Site hosted by Angelfire.com: Build your free website today!

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 or enduring at the pleasure of the appointing power, an individual is invested with some portion of the sovereign functions of the government, 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) a

municipality or other body through authority conferred by the Legislature;

 

(2)  Must possess a delegation of a portion of the sovereign power of

government, to be exercised for the benefit of the public;

 

(3)  The powers conferred and the duties discharged must be defined, directly or

impliedly by the Legislature or through legislative authority;

 

(4)  The duties must be performed independently and without control of a

superior power other than the law;

 

ExceptionIf the duties are those of an inferior or subordinate office, created or authorized by the Legislature and by it placed 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 public employment is a public office.

 

Generally, a position is a public office when it is created by law, with duties cast upon the incumbent which involve the exercise of some portion of the sovereign power, and in the performance of which the public is concerned.  Public employment is 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 as governmental functions affecting even persons not bound by the contract

 

Obligations imposed only upon the persons who entered into the contract

 

 

Subject Matter

 

Tenure, duration, continuity

 

Limited duration

 

Scope

 

Duties that are generally continuing and permanent

 

Duties are very specific to the contract

 

Where duties are defined

 

The law

 

Contract

 

 

No vested right to public office

 

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

 

EXCEPTION:             When the law is vague, the person’s holding of the office is protected and he should not be deprived 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 a public office is not a public contract.  Nonetheless, Act. No. 3107 should be given a prospective effect in the absence of legislative intent 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.  The Segovia ruling was reiterated, i.e. Act No. 3107 should be given prospective effect only, as there was no express statement making the 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 of property 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 question

as to which of 2 persons is entitled to a public office

 

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

the public office

 

Cornejo v. Gabriel

 

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

legislative function.

 

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

        Constitution;

                                                                 (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, bureaus and other instrumentalities of the Government" in order to promote efficiency in the public service is limited in scope and cannot be extended to other matters not embraced therein.  Therefore, an executive order depriving the Courts of First Instance of jurisdiction 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 and

actions but may sometimes be hastily made.

 

(2)  Board System:  collegial body in formulating polices and implementing

           programs.  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 legislative function)

 

                                    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, any unexpired 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 new office 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 is thereby 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 received

public 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 election, or appointment by competent authority.  His duties involve the exercise of discretion in the performance of the functions of the government, 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 Penal

Code, 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 subpoenas for traffic violations in a judge's sala was convicted for bribery under RPC 203.  The court held that even temporary performance of public functions is sufficient to constitute a person as a public official.

 

·         In the case of People v. Paloma, a sorter and filer of money orders in the Auditor's Office of the Bureau of Posts was convicted for infidelity in the custody of documents.  The court pointed out that the sorting and filing of money orders in the Bureau of Posts is obviously a public function or 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. 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 without legal motive to be sworn in or to discharge the duties of said office (Art. 234, RPC;  Note:  the penalty shall 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 is merely an agency through which the will of the state is expressed and enforced.  Its officers therefore are likewise agents entrusted 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 of power.

 

 

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

 

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 be rightfully 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 each time 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 were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to the be the officer 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 some precedent 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 is adjudged 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 the office in question;

 

(3)    must be lawfully chosen to such office;

 

(4)    must have qualified himself to perform the duties of such office according to the mode prescribed by law.

 

(1)   De jure office;

 

 

(2)   Color of right or general acquiescence by the public;

 

(3)   Actual physical possession of the office in good faith

 

 

 

 

Basis of Authority

 

Right:  he has the lawful right / title to the office

 

Reputation:  Has the possession and performs the duties under color of right, without being technically qualified in all points of law to act

 

How ousted

 

Cannot be ousted.

 

Only by a direct proceeding (quo warranto);  not collaterally

 

Validity of official acts

 

Valid, subject to exceptions (e.g., they were done beyond the scope of his authority, etc.)

 

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

 

Rule on Compensation

 

Entitled to compensation as a matter of right; 

 

The principle of "no work, no pay" is not applicable to him.

 

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

 

He is paid only for actual services rendered by him.

 

 

Officer De Facto v. Intruder

 

 

De Facto

Intruder

 

Nature

 

 

Officer under any of the 4 circumstances discussed under Part II (above).

 

One who takes possession of an office and undertakes 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 of right or title to office.

 

Validity of "official" acts

 

 

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

 

 

Absolutely void;  they can be impeached at any time in any proceeding (unless and until he continues 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 the time when no de jure officer is declared;

 

He is paid only for actual services rendered by him.

 

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 a public 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 of 

the 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 ripen

into 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 before receiving 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 designate him 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, and lacking 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 the abolition 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 a

public officer must show that he is an officer de jure.  It is not sufficient that he be merely a de facto officer.

 

 

 

 

 

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 adjudged insufficient.

 

 

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 a party, 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 jure officer.

 

·         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 facto status.

 

 

 

ELIGIBILITY AND QUALIFICATIONS

 

Definition

 

·  Eligibility, which is the term usually used in reference to the Civil Service Law, refers

               to the endowment / requirement / accomplishment that fits one for a public office.

 

·  Qualification generally refers to the endowment / act which a person must do before  

   he 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.  (Legislative appointments are unconstitutional and therefore void for being a usurpation of executive power.);

 

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

           

                       

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 First Instance or Cadastral Judges to sit as substitute Justices of the Supreme Court in treason cases without them necessarily having 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 a new 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 as one of the qualifications for appointment;  and which confines the selection of the members of the Board of Medical Examiners 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. The appointing power is the exclusive prerogative of the President, upon which no limitations may be imposed by Congress, except those resulting from:

 

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

 

(2)  the exercise of the limited legislative power to prescribe the

     qualifications 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, or discretion 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 to appoint.  Such supposed power of appointment, sans the essential element of choice, is no power at all and goes against the very nature itself of appointment.

 

 

Time of Possession of Qualifications

 

Q:  When must the qualifications be possessed?

 

A:         Where the time is specified by

the 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 to questioning 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 residency immediately preceding election day and the prescribed age on election day, no date is specified for citizenship.  The purpose of the citizenship requirement is to ensure leaders owing allegiance to no other country.  Such purpose is not thwarted, but instead achieved by construing the requirement to apply at time of proclamation and at the start of the term.

 

 

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, legal procedure, knowledge, training and experience.  Generally, to practice law is to give notice or render any kind of service which requires the use in any 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 or constructively has his permanent home, where he intends to return.   To successfully effect a change of domicile, the candidate must prove an actual removal or an actual change of domicile.  Here, it was held that leasing a condominium unit in the district was not to acquire a new residence 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, the intention of remaining there permanently.  It was held that domicile of origin is not easily lost, and that in the absence of clear and positive proof of a successful change of domicile, the domicile of origin should be deemed to continue.

 

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 an existing office

 

Selection of an individual to occupy a certain public office by one authorized by law to make such selection

 

 

Extent of Powers

 

Limited

 

Comprehensive

 

Security of tenure?

 

No.

 

Yes.

 

When deemed abandonment of prior office

 

Assumption of a designated position is not deemed abandonment of the 1st position

 

Assumption of a 2nd appointive position is usually deemed abandonment of the first office.

 

 

            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 the

Commission 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 Constitutional Commissioners (Art. IX-B, Sec. 1 (2) for CSC;  Art. IX-C, Sec. 1 (2) for COMELEC; Art. IX-D, Sec. 1 (2) for COA).

 

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, and from 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 when

Congress 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 Acting

President?

 

A:  Such appointments shall remain effective unless revoked by the elected President within 90 days from 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, civil service eligibility, physical fitness, and other qualities required for successful performance.  (Sec. 22, Book V, EO 292)

 

Ø       A statement of the minimum qualifications of a position which shall include education, experience, training, civil service eligibility, and physical characteristics 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 determination by 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 in appointment and other personnel actions, in the adjudication of protested appointments, in determining training 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 towards professional growth and foster the career system in the government service (ibid);

 

Ø       It shall be the responsibility of the departments and agencies to establish, administer and maintain the qualification standards on a continuing basis as an incentive 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 Classification Office (ibid);

 

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

 

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

 

 

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 for national, provincial, city and municipal offices to post a surety bond equivalent to the one-year salary or emoluments of the position to which he is 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 system ordained 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, implies necessarily 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 person shall, 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 to

                                                               hold 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 to him (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 before he / 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 the sentence. (Art. 36, par. 2, RPC)

 

(3)  A convicted public official who has been pardoned is not entitled to backpay and other emoluments due to him during 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 the officers concerned, primarily the department heads.  They are in the most favorable position to determine who can best fulfill the functions of the office thus vacated.  Unless, therefore, the law speaks in the most mandatory and peremptory tone, considering all the circumstances, there should be, as there has been, full recognition of the wide scope of such discretionary authority.  (Reyes v. Abeleda)

 

     Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to this best lights, 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 the appointee to be qualified and all other legal requirements have been otherwise satisfied, it has no choice but to attest to the appointment.  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, or certification 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 in rank 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 to approving or reviewing the appointment in the light of the requirements of the Civil Service Law.  When the appointee is qualified and 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 manifest injustice, 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 other

officer 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 presidential elections 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 public service 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 by the 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 Appointments confirms the appointment; and (c) the appointee accepts the appointment by his assumption of office.  The first 2 steps are mere offers to 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 and distinct 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 a

condition precedent:               Failure to qualify ipso facto deemed

rejection of the office

 

                                    If not condition precedent:       Failure is not ipso 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 6 months from proclamation.  Otherwise, the position will be deemed vacant.

 

Exception:  If the non-assumption of office is due to a cause

beyond 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 intends to 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 the office itself.  However, the President, Vice-President and Acting President are required by the Constitution (Art. VII, Sec. 5) to take an oath or affirmation 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 Philippines

        whose 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 before assuming office.  The oath and other qualifications made prior to assumption of his previous office will not be valid for subsequent terms of office.

 

 

Giving of Bonds

 

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 officer’s default.  It is required not for the benefit of the office 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 for

forfeiture of the office;  it is not forfeiture of the office ipso facto.

 

                        IF condition precedent:           Failure to give bond within the prescribed period

renders 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 incumbent

during 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 is exercisable 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 fixed

            by the Constitution:                 Congress has no power to alter the term.

 

            However, such term of office can be shortened or extended

            by the vote of the people ratifying a constitutional amendment.

 

· Where the term is not fixed:             Congress may fix the terms of officers

                                                other 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 is lengthened 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. (Alba v. Evangelista)

 

Where the office is held at the pleasure of the appointing power and such appointing power can exercise the power of removal at his 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 term since he has no vested right  in his office.  (Greenshow v. U.S.)

 

 

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 is appointed 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 into office.

 

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 successor elected 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 limits

the term of a public officer and

does 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 date

of 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 the principal 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 not authorized by law is ordinarily invalid.  (Note:  This rule is applicable to all public officers whose duties are essentially local in nature, e.g. judges.)

 

EXCEPTIONS:            (1)  Consuls;

 

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

 

(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

 

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 in determining when, where, and how to exercise the power

 

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

 

Can be delegated?

 

Generally, NO.

 

   Exception:  When the power to substitute / delegate has been given

 

Generally, YES.

 

     Exception:  When the law expressly requires the act to be performed by the officer in person and / or prohibits such delegation

 

When is mandamus proper?

 

 

Only if the duty to do something has been delayed for an unreasonable period of time.

 

In all cases.

 

Is public officer liable?

 

 

Generally not liable

  Exceptions:  if there is fraud or malice

 

Liable if duty exercised contrary to the manner prescribed 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 certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others.  (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, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done.  A ministerial act is one to which nothing is left to the discretion of the person who must perform.  It is a simple, definite duty arising under conditions admitted or proved to exist and imposed by law.  It is a precise act, accurately marked out, enjoined upon particular officers for a particular purpose.  (Lamb v. Phipps)

           

 

                        Lamb v. Phipps

 

     Auditors and comptrollers, as accounting officers, are generally regarded as quasi-judicial officers.  They perform mere ministerial duties only in cases where the sum due is conclusively fixed by law or pursuant to law.  Except in such cases, the action of the accounting officers upon claims coming before them for settlement and certification of balances found by them to be due, is not 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 to the 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 official competence.

 

 

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 the

issuance of a license / permit  (Aprueba v. Ganzon);

           

 

                        Q:  In filing a mandamus suit, when does a taxpayer not have to show that he

has 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 as the 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. Union Pac);

 

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

 

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

 

 

Ratification of Unauthorized Acts

 

·         If act was absolutely void 

      at 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 which they 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 is reasonably 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 the government that he (the individual) fulfill an obligation which he has contracted with the government, after the benefits accruing to him as a result of that obligation have been received.  The government can neither be estopped nor prejudiced by the illegal acts of its servants.  (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

 

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 subsequent law.  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 or compensation 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 sometimes expressly provided that certain officers shall receive no compensation, and a law creating an office without any provision for compensation may carry with it the implication that the services are to be rendered gratuitously.

 

Salary, Wages, and Per Diems Defined and Distinguished

 

 

Salary:             time-bound

Wages:           service-bound

Per 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 being paid 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 these employees in the process of garnishment because the sovereign State cannot be sued in its own courts except by express authorization by statute.  Until paid over by the agent of the government to the person entitled to receive it, public funds cannot 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 where it tends to pervert such compensation to a purpose other than that for which it was intended, and to interfere with the officer's free and unbiased judgment in relation to the duties of his office.  (This is usually with reference to unperformed services and the salary or fees attached thereto.)

 

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

 

                        Monroy v. CA and del Rosario

 

Where a mayor filed a certificate of candidacy for congressman then withdrew such certificate and reassumed the position of mayor, thus preventing the vice-mayor from discharging the duties of the position of mayor, the mayor should reimburse 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, the prevailing 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 in favor 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 to exercise 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 public officer 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 present

whether or not he incurred                              a receipt or certification under

expenses for which the allowance                 oath that such amount was spent

is given.  Received as a matter                      in order that the public officer

of right.                                                            may recover the money spent.

 

There is a conclusive presumption

that 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 an emolument of office.  (Peralta v. Auditor-General)

 

 

Can Public Officer Recover Salary for Period of Suspension?

 

RULES:

 

     If preventively suspended:            NO, he cannot recover salary.

 

BUT:    If he is subsequently exonerated, he can recover

            salary for the period of his preventive suspension.

 

     If he was given penalty of

removal from office, but was        YES, he can recover because

completely exonerated upon         he was completely exonerated.

appeal:     

                                         

     If he was given penalty of

removal from office, but his          NO, because he was still found

penalty was commuted from        guilty although the penalty was

removal to mere suspension,       reduced.

or demotion:                                 

                 

     If the suspension / removal

from office is unjustified:               YES.

 

 

                        Q:  In summary, when can payment of salaries corresponding to the period

                                    when an employee was suspended be allowed?

 

                                                A:         (1)  When he is found innocent of the charges which

                                                                        caused his suspension;

                                               

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

                                    Baguio)

 

 

 

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 a motion to dismiss the complaint contending principally that the CSC has no jurisdiction to try and decide the case against her, she being a presidential appointee. The CA upheld Olonan’s contention. There is nothing in the provisions of the Constitution or the Administrative Code of 1987 which gives the CSC the 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 with the 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 which is entitled “Procedure in Administrative Cases Against Non-Presidential Appointees.” The very subject of Sec. 48 implicitly limits the scope of the CSC’s jurisdiction in administrative cases to non-presidential appointees and makes patent the conclusion that the disciplinary authority over presidential appointees 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 of the 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 other employee arises from their administrative duties, the Ombudsman must defer action on said complaint and refer the same to the SC for determination whether said judge or court employee had acted within the scope of their administrative duties. Thus, the Ombudsman should first refer the matter to the SC for determination 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 the Ombudsman 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 except for cause as provided by law and after due process.” The grounds constituting just cause are enumerated in Sec. 46(b).

 

Jurisdiction

 

·     Original complaints may be filed: (a) directly with the CSC or (b) with the Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities 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 is suspension 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 finally to the Commission and pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after 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 head of 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 in writing 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 with supporting 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 the answer of the respondent, including the supporting documents, the merits of the case cannot be decided judiciously without conducting such an investigation.

 

·     The decision shall be rendered by the disciplining authority within thirty days from the termination of the investigation or submission of the report of the investigator, 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 his favor 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 for reconsideration 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 when the 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 review of 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

 

·     The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the charge against 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 elective officials may be preventively suspended for only sixty (60) days. If the case is filed in the Ombudsman, the latter may impose a preventive suspension for 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 the period of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall be automatically reinstated 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, fine in 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 count and 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 an admonition 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 a suspended member of the police force shall be entitled to his salary for the period of his suspension upon exoneration. A reprimand is not equivalent to an exoneration. It is more severe than an admonition, which is considered a mild rebuke. A reprimand is administered to a person in 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 a

                                    gentle 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 upon officers 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 member thereof.

 

·     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 receipt thereof.

 

·     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 the Articles 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 convicted without 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 the Philippines, 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.

 

 

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, or

dereliction of duty

 

(4)        Commission of any offense involving moral turpitude or an offense punishable by

at 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, sangguniang panlungsod, sangguniang bayan, and sangguniang barangay

 

(7)       Application for, or acquisition of, foreign citizenship or residence or the status of

an 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 urbanized 

city, an independent component city or component city;

 

Sangguniang panlalawigan     -           elective official of a municipality

 

Sangguniang panlungsod or

sangguniang 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 require the 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 imposed within 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 a

                                                      component city or municipality; or

 

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

                                                      barangay.

 

·     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 the records 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 of the proceedings against him, which shall be terminated within one hundred twenty (120) days from the time he was formally notified of the case against him.

 

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

 

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

 

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 the witnesses 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 stating clearly 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 shall said 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 any elective 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 preventive suspension 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 and such 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 term

b)         End of Pleasure where one holds office at pleasure of appointing authority

c)         Loss of confidence in primarily confidential employment

 

2)         Reaching the age limit; Retirement

3)         Bona fide abolition of office

4)         Abandonment of office

5)         Acceptance of an incompatible office

6)         Resignation

7)         Resignation

8)         Removal for cause

9)         Temporary appointments’ termination

10)       Recall

11)       Impeachment

12)       Prescription of right to office

13)       Death

14)       Conviction of crime where disqualification is an accessory penalty

15)       Filing of certificate of candidacy

16)       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 facto terminated.

 

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 is not 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 and the 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 city’s officers, including its Chief of Police, with the exception of the municipal judge, who may be removed only according to law. The legislative intent is to make continuance in office 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 is not removal, but an expiration of tenure, which is an ordinary mode of terminating official relations. What is involved is not removal, or whether legal cause should precede such removal, but the creation of an office and the tenure of such office, which has been made expressly dependent upon 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 against removal or suspension except for cause.

 

     Official and employees holding primarily confidential positions continue only for so long as confidence in them endures.  The termination of their official relation can be justified on the ground of loss of confidence because in that case, their cessation from office involves no removal but merely 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 pleasure of the appointing power” is inaccurate.  Such statement (a mere obiter in the case of De los Santos v. Mallare), if detached from the context of the decision in said case, would be inconsistent with the constitutional command to the effect that “no officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law,” and it is conceded that one holding in the government a primarily confidential positions 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 the appointing power.  It should be noted however, that when such pleasure turns into displeasure, the incumbent is not “removed” or “dismissed” from office - his “term” merely “expires” in much the same way as an officer, whose right thereto ceases upon expiration of the fixed term for which he had been appointed or elected is not and cannot be deemed “removed” or “dismissed” therefrom, upon the expiration of said term.  The main difference between the former - the primarily confidential officer - and the latter is that the latter’s term is fixed or definite, whereas that of the former is not pre-fixed but indefinite, at the time of his appointment or election, and becomes fixed and determined when the appointing power 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 People’s Homesite and Housing Corporation but was later terminated through a board resolution due to loss of confidence. SC reversed ruling that Gray’s appointment was a permanent one. Although the President, EO 99, declared the position of secretary to the board of a government corporation “primarily confidential in nature,” it does not follow that a board secretary whose appointment was permanent may be removed from office without a formal charge specifying the ground for removal and without giving him an opportunity 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 of unquestioned honesty and integrity. The act of Gray in reporting the board’s act of mismanagement and misconduct was in consonance with the honesty and integrity required for the position.

 

          Cariño v. ACCFA

 

                 SC reversed termination of lawyers who were appointed as permanent employees of ACCFA. That petitioners’ positions are primarily confidential is immaterial. The Constitution merely excepts primarily confidential positions from the coverage of “the rule requiring appointments in the civil service to be made on the basis of merit and fitness as determined from the competitive exams,” but does not exempt such positions from the operation 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; and

c)         he is not receiving a monthly pension benefit from permanent total disability.

 

Compulsory Retirement

 

     Unless the service is extended by appropriate authorities, retirement shall be compulsory for an employee at least sixty-five (65) years of age with at least fifteen (15) years of service; Provided that if he has less than fifteen (15) years of service, he may be allowed to continue in the service in accordance with existing civil service rules and regulations.

 

Retirement benefits

 

(1)         the lump sum payment defined in RA No. 8291 payable at the time of retirement plus an

old-age pension benefit equal to the basis monthly pension payable monthly for life, starting upon expiration of the give-year (5) guaranteed period covered by the lump sum; or

 

(2)        cash payment equivalent to eighteen (18) months of his basic monthly pension plus monthly pension for life payable immediately with no five-year (5) guarantee.

 

            Beronilla v GSIS

 

                 The compulsory retirement of government officials and employees upon reaching the age of 65 years is founded on public policy which aims by it to maintain efficiency in the government service and, at the same time, give to the retiring public servants the opportunity to enjoy during the remainder of their lives the recompenses for their long service and devotion to the government, in the form of a comparatively easier life, freed from the rigors, discipline and the exacting demands that the nature of their work and their relations with their superiors as well as the public would impose on them.

 

          UP Board of Regents v. Auditor General

 

                 A BOR resolution extended the services of a UP professor for another year. In the same year, he reached the age of 65. The Auditor General questioned the legality of the resolution arguing that the services rendered after the compulsory retirement age were illegal and that he was not entitled to compensation. SC upheld Auditor General ruling that as government employees, UP professors are compulsorily covered by the Retirement Law which creates a uniform retirement system for all members of the GSIS.

 

          Rabor v. CSC

 

                 At the age of 55, Rabor was hired as a government employee at the Davao City Mayor’s Office in 1978. In 1991, he was advised to apply for retirement. He was already 68 years old with 13 years of service. He requested that his services be extended in order that he may complete the 15-year service requirement. This was denied and Rabor claimed that the doctrine enunciated in Cena v. CSC should be applied in his case.

 

     SC ruled that the Cena doctrine is not applicable. CSC Memo Circular No. 27, s. of 1990 cited in the decision in Cena v. CSC, provides that “any request for the extension of service of compulsory retirees to complete the 15-year service requirement for retirement shall be allowed only to permanent appointees in the career service who are regular GSIS members, and shall be granted for a period not exceeding one (1) year.” Cena further stated that the authority to grant the extension was a discretionary one vested in the head of the agency concerned. To reiterate, the head of the government agency concerned is vested with discretionary authority to allow or disallow extension of service of an employee who has reached 65 years old without completing 15 years of government service; this discretion to be exercised conformably with CSC Memo Circular No. 27, s. of 1990.

 

 

Bona Fide Abolition of Office

 

·     As a general rule, absent some Constitutional prohibition, Congress may abolish any office it creates without infringing upon the rights of the officer or employee affected.

 

·     To consider an office abolished, there must have been an intention to do away with it wholly and permanently.

 

·     Termination by virtue of the abolition of the office is to be distinguished from removal. There can be no tenure to a non-existent office. After the abolition, there is in law no occupant. In case of removal, there is an office with an occupant who would thereby lose his position. It is in that sense that from the standpoint of strict law, the question of any impairment of security of tenure when there is an abolition of office does not arise. The right itself disappeared with the abolished office as an accessory following the principal.

 

            Busacay v. Buenaventura

 

                 Busacay was laid off as toll collector when the bridge was destroyed. However, the bridge was later reconstructed and opened to the public with a new collector being appointed. Busacay was ordered reinstated by the SC. To consider an office abolished, there must have been an intention to do away with it wholly and permanently. In the case at bar, there was never any thought of not rebuilding the bridge. The collapse of the bridge did not work to destroy but only to suspend the position of toll collector thereon, and upon its reconstruction and re-opening, the collector’s right to the position was similarly and automatically restored.

 

 

          Manalang v. Quitoriano

 

                 The National Employment Service was established by R.A. No. 761 in lieu of the Placement Bureau. Quitoriano was appointed as NES Commissioner in spite of the recommendation of the Labor secretary to appoint Manalang who was the incumbent Director of the Placement Bureau. SC held that appoint of Quitoriano was valid. A removal implies that the office still exists. R.A. No. 761, creating NES, expressly abolished the Placement Bureau and, by implication, the office of the Director of the Placement Bureau. Had Congress intended the NES to be a mere enlargement of the Placement Bureau, it would have directed the retention, not the transfer, of qualified personnel to the NES. Manalang has never been NES Commissioner and thus could not have been removed therefrom.

 

Abolition Must Be in Good Faith

 

     As well settled to the rule that the abolition of an office does not amount to an illegal removal or separation of its incumbent is the principle that, in order to be valid, the abolition must be made in good faith, not for personal or political reasons, and not implemented in violation of law.

 

          Briones v. Osmeña

 

                 Briones and Rosagaran were employees in the Office of the City Mayor since 1937 and 1940, respectively, In 1956, the City created 35 new positions and abolished 32, of which the positions of Briones and Rosagaran were included. Consequently, the two were terminated. SC held that the termination was not valid. While abolition does not imply removal of the incumbent, this rule is true only where the abolition is made in good faith. In other words, the right to abolish cannot be used to discharge employees in violation of the Civil Service law nor can it be exercised for personal or political reasons.

 

            Facundo v. Pabalan

 

                There is no law which expressly authorizes a municipal council to abolish the positions it has created. However, the rule is well-settled that the power to create an office includes the power to abolish it, unless there are constitutional or statutory rules providing otherwise. But the office must be abolished in good faith.

 

          Cruz v. Primicias

 

                  As well settled as the rule that the abolition of an office does not amount to an illegal removal of its incumbent is the principle that, in order to be valid, the abolition must be made in good faith. Where the abolition is made in bad faith, for political or personal reasons, or in order to circumvent the constitutional security of tenure of civil service employees, it is null and void. In the case at bar, while 22 positions were abolished, 28 new positions with higher salaries were simultaneously created. No charge of inefficiency is lodged against petitioners. In truth and in fact, what respondents sought to achieve was to supplant civil service eligibles with men of their choice, whose tenure would be totally dependent upon their pleasure and discretion.

 

Reorganization

 

            Reorganization occurs where there is an alteration of the existing structure of government offices or units therein, including the lines of control, authority and responsibility between them to promote greater efficiency, to remove redundancy of functions, or to effect economy and make it more responsive to the needs of their public clientele. It may result in the loss of one’s position through removal or abolition of office. Reorganization of the government may be required by law independently of specific constitutional authorization. But in order to be valid, it must also be done in good faith.

           

            Board of Directors of PCSO v. Alandy

 

                 Alandy was the incumbent Assistant General Manager of the PCSO. In 1954, Resolution No. 314 was passed to reorganize the PCSO. The position of Assistant General Manager was converted to General Field Supervisor to which Alandy was appointed. However, in 1955, the position of Assistant General Manager was again created through Resolution No. 422 and a different person was appointed to the position. SC invalidated the new appointment and reinstated Alandy to his position as PCSO Assistant General Manager. What occurred here is that the position of Assistant General Manager was not abolished but was merely converted to another position. As such, the conversion merely caused the giving of additional functions to Alandy, who still held the position of Assistant General Manager.

 

          Dario v. Mison

 

                 In pursuance of its reorganization policy, Pres. Aquino issued EO 127 in 1987 which provided for the reorganization of the Bureau of Customs. Pursuant to EO 127, Commissioner Mison terminated a total of 310 employees. Upon appeal, the CSC ordered the reinstatement of 283 employees which was upheld by the SC. The dismissal are not valid. There is no dispute that pursuant to the Freedom Constitution and the various executive orders issued by Pres. Aquino, the different departments of government were authorized to carry on reorganization programs. But the nature and extent of the power to reorganize were circumscribed by the source of the power itself. The Reorganization process is made up of two stages. The first stage, which was effected pursuant to Proclamation 3, allowed removals “not for cause,” and it ended on 02 February 1987. On the other hand, the second stage is a continuing one from 02 February 1987 pursuant to the 1987 Constitution. The 1987 Constitution requires that removal “not for cause” must be a result of reorganization. Such removals must also pass the test of good faith, a test obviously not required under the first stage which was envisioned as a purgation.

 

     A reorganization is carried out in good faith if it is for the purpose of economy or to make the bureaucracy more efficient. Good faith, as a component of reorganization under a constitutional regime, is judged from the facts of each case. In the case at bar, there was lack of good faith. Mison’s argument that the reorganization is progressive would be valid only if it was pursuant to Proclamation 3. However, in spite of her immense revolutionary power, Pres. Aquino still promulgated EO 17 which established

 

safeguards against the propensity that accompany reorganizations and established the rule that dismissals should be based on findings of inefficiency, graft and unfitness to render public service. Assuming then that the reorganization in the first stage was progressive and still valid, such dismissals as ordered by Mison would still have to comply with the terms set down in EO 17.

 

            Rubenecia v. CSC

 

                 SC upheld power of the CSC to transfer jurisdiction over administrative appeals from the Merit Systems Protection Board to the CSC en banc itself. The 1987 Administrative Code made clear that the MPSB was intended to be an office of the CSC like any other of the other 13 offices in the CSC. In other words, the MPSB was a part of the internal structure and organization of the CSC. It was not an autonomous entity created by law and merely attached for administrative purposes to the CSC. Thus, it was a proper subject of organizational change which the CSC is authorized to undertake under the present Civil Service law. The resolution merely re-allocated to the CSC itself the functions of the MPSB relating to the determination of administrative disciplinary cases to “streamline the operation of the CSC.” It did not purport to abolish the MPSB nor to effect the termination of the relationship of public employment between CSC and any of its officers or employees.

 

 

Abandonment of Office

 

·     A public office may become vacant ipso facto by abandonment and non-user. When an office is once abandoned, the former incumbent cannot legally repossess it even by forcible re-occupancy.

 

·     Abandonment must be total and absolute, and must be under such circumstances as clearly to indicate an absolute relinquishment thereof. Moreover, the officer should manifest a clear intention to abandon the office and its duties. Abandonment by reason of acceptance of another office, in order to be effective and binding, must spring from and be accompanied by deliberation and freedom of choice, either to keep the old office or renounce it for another. Temporary absence is not sufficient.

 

          Summers v. Ozaeta

 

                 Summers, a cadastral judge, assumed office as CFI judge due to an ad interim appointment. However, the ad interim appointment was disapproved and Summers now seeks to be reappointed as cadastral judge. SC held that Summers’ voluntary acceptance of the position of CFI judge amounted to a waiver of his right to hold the position of cadastral judge during the term fixed and guaranteed by the Constitution. He accepted and qualified for the position of judge-at-large by taking the oath of office of judge-at-large, and not merely of an “acting” judge-at-large. The situation is one wherein he cannot legally hold two offices of similar category at the same time.

 

 

         

          Zandueta v. Dela Costa

 

                When a public official accepts an appointment to an office newly created or reorganized by law which new office is incompatible with his former office, qualifies for the position, takes the necessary oath, and executes acts inherent in the newly created office, he will be considered to have abandoned the office he was occupying by virtue of his former appointment and he cannot question the constitutionality of the law by virtue of which he was appointed.

 

            Floresca v. Quetulio

 

                 Floresca’s refusal to assume his pre-war post as Justice of the Peace and his subsequent acceptance of other employments without any pretense on his part that he simultaneously continued to perform the functions of the Justice of the Peace, clearly show deliberate abandonment of the latter office.

 

          Ortiz v. De Guzman

 

                 Ortiz allowed three years to elapse since he was ousted from office without having taken any steps to reclaim his former office. SC held that he cannot ask for reinstatement. A public employee who voluntarily abandons his office for a long time is estopped from asking for reinstatement. In order to constitute an abandonment of office, it must be total, and under such circumstances as to clearly indicate an absolute relinquishment. Temporary absence is not sufficient where no statute fixes the period beyond which the absence must continue. In all cases, the officer should manifest a clear intention to abandon the office and its duties. Yet, this intention may be inferred from his conduct. If his acts and statements are such as to clearly indicate absolute relinquishment, a vacancy will be thereby created and no judicial determination is necessary. When once abandoned, the former incumbent cannot legally repossess the office.

 

          Madrid v. Auditor General

 

                 One claiming the right to a position in the civil service must institute the proper proceeding within one year from the date of separation, otherwise he is deemed to have abandoned his office or even acquiesced or consented to his removal, and thus is not entitled to seek reinstatement. The rationale is to inform the Government of the rightful holder of the office and to prevent payment of salary to both claimants.

 

          Magana v. Auditor General

 

                 Having accepted the benefits accruing from the abolition of his office, he is estopped from questioning its validity or deemed to have waived the right to contest the same.

 

         

 

 

 

            Villegas v. Subido

 

                 Villegas did not abandon his office as mayor of the City of Manila when he assumed the position of Director of NAWASA because he had been merely designated in an acting capacity and was not appointed to the said position.

 

          Tan v. Gimenez

 

                 The fact that, during the time his appeal was pending and was thus deprived of his office and salary, an employee sought employment in another branch of the government does not constitute abandonment of his former position.

 

 

Acceptance of an Incompatible Office

 

·     He who, while occupying one office, accepts another office incompatible with the first, ipso facto absolutely vacates the first office. That the second office is inferior to the first does not affect the rule. And even though the title to the second office fails as where election is void, the rule is still the same, nor can the officer then regain the possession of his former office to which another has been appointed or elected.

 

·     If the law or Constitution as an expression of public policy forbids the acceptance by a public officer of any other office other than that which he holds, it is not a case of incompatibility but of legal prohibition.

 

            Incompatibility of offices exists where:

 

(a)  There is conflict in such duties and functions so that the performance of the duties of one interferes with the performance of the duties of another, as to render it improper for considerations of public policy for one person to retain both.

 

(b)  One is subordinate to the other and is subject in some degree to its supervisory powers for in such situation where both are held by the same person, the design that one acts as a check on the other would be frustrated.

 

(c)  The Constitution or the law itself, for reasons of public policy, declares the incompatibility even though there is no inconsistency in the nature and functions of the offices.

 

 

Exceptions to the Rule on Holding of Incompatible Offices

 

(a)        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, as where the law requires the approval of the provincial board before a municipal official can resign.

 

(b)        First office is held under a different government from that which conferred the second.

 

(c)        Officer is expressly authorized by law to accept another office.

 

(d)        Second office is temporary.

 

 

Resignation

 

·     A resignation of a public officer need not be in any particular form, unless some form is prescribed by statute. Ordinarily, it may either be in writing or by parol. The conduct of an employee may properly be regarded as constituting a resignation from the position held by him. However, to constitute a complete and operative resignation of public office, there must be an intention to relinquish a part of the term, accompanied by the act of relinquishment.

 

·     The right of a public officer to resign is well recognized, even where it is provided than an officer may hold over until election and qualification of a successor. The right is sometimes recognized or secured by constitution or statute.

 

·     The views in the various jurisdictions are conflicting in regard to what constitutes acceptance of a resignation and whether an acceptance is required. According to some authorities, no acceptance is necessary to render a resignation effective, especially when the resignation is unconditional and purports to take effect immediately. Indeed, it may be provided by statute that the resignation of a public officer is to take effect at the time of filing it.

 

·     However, many other cases take the view that to be effective, the resignation must be accepted by competent authority. Without acceptance, the resignation is nothing and the officer remains in office. (63 Am Jur 2d., sec. 163)

 

·     Prof. Barlongay:  Two (2) elements are necessary to constitute an effective acceptance:

 

(1)   intention to relinquish office coupled with actual relinquishment; and

(2)   acceptance of resignation.

 

          Gonzales v. Hernandez

 

                 Gonzales filed a letter of resignation the pertinent portion of which reads: “ x x x subject to the result of my appeal with the Civil Service Board of Appeals, and to the provisions of the Resolution of the Cabinet on July 17, 1939.” SC held that Gonzales, although his conditional resignation was unconditionally accepted, cannot be considered as having resigned from office. There was no resignation to speak of. To constitute a complete and operative act of resignation, the officer or employee must show a clear intention to relinquish or surrender his position. In the case at bar, there was no such intention as Gonzales’ resignation was subject to the result of his appeal.

 

         

 

          Ortiz v. COMELEC

 

                 Petitioner’s separation from the government as a result of the reorganization ordained by former Pres. Aquino may not be considered a resignation within the law’s contemplation. Resignation is defined as the act of giving up or the act of an officer by which he declines his office and renounces the further right to use it. To constitute a complete and operative act of resignation, the officer or employee must show a clear intention to relinquish his position accompanied by the act of relinquishment and its acceptance by competent and lawful authority. Based on the  facts, petitioner’s resignation lacks the element of clear intention to surrender his position. We cannot presume such intention from the letter he sent placing himself at the disposal of the President. He did not categorically state that he was unconditionally giving up his position. It should be good to note that said letter was actually a response to Proclamation No. 1 of Pres. Aquino calling all appointive public officials to offer their “courtesy resignation.”

 

·     A “courtesy resignation” cannot properly be interpreted as resignation in a legal sense. It just manifests the submission of a person to the will of the political authority.

 

·     Prof. Barlongay: Courtesy resignation is not allowed in (1) career positions and (2) non-career positions with security of tenure (i.e. local elective officials).

 

 

Removal for Cause

 

            No officer or employee of the civil service shall be removed or suspended except for cause provided by law (Sec. 2(3), Art. IX, 1987 Constitution).

 

 

Grounds for Removal from Office

 

·     For Presidential appointees, Prof. Barlongay states that there is no specific law providing for the grounds for their removal. Determination of grounds is just a matter of practice and by analogy, the grounds used for non-presidential appointees are made applicable.

 

·     For civil service officials and employees, see Sec. 46, Book V, E.O. No. 292 which provides for at least 30 grounds for disciplinary action.

 

·     For local elective officials, Sec. 60 of the Local Government Code provides for the grounds where an elective local official may be disciplined, suspended or removed from office.

 

 

Misconduct need not be “in office” in case of appointive officers.

Misconduct must be “in office” in case of elective officers.

 

 

 

 

            Nera v. Garcia

 

                 Under the Revised Administrative Code, the rule in preventive suspension provides that a Bureau Chief may suspend, with the approval of the head of the department, any subordinate officer or employee if he is charged with dishonesty, oppression or grave misconduct or neglect in the performance of duty. The same words are expressed in the civil service law. From these provisions, suspension was proper even if the dishonest act was not in the performance of his duty since under the Revised Administrative Code and the Civil Service Law, dishonesty was not qualified by the phrase “in the performance of duty.”

 

          Ochate v. Ty Deling

 

                 The SC held that the facts alleged in the administrative charge, as substantiated by the affidavits of the complainants, do not justify the administrative proceedings instituted against the petitioner and his suspension by the governor. The alleged libel imputed to the mayor was not such misconduct even if the term “misconduct in office” be taken in its broadest sense. The radio broadcast in which the objectionable utterances were made had nothing to do with his official functions and duties as a mayor.

 

 

Misconduct committed during a prior term, not a ground for dismissal

 

          Pascual v. Provincial Board

 

                 The SC held that the weight of authority follows the rule which denies the right to remove one from office because of misconduct during a prior term. Offenses committed or acts done during a previous term are generally held not to furnish cause for removal and this is especially true where the Constitution provides that the penalty in proceedings for removal shall not extend beyond the removal from office and disqualification from holding office for the term for which the officer was elected and appointed. The underlying theory is that each term is separate from other terms and that re-election to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefore.

 

            Aguinaldo v. Santos

 

                 SC held that Aquinaldo should not be removed from office. His re-election to the position of Governor of Cagayan has rendered the administrative case pending before it moot and academic.

 

     Offenses committed or acts done, during a previous term are generally not held to furnish cause for removal. The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When the people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they

 

 

disregarded or forgave his fault or misconduct, if guilty of any. It is not for the court, by reason of such fault or misconduct, to practically overruled the will of the people.

 

     The rule then is that a public officer cannot be removed for administrative misconduct committed during a prior term, since his reelection to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefore. This rule, however, is not applicable to criminal cases pending against the petitioner for acts he may have committed during the failed coup.

 

 

Transfer from One Position to Another May or May Not Constitute

Violation of Security of Tenure

 

·     A transfer is a movement from one position to another which is of equivalent rank, level, or salary without break in service involving the issuance of an appointment.

 

·     It shall not be considered disciplinary when made in the interest of public service, in which case, the employee concerned shall be informed of the reasons therefore. If the employee believes that there is no justification for the transfer, he may appeal to the SC.

 

·     The transfer may be from one department or agency to another or from one organizational unit to another in the same department or agency; Provided, however that any movement from the non-career service to the career service shall not be considered a transfer.

 

            Lacson v. Romero

 

                 Lacson was appointed provincial fiscal of Negros Oriental by the President. However, three years after, another person was appointed to the same position while Lacson was nominated to the position of provincial fiscal of Tarlac. Lacson never accepted the appointment and did not assume the duties of said office. The SC held that Lacson has the right to occupy the office of provincial fiscal of Negros Oriental as he neither accepted nor assumed the office of provincial fiscal of Tarlac and no one can compel his to do so.

 

     The intended transfer of Lacson to Tarlac, if carried out without the approval of Lacson, would be equivalent to a removal from his office in Negros Oriental. The reason is that a fiscal is appointed for each province and Lacson could not legally hold and occupy the two posts of fiscal of Tarlac and Negros Oriental simultaneously. Therefore, to be a fiscal of Tarlac must mean his removal from office in Negros.

 

     Since the transfer in the case at bar is considered a removal, such should be for cause in order for the other person to legally occupy the office in Negros. There was no cause for Lacson’s removal. He therefore remains as fiscal of Negro.

 

 

 

 

 

 

Termination of Temporary Appointment

 

          Quitiquit v. Villacorta

 

                 The appointment being temporary in character, the same can be terminated at pleasure by the appointing power.

 

          Ferrer v. de Leon

 

                 One holding an office in a temporary capacity may be ousted at anytime with or without cause.

 

What determines character of appointment

 

          Hojilla v. Marino

 

                The controlling factor in determining the character of the appointment is the appointment itself. Even if a position is permanent, if the appointment is made temporary, the appointment is determinative. What is determinative is not the nature of the office (permanent or temporary), but the nature of the appointment.

 

 

·     One appointed to a position of another who was illegally suspended or dismissed, holds it in temporary capacity and must yield to the latter. The reason for this is that there was no valid termination.

 

 

Recall

 

·     The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative and referendum …(Sec. 3, Art. X, 1987 Constitution)

 

·     Procedure for recall is provided in Sections 69-75 of the Local Government Code.

 

            Garcia v. COMELEC

 

                 SC upheld initiation of recall through the Preparatory Recall Assembly. Recall is a mode of removal of a public officer by the people before the end of his term of office. The people’s prerogative to remove a public officer is an incident to their sovereign power, and in the absence of constitutional restraint, the power is implied in all government operations. There are two reasons why a Preparatory Recall Assembly is allowed: (1) to diminish the difficulty of initiating recall through direct action of the people; (2) to cut down on expenses. Moreover, the Constitution does not provide for any particularly mode of initiating recall elections. Initiation by the Preparatory Recall Assembly may be considered as initiation of recall by the people, although done indirectly through representatives. In any event, the composition of the Preparatory Recall Assembly is politically neutral, so loss of confidence cannot be said to be inspired by difference in political party affiliation.

 

Prescription of Right to Office

 

          Unabia v. City Mayor

 

                 No reinstatement is possible in the case at bar. Even if the removal was void for lack of cause, Unabia filed his petition for reinstatement with the CFI after a delay of one year and fifteen days. Any person claiming a right to a position in the civil service is required to file his petition for reinstatement within one year, otherwise he is deemed to have abandoned his office. Reason is public policy and convenience, stability in the public service.

 

·     Prof. Barlongay: The one-year period is the prescriptive period to claim public office (whether through quo warranto or otherwise). The one-year period presupposes judicial action, not administrative action.

 

 

Filing of Certificate of Candidacy

 

·     Sec. 66 of the Omnibus Election Code states that any person holding appointive public offices or positions, including active AFP members, is considered ipso facto resigned from office by the mere filing of certificate of candidacy.

 

·     Only the moment and act of filing are considered.  Once the certificate is filed, the seat is forever forfeited and nothing, save a new election or appointment, can restore the ousted official.

 

·         Note:  The following provisions have been repealed by Sec. 14 of R.A. 9006 (Fair Election Act of 2001):

 

            à  Sec. 67 of B.P. 881 which states that any elective official, whether national or local, running for any office OTHER than one which he is holding in a permanent capacity, except for President and Vice President, shall be considered ipso facto resigned from office by the mere filing of a certificate of candidacy.

 

à   The first proviso of Sec. 11 of R.A. 8436 which states that "Any elective official, running for any officer other than one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned upon the start of the campaign period."

 

 

Performance of Act or Accomplishment of Purpose for which the Office was Created

 

·           Performance of act or accomplishment of purpose renders office functus officio.