P.O. Reviewer

8/3/2019 P.O. Reviewer

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II. PUBLIC OFFICERS

Individual vested with public office Any government employee, agent or body having to do a particular act or perform a

particular function in the exercise of governmental power. It includes elective,

appointive officials and employees, permanent or temporary, whether in the

classified, or exempt service, receiving compensation even nominal from thegovernment. (Sec. 2, Administrative Code)

Any person, who, by direct provision of law, popular election or appointment bycompetent authority is vested with jurisdiction to govern or execute the laws

(revised penal code)

PUBLIC OFFICIAL An officer of the government itself, as distinguished from the officers

and employees of instrumentality of the government. Hence, the duly authorized acts of the

public officials are those of the government.

III. CREATION OF PUBLIC OFFICE CONSTITUTION or by Authority conferred by it By Congress By the President

Examples:

Constitutional Offices: COMELEC, COA, LEGISLATURE, OFFICE OF THE PRESIDENT, etc.

Statutory Offices: Central Bank, NLRC, MMDA, NFA, etc.

Offices created by virtue of validly delegated power: Central Bank (E.O. No. 797), POEA

(E.O. No. 797), etc.

IV. ELIGIBILITY, TERM AND COMPENSATION

ELIGIBILITY State or quality of being legally fitted or qualified to be chosen. Eligibility to

a public office is a continuing nature and must exist both at the commencement and during

the occupancy of an office.

Eligible legally fitted or qualified to hold an office. Under the Administrative Code, it

refers to persons who obtain a passing grade in civil service examination or is

granted civil service eligibility and whose name is entered in the register of

eligibles.

INELIGIBILITY- lack of qualifications prescribed by the Constitution or applicable law for

holding office.

Ineligible legally disqualified to hold an office

Disqualified to be elected to an office Disqualified to hold an office, if elected or appointed to it


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QUALIFICATION

Refers to the endowment or accomplishment that fits one for office Refers to an act which a person, before entering upon the performance

of his duties, is, by law required to do, such as the taking of, subscribingand filing of an official oath

WHERE OFFICE IS CREATED BY CONGRESSCongress can deal with the subject of qualification and disqualification provided that it

does not impinge upon any express provision of the Constitution. Congress has the power

to specify that certain classes of individuals are disqualified from holding the office.

WHERE OFFICE CREATED BY THE CONSTITUTION

The constitutional criteria are exclusive. Congress does not have the power to require

different qualifications other than those specifically set out in the Constitution.

WHERE QUALIFICATIONS PRESCRIBED BY THE CONSTITUTIONNot self-executing, merely announcements of a general principle requiring legislation for

their enforcement. Congress may prescribe additional qualifications unless it appears that

this action is prohibited.

TERM AND TENURE

TERM - Time during which the officer may claim to hold office as of right and fixes the

interval after which the several incumbents shal succeed one another. It is not affected by

holding over of the incumbent after expiration of the term for which he was appointed or

elected.

TENURE - The period during which the incumbent actually holds office.

POWER OF CONGRESS TO FIX, SHORTEN OR LENGTHEN TERM

1. WHERE TERM FIXED BY CONSTITUTION- Beyond the power of Congress. May only be

affected by the vote of the people ratifying a constitutional amendment. Such amendment

do not have retroactive effect unless the terms of the amendment clearly intends it to be.

2. WHERE TERM NOT FIXED BY CONSTITUTION- Only the Congress has the power to fix,

shorten or lengthen so long as it is reasonable.

ART. IX-B, Sec. 2 (3) - SECURITY OF TENURE

xxxxx

(3) No officer or employee of the Civil Service shall be removed or suspended except

for cause provided by law.

xxxxx


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GUARANTEE OF SECURITY OF TENURE - Guarantee against arbitrary impairment, whether

total or partial, of the right to continue in the position held.

BLAQUERA VS. CSC

upon her assumption of office as President of the Philippines after the EDSA Revolution,President Corazon Aquino invested herself under the Freedom Constitution with power

and authority to reorganize the Government "by proclamation or executive order or by

designation or appointment and qualification of the successor of any elective andappointive officials under the 1973 Constitution.

However, "in order to obviate unnecessary anxiety and demoralization among the

deserving officials and employees, particularly in the Career Civil Service" arising from the

reorganization of the government, the President issued E. O. No. 17 on May 28, 1986

providing guidelines for the implementation of the reorganization "to protect career civil

servants whose qualifications and performance meet the standards of service demanded by

the new Government, and to ensure that only those found corrupt, inefficient andundeserving are separated from the government service." The head of each Ministry (now

Department) was tasked to "see to it that the separation and replacement of officers and

employees is made only for justifiable reasons.

Pursuant to this, the DENR under Executive Order No. 192, DENR Secretary Fulgencio S.

Factoran, Jr. submitted to the DBM a staffing pattern consisting of 28,106 positions. The

DBM approved only 22,956 positions and the petitioners' positions were among those

trimmed off the new plantilla. As the lean plantilla did not meet the manpower

requirements of the DENR, Secretary Factoran submitted a staffing pattern consisting of

24,614 positions.

The DBM released a revised staffing pattern containing 23,612 positions only which was

1,002 positions less than what the DENR Secretary requested and which still did notinclude the positions of the petitioners.

The DENR requested the DBM to restore 839 positions which DBM had disapproved

earlier. The request was approved subject to the condition that these positions shall be

coterminous with the appointees but not to exceed three (3) years.

Meanwhile, Republic Act No. 6656 "An Act to Protect the Security of Tenure of Civil Service

Officers and Employees In the Implementation of Government Reorganization," was

passed. Section 11 thereof orders all departments and agencies to complete the 1987

reorganization of the executive branch within ninety (90) days from the approval of thelaw, or on or before September 8, 1988.

The directors of the affected bureaus requested the DENR and DBM Secretaries to convert

the coterminous positions to permanent. The DENR Secretary endorsed their request citing

changes in the functions of the DENR as justification for the request. The request was

reiterated by the DENR Assistant Secretary for Services Management but it was denied by

DBM Secretary Guillermo Carague.


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As Secretary Factoran's request for reconsideration of Secretary Carague's order remained

unacted upon, the petitioners filed the present petition for prohibition 2 and mandamus3with a prayer for the issuance of a restraining order/preliminary injunction.

The petitioners argue that their impending dismissal would violate their right to security of

tenure safeguarded by paragraph (3), Section 2 of Article IX-B of the Constitution, and the

2nd paragraph, Section 3 of Article XIII thereof. .

HELD:

A reorganization in good faith is one designed to trim the fat off the bureaucracy andinstitute economy and greater efficiency in its operation.

There appears to be no sufficient justification for the reorganization of the DENR, as

revised by the DBM. The fact that Section 25 of E.O. No. 192 changed the status of all the

officers and employees of the DENR from permanent or regular to mere "hold-overs,"

flagrantly violating the employees' right to due process, taints the reorganization process.

Section 25 provides:

Sec. 25. New Structure and Pattern. Upon approval of this executive Order,the officers and employees of the Department shall in a hold-over capacity,

continue to perform their respective duties and responsibilities and receive the

corresponding salaries and benefits unless in the meantime they are

separated from government service.

. . . Those incumbents whose positions are not included therein, or, who are not

reappointed, shall be deemed separated from the

service. . . .

DENR Secretary Fulgencio Factoran (who is presumed to know better than anyone else the

needs of his department) had urged the DBM to restore the positions of the petitioners

because they are "vitalto the functions, mandates and objectives of the DENR. Since theabolition of their positions will not conduce to either "efficiency" or "economy" in the

Service, which are the principal justifications for any government overhaul, then, obviously,

the reorganization of the DENR is not justified.

The conversion of the petitioners from permanent to "coterminous" employees is a

wholesale demotion of personnel which is tantamount to removal without cause andwithout due process. (Floreza vs. Ongpin, 182 SCRA 692, 693.) It is therefore null and void.

DIVINIGRACIA VS. STO. TOMAS

Filomena R. Mancita was appointed Municipal Development Coordinator (MDC) of Pili,Camarines Sur, in a permanent capacity. When the Local Government Code took effect, the

office was renamed Municipal Planning and Development Coordinator (MPDC) which

prompted the Sangguniang Bayan of Pili to create and organize the Office of MPDC.

Mancita held over the position until 1985.

On 1 January 1985 the Joint Commission on Local Government Personnel Administration

approved the reorganization plan and staffing pattern of the Municipality of Pili. Mayor

Anastacio M. Prila notified Mancita that her services were being terminated on the ground


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that the Office of MDC was abolished as a result of the reorganization of the local

government of Pili. Prescilla B. Nacario who was then the Municipal Budget Officer was

appointed MPDC . Nacario was replaced by Digna Isidro as Municipal Budget Officer. Isidro

was succeeded a year later by Eleanor Villarico.

The Local Government Officers Services, which included the local Budget Office, was

nationalized and placed under the Department of Budget and Management. As a result, theauthority to appoint the Budget Officers of the different local government units devolved

upon the Secretary of the Budget. When Villarico the Budget Office became vacant for more

than a year, owing to the lack of a qualified candidate that the Secretary of the Budget could

appoint. In the meantime, Juan Batan, the former Municipal Budget Officer of Baao,

Camarines Sur, was appointed Officer-in-Charge of the Municipal Budget Office of Pili. He

was later replaced by Francisco Deocareza, the former Budget Officer of Naga City, in the

same capacity.

Alexis D. San Luis was temporarily appointed Municipal Budget Officer of Pili by Secretary

Guillermo N. Carague of the Department of Budget and Management. When control over

the Local Government Officers Services was returned to the local government units, SanLuis was reappointed to the same position this time in a permanent capacity by Delfin N.Divinagracia, Mayor of Pili.

Meanwhile, Mancita appealed her termination to the Merit Systems and Protection Board

(MSPB) which declared her separation from the service illegal, holding that the Office of the

Municipal Development Coordinator was abolished by the Local Government Code and not

by the reorganization of the Municipality of Pili as claimed by Mayor Prila. According to the

MSPB, Mancita was in fact qualified for the newly-created position of MPDC since the

powers and duties of the two positions were essentially the same. The MSPB ordered

Mayor Divinagracia to reinstate Mancita to the position of MPDC or to an equivalent

position, and to pay her backwages from the date of her separation. Mayor Divinagracia

then informed Nacario that she was being relieved of her position as MPDC in order tocomply with the MSPB decision to reinstate Mancita as MPDC.

The CSC issued an opinion that the reinstatement of Mancita to the position of MPDC was

not a valid cause for Nacario's termination, and since she was the former Municipal Budget

Officer she had the right to return to that position. This was protested by Mayor

Divinagracia arguing that San Luis was validly appointed by the Secretary of the Budget

and confirmed by the CSC, hence, entitled to security of tenure. The CSC issued a resolution

upholding Nacario's right to security of tenure. It also held that the reinstatement of

Mancita to the position of MPDC could not be a valid cause for the termination of Nacario.

The CSC relied on Sec. 13, Rule VI, of the Omnibus Rules Implementing Book V of E.O. No.

292, otherwise known as the Revised Administrative Code of 1978 in directing therestoration of Nacario to her former position. Sec. 13 mandates the return of an appointee,

in a chain of promotions, to his former position once his appointment is subsequently

disapproved.

The said resolution was assailed by the petitioners and sought that it be nullified.

Petitioners further contend that Nacario was deemed to have vacated her position as

Budget Officer when she accepted her appointment as MPDC. On the other hand, private


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respondent Nacario claims that she did not voluntarily apply for transfer from the Budget

Office to the Office of MPDC but was constrained to "accept" the new position because of

Mayor Prila. She was, in her own words, "a passive participant in the movement of

personnel" in the municipal government of Pili having acted as a "subservient public

official" in assuming the position of MPDC.

HELD:

Petitioner Alexis D. San Luis cannot hold on to the position of Municipal Budget Officer. On

the other hand, respondent Prescilla B. Nacario who is protected by law in her security of

tenure should be reinstated thereto.

Sec. 13 of the Omnibus Rules Implementing Book V of E.O. 292 provides that

Sec. 13. All appointments involved in a chain of promotions must be

submitted simultaneously for approval by the Commission. The disapproval

of the appointment of a person proposed to a higher position invalidates the

promotion of those in lower positions and automatically restores them totheir former positions. However, the affected persons are entitled to the

payment of salaries for services actually rendered at a rate fixed in their

promotional appointments.

Under the aforecited section, before a public official or employee can be automatically

restored to her former position, there must first be a series of promotions; second, all

appointments are simultaneously submitted to the CSC for approval; and third, the CSC

disapproves the appointment of a person proposed to a higher position.

The movement of Nacario from the Budget Office to the Office of MPDC cannot be

considered a promotion. Conformably therewith, the movement of Nacario is one of lateral

transfer.Aside from the lack of a series of promotions, the other two (2) requisites are not also

present, i.e., the appointments of the parties concerned were notsimultaneouslysubmitted

to the CSC for approval the appointment (permanent) of Nacario was approved by the

CSC on 13 June 1985 while the appointment (permanent) of San Luis was approved by the

CSC on 9 February 1993 and, the ouster of Nacario from the Office of MPDC was a result

of the MSPB decision directing the reinstatement of Mancita and not because the CSC

disapproved her appointment as MPDC.

The unconsented lateral transfer of Nacario from the Budget Office to the Office of MPDC

was arbitrary for it amounted to removal without cause hence, invalid as it is anathema to

security of tenure. Such right to security of tenure is protected not only by statute, but also

by the Constitution and cannot be taken away from her either by removal, transfer or by

revocation of appointment, except for cause, and after prior notice.

The guarantee of security of tenure is an important object of the civil service system

because it affords a faithful employee permanence of employment, at least for the period

prescribed by law, and frees the employee from the fear of political and personalprejudicial reprisal.


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Considering that the separation of Nacario who was the former incumbent was not in

order, San Luis should relinquish his position in favor of private respondent Nacario. This

is, of course, without prejudice to San Luis' right to be reinstated to his former position as

Cashier II of the DENR, he being also a permanent appointee equally guaranteed security of

tenure.

COMPENSATION

ART. IX-B, Sec. 8: No elective or appointive public officer or employee shall receive

additional, double or indirect compensation, unless specifically authorized by law, nor

accept without the consent of Congress any present, emolument, office or title of any kind

from foreign government. Pensions or gratuities shall not be considered as additional,

double or indirect compensation.

GENERAL RULE: CONGRESS HAS THE POWER TO FIX COMPENSATION

Primarily but not exclusively legislative in characterRatio: if the office is a constitutional one, the constitution itself may provide

the compensation or may entrust the matter to Congress.

May be delegated subject to statutory limitation: Unless expressly or impliedlyprohibited by the Constitution, Congress may delegate the power to other

government bodies or officers.

FORMS OF COMPENSATION

COMPENSATION pay for doing all that may be required of the official whether inthe form of a fixed salary or wage, per diem, fees, commissions or perquisites ofwhatsoever character.

SALARY personal compensation paid to a public officer for his services. Asdistinguished from wage, salary is given to officers of higher degree of employment

that those to whom wages are given.

PER DIEM fixed by the day FEES OR COMMISSION payment for services rendered or on commission on

moneys officially passing through the hands of particular officers on the amount of

business done or public money passing through the officers hand

EMOLUMENT profit arising from the office. It does not refer to the fixed salaryalone but may include fees and commissions.

BASIS OF RIGHT TO COMPENSATION

Creation of Law Compensation of the public officer belongs to him not by force ofcontract but because the law attaches it to the office.

Services Rendered a public official is not entitled to compensation if he has notrendered any service.

Compensation Fixed by Law if no compensation is fixed by law, the public officer ispresumed to have accepted the office to serve gratuitously.


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Legal Title to Office One without legal title either by lawful appointment orelection and qualification is not entitled to recover any salary or compensation

attached to the office.

Amount of compensation the nature of an officials position shall be thedetermining factor in the fixing of his salary. P.D. No. 985 employs the scheme

known as the grade defined as all classes of positions which, although differentwith respect to kind or subject matter of work, are sufficiently equivalent as to level

of difficulty and responsibilities and level of qualification requirements of the

work It is the officials grade that determines his or her salary.

Ex-officio Position an ex-officio position is actually part of the principal office. Itfollows that the official concerned has no right to receive additional compensation

for his services in the said position.

OTHER PRINCIPLES IN RELATION TO COMPENSATION

Salary not subject to garnishment Prohibition against diminution Compensation is not an element of public office but merely incident thereto andattaches to the office itself and not to the officer

PROHIBITED AGREEMENTS AFFECTING COMPENSATION

Agreement to accept, or acceptance of less or other than the legal compensation Sale, assignment or barter of compensation Dividing compensation with others

V. POWERS

SOURCE - The people themselves either directly or their chosen representatives. Their

will is expressed in the Constitution and the laws.

The powers and duties of public officers are prescribed by the Consitution or by statute

or both. Public officers have only those poweres expressly granted or necessarily

implied by law.

SCOPE OF POWER

1. expressly conferred by the law which he has been appointed or elected

2. expressly annexed to the office by the law which created it or some other law

referring to it3. attached to the office as incidents to it.

CLASSIFICATION OF POWERS AND DUTIES

1. AS TO THEIR NATURE

a. Ministerial - it is absolute, certain and imperative involving merely execution of a

specific duty arising from a fixed and designated facts.


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b. Discretionary - necessarily require the exercise of reason in the adaptation of

means to an end, and discretion in determining how or whether the act shall be done or

the course pursued.

2. AS TO THE OBLIGATION TO PERFORM HIS POWERS AND DUITES

a. Mandatory - powers conferred are generally construed as mandatory although thelanguage may be permissive, where they are for the befit of the public or individuals.

b. Permissive - if the act does not affect third personsmand is clearly not benficial to

the public, permissive words will not be construed as mandatory.

3. AS TO THE RELATIONSHIP OF THE OFFICER TO HIS SUBORDINATE

a. Power of Control - power to manage, direct, govern, including the power to alter,

modify or set aside what the subordinate has done in the performance of his duties and

to substitute his judgment for that of the latter

b. Power of Supervision - Power of mere oversight over an inferior body

DOCTRINE OF RATIFICATION - Although the act of a public officer may not be bindingon the State because he has exercised his powers defectivly, his acts may be ratified.

Exeptions:

1. Where there is a want of power in the public officer to perform the original act

2. The act was absolutely void at the time. However if the act is merely voidable, it can

be rendered valid.

3. If the principal himself could not lawfully have done the act, of if it could not have

been lawfully done by anyone.

VI. DISABILITIES

DISABILITIES OF PRESIDENT, VP, MEMBERS OF THE CABINET, THEIR DEPUTIES

AND ASSISTANTS (Art. VII, Sec. 13.)

During their tenure the above-mentioned are subject to the following prohibitions:

1. They shall not hold, unless otherwise provided in the Consitution itself, any other

office or employment

2. They shall not practice any other profession

3. They shall not participate directly or indirectly in any business

4. They shall not participate directly or indirectly, in any contract with, or in any

franchise or special privilege granted by the government or any subdivision, agency or

instrumentality thereof including any GOCC or their subsidiaries5. They shall strictly avoid conflict of interest

In addition, the President is prohibited during his tenure from appointing his spouse or

relatives within the fourth civil degree as members of Constitutional Commissions,

Office of the Ombudsman, or as Secretaries, USecs, Chairmen of Heads of Bureaus or

Offices, including GOCC's and their subsidiaries.


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DISABILITIES OF MEMBERS OF CONGRESS (Art. VI, Secs. 13-14)

1. No Senator or Member of the House of Representatives may hold any other office or

employment in the Government, or any subdivision, agency, or instrumentality thereof,

including GOCC's or their subsidiaries, during his term without forfeting his seat

2. Neither shall they be appointed to any office which may have been created or the

emoluments thereof increased during the term for which he was elected3. No Senator or Member of the House may appear as counsel before any court of justice

or before the Electoral Tribunals, or quasi-judicial and other administrative bodies

4. Neither shall they, directly or indirectly, be interested financially in any contract with,

or in any franchise or special privilege granted by the government, or any subdivision,

agency or instrumentality thereof, including any GOCC, or its subsidiary during his term

of office.

5. He shall not intervene in any matter before any office of the government for his

pecuniary benefit or where he may be called upon to act on account of his office or to

give is vote as member of Congress

A MEMBER OF CONGRESS IS DISQUALIFIED TO HOLD THE FOLLOWING OFFICES IN

THE GOVERNMENT:

INCOMPATIBLE OFFICE - Any kind of office or employment in the government, or any

subdivision, agency or instrumentality thereof, including GOCC's or their subsidiaries

during his term.

FORBIDDEN OFFICE - any office created or the emoluments of which was increased

during his tenure or actual incumbency

DISABILITIES OF MEMBERS OF CONSTITUTIONAL COMMISSIONS1. No member shall during his tenure hold any other office or employment

2. No member shall engage in the practice of any profession or in the active

management or control of any business which in any way may be affected by the

functions of his office

3. No member shall be financially interested, directly or indirectly, in any contract with,

or any franchise or privilege granted by the government, any of its subdivisions,

agencies or instrumentalities, including GOCC's or their subsidiaries.

PROHIBITION AGAINST APPOINTMENT OF ELECTIVE OFFICIALS

Flores vs. Drilon

Mayor Richard J. Gordon of Olongapo City was appointed Chairman and Chief Executive

Officer of the Subic Bay Metropolitan Authority (SBMA), by virtue of R.A. 7227, Sec. 13 par.

D which reads


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(d) Chairman administrator The President shall appoint a professional

manager as administrator of the Subic Authority with a compensation to be

determined by the Board subject to the approval of the Secretary of Budget,

who shall be the ex oficio chairman of the Board and who shall serve as the

chief executive officer of the Subic Authority: Provided, however, That for the

first year of its operations from the effectivity of this Act, the mayor of the Cityof Olongapo shall be appointed as the chairman and chief executive officer of

the Subic Authority.

This was assailed as contrary to the Constitution specifically Sec. 7, first par., Art. IX-B,

which states that "[n]o elective official shall be eligible for appointment or designation in any

capacity to any public officer or position during his tenure,"

HELD:

As incumbent elective official, respondent Gordon is ineligible for appointment to the

position of Chairman of the Board and Chief Executive of SBMA; hence, his appointment

pursuant to a legislative act that contravenes the Constitution cannot be sustained.the ineligibility of an elective official for appointment remains all throughout his tenure or

during his incumbency, he may however resign first from his elective post to cast off the

constitutionally-attached disqualification before he may be considered fit for appointment.

Consequently, as long as he is an incumbent, an elective official remains ineligible for

appointment to another public office.

in the case of respondent Gordon, an incumbent elective official, notwithstanding his

ineligibility, appointed to other government posts, he does not automatically forfeit his

elective office nor remove his ineligibility imposed by the Constitution. On the contrary,

since an incumbent elective official is not eligible to the appointive position, his

appointment or designation thereto cannot be valid in view of his disqualification or lack of

eligibility.

OTHER CONSTITUTIONAL PROVISIONS

1. Prohibition against designation of members of judiciary to any agency performing quasi-

judicial or administrative functions. (Art. VIII, Sec. 8)

2. Prohibition against engaging in partisan political activities (Art. IX-B, Sec. 24, Art. XVI,

Sec. 5 (3))

3. Prohibition against holding more than one position by appointive officials (Art. IX-B, Sec.

7)

4. Prohibition against acceptance of any present, etc. from any foreign government (Art. IX-B, Sec. 8)

5. Prohibition against receiving additional, double or indirect compensation (Art. IX-B, Sec.

8)

6. Prohibition of appointment of members of the AFP in active service to a civilian position

in the government (Art. XVI, Sec. 5 (4))

DIVESTMENT


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A public official or employee shall avoid conflict of interest at all times. When conflict of

interest arise, he shall resign from his position in any private business enterprise within 30

days from his assumption of office and/or divest himself of his shareholdings of interest

wihtin 60 days from such assumption.

VII. LIABILITIES

DOCTRINE OF OFFICIAL IMMUNITY FROM LIABILITIES

Public officers and employees would be unduly hampered, deterred and intimidated in the

discharge of their duties, if those who act improperly, or even exceed the authority given

them were not protected to some reasonable degree by being relieved from private

liability.

GENERAL RULE: A State may not be sued without its consent and a suit against a public

officer is a suit against the State as its purpose is to hold it ultimate liable.

EXEPTIONS:

1. A public officer may be sued to compel him to do an act required by law.

2. Suit may be brought to restrain an officer a law from enforcing a law claimed to be

unconstitutional

3. Where the government has violated its own laws, the aggrieved party may directly

implead the government even without filing is claim with the Commission on Audit as

required as the doctrine of state immunity cannot be used as "instrument for perpetrating

an injustice."

THREE-FOLD RESPONSIBILITY OF PUBLIC OFFICERS

1. If the individual is damaged by such violation, the official shall, in some cases, be held

liable civilly to reimburse the injured party.

2. It the law has attached a penal sanction, the officer may be punished criminally

3. If the administrator's disciplinary power is strong, such violation may lead to imposition

of fine, reprimand, suspension or removal from office as the case may be.

PROCEEDINGS AGAINST PUBLIC OFFICERS

1. EVIDENCE AND PROCEDURE

Public officers are presumed to have performed their duties regularly and in goodfaith

Substanial evidence required Technical rules of procedure and evidence not strictly applied Administrative due process could not be fully equated with due process in its strict

judicial sense

2. RIGHT TO BE INFORMED OF FINDINGS AND RECOMMENDATIONS OF AN INVESTIGATING

COMMITTEE


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Respondent is not entitled to be performed of the findings and recommendations ofan investigating committee

He is entitled only to administrative decision based on substantial evidence made ofrecord

Opportunity to meet the charges and the evidence presented against him during thehearings of the investigation committee

GENERAL RULE: GOVERNMENT OFFICIALS PERFORMING DISCRETIONAY FUNCTIONS

GENERALLY ARE SHIELDED FROM LIABILITY FOR CIVIL DAMAGES INSOFAR AS THEIR

CONDUCT DOES NOT VIOLATE CLEARLY ESTABLISHED STATUTOTY OR

CONSTITUTIONAL RIGHT WHICH ANY REASONABLE PERSON WOULD HAVE KNOWN.

GENERAL RULE: WHEN THE LAW IMPOSES UPON A PUBLIC OFFICER THE

PERFORMANCE OF MINISTERIAL DUTIES IN WHICH A PRIVATE INDIVIDUAL HAS A

SPECIAL AND DIRECT INTEREST, THE OFFICER WILL BE LIABLE TO SUCH INDIVIDUAL

FOR ANY INJURY WHICH HE MAY PROXIMATELY SUSTAIN IN CONSEQUENCE OF THEFAILUREOR NEGLECT OF THE OFFICER TO PERFORM THE DUTY AT ALL, OR TO PERFORM

IT PROPERLY.

KINDS OF LIABILITY OF MINISTERIAL OFFICERS

1. NONFEASANCE- Neglect or refusal, without sufficient excuse, to perform an act which it

was the officer's legal duty to the individual to perform

2. MISFEASANCE- Failure to use, in the performance of a duty owing to an indvidual, that

degree of care, skill and diligence which the circumstances of the case reasonably deman

3. MALFEASANCE- The doing, either through ignorance, inattention or malice, of that which

theofficer has no legal right to do at all, as where he acts without any authority whatever,

or exceeds, ignores or abuses his powers.

GENEAL RULE: Public officers are not civilly liable to third persons for the acts of their

subordinates.

EXEPTIONS:

1. Where he has the duty of employing or retaining his subordinate, he negligently or

wilfully employs or retains unfit or improper persons

2. Were he has a duty to see that they are appointed or qialified in a proper name, he

negligently or wilfully fails to require them the due conformity to the prescribed regulation

3. where he carelessly or negligently oversees, conducts or carries the business of his office

as to furnish the opportunity for the default

4. where he has directed, authorized or corperated in the wrong5. where liability is expressly provided in the statute

LIABILITY FOR TOTIOUS ACTS

1.ACTS DONE WITHIN SCOPE OF OFFICIAL AUTHORITY- A piblic officer is not personally

liable to one injured as a consequence of an act performed within the scope of official

authority and in line of official duty.


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2.ACTS DONE WITHOUT OR IN EXCESS OF OFFICIAL AUTHORITY- If a cpublic officer

exceeds the power conferred on him by law, he cannot invoke official immunity. The the

eyes of the law, his acts are wholly without authority.

LIABILITY UNDER THE CIVIL CODE

1. Fialure or neglect to perform official duty (NCC, Art. 27)2. Violating the rights and liberties of private individuals (Arts. 32 & 34)

CRIMINAL LIABILITY UNDER THE RPC

1. Malfeasance and misfeasance in the office

2. Frauds and illegal exactions and transactions

3. Malversation of public funds or property

4. Infidelity of public officers

5. Disobedience, refusal of assitance, maltreatment of prisoners, anticipation, prolongation

and abandonment of the duties and powers of public office, usurpation of powers and

unlawful appointments.

OTHER DOCTRINES

OFFICIAL IMMUNITY IS NOT ABSOLUTE. A PUBLIC OFFICER ONLY ENJOYS QUALIFIED

AND NOT ABSOLUTE IMMUNITY.

A PUBLIC OFFICIAL MAY BE LIABLE IN PERSONAL PRIVATE CAPACITY FOR

WHATEVER DAMAGE GE MAY HAVE CAUSED BY HIS ACT DONE WITH MALICE AND

BAD FAITH OR BEYOND THE SCOPE OF HIS AUTHORITY OR JURISDICTION

THE MERE INVOCATION OF OFFICIAL CHARACTER WILL NOT SUFFICE TO INSULATEA PUBLIC OFFICER FROM SUABILITY AND LIABILITY FOR DAMAGES FOR AN ACT

IMPUTED TO HIM AS A PERSONAL TORT COMMITTED WITHOUT OR IN EXCESS OF

HIS AUTHORITY.

CRIMINAL AND CIVIL CASES DIFFERENT FROM ADMINISTRATIVE MATTERS

VIII. TERMINATION OF OFFICIAL RELATIONS

1. EXPIRATION OF THE TERM OR TENURE OF OFFICE

2. REACHING THE AGE LIMIT (RETIREMENT)3. DEATH OR PERMANENT DISABILITY

4. RESIGNATION

5. ACCEPTANCE OF AN INCOMPATIBLE OFFICE

6. ABANDONMENT OF OFFICE

7. PRESCRIPTION OF RIGHT TO OFFICE

8. REMOVAL

9. IMPEACHMENT


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10. ABOLITION OF OFFICE

11. CONVICTION OF A CRIME

12. RECALL

HOLDING OVER AFTER EXPIRATION OF TERMWhen the term has expired or services terminated, a public officer should continur holding

office until his successor is appointed or chosen and had qualified

A public officer who hold over is a de jure officer if his holding over is authorized by law;

otherwise he is a de facto officer.

Q: What is the effect of replacement of a public officer who holds office at the pleasure of

the appointing power?

A: The replacement is regarded a termination through expiration of term, not removal

REACHING AGE LIMITCompulsory and automatic for public officers and employees when they reach the age of

65.

70 years old for members of the Supreme Court and judges of the lower court

65 years olf for public officers

Holding over is not permitted where the Consitution itself limits the term or expressly or

impliedly prohibited.

DEATH OR PERMANENT DISABILITY

PERMANENT DISABILITY covers BOTH PHYSICAL OR MENTAL DISABILITY.

RESIGNATION - Formal renucuaition or relinquishment of public office.

FORMS OF RESIGNATION

1. Where by law, the resignation is required to be made in a particluar form, that form must

be substantially complied with

2. Where no such form is prescribed, the resignation may be made by any method

indicative of the purpose. It need not be in writing unless so required

WHAT CONSTITUTES RESIGNATION

1. Intention to relinquish a part of the term

2. Accompanying act of relinquishment3. Resignation must be ACCEPTED by proper authority

NECESSITY OF ACCEPTANCE

1. Constitutes unlawful abandonment - A public officer who before the acceptance of his

resignation shall abandon his office to the detriment of the public service shall suffer the

penalty of arresto mayor (RPC Art. 238)


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2. Resignation revocable before acceptance - Without acceptance, the tender or offer to

resign is revocable unless otherwise provided.

FORM OF ACCEPTANCE

1. Formal declaration

2. Appointment of a successor

HOLD OVER EFFECT

If there is a provision authorizing the public officer to hold over until his successor is

chosen and qualified, resignation has no effect until after the successor has enetered upon

the duties of the office;

TO WHOM RESIGNATION TENDERED

Unless specifically provided for by law, resignation shall be tendered to the AUTHORITY OR

BODY having AUTHORITY TO APPOINT HIS SUCCESSOR OR TO CALL AN ELECTION TO

FILL THE OFFICE.

WITHDRAWAL OF RESIGNATION

May be withdrawn before it is acted upon, but not after acceptance After acceptance, withdrawal is still possible with the consent of the authority

accepting, where no rights have intervened

EXCEPTION: If the resignation is unconditional and effective immediately

REPUDIATION OF RESIGNATION

1. Not effective although a successor has already been appopinted if the said resignation

has been transmitted without the officer's consent.

2. Resignation has been procured by fraud or by duress

3. Resignation given as an alternative to have charges filed against the public officer may berepudiated

INCOMPATIBLE OFFICE

It exists when:

1. There is conflict in such duties and functions so that the performance of the duties of one

interferes with the peroformance or duties of another as to render it improper from

consideration of public policy for one person to retain both

2. One is subordinate to the other and is subject to some degree to its supervisory power

for obviously in such a situation where both positions are held by the same person, the

design that one acts as a check on the other would be frustrated3. The Constitution or the laws itself, for reasons of public policy, declares the

incompatibility even though there is no inconsistency in the nature and functions of the

offices.

EXEPTIONS:

1. Where the officer cannot vacate the first office by his own act, upon the principle that he

will not be permitted to, thus, do indirectly what he could not do directly.

2. Where the first office is held under a different form which conferred the second


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3. Where the officer is expressly authorized by law to accept another office

4. Where the second office is temporary

EFFECT - Aceeptance of the second incompatible office effectively vacates the first office.

No proceeding is necessary in order to declare or complete the vacation of the first office.

Even though the title to the second office fails, the rule stands.

TESTS OF INCOMPATIBILITY

Whenever one office is subordinate to the other in some of its important andprincipal duties, or is subject to supervision by the other, or where a contraiety and

antagonism would result in the attempt of one person to discharge the duties of

both.

The incumbent of one office has the power to remove the incumbent of the othereven of the contigency on which the power may be exercised is remote

Where the incumbent of one office has the power of appointment of another officeABANDONMENT - Voluntary relinquishment of an office with the intention of notreclaiming it or terminating his possession and control thereof.

ELEMENTS

1. intention to abandon

2. overt or external act by which the intention is carried into effect

FORMS OF ABANDONMENT

1. CLEAR INTENTION TO ABANDON OFFICE- Abandonment must be total and absolute.

2.ACCEPTANCE OF ANOTHER OFFICE- As long as accompanied by deliberation and fredom

of choice either to keep the old office or to renounce it for another.

3. CONCURRENCE OF OVERT ACTS AND INTENTION- Abandonment is not merely a matterof intention. There must be concurrence of intention and overt acts from which it may be

inferred that the publi officer has no more interest.

4. FAILURE TO DISCHARGE DUTIES OF OFFICE OR TO CLAIM OR RESUME IT5.ACQUISENCE BY THE OFFICER - This amounts to the ratification of the public officer of

his wrongful removal through acts or omission.

PRESCRIPTION OF RIGHT TO OFFICE

A PERSON WHO CLAIMS A RIGHT TO A PUBLIC OFFICE OCCUPIED BY ANOTHER MAY

BRING AN ACTION WITHIN ONE YEAR TO DETERMINE BY WHAT AUTHORITY (QUO

WARRANTO)THE LATTER ASSUMES TO HOLD AND EXERCISE THE OFFICE IN QUESTIONAND ASCERTAIN WHO IS ENTITLED TO IT.

REMOVAL - Ouster of the incumbent before the expiration of his term. It implies that the

office exists after the ouster. Synonymous to dismissal.

FORMS OF REMOVAL


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1.APPOINTMENT OF ANOTHER OFFICER - Removal is accomplished merely by the

appointment of another officer in the place of another. But in order for it be effective, the

incumbent must be notified.

2. TRANSFER TO ANOTHER OFFICE- Tansfer must be with the officer's consent otherwise

such transfer amounts to ellegal removal or separation from office. (see Divinagracia vs. Sto.

Tomas)3. DEMOTION- Movement from one position to another with diminution in duties,

responsibility, status or rank. This amounts to removal if no cause is shown for it.

4. REASSIGNMENT- Movement from one unit to another in the department or agency

which does not involve reduction in rank, status or salary and does not require the

issuance of appoitnment. A demotion on the other hand involves the issuance of

appointment.

REMOVAL MUST BE FOR JUST CAUSE OTHERWISE THE OFFICER OR EMPLOYEE SHALL BE

ENTITLED TO REINSTATEMENT WITH BACKWAGES AND WITHOUT LOSS OF SENIORITY

RIGHTS.

RULE ON CONFIDENTIAL EMPLOYEES: They serve at the pleasure of the appointing power.

Their cessation from office involves no removal but cessation of term of office.

RULE ON TEMPORARY OR ACTING APOINTES: They may be removed anytime without the

need of just cause of a valid investigation

PREVENTIVE SUSPENSION - Disciplinary measure which is intended to enable the

disciplinary authority to investigate charges against the respondent by preventing the

latter from using his position or office to influence the witnesses, to intimidate them, or to

tamper with the records which may be vital in the prosecution of the case against him.

KINDS OF PREVENTIVE SUSPENSION:

1. Preventive suspension pending investigation

2. Preventive suspension pending appeal

PRE-CONDITION FOR SUSPENSION

Valid information determined at a pre-suspension hearingGENERAL RULE: An employee exonerated is not entitled to the payment of his salaries

because his suspension is authorized by law

EXCEPTION: To be entitled to compensation, the employee must not only be found

innocent of the charges but his suspension must likewise be unjustified.

DURATION OF PREVENTIVE SUSPENSION:

Not more than ninety days. Beyond that period, the suspension is illegal and the employee

is entitled to reinstatement witl full pay.

RULE IN CASE OF ELECTIVE OFFICIALS: The Local Government Code provides a maximum

period of sixty days.


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IMPEACHMENT

The following may be removed by impeachment:1. President

2. Vice President

3. Members of the Supreme Court

4. Members of the Constitutional Commission

5. Ombudsman

Grounds of impeachment:

1. Culpable violation of the Constitution

2. Treason

3. Bribery, Graft and Corruption and other high crimes

4. Betrayal of public trust

THE HOUSE OF REPRESENTATIVES HAS THE SOLE POWER TO INITIATE ALL CASES OF

IMPEACHMENT WHILE THE SENATE SITS AS A COURT FOR THE TRIAL OF

IMPEACHMENT CASES.

ABOLITION OF OFFICE - There must have been intention to do away with the office wholle

and permanently (See Blaquera vs. CSC)

ABOLITION MUST NOT CONSTITUTE REMOVAL WITHOUT CAUSE. WHEN THE ABOLITION

IS DONE IN BAD FAITH, AS WHEN THE PURPOSE IS TO DISCHARGE THE INCUMBENT INVIOLATION OF THE CIVIL SERVICE LAW, THE ABOLITION IS VOID AND THE INCUMBENT

IS DEEMED NEVER TO HAVE CEASED OFFICE.

TERMINATION THROUGH REORGANIZATION - SAME RULE APPLIES OTHERWISE THE

INCUMBENT IS DEEMED NEVER TO HAVE CEASED OFFICE.

TEST TO DETERMINE WHETHER REORGANIZATION IS DONE IN GOOD FAITH

1. Where the abolished office and the offices created in its place have similar functions, the

abolition lacks good faith

2. The abolition which merely changes the nomenclature of a position is invalid

3. Where one office is abolished and replaced with another office vested with similarfunctions

CONVICTION OF A CRIME

When the penalties of perpetual or temporary absolute disqualification or penalties of

perpetual or temporary special disqualification are imposed upon conviction of a crime.


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EFFECTS OF PARDON

1. Unless the right to public office is expressly restored or unless it is expressly grounded

on the person's innocence, a pardon does not effectively restore a convicted felon to public

office.

2. The person pardoned may apply for reappointment to the office which was forfeited byreason of his conviction and undergo the usual procedure required for a new appointment.

3. A pardon merely removes the disqualification from holding public employment

4. A pardon does not extinguish the civil liability of the grantee arising from the crime

RECALL - Mode of terminating official relationship prior to the expiration the term of a

public officer on account of loss of confidence. It shall be exercised by the registered voters

of local government unit to which the local elective official subject to such recall belongs.

HOW INITIATED

1. Initiated by the registered voters through a petition2. Initiated by a PREPARATORY RECALL ASSEMBLY through a resolution

Composition of the PREPARATORY RECALL ASSEMBLY:

Provincial Level - All Mayors, Vice Mayors and Sangginian Members of theMunicipalities and component Cities

City level - All youth, baranggay and sanggunian baranggay members in the city Legislative District level - All elected municipal officials or elected baranggay

officials of the district where the sanggunian panlalawigan members or sanggunian

panglungsod members respectively are elected by the district

Municipal level - all punong baranggay and sanggunian baranggay members in themunicipality

RECALL BY THE PREPARATORY RECALL ASSEMBLY

A majority of the preparatory recall assembly members may convene in session in public

place and initiaite a recall proceeding against any elective official in the local government

unit concerned.

Recall of provincial, city or municipal officials shall be validly initiated through a resolution

adopted by a majority of all members of the preparatory recall assembly during its session

called for the purpose.

RECALL BY REGISTERED VOTERSRecall of any elective provincial, municipal, city or baranggay officials may also be validly

initiated upon a petition of at lease twenty five percent (25%) of the total number of

registered voters in the local government unit concerned during the election in which the

local official sought to be recalled was elected.

written petition duly signed before the election registrar or his representative andin the presence of a representative of the petitioner and representative of the official

sought to be recalled and in a public place, shall be filed with the COMELEC through


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its office in the local government unit concerned. the COMELEC shall cause the

publication of the petition in a public and conspicuous place for a period of not less

than ten days and not more than twenty days for the purpose of verifying the

authenticity and genuineness of the petition and the required percentage of voters.

Upon the lapse of the said period, the COMELEC or its duly authorizedrepresentative shall announce the acceptance of candidates to the position andthereafter prepare the list of candidates which shall include the name of the official

sought to be recalled

After the resolution or petition is filed with the COMELEC,

The COMELEC shall set the date for the recall election not later than 30 days afterthe filing of the same in the case of the baranggay, city or municipal officials and 45

days in case of provincial officials

The official sought to be recalled is automatically considered candidate to thepertinent positions and shall be entitled to be voted upon.

The official sought to be recalled shall not be allowed to resign while the recall process is in

progress.

Elective local official shall be the subject of recall only once during his term of office for loss

of confidence.

No recall shall take place within one (1) year from the date of the official's assumption to

office orone (1) year immediately preceding a regula local election.

P.O. Reviewer

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