and allowances which are provided for the position.

Exception: If there was fraud on the part of the de facto officer which would vitiate his election.

Q: When can the de jure officer recover from:

(a) the government?

When the government continues to pay the de facto officer even after the notice of adjudication of the protest infavor of the de jure officer.

(b) A de facto officer?

When notice of adjudication of the title to the de jure officer has been given, and the de facto officer still continues toexercise duties and receive salaries and emoluments.

(c) An intruder / usurper?

At all instances.

Additional or Double Compensation Prohibited

Q: Differentiate additional compensation from double compensation.

Additional Double

There is only 1 position, but There are 2 positions, and with additional functions and the publicofficer is getting additional compensation. emoluments for both positions.

Q: Differentiate the 2 kinds of allowances.

Commutable Reimbursable

Given by virtue of the position The public officer must presentwhether or not he incurred a receipt or certification underexpenses for which the allowance oath that such amount was spentis given. Received as a matter in order that the public officerof right. may recover the money spent.

There is a conclusive presumptionthat it was spent.

RULES:

Pensions / gratuities are not considered as additional, double, or indirect compensation. (Sec. 8, Art. IX-B, 1987 Constitution)

By its very nature, a bonus partakes of an additional remuneration or compensation. (Peralta v. Auditor General)

An allowance for expenses incident to the discharge of the duties of office is not an increase of salary, a perquisite, nor anemolument of office. (Peralta v. Auditor-General)

Can Public Officer Recover Salary for Period of Suspension?

RULES:

If preventively suspended: NO, he cannot recover salary.


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BUT: If he is subsequently exonerated, he can recoversalary for the period of his preventive suspension.

If he was given penalty ofremoval from office, but was YES, he can recover becausecompletely exonerated upon he was completely exonerated.appeal:

If he was given penalty ofremoval from office, but his NO, because he was still foundpenalty was commuted from guilty although the penalty wasremoval to mere suspension, reduced.

or demotion:

If the suspension / removalfrom office is unjustified: YES.

Q: In summary, when can payment of salaries corresponding to the periodwhen an employee was suspended be allowed?

A: (1) When he is found innocent of the charges whichcaused his suspension;

(2) When the suspension is unjustified (Abellera v. City ofBaguio)

ADMINISTRATIVE DISCIPLINE

Over Presidential Appointees

Olonan v. CSC

Administrative charges were filed against the PUP President and other officers for violations of RA 3019 with the CSC. Olonan et.al. filed amotion to dismiss the complaint contending principally that the CSC has no jurisdiction to try and decide the case against her, she being a presidentialappointee. The CA upheld Olonans contention. There is nothing in the provisions of the Constitution or the Administrative Code of 1987 which gives the CSCthe power to discipline presidential appointees like petitioner herein. Sec. 47(1), Book V of EO 292 which provides that a complaint may be filed directly withthe CSC by a private citizen against a government official or employee in which case it may hear and decide the case must be read together with Sec. 48 whichis entitled Procedure in Administrative Cases Against Non-Presidential Appointees. The very subject of Sec. 48 implicitly limits the scope of the CSCsjurisdiction in administrative cases to non-presidential appointees and makes patent the conclusion that the disciplinary authority over presidentialappointees lies elsewhere the President as appointing power himself.

Power to Appoint Implies the Power to Remove; Exceptions

a) Justices of the Supreme Court (by impeachment)b) Members of Constitutional Commissions (by impeachment)c) Ombudsman (by impeachment)d) Judges of inferior courts (disciplinary or removal power vested

in the Supreme Court)

Bonifacio Sans Maceda v. Vasquez

A judge who falsifies his Certificate of Service is administratively liable to the SC for serious misconduct and inefficiency under Sec. 1, Rule 140 ofthe Rules of Court and criminally liable to the State under the Revised Penal Code for his felonious act. Where a criminal complaint against a judge or otheremployee arises from their administrative duties, the Ombudsman must defer action on said complaint and refer the same to the SC for determination whethersaid judge or court employee had acted within the scope of their administrative duties. Thus, the Ombudsman should first refer the matter to the SC fordetermination of whether the certificates reflected the true status of his pending case load, as the SC had the necessary records to make such a determination.Art. VIII, Sec. 6 of the Constitution exclusively vests in the SC administrative supervision over all courts and court personnel.

Dolalas v. Ombudsman-Mindanao

Citing the Maceda case, the SC power of administrative supervision over judges and court personnel is exclusive. Investigation by theOmbudsman violates the specific constitutional mandate of the SC and undermines the independence of the judiciary.

Over Non-Presidential Appointees

Grounds

Sec. 46(a), Book V of EO 292 provides that No officer or employee in the Civil Service shall be suspended or dismissed excep t for cause as provided bylaw and after due process. The grounds constituting just cause are enumerated in Sec. 46(b).

Jurisdiction


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Original complaints may be filed: (a) directly with the CSC or (b) with the Secretaries and heads of agencies and instrumentalities, provinces, cities andmunicipalities for officers and employees under their jurisdiction.

Decisions of Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall be final in case the penalty imposed issuspension for not more than thirty days or fine in an amount not exceeding thirty days salary.

In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be initially appealed to the department and finallyto the Commission and pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be executory onlyafter confirmation by the Secretary concerned.

Decisions imposing the penalty of suspension for more than thirty days or fine in an amount exceeding thirty days salary, demotion in rank or salary or

transfer, removal or dismissal from office shall be appealable to the CSC.

Procedure in Administrative Cases Against Non-Presidential Appointees

Administrative proceedings may be commenced against a subordinate officer or employee by the Secretary or head of office of equivalent rank, or headof local government, or chiefs of agencies, or regional directors, or upon sworn written complaint of any other person.

For complaints filed by any other person

Complainant shall submit sworn statements covering his testimony and those of his witnesses together with his documentary evidence.

If based on such papers a prima facie case is found not to exist, the disciplining authority shall dismiss the case. Otherwise, he shall notify the respondent inwriting of the charges against the latter.

Respondent shall be allowed not less than seventy-two hours after receipt of the complaint to answer the charges in writing under oath, together withsupporting sworn statements and documents. He shall also indicate whether or not he elects a formal investigation if his answer is not considered

satisfactory.

If the answer is found satisfactory, the disciplining authority shall dismiss the case.

Although a respondent does not request a formal investigation, one shall nevertheless be conducted when from the allegations of the complaint and theanswer of the respondent, including the supporting documents, the merits of the case cannot be decided judiciously without conducting such aninvestigation.

The decision shall be rendered by the disciplining authority within thirty days from the termination of the investigation or submission of the report of theinvestigator, which report shall be submitted within fifteen days from the conclusion of the investigation.

Either party may avail himself of the services of counsel and may require the attendance of witnesses and the production of documentary evidence in hisfavor through the compulsory process of subpoena or subpoena duces tecum.

Appeals and Petition for Reconsideration

Appeals, where allowable, shall be made by the party adversely affected by the decision within fifteen days from receipt of the decision unless a petition forreconsideration is seasonably filed, which petition shall be decided within fifteen days.

A petition for reconsideration shall be based only on any of the following grounds:

(a) new evidence has been discovered which materially affects the decision rendered;(b) the decision is not supported by the evidence on record; or(c) error of law or irregularities have been committee which are prejudicial to the interests of the respondent.

Only one petition for reconsideration shall be allowed.

Mendez v. Civil Service Commission

The remedy of appeal in civil service cases may be availed of only in a case where respondent is found guilty of the charges against him. But whenthe respondent is exonerated of said charges, as in this case, there is no occasion for appeal. PD 807 shows that it does not contemplate a reviewof decisions exonerating officers or employees from administrative charges. Party adversely affected by the decision in Section 39 of the Civil

Service Law refers to the government employee against whom case was filed.

Summary Proceedings

No formal investigation is necessary and the respondent may be immediately removed or dismissed if any of the following circumstances is present:

(1) When the charge is serious and the evidence if guilt is strong;(2) When the respondent is a recidivist or has been repeatedly charged and there is reasonable ground to believe that he is guilty

or the present charge; and

(3) When the respondent is notoriously undesirable.

Preventive Suspension


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The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the chargeagainst such officer or employee involves:

(a) dishonesty; or(b) oppression or grave misconduct; or(c) neglect in the performance of duty; or(d) if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service.

Maximum period for preventive suspension is ninety (90) days for national officials. Under the Local Government Code, local appointive and electiveofficials may be preventively suspended for only sixty (60) days. If the case is filed in the Ombudsman, the latter may impose a preventive suspensionfor a period of six (6) months.

When the administrative case against the officer or employee under preventive suspension is not finally decided by the disciplining authority within theperiod of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall be automaticallyreinstated in the service.

Penalty

In meting out punishment, the same penalties shall be imposed for similar offenses and only one penalty shall be imposed in each case.

The disciplining authority may impose the penalty of removal from the service, demotion in rank, suspension for not more than one year without pay, finein an amount not exceeding six months salary, or reprimand. (Sec. 46(d), Book V, EO 292)

If the respondent is found guilty of two or more charges or counts, the penalty imposed should be that corresponding to the most serious charge or countand the test may be considered as aggravating circumstances. (Sec. 17 of the Implementing Civil Service Rules and Regulations)

A reprimand whether given by the Civil Service Commission or the head of department or agency shall be considered a penalty. However, a warning or anadmonition shall not be considered a penalty. (Sec. 15 of the Implementing Civil Service Rules and Regulations)

Tobias v. Veloso

Reprimand is a penalty. In this case, police chief is not entitled to back wages as Sec. 16 of the Police Act of 1966 expressly provides that asuspended member of the police force shall be entitled to his salary for the period of his suspension upon exoneration. A reprimand is notequivalent to an exoneration. It is more severe than an admonition, which is considered a mild rebuke. A reprimand is administered to a personin fault by his superior officer or a body to which he belongs. It is an administrative penalty, although it may be slight form of punishment.

NOTE: A warning is an act or fact of putting one on his guard; an admonition is agentle or friendly reproof or a mild rebuke; while a reprimand is a formal and public censure or a severe reproof.

Removal of Administrative Penalties or Disabilities

In meritorious cases and upon recommendation of the CSC, the President may commute or remove administrative penalties or disabilities imposed uponofficers or employees in disciplinary cases, subject to such terms and conditions as he may impose in the interest of the service.

Over Elective Officials

Impeachment

A verified complaint may be filed by any member of the House of Representatives or by any citizen upon a resolution of endorsement by any memberthereof.

Complaint shall be included in the Order of Business within ten sessions days and referred to the proper Committee within three sessions days thereafter.

The Committee, after hearing, and by a majority vote of all its members, shall submit its report to the House within sixty session days from such referral,together with the corresponding resolutions. The resolution shall be calendared for consideration of the House within ten session days from receiptthereof.

A vote of at least one-third of all the members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of

the Committee, or override its contrary resolution.

In case the verified complaint or resolution of impeachment is filed by at least one-third of all the members of the House, the same shall constitute theArticles of Impeachment, and trial by the Senate shall forthwith proceed.

The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation.When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convictedwithout the concurrence of two-thirds of all the members of the Senate.

Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold office under the Republic of thePhilippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial and punishment according to law.

No impeachment proceedings shall be initiated against the same official more than once within a period of one year.


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Local Elective Officials (Sec. 60-68, Local Government Code)

Grounds for Disciplinary Actions

(1) Disloyalty to the Republic of the Philippines

(2) Culpable violation of the Constitution

(3) Dishonesty, oppression, misconduct in office, gross negligence, ordereliction of duty

(4) Commission of any offense involving moral turpitude or an offense punishable byat least prision mayor

(5) Abuse of authority

(6) Unauthorized absence for fifteen (15) consecutive days, except in the case of members of the sangguniang panlalawigan, sangguniangpanlungsod, sangguniang bayan, and sangguniang barangay

(7) Application for, or acquisition of, foreign citizenship or residence or the status ofan immigrant of another country

(8) Such other grounds as may be provided in this Code and other laws.

Procedure

(1) Verified Complaint

A verified complaint may be filed against any erring local elective official and submitted to the following disciplinary authorities:

Office of the President - elective official of a province, a highly urbanizedcity, an independent component city or component city;

Sangguniang panlalawigan - elective official of a municipality

Sangguniang panlungsod orsangguniang bayan - elective barangay official

(2) Answer

Within seven (7) days after the administrative complaint is filed, the Office of the President or the sanggunian concerned, as the case may be, shall requirethe respondent to submit his verified answer within fifteen (15) days from receipt thereof

(3) Investigation

The investigation of the case shall be commenced within ten (10) days after receipt of such answer of the respondent.

However, no investigation shall be held within ninety (90) days immediately prior to any local election, and no preventive suspension shall be imposedwithin the said period.

Preventive Suspension

Preventive suspension may be imposed:

a) By the President: if the respondent is an elective official of a province,a highly urbanized or an independent component city;

b) By the governor: if the respondent is an elective official of acomponent city or municipality; or

c) By the mayor: if the respondent is an elective official of thebarangay.

Preventive suspension may be imposed at any time after the issues are joined, when the evidence of guilt is strong, and given the gravity of the offense,there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of therecords and other evidence.

However, any single preventive suspension of local elective officials shall not extend beyond sixty (60) days.

Furthermore, in the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for more than ninety(90) days within a single year on the same ground or grounds existing and known at the time of the first suspension.

Upon expiration of the preventive suspension, the suspended elective official shall be deemed reinstated in office without prejudice to the continuation ofthe proceedings against him, which shall be terminated within one hundred twenty (120) days from the time he was formally notified of the case


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against him.

Note: The respondent official preventively suspended from office shall receive no salary or compensation during such suspension; but uponsubsequent exoneration and reinstatement, he shall be paid full salary or compensation including such emoluments accruing during suchsuspension.

Note: No preventive suspension shall be imposed within ninety (90) days immediately prior to any local election. If preventive suspension has beenimposed prior to the 90-day period immediately preceding local election, it shall be deemed automatically lifted upon the start of the aforesaidperiod.

Rights of Respondent

The respondent shall be accorded full opportunity to appear and defend himself in person or by counsel, to confront and cross-examine thewitnesses against him, and to require the attendance of witnesses and the production of documentary process of subpoena or subpoena duces tecum.

Form and Notice of Decision

The investigation of the case shall be terminated within ninety (90) days from the start thereof.

Within thirty (30) days after the end of the investigation, the Office of the President or the sanggunian concerned shall render a decision in writing statingclearly and distinctly the facts and the reasons for such decision.

The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six (6) months for every administrative offense, nor shallsaid penalty be a bar to the candidacy of the respondent so suspended as long as he meets the qualifications required for the office.

The penalty of removal from office as a result of an administrative investigation shall be considered a bar to the candidacy of the respondent for anyelective position.

Administrative Appeals

Decisions in administrative cases may, within thirty (3) days from receipt thereof, be appealed to the following:

a) The sanggunian panlalawigan: in the case of decisions of:

(1) sangguniang panlungsod of component cities; and

(2) sangguniang bayan;

b) The Office of the President: in the case of decisions of:

(1) the sangguniang panlalawigan;(2) the sangguniang panlungsod of highly urbanized cities;(3) the sangguniang panglungsod of independent component cities.

Decisions of the Office of the President shall final and executory.

Execution Pending Appeal

An appeal shall not prevent a decision from becoming final or executory. The respondent shall be considered as having been placed under preventivesuspension during the pendency of an appeal in the event he wins such appeal. In the event the appeal results in an exoneration, he shall be paid his salary andsuch other emoluments during the pendency of the appeal.

TERMINATION OF OFFICIAL RELATIONS

Modes of Termination

1) Expiration of Term or Tenure of Office

a) End of a fixed termb) End of Pleasure where one holds office at pleasure of appointing authorityc) Loss of confidence in primarily confidential employment

2) Reaching the age limit; Retirement3) Bona fide abolition of office4) Abandonment of office5) Acceptance of an incompatible office6) Resignation7) Resignation8) Removal for cause9) Temporary appointments termination10) Recall11) Impeachment


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12) Prescription of right to office13) Death14) Conviction of crime where disqualification is an accessory penalty15) Filing of certificate of candidacy16) Performance of act or accomplishment of purpose for which the office was created

Expiration of Term or Tenure of Office

End of Fixed Term

Upon the expiration of the officer s term, unless he is authorized by law to hold over, his rights, duties and authority as a public officer must be ipso factoterminated.

End of pleasure where one holds office at the pleasure of the appointing authority

Alba v. Evangelista

President can validly terminate tenure of Vice Mayor of Roxas City as the office was created at the pleasure of the President. What is involved here isnot the question of removal, or whether legal cause should precede or not that of removal. What is involved here is the creation of an office andthe tenure of such office, which has been made expressly dependent upon the pleasure of the President.

Fernandez v Ledesma

The Charter of Basilan City provides that the President shall appoint and may remove at his discretion any of the citys offi cers, including its Chief ofPolice, with the exception of the municipal judge, who may be removed only according to law. The legislative intent is to make continuance inoffice dependent upon the pleasure of the President. Congress has the power to vest such power of appointment. Further, A public office is the

right for a given period, either fixed by law or enduring at the pleasure of the creating power. Alba v. Evangelista states that the replacement isnot removal, but an expiration of tenure, which is an ordinary mode of terminating official relations. What is involved is not removal, or whetherlegal cause should precede such removal, but the creation of an office and the tenure of such office, which has been made expressly dependentupon the pleasure of the President.

Loss of Confidence in Primarily Confidential Employment

Hernandez v. Villegas

Even officers and employees of the civil service occupying primarily confidential positions are subject to the constitutional safeguard againstremoval or suspension except for cause.

Official and employees holding primarily confidential positions continue only for so long as confidence in them endures. The termination oftheir official relation can be justified on the ground of loss of confidence because in that case, their cessation from office involves no removal butmerely the expiration of the term of office.

Ingles v. Mutuc

The statement that an officer holding a position which is primarily confidential in nature is subject to removal at the plea sure of theappointing power is inaccurate. Such statement (a mere obiter in the case of De los Santos v. Mallare), if detached from the context of thedecision in said case, would be inconsistent with the constitutional command to the effect that no officer or employee in th e Civil Service shallbe removed or suspended except for cause as provided by law, and it is conceded that one holding in the government a primarily confidentialpositions is in the Civil Service.

This should not be misunderstood as denying that the incumbent of a primarily confidential position holds office at the pleasure only of theappointing power. It should be noted however, that when such pleasure turns into displeasure, the incumbent is not removed or dismissedfrom office - his term merely expires in much the same way as an officer, whose right thereto ceases upon expiration of th e fixed term forwhich he had been appointed or elected is not and cannot be deemed removed or dismissed therefrom, upon the expiration ofsaid term. Themain difference between the former - the primarily confidential officer - and the latter is thatthe latters term is fixed or definite, whereas that ofthe former is not pre-fixed but indefinite, at the time of his appointment or election, and becomes fixed and determined when the appointingpower expresses its decision to put an end to the services of the incumbent. When this event takes place, the latter is not removed or

dismissed from officer - his term has merely expired.

Gray v. De Vera

President appointed Gray as Board secretary of the Peoples Homesite and Housing Corporation but was later terminated through a board resolutiondue to loss of confidence. SC reversed ruling that Grays appointment was a permanent one. Although the President, EO 99, declared the positionof secretary to the board of a government corporation primarily confidential in nature, it does not follow that a board secretary whoseappointment was permanent may be removed from office without a formal charge specifying the ground for removal and without giving him anopportunity to be head. Such removal was illegal since there was no lawful cause for removal.

By declaring that the position is primarily confidential in nature, the President intended that the position be filled by an appointee ofunquestioned honesty and integrity. The act of Gray in reporting the boards act of mismanagement and misconduct was in consonan ce with thehonesty and integrity required for the position.


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Cario v. ACCFA

SC reversed termination of lawyers who were appointed as permanent employees of ACCFA. That petitioners positions are primarily confidential isimmaterial. The Constitution merely excepts primarily confidential positions from the coverage of the rule requiring appointments in the civilservice to be made on the basis of merit and fitness as determined from the competitive exams, but does not exempt such posi tions from theoperation of the principle that no officer or employee in the civil service shall be removed or suspended except for cause as provided by law,which recognizes no exception.

Reaching the Age Limit; Retirement

Conditions for entitlement to retirement benefits (R.A. No. 8291)

a) he has rendered at least fifteen (15) years of service;b) he is at least sixty (60) years of age at the time of retirement; andc) he is not receiving a monthly pension benefit from permanent total disability.

Law on Pub Officer Summary

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Transcript of Law on Pub Officer Summary