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79. San Juan vs. Civil Service Commisssion

Facts: The Provincial Budget Officer of Rizal (PBO) was left vacant; thereafter Rizal Governor San Juan, peititioner, nominated Dalisay Santos for the position and the latter quickly assumed position. However, Director Abella of Region IV Department of Budget and Management (DBM) did not endorse the nominee, and recommended private respondent Cecilia Almajose as PBO on the ground that she was the most qualified. This appointment was subsequently approved by the DBM. Petitioner protested the appointment of Almajose before the DBM and the Civil Service Commission who both dismissed his complaints. His arguments rest on his contention that he has the sole right and privilege to recommend the nominees to the position of PBO and that the appointee should come only from his nominees. In support thereof, he invokes Section 1 of Executive Order No. 112.

Issue: Whether or not DBM is empowered to appoint a PBO who was not expressly nominated by the provincial governor.

Held: Under the cited Sec 1 of EO 112, the petitioner's power to recommend is subject to the qualifications prescribed by existing laws for the position of PBO. Consequently, in the event that the recommendations made by the petitioner fall short of the required standards, the appointing authority, public respondent DBM is expected to reject the same. In the event that the Governor recommends an unqualified person, is the Department Head free to appoint anyone he fancies?

Petitioner states that the phrase of said law: "upon recommendation of the local chief executive concerned" must be given mandatory application in consonance with the state policy of local autonomy as guaranteed by the 1987 Constitution under Art. II, Sec. 25 and Art. X, Sec. 2 thereof. He further argues that his power to recommend cannot validly be defeated by a mere administrative issuance of public respondent DBM reserving to itself the right to fill-up any existing vacancy in case the petitioner's nominees do not meet the qualification requirements as embodied in public respondent DBM's Local Budget Circular No. 31 dated February 9, 1988.

This case involves the application of a most important constitutional policy and principle, that of local autonomy. We have to obey the clear mandate on local autonomy. Where a law is capable of two interpretations, one in favor of centralized power in Malacaang and the other beneficial to local autonomy, the scales must be weighed in favor of autonomy.

The 1935 Constitution clearly limited the executive power over local governments to "general supervision . . . as may be provided by law." The President controls the executive departments. He has no such power over local governments. He has only supervision and that supervision is both general and circumscribed by statute. The exercise of greater local autonomy is even more marked in the present Constitution. Article II, Section 25 provides: "The State shall ensure the autonomy of local governments"

Thereby, DBM Circular is ultra vires and is, accordingly, set aside. The DBM may appoint only from the list of qualified recommendees nominated by the Governor. If none is qualified, he must return the list of nominees to the Governor explaining why no one meets the legal requirements and ask for new recommendees who have the necessary eligibilities and qualifications.

80. FLORES V DRILON

FACTSPetitioners, taxpayers and employees of U.S facilities at Subic, challenge the constitutionality of Sec. 13 (d) of the Bases Conversion and Development Act of 1992 which directs the President to appoint a professional manager as administrator of the SBMAprovided that for the 1st year of its operations, the mayor of Olongapo City (Richard Gordon) shall be appointed as the chairman and the CEO of the Subic Authority.ISSUES(1) Whether the proviso violates the constitutional proscription against appointment or designation of elective officials to other government posts. (2) Whether or not the SBMA posts are merely ex officio to the position of Mayor of Olongapo City and thus an excepted circumstance.(3) Whether or not the Constitutional provision allowing an elective official to receive double compensation (Sec. 8, Art. IX-B) would be useless if no elective official may be appointed to another post.(4) Whether there is legislative encroachment on the appointing authority of the President.(5) Whether Mayor Gordon may retain any and all per diems, allowances and other emoluments which he may have received pursuant to his appointment.HELD(1) YES, Sec. 7 of Art. IX-B of the Constitution Provides: No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. The subject proviso directs the President to appoint an elective official i.e. the Mayor of Olongapo City, to other government post (as Chairman and CEO of SBMA). This is precisely what the Constitution prohibits. It seeks to prevent a situation where a local elective official will work for his appointment in an executive position in government, and thus neglect his constitutents.(2) NO, Congress did not contemplate making the SBMA posts as automatically attached to the Office of the Mayor without need of appointment. The phrase shall be appointed unquestionably shows the intent to make the SBMA posts appointive and not merely adjunct to the post of Mayor of Olongapo City.(3) NO, Sec. 8 does not affect the constitutionality of the subject proviso. In any case, the Vice-President for example, an elective official who may be appointed to a cabinet post, may receive the compensation attached to the cabinet position if specifically authorized by law.(4) YES, although Section 13(d) itself vests in the President the power to appoint the Chairman of SBMA, he really has no choice but to appoint the Mayor of Olongapo City. The power of choice is the heart of the power to appoint. Appointment involves an exercise of discretion of whom to appoint. Hence, when Congress clothes the President with the power to appoint an officer, it cannot at the same time limit the choice of the President to only one candidate. Such enactment effectively eliminates the discretion of the appointing power to choose and constitutes an irregular restriction on the power of appointment. While it may be viewed that the proviso merely sets the qualifications of the officer during the first year of operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is manifestly an abuse of congressional authority to prescribe qualifications where only one, and no other, can qualify. Since the ineligibility of an elective official for appointment remains all throughout his tenure or during his incumbency, he may however resign first from his elective post to cast off the constitutionally-attached disqualification before he may be considered fit for appointment. Consequently, as long as he is an incumbent, an elective official remains ineligible for appointment to another public office.(5) YES, as incumbent elective official, Gordon is ineligible for appointment to the position of Chairman and CEO of SBMA; hence, his appointment thereto cannot be sustained. He however remains Mayor of Olongapo City, and his acts as SBMA official are not necessarily null and void; he may be considered a de facto officer, and in accordance with jurisprudence, is entitled to such benefits.

MEANING OF DE FACTOa de facto officer as "one who has the reputation of the officer that he assumes to be, and yet is not a good officer in point of law." He must have acted as a officer long enough and came to power under a colorable (read: defective) authority or by the acquiescence of the people and local authorities. The actions of a de facto officer are considered to have legal effect and are binding. This is for the protection of people who get involved in the official acts of a person performing the duties of a public office.

These are the elements:

1.) A validly existing public office2.) Actual physical possession of that office3.) The title to the office is colorable/defective

The office has a colorable title in any of the following instances:

1.) By reputation/aquiescence: everybody supposes that the person holding the office is the legal occupant and nobody questions it. Usually, it happens when somebody has been holding the office for a considerable length of time and everybody as a result thinks he is the officer that he claims to be.

2.) There is a valid appointment or election but the officer didn't meet certain requirements prescribed by the law (like not taking the oath of office.)

3.) There is an appointment or election that is void because the officer in question isn't eligible or the appointing/electing authority had no power and nobody knew that this was so (ex. the president appointing somebody to an elected position.)

4.) Coming to officer through a known appointment or election under a certain law that was later declared unconstitutional.

The rightful officer can recover all the salaries and other benefits from the de facto officer even if the de facto officer assumed office in good faith. What matters, in the first place, is that there is color/doubt to this title. If, however, there is no de jure(lawful) officer the de factoofficer is entitled to the salaries and benefits of his office and can even file a case to recover them. Also, if the officer committed unlawful acts before legally assuming office, he can be held liable for damages.

81.DIMAANDAL VS COA

Facts: Dimaandal, then holding the position of Supply Officer III, was designated Acting Assistant Provincial Treasurer for Administration by then Governor Vicente A. Mayo of Batangas. Pursuant to the designation, petitioner filed a claim for the difference in salary and Representation and Transportation Allowance (RATA) of Assistant Provincial Treasurer and Supply Officer III for the whole year of 1993 in the total amount of P61,308.00. However, the Provincial Auditor disallowed the claim. Governor Mayo wrote to the Provincial Auditor requesting reconsideration of the subject disallowance but still the Provincial Auditor denied the request. Petitioner appealed to the respondent Commission on Audit which sustained the stand of the Provincial Auditor of Batangas as valid and proper, and on the grounds that1) petitioner was merely designated as an Assistant Provincial Treasurer for Administration in addition to his regular duties, 2) the Governor of Batangas had no authority to designate him to the said position.As such, he is not entitled to receive an additional salary.

Issue: Whether or not an employee who is designated in an acting capacity is entitled to the difference in salary between his regular position and the higher position to which he is designated.

Held: No. First, Sec. 471 of LGC provides that An Assistant treasurer may be appointed by the Secretary of Finance from a list of at least three (3) ranking eligible recommendees of the governor or mayor, subject to civil service law, rules and regulations. Undoubtedly, the aforecited laws do not authorize the Provincial Governor to appoint nor even designate one temporarily in cases of temporary absence or disability or a vacancy in a provincial office. That power resides in the President of the Philippines or the Secretary of Finance.

Second, The right to the salary of an Assistant Provincial Treasurer is based on the assumption that the appointment or designation thereof was made in accordance with law. Considering that petitioner's designation was without color of authority, the right to the salary or an allowance due from said office never existed.

Lastly, There is a great difference between an appointment and designation. While an appointment is the selection by the proper authority of an individual who is to exercise the powers and functions of a given office, designation merely connotes an imposition of additional duties, usually by law, upon a person already in the public service by virtue of an earlier appointment. It does not entail payment of additional benefits or grant upon the person so designated the right to claim the salary attached to the position.

82. AGUIRRE VS DE CASTROThe city legal officer of Manila has no disciplinary authority over the chief of the Legal Affairs and Complaint Services of the Division of City Schools of Manila. Inasmuch as the said official was appointed by and is a subordinate of the regional director of the Department of Education, Culture and Sports, she is subject to the supervision and control of said director. The power to appoint carries the power to remove or to discipline. The mere fact that her salary is sourced from city funds does not ipso facto place her under the city legal officer's disciplinary jurisdiction, absent any clear statutory basis therefor. The Facts The undisputed facts of the case are summarized by the Court of Appeals as follows: [Respondent][6] Atty. Evangeline C. De Castro is the Chief of the Legal Affairs and Complaint Services of the Division of City Schools of Manila. On February 1, 1996, [respondent] received a letter from public respondent Angel Aguirre, Jr., City Legal Officer of Manila accompanied by copies of alleged complaints against her. [Respondent] was required in the said letter to explain within seventy two (72) hours upon receipt why no administrative sanctions shall be imposed upon her for gross misconduct and conduct unbecoming x x x a public officer in violation of the Civil Service Law, Rules and Regulations. "On February 6, 1996, [Respondent] Evangeline de Castro filed her answer-affidavit which was received on the same day by the Office of the City Legal Officer. "Subsequently, on February 13, 1996, City Legal Officer Angel Aguirre, Jr. notified the [respondent] that her answer-affidavit was found unsatisfactory for which reason she was summoned to appear before the said City Legal Officer for the purpose of conducting a formal investigation. "Two (2) days later or on February 15, 1996, [respondent] filed a motion to dismiss. She claimed that she [was] a subordinate of the Secretary of the Department of Education, Culture and Sports (DECS).Thus, the case should be endorsed to the Office of the DECS Secretary or its legal division as nowhere in RA 409, Charter of the City of Manila is there a provision conferring upon the Office of the City Legal Officer jurisdiction to try and investigate personnel of the DECS in general, or the Division of City Schools where petitioner is under, in particular. "This motion to dismiss of [respondent] was denied in a resolution of the City Legal Officer dated February 21, 1996 citing Sec. 455 b(1) and (V) of the Local Government Code and Section 3(c) of the same code. In the said resolution it was held that the records of the personnel office disclose[d] that [respondent was] included in the plantilla of the City of Manila and therefore her salary derived wholly and mainly from the funds of the City for which reason she [was] subject to the disciplinary authority of the said City Legal Officer. "Thereafter, on February 26, 1996, [respondent] was notified to appear before the panel formed by the City Legal Officer (CLO Panel) to hear administrative case CLO 24-96 filed against her for grave misconduct and conduct unbecoming x x x a public officer. "[Respondent] filed a motion to reconsider the resolution dated February 21, 1996. This motion was again denied by the CLO panel in its order dated March 6, 1996. "Again, [respondent] moved to reconsider the above order which was likewise denied in the resolution of the CLO panel dated March 18, 1996."[7] Consequently, respondent elevated the matter to the Court of Appeals via a Petition for Certiorari and Prohibition. Ruling of the Court of Appeals Citing the Administrative Code of 1987,[8] the Court of Appeals ruled that the authority to discipline herein respondent rests with the regional director for the National Capital Region of the Department of Education, Culture and Sports (DECS), not with the city legal officer of Manila. It also held that the Local Government Code (LGC) did not repeal the pertinent provisions of the Administrative Code.Hence, absent any contrary provision of the LGC, the CA opined that disciplinary authority over petitioner must remain with the DECS. The CA also noted that officers and staff members of the Division of City Schools were not among those whom the city mayor was authorized to appoint under the LGC. Hence, it ruled that respondent was not an employee of the City of Manila, and that the city legal officer had no authority to investigate her for administrative neglect or misconduct in office. Assuming arguendo that the city mayor was authorized to make a subsequent appointment to the respondents position should it become vacant, the CA held that this power was not retroactive and could not apply to respondent who had been appointed by the regional director of the DECS. Dissatisfied, the city legal officer of Manila lodged this Petition before this Court on January 21, 1997.[9] Issue The solitary issue presented for the Courts consideration is whether or not the Office of the City Legal Officer of Manila has jurisdiction to investigate the complaint for grave misconduct filed against the respondent.[10] This Courts Ruling The Petition is bereft of merit. Sole Issue: Jurisdiction of the City Legal OfficerPetitioners contend that respondent is a city employee under the supervision of the city mayor, because her salary is paid by the City of Manila. They base this argument on Section 455 (b-1-v)[11] of the Local Government Code (LGC), which authorizes the city mayor to appoint city employees whose salaries and wages are wholly or mainly paid out of city funds; and on Section 455 (b-1- x),[12] which states that the mayor may institute administrative or judicial proceedings against erring city officials or employees. Petitioners contentions are not persuasive. Under Book IV, Chapter V, Section 7(4) of the Administrative Code of 1987, the power to appoint and discipline first-level employees, which includerespondent, is specifically lodged with the regional director of the Department of Education, Culture and Sports. (4) Appoint personnel to positions in the first level and casual and seasonal employees; and exercise disciplinary actions over them in accordance with the Civil Service Law." This is also clear in Book V, Section 47 (2) of the same Code; and in Section 32, Rule XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987. SEC. 32. The Secretaries and heads of agencies and instrumentalities, provinces, cities, and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. x x x. We agree with the CA that the LGC did not automatically repeal the provisions in the 1987 Administrative Code, contrary to petitioners argument. There is no provision in the LGC expressly rescinding the authority of the DECS regional director to appoint and exercise disciplinary authority over first-level employees. On the other hand, implied repeals are not lightly presumed in the absence of a clear and unmistakable showing of such intention.[13] Furthermore, respondents position as senior legal officer in the Division of City Schools is not one of the offices covered by the city mayors power of appointment under the LGC. SEC. 454. Officials of the City Government. --- (a) There shall be in each city a mayor, a vice-mayor, sangguniang panlungsod members, a secretary to the sangguniang panlungsod, a city treasurer, a city assessor, a city accountant, a city budget officer, a city planning and development coordinator, a city engineer, a city health officer, a city civil registrar, a city administrator, a city legal officer, a city veterinarian, a city social welfare and development officer, and a city general services officer. (b) In addition thereto, the city mayor may appoint a city architect, a city information officer, a city agriculturist, a city population officer, a city environment and natural resources officer, and a city cooperatives officer. Moreover, petitioners failed to show a specific provision in the LGC showing that the power to discipline officials in the Division of City Schools has been devolved from the regional director of the DECS to the city mayor. All that Section 17 (4) of the Local Government Code states is that the city must provide support for education and other such services and facilities. Likewise, Section 455 (b-1-x) of the Local Government Code, which provides that the city mayor may cause to be instituted administrative or judicial proceedings against any official or employee of the city, is not necessarily incompatible with the provisions of the Administrative Code of 1987 authorizing the regional director to discipline national education employees. Nothing prohibits the mayor from filing complaints against respondent before the DECS. Petitioners cite paragraph 12, Section 2 (a) of Executive Order (EO) 503, which states that devolved personnel are automatically reappointed by the local chief executive. Since respondent was deemed reappointed by the city mayor, it follows that the latter can exercise disciplinary authority over her. We are not convinced. First, the above provision applies to devolved personnel, and there is no proof whatsoever that respondent is one of them. Second, even if respondent can be considered as a devolved personnel, the cited paragraph of EO 503 must not be read in isolation from but in conjunction with the other paragraphs in Section 2 (a). Thus, paragraph 12 -- along with paragraphs 5, 6, 8, 13 and 14[15]of EO 503 -- deals with safeguards against termination, reduction of pay and diminution in rank of existing personnel; it is not about the power of the mayor to discipline personnel of the Division of City Schools. In effect, the said provision serves more to limit the appointing authority of the city mayor, whose acts must be circumscribed by the aforecited conditions. It is not incompatible and can exist with aforecited provisions of the Administrative Code. Indeed, it cannot be deemed to have divested the regional director of his disciplining power. As to petitioners argument that respondents salary is wholly or mainly paid out of city funds, suffice it to say that the source of the wages is not the only criteria in determining whether the payor may be deemed the employer. In fact, the most important factor is the control test; that is, who has the power to supervise and direct the work of the employee concerned? Absent any contrary statutory provision, the power to appoint carries with it the power to remove or to discipline.[16] Since respondent was appointed by the regional director of DECS, she may be disciplined or removed by the latter pursuant to law. Finally, respondents primary duty is to conduct investigations of cases involving teaching and nonteaching personnel of the Division of City Schools of Manila. The report on the results of her investigations is then submitted for final evaluation to the DECS regional director, who may approve, disapprove or allow respondent to modify it. This fact clearly shows that supervision over respondent is lodged with the regional director, not the mayor. All in all, petitioners have not convinced us that the Court of Appeals committed any reversible error. WHEREFORE, the Petition is hereby DISMISSED and the assailed Decision AFFIRMED. Costs against petitioners. SO ORDERED.

83.cCIVIL SERVICE COMMISSION V. ENGR. DARANGINAFACTS:Engineer Darangina was a development management officer V in the Office of Muslim Affairs (OMA). He was extended a temporary promotional appointmentasDirectorIII,PlansandPolicyServices.CSCapprovedthe temporary appointment. New OMA Executive Director terminated theappointment, ground: Not Career Executive Service Eligible. CSCdiaprrovedtheappointmentofthereplacementwhowasalsonot eligible, and granted that the Darangina should be paid backwages until the expiration of his 1 yr temporary appointment.CA reinstated Darangina.ISSUE/S:Whether Darangina should be reinstated.HELD:CA REVERSED. Petition GRANTED. No reinstatement & back wages,only salary from appointment until termination. With the expiration of histerm upon his replacement, trhere is no longer any remaining term to beserved.Administrative Code of 1987BookVTitleISubtitleAChapter5Section 27. Employment Status. Appointment in the career service shall bepermanent or temporary.(1)Permanent Status. Apermanent appointment shall beissued to apersonwho meets all the requirements for the position to which he is beingappointed, including appropriate eligibility prescribed, in accordance withtheprovisionsoflaw,rulesandstandardspromulgatedinpursuancethereof.(2)TemporaryAppointment.Intheabsenceofeligiblepersonsanditbecomesnecessaryinthepublicinteresttofillavacancy,atempappointment shall be issued to a person who meets all the requirementsfor the position to which heis being appointed except the appropriate civilservice eligibility: Provided, that such temporary appointment shall notexceed 12 mos., but the appointee may be replaced sooner if a qualified civil service eligible becomes available.84. Sales vs carreon During the May 2001 elections, then Mayor Joseph Cedrick O. Ruiz of Dapitan City, running for re-election, was defeated by respondent Rodolfo H. Carreon, Jr. On June 1, 18 and 27, 2001, his last month in office, then Dapitan City Mayor Ruiz issued 83 appointments, including those of herein petitioners. On July 1, 2001, the newly elected Mayor, Rodolfo H. Carreon, Jr., herein respondent, assumed office. On July 2, 2001, respondent issued Memorandum Orders Nos. 1 and 2 revoking the 83 appointments signed by his predecessor on the ground that the latter violated Civil Service Commission (CSC) Resolution No. 01-988 in relation to CSC Memorandum Circular No. 7, Series of 2001, imposing a ban on issuing appointments in the civil service during the election period. Thereupon, respondent prohibited the release of the salaries and benefits of the 83 appointees. On July 10, 2001, Patricio Sales, one of herein petitioners, in his capacity as president of the Dapitan City Government Employees Association, wrote the CSC Regional Office No. IX requesting its ruling on the matter. On July 16 and August 3, 2001, respondent sent the said Office a position paper justifying his action, contending that the questioned appointments were not only issued in bulk but that there was no urgent need to fill those positions. On August 17, 2001, the CSC Regional Office No. IX issued an Omnibus Order, the dispositive portion of which reads: WHEREFORE, all premises considered: The eighty-three (83) appointments issued by then Mayor Joseph Cedrick O. Ruiz, including those issued by the herein requesting parties, are, therefore not considered mass appointments, as defined under CSC Resolution No. 01-0988 and are thus, VALID and EFFECTIVE. Memorandum Orders Nos. 1 and 2, Series of 2001, issued by Mayor Rodolfo H. Carreon, Jr., are hereby declared NULL and VOID, and accordingly, The LGU-Dapitan is hereby directed to pay the salaries and other emoluments to which the 83 appointments are entitled to pursuant to the appointments issued to them. On appeal by respondent, the CSC En Banc, on June 17, 2002, issued Resolution No. 020828 reversing the assailed Omnibus Order of the CSC Regional Office No. IX, thus: WHEREFORE, premises considered, the Omnibus Order dated August 17, 2001of the Civil Service Commission Regional Office No. IX is REVERSED and SET ASIDE. The Commission hereby rules, as follows: The approval of all 83 appointments issued by then Mayor J. Cedrick O. Ruiz is revoked for being violative of Republic Act No. 7041, CSC Memorandum Circular No. 18 s. 1988, as amended, CSC Resolution No. 963332 on its accreditation and CSC Resolution No. 01-0988. All promoted employees are reverted to their previous position; and Memorandum Order No. 1 and Memorandum Order No. 2 issued by incumbent Mayor Rodolfo H. Carreon, Jr. are hereby declared null and void. The CSC En Banc held that the positions in question were published and declared vacant prior to the existence of any vacancy. Petitioners filed a motion for reconsideration but it was denied in Resolution No. 030049 dated January 16, 2003 by the CSC En Banc. On February 13, 2003, petitioners filed with the Court of Appeals a petition for review. On September 16, 2003, the appellate court rendered its Decision dismissing the petition, sustaining the CSCs finding that the positions to which the petitioners were appointed were already reported and published even before they had been declared vacant, in violation of Sections 2 and 3 of Republic Act (R.A.) No. 7041;[2] and that there was no first level representative to the Personnel Section Board who should have participated in the screening of candidates for vacancy in the first level. Petitioners filed a motion for reconsideration, but this was denied by the Court of Appeals in its Resolution dated November 17, 2003. Hence, the instant petition. This case is a typical example of the practice of outgoing local chief executives to issue midnight appointments, especially after their successors have been proclaimed. It does not only cause animosities between the outgoing and the incoming officials, but also affects efficiency in local governance. Those appointed tend to devote their time and energy in defending their appointments instead of attending to their functions. However, not all midnight appointments are invalid.[3] Each appointment must be judged on the basis of the nature, character, and merits of the individual appointment and the circumstances surrounding the same.[4] It is only when the appointments were made en masse by the outgoing administration and shown to have been made through hurried maneuvers and under circumstances departing from good faith, morality, and propriety that this Court has struck down midnight appointments.[5] It is State policy that opportunities for government employment shall be open to all qualified citizens and employees shall be selected on the basis of fitness to perform the duties and assume the responsibilities of the positions.[6] It was precisely in order to ensure transparency and equal opportunity in the recruitment and hiring of government personnel, that Republic Act No. 7041 was enacted. Section 2 provides: SEC. 2. Duty of Personnel Officers. It shall be the duty of all Chief Personnel or Administrative Officers of all branches, subdivisions, instrumentalities and agencies of the Government, including government-owned or controlled corporations with original charters, and local government units, to post in three (3) conspicuous places of their offices for a period ten (10) days a complete list of all existing vacant positions in their respective offices which are authorized to be filled, and to transmit a copy of such list and the corresponding qualification standards to the Civil Service Commission not later than the tenth day of every month. Vacant positions shall not be filled until after publication: Provided, however, that vacant and unfilled positions that are: a) primarily confidential;b) policy-determining;c) highly technical;d) co-terminous with that of the appointing authority; or e) limited to the duration of a particular project, shall be excluded from the list required by law. SEC. 3. Publication of Vacancies. The Chairman and members of the Civil Service Commission shall publish once every quarter a complete list of all the existing vacant positions in the Government throughout the country, including the qualification standards required for each position and, thereafter, certify under oath to the completion of publication. Copies of such publication shall be sold at cost to the public and distributed free of charge to the various personnel office of the government where they shall be available for inspection by the public:Provided, That said publication shall be posted by the Chief Personnel or Administrative Officer of all local government units in at least three (3) public and conspicuous places in their respective municipalities and provinces: Provided, further, That any vacant position published therein shall be open to any qualified person who does not necessarily belong to the same office with the vacancy or who occupies a position next-in-rank to the vacancy: Provided, finally, That the Civil Service Commission shall not act on any appointment to fill up a vacant position unless the same has been reported to and published by the Commission. The foregoing provisions are clear and need no interpretation. The CSC is required to publish the lists of vacant positions and such publication shall be posted by the chief personnel or administrative officer of all local government units in the designated places. The vacant positions may only be filled by the appointing authority after they have been reported to the CSC as vacant and only after publication. Here, the publication of vacancies was made even before the positions involved actually became vacant. Clearly, respondents action violated Section 2 of R.A. No. 7041 cited earlier. Moreover, the CSC found that there was no first-level representative appointed to the Personnel Selection Board, which deliberated on the appointments to first-level positions. CSC Memorandum Circular No. 18, series of 1988, as amended, provides that the Personnel Selection Board shall be composed of the following: a. Official of department/agency directly responsible for personnel management; b. Representative of management; c. d. Representative of organizational unit which may be an office, department, or division where the vacancy is; Representative of rank-and-file employees, one (1) for the first-level and one (1) for the second-level, who shall both be chosen by duly registered/accredited employees association in the department or agency. The former shall sit during the screening of candidates for vacancy in the first-level, while the latter shall participate in the screening of candidates for vacancy in the second level. In case where there is no employees association in the department or agency, the representative shall be chosen at large by the employees through a general election to be called for the purpose. Petitioners admitted that after the retirement on April 22, 2000 of Beltran Faconete, the first-level representative to the Personnel Selection Board, no other first-level representative to replace him was chosen by the Dapitan City Government Employees Association. Yet, the city government Personnel Selection Board proceeded to deliberate and recommend the appointments of applicants to the 43 first-level positions. Petitioners contend, however, that although there was no such representative, the action of the Board is still valid. Petitioners contention lacks merit. Section 20, Rule VI of the Omnibus Rules Implementing Book V-A of the Administrative Code of 1987 (also known as the Civil Service Law), provides: SEC. 20. Notwithstanding the initial approval of an appointment, the same may be recalled on any of the following grounds: non-compliance with the procedures/criteria provided in the agencys Merit Promotion Plan; failure to pass through the agencys Selection/Promotion Board; violation of the existing collective bargaining agreement between management and employees relative to promotion; or violation of other existing civil service laws, rules and regulations. Verily, in deliberating and recommending to former Mayor Ruiz the appointments of herein petitioners to the vacant positions sans the required representation, the Board violated the above CSC Rules. Hence, the appointments he issued are not valid. They may be recalled. In Mathay, Jr. v. Civil Service Commission,[7] this Court upheld the authority of the CSC to take appropriate action on all appointments, including its authority to recall appointments made in disregard of the applicable provisions of Civil Service Law and regulations. In sum, for being in violation of Section 2, R.A. No. 7041, CSC Memorandum Circular No. 18, as amended, and Section 20, Rule VI of the Omnibus Rules Implementing Book V-A of the Administrative Code of 1987, the appointments of the above-named petitioners are declared void. WHEREFORE, the Court DENIES the petition and AFFIRMS the assailed Decision of the Court of Appeals in CA-G.R. SP No. 755151.SO ORDERED.85. SALUMBIDES VS OFFICE OF THE OMBUDSMANFacts:Salumbides and Glenda who were both appointed in July 2001 as Municipal Legal Officer/Administrator and Municipal Budget Officer, respectively of Tagkawayan, Quezon, and Mayor Vicente Salumbides III were administratively charged with with Dishonesty, Grave Misconduct, Gross Neglect of Duty, Conduct Prejudicial to the Best Interest of the Service, and violation of the Commission on Audit (COA) Rules and the Local Government Code. This is with regards to the construction of a two-classroom building with fence for the Tagkawayan Municipal High School(TMHS) since the public school in the poblacion area would no longer admit high school freshmen starting school year 2002-2003. This was done without any approved appropriation and ahead of the public bidding.The Office of the Ombudsman dropped the mayor and Coleta, both elective officials, as respondents in the administrative case, the 2004 elections having mooted the case.

Issue:Whether or not the Doctrine of Condonation shall expand to cover coterminous appointive officials who were administratively charged along with the reelected official/appointing authority with infractions allegedly committed during their preceding term.

Ruling:No. The underlying theory is that each term is separate from other terms, and that thereelection to office operates as a condonation of the officers previous misconductto the extent of cutting off the right to remove him therefor. Election expresses the sovereign will of the people.Under the principle ofvox populi est suprema lex,the re-election of a public official may, indeed, supersede a pending administrative case.The same cannot be said of a re-appointment to a non-career position. Substantial distinctions clearly exist between elective officials and appointive officials.The former occupy their office by virtue of the mandate of the electorate.They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions.On the other hand,appointive officials hold their office by virtue of their designation thereto by an appointing authority.Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority.

In 1988, Ramon Labo, Jr. was elected as mayor of Baguio City. His rival, Luis Lardizabal filed a petition for quo warranto against Labo as Lardizabal asserts that Labo is an Australian citizen hence disqualified; that he was naturalized as an Australian after he married an Australian. Labo avers that his marriage with an Australian did not make him an Australian; that at best he has dual citizenship, Australian and Filipino; that even if he indeed became an Australian when he married an Australian citizen, such citizenship was lost when his marriage with the Australian was later declared void for being bigamous. Labo further asserts that even if hes considered as an Australian, his lack of citizenship is just a mere technicality which should not frustrate the will of the electorate of Baguio who voted for him by a vast majority.ISSUES:1. Whether or not Labo can retain his public office.2. Whether or not Lardizabal, who obtained the second highest vote in the mayoralty race, can replace Labo in the event Labo is disqualified.HELD: 1. No. Labo did not question the authenticity of evidence presented against him. He was naturalized as an Australian in 1976. It was not his marriage to an Australian that made him an Australian. It was his act of subsequently swearing by taking an oath of allegiance to the government of Australia. He did not dispute that he needed an Australian passport to return to the Philippines in 1980; and that he was listed as an immigrant here. It cannot be said also that he is a dual citizen. Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law. He lost his Filipino citizenship when he swore allegiance to Australia. He cannot also claim that when he lost his Australian citizenship, he became solely a Filipino. To restore his Filipino citizenship, he must be naturalized or repatriated or be declared as a Filipino through an act of Congress none of this happened.Labo, being a foreigner, cannot serve public office. His claim that his lack of citizenship should not overcome the will of the electorate is not tenable. The people of Baguio could not have, even unanimously, changed the requirements of the Local Government Code and the Constitution simply by electing a foreigner (curiously, would Baguio have voted for Labo had they known he is Australian). The electorate had no power to permit a foreigner owing his total allegiance to the Queen of Australia, or at least a stateless individual owing no allegiance to the Republic of the Philippines, to preside over them as mayor of their city. Only citizens of the Philippines have that privilege over their countrymen.2. Lardizabal on the other hand cannot assert, through the quo warranto proceeding, that he should be declared the mayor by reason of Labos disqualification because Lardizabal obtained the second highest number of vote. It would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election

86. frivaldo vs comelec

FACTS:Juan G. Frivaldo was proclaimed governor of the province of Sorsogon and assumed office in due time. The League of Municipalities filed with the COMELEC a petition for the annulment of Frivaldo on the ground that he was not a Filipino citizen, having been naturalized in the United States.Frivaldo admitted the allegations but pleaded the special and affirmative defenses that he was naturalized as American citizen only to protect himself against President Marcos during the Martial Law era.

ISSUE:Whether or not Frivaldo is a Filipino citizen.

RULING:No. Section 117 of the Omnibus Election Code provides that a qualified voter must be, among other qualifications, a citizen of the Philippines, this being an indispensable requirement for suffrage under Article V, Section 1, of the Constitution.

He claims that he has reacquired Philippine citizenship by virtue of valid repatriation. He claims that by actively participating in the local elections, he automatically forfeited American citizenship under the laws of the United States of America. The Court stated that that the alleged forfeiture was between him and the US. If he really wanted to drop his American citizenship, he could do so in accordance with CA No. 63 as amended by CA No. 473 and PD 725. Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation.

The Commission on Elections has the primary jurisdiction over the question as the sole judge of all contests relating to the election, returns and qualifications of the members of the Congress and elective provincial and city officials. However, the decision on Frivaldos citizenship has already been made by the COMELEC through its counsel, the Solicitor General, who categorically claims that Frivaldo is a foreigner. The Solicitors stance is assumed to have bben taken by him after consultation with COMELEC and with its approval. It therefore represents the decision of the COMELEC itself that the Supreme Court may review. In the certificate of candidacy filed on 19 November 1987, Frivaldo described himself as a natural-born citizen of the Philippines, omitting mention of any subsequent loss of such status. The evidence shows, however, that he was naturalized as a citizen of the United States in 1983 per the certification from the United States District Court, Northern District of California, as duly authenticated by Vice Consul Amado P. Cortez of the Philippine Consulate General in San Francisco, California, U.S.A. There were many other Filipinos in the United States similarly situated as Frivaldo, and some of them subject to greater risk than he, who did not find it necessary nor do they claim to have been coerced to abandon their cherished status as Filipinos. Still, if he really wanted to disavow his American citizenship and reacquire Philippine citizenship, Frivaldo should have done so in accordance with the laws of our country. Under CA No. 63 as amended by CA No. 473 and PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation. He failed to take such categorical acts. Rhe anomaly of a person sitting as provincial governor in this country while owing exclusive allegiance to another country cannot be permitted. The fact that he was elected by the people of Sorsogon does not excuse this patent violation of the salutary rule limiting public office and employment only to the citizens of this country. The will of the people as expressed through the ballot cannot cure the vice of ineligibilityQualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officers entire tenure. Once any of the required qualifications is lost, his title may be seasonably challenged. Frivaldo is disqualified from serving as governor of Sorsogon.

88. Mercado v. Manzano

FACTS:

Petitioner Ernesto Mercado and Eduardo Manzano were both candidates for Vice-Mayor of Makati in the May 11, 1998 elections.Based on the results of the election, Manzano garnered the highest number of votes. However, his proclamation was suspended due to the pending petition for disqualification filed by Ernesto Mercado on the ground that he was not a citizen of the Philippines but of the United States.From the facts presented, it appears that Manzano is both a Filipino and a US citizen.The Commission on Elections declared Manzano disqualified as candidate for said elective position.However, in a subsequent resolution of the COMELEC en banc, the disqualification of the respondent was reversed. Respondent was held to have renounced his US citizenship when he attained the age of majority and registered himself as a voter in the elections of 1992, 1995 and 1998.Manzano was eventually proclaimed as the Vice-Mayor of Makati City on August 31, 1998.Thus the present petition.

ISSUE:

Whether or not a dual citizen is disqualified to hold public elective office in the philippines.

RULING:

The court ruled that the phrase "dual citizenship" in R.A. 7160 Sec. 40 (d) and R.A. 7854 Sec. 20 must be understood as referring to dual allegiance. Dual citizenship is different from dual allegiance. The former arises when, as a result of the application of the different laws of two or more states, a person is simultaneously considered a national by the said states. Dual allegiance on the other hand, refers to a situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is a result of an individual's volition. Article IV Sec. 5 of the Constitution provides "Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law."

Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states.

By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country of which they are also citizens and thereby terminate their status as dual citizens. It may be that, from the point of view of the foreign state and of its laws, such an individual has not effectively renounced his foreign citizenship. That is of no moment.

When a person applying for citizenship by naturalization takes an oath that he renounces his loyalty to any other country or government and solemnly declares that he owes his allegiance to the Republic of the Philippines, the condition imposed by law is satisfied and complied with. The determination whether such renunciation is valid or fully complies with the provisions of our Naturalization Law lies within the province and is an exclusive prerogative of our courts. The latter should apply the law duly enacted by the legislative department of the Republic. No foreign law may or should interfere with its operation and application.

The court ruled that the filing of certificate of candidacy of respondent sufficed to renounce his American citizenship, effectively removing any disqualification he might have as a dual citizen. By declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent resident or immigrant of another country; that he will defend and support the Constitution of the Philippines and bear true faith and allegiance thereto and that he does so without mental reservation, private respondent has, as far as the laws of this country are concerned, effectively repudiated his American citizenship and anything which he may have said before as a dual citizen.

On the other hand, private respondents oath of allegiance to the Philippines, when considered with the fact that he has spent his youth and adulthood, received his education, practiced his profession as an artist, and taken part in past elections in this country, leaves no doubt of his election of Philippine citizenship.

His declarations will be taken upon the faith that he will fulfill his undertaking made under oath. Should he betray that trust, there are enough sanctions for declaring the loss of his Philippine citizenship through expatriation in appropriate proceedings. In Yu v. Defensor-Santiago, the court sustained the denial of entry into the country of petitioner on the ground that, after taking his oath as a naturalized citizen, he applied for the renewal of his Portuguese passport and declared in commercial documents executed abroad that he was a Portuguese national. A similar sanction can be taken against any one who, in electing Philippine citizenship, renounces his foreign nationality, but subsequently does some act constituting renunciation of his Philippine citizenship.

The petition for certiorari is DISMISSED for lack of merit.

89Torayno v. COMELEC

FACTS: This case involves a petition for quo warranto filed against the respondent on the ground that he was not able to fulfill the requirement of residency of 1-yr in Cagayan de Oro City when he ran for mayor. Respondent previously served as governor of Misamis Oriental for 3 consecutive terms before he registered as a voter in Cagayan de Oro City and subsequently ran for mayor.

HELD: Respondent was able to fulfill the residency requirement needed for him to qualify as a mayoralty candidate. He bought a house in Cagayan de Oro City in 1973. He actually resided there before he registered as a voter in that city in 1997Private respondent, on the other hand, alleges that he actually and physically resided in Cagayan de Oro City while serving as provincial governor for three consecutive terms, since the seat of the provincial government was located at the heart of that city.13 He also avers that one's choice of domicile is a matter of intention, and it is the person concerned who would be in the best position to make a choice. In this case, Emano decided to adopt Cagayan de Oro City as his place of residence after the May 1995 elections. In fact, in January 1997, he secured his Community Tax Certificate at the City Treasurer's Office, stating therein that he was a resident of 1409 San Jose Street, Capistrano Subdivision, Gusa, Cagayan de Oro City. During the general registration of voters in June 1997, he registered in one of the precincts of Gusa, Cagayan de Oro City. This meant that, at the time, Emano had been a voter of the city for the minimum period required by law. No one has ever challenged this fact before any tribunal. An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province x x x where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect." Generally, in requiring candidates to have a minimum period of residence in the area in which they seek to be elected, the Constitution or the law intends to prevent the possibility of a "stranger or newcomer unacquainted with the conditions and needs of a community and not identified with the latter from [seeking] an elective office to serve that community."19 Such provision is aimed at excluding outsiders "from taking advantage of favorable circumstances existing in that community for electoral gain."20 Establishing residence in a community merely to meet an election law requirement defeats the purpose of representation: to elect through the assent of voters those most cognizant and sensitive to the needs of the community. This purpose is "best met by individuals who have either had actual residence in the area for a given period or who have been domiciled in the same area either by origin or by choice."21 In the case at bar, the Comelec found that private respondent and his family had actually been residing in Capistrano Subdivision, Gusa, Cagayan de Oro City, in a house he had bought in 1973. Furthermore, during the three terms (1988-1998) that he was governor of Misamis Oriental, he physically lived in that city, where the seat of the provincial government was located. In June 1997, he also registered as voter of the same city. Based on our ruling in Mamba-Perez, these facts indubitably prove that Vicente Y. Emano was a resident of Cagayan de Oro City for a period of time sufficient to qualify him to run for public office therein. Moreover, the Comelec did not find any bad faith on the part of Emano in his choice of residence. 90. Hayudini vs comelecOmar basically asserted that Hayudini should be disqualified for making false representation regarding his residence. He claimed that Hayudini declared in his CoC that he is a resident of the Municipality of South Ubian when, in fact, he resides in Zamboanga City. Under Sec. 74 of the Omnibus Election Code, it is required that a candidate must certify under oath that he is eligible for the public office he seeks election. When a candidate states in his COC that he is a resident of the place where he is seeking to be elected, and is eligible for a public office, but it turned out that he was declared to be a non- resident thereof in a petition for his inclusion in the list of registered voters, he commits a false representation pertaining to a material fact in his COC, which is a ground for the cancellation of his COC under Section 78 of the Omnibus Election Code