Final Fro Public Officer

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PUBLIC OFFICERS

PUBLIC OFFICE AND OFFICERS

Public Office

Definition

A public office is the right, authority and duty created and conferred by law, bywhich for a given period, either fixed by law or enduring at the pleasure of theappointing power, an individual is invested with some portion of the sovereignfunctions of the government, to be exercised by him for the benefit of thepublic. (Mechem)

Purpose and Nature

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

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

Elements

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

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

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

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

Exception: If the duties are those of an inferior or subordinate office,created or authorized by the Legislature and by it placed under thegeneral 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 apublic office, yet its duties are only for a limited period of time.

(cf. Barney v. Hawkins)


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Public Officer v. Public Employment

Public employment is broader than public office. All public office is publicemployment, 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 thesovereign power, and in the performance of which the public isconcerned. Public employment is a position which lacks one or more of theforegoing elements.

Public Office v. Public Contract

Public Office Public Contract

Creation Incident of sovereignty Originates from will ofcontracting parties

Object Carrying out ofsovereign as well asgovernmental functionsaffecting even personsnot bound by thecontract

Obligations imposedonly upon the personswho entered into thecontract

SubjectMatter

Tenure, duration,continuity

Limited duration

Scope Duties that are generallycontinuing andpermanent

Duties are veryspecific to the contract

Whereduties aredefined

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. Thisrule applies when the law is clear.

EXCEPTION: When the law is vague, the persons holding of theoffice is protected and he should not be deprived of hisoffice.

Segovia v. Noel


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It is a fundamental principle that a public office cannot be regarded as theproperty of the incumbent and that a public office is not a publiccontract. Nonetheless, Act. No. 3107 should be given a prospective effect in theabsence of legislative intent to the contrary. Although there is a vested right toan office, which may not be disturbed by legislation, yet the incumbent has, in asense, 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 ofthe 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 expressstatement making the law applicable retroactively.

Public Office not property

A public office is not the property of the public officer within the provisionof the Constitution against deprivation of property without due process of law orwithin an agreement in a treaty not to impair the property or rights of privateindividuals.

Exceptions:

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

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

Cornejo v. Gabriel

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

Abeja v. Tanada

Public office being personal, the death of a public officer terminates hisright to occupy the contested office and extinguishes his counterclaim fordamages. His widow and/or heirscannot be substituted in the counterclaim suit.

Modes of Creation of Public Office

(1) by the Constitution(2) by statute / law


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(3) by a tribunal or body to which the power to create the officehas been delegated

Scope and Extent of Power of legislature

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

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

(2) where the Legislature delegates such power.

Delegation of power to create public office

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

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 thedifferent executive departments, bureaus and other instrumentalities of theGovernment" in order to promote efficiency in the public service is limited inscope and cannot be extended to other matters not embracedtherein. 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 thejurisdiction of the various courts."

Methods of Organizing offices

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

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

Modification and Abolition

GENERAL RULE: The power to create an office includes the power to modifyor abolish it. (i.e., this is generally a legislative function)

EXCEPTIONS:

(1) Where the Constitution prohibits such modification / abolition;


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(2) Where the Constitution gives the people the power to modify orabolish 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 anoffice newly created by law -- which new office is incompatible with theformer -- he will be considered to have abandoned his former office.

Exception: When the non-acceptance of the new appointment wouldaffect public interest, and the public official is thereby constrained toaccept.

Estoppel to deny existence of office

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

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

Public OfficerVolunteer Service under RA 6713

Definition

A public officer is one who performs public functions / duties of government byvirtue of direct provision of law, popular election, or appointment by competentauthority. His duties involve the exercise of discretion in the performance of thefunctions of the government, and are not of a merely clerical or manual nature. (SeeSec. 2 (14), E.O. 292)

Note: For the purpose of applying the provisions of the Revised PenalCode, employees, agents, or subordinate officials, of any rank orclass, 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 incharge of issuing summons and subpoenas for trafficviolations in a judge's sala was convicted for bribery underRPC 203. The court held that even temporary performance of


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public functions is sufficient to constitute a person as a publicofficial.

In the case of People v. Paloma, a sorter and filer of moneyorders in the Auditor's Office of the Bureau of Posts wasconvicted for infidelity in the custody of documents. The court

pointed out that the sorting and filing of money orders in theBureau 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 thepremises 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, 1987Const.);

(2) When a person who, having been elected by popular electionto a public office, refuses without legal motive to be sworn in or todischarge the duties of said office (Art. 234, RPC; Note: the

penalty shall be either arresto mayor, or a fine not exceeding P1,000.00, or both)

No presumption of power

Villegas v. Subido

Nothing is better settled in the law than that a public official exercisespower, not rights. The government itself is merely an agency through which thewill of the state is expressed and enforced. Its officers therefore are likewiseagents entrusted with the responsibility of discharging its functions. As such,there is no presumption that they are empowered to act. There must be adelegation of such authority, either express or implied. In the absence of a validgrant, they are devoid of power.


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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, isadmitted 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.


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Q: What is the purpose for the doctrine?

A: It is to ensure the orderly functioning of government. The public cannotafford 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 followingcircumstances:

(1) Without a known appointment or election, but under suchcircumstances of reputation or acquiescence as were calculated toinduce 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 wherethe officer has failed to conform to some precedent requirement orcondition (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 thepublic.

(4) Under color of an election or an appointment by or pursuant toa 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 legallyexisting. (Norton v. County of Shelby)

Officer De Jure v. Officer De Facto

De Jure De Facto

Requisites (1) Existence of a de jureoffice;

(2) must possess thelegal qualifications forthe office in question;

(3) must be lawfullychosen to such office;

(1) De jure office;

(2) Color of right orgeneral acquiescenceby the public;

(3)Actual physicalpossession of the


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(4) must have qualified

himself to perform theduties of such officeaccording to the modeprescribed by law.

office in good faith

Basis ofAuthority

Right: he has the lawfulright / title to the office

Reputation: Has thepossession and performsthe duties under color ofright, without beingtechnically qualified in allpoints of law to act

How ousted Cannot be ousted. Only by a directproceeding (quowarranto); not collaterally

Validity ofofficial acts

Valid, subject toexceptions (e.g., theywere done beyond thescope of his authority,etc.)

Valid as to the public untilsuch time as his title to theoffice is adjudgedinsufficient.

Rule onCompensation

Entitled to compensationas a matter of right;

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

Entitled to receivecompensation only duringthe time when no de jureofficer is declared;

He is paid only for actualservices rendered by him.

Officer De Facto v. Intruder

De Facto Intruder

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

One who takespossession of an officeand undertakes to actofficially without anyauthority, either actual orapparent

Basis ofauthority

Color of right or title tooffice

None. He has neitherlawful title nor color ofright or title to office.

Validity of"official" acts

Valid as to the public untilsuch time as his title to theoffice is adjudgedinsufficient

Absolutely void; they canbe impeached at any timein any proceeding (unlessand until he continues to


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act for so long a time as toafford a presumption ofhis right to act)

Rule oncompensation

Entitled to receivecompensation only during

the time when no de jureofficer is declared;

He is paid only for actualservices rendered by him.

Not entitled tocompensation 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 ofthe 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 ofthe public; not on the part of the intruder.

Elements of a De Facto Officership

(1) De jure office

(2) Color of right or general acquiescence by the public;(3) Actual physical possession of the office in good faithNote: 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 disapprovedby the CA according to a newspaper report, but before receiving the officialnotification regarding the rejection of his appointment (Regala v. Judge of CFI);

A lawyer instructed by the Acting Provincial Governor to file an information forhomicide, where the latter had no authority to designate him as assistant fiscal, andwhere 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 thanthe proper appointing authority prescribed by law, and lacking the consent of theProvincial Board (Codilla v. Martinez)


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Examples of those not considered as De Facto Officers

A judge who has accepted an appointment as finance secretary and yetrenders a decision after having accepted such appointment (Luna v.Rodriguez);

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

Legal Effect of Acts of De Facto Officers

As regards the officers themselves

GENERAL RULE: A party suing or defending in his own right as apublic officer must show that he is an officerde jure. It isnot 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 personsand the public until his title to office is adjudgedinsufficient.

Official Acts of De Facto Officers not subject to collateral attack

RULE: The title of a de facto officer and the validity of hisacts cannot be collaterally questioned in proceedings to which he is nota 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) BoardMembers. The Court held that this could not be done unless all 4 of them wereentitled to the offices of the 6.


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Liabilities of De Facto Officers

The liability of a de facto officer is generally held to be the same degree ofaccountability 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 ofthe 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 inhis 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, refersto the endowment / requirement / accomplishment that fits one for a public office.

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

Power to Prescribe Qualifications

GENERAL RULE: Congress is empowered to prescribe the qualifications forholding public office, subject to the following restrictions:

Congress cannot exceed its constitutional powers;

Congress cannot impose conditions of eligibility inconsistent withconstitutional provisions;

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

Congress cannot prescribe qualifications so detailed as to practicallyamount to making an appointment. (Legislative appointments areunconstitutional and therefore void for being a usurpation of executivepower.);

Where the Constitution establishes specific eligibility requirements for aparticular constitutional office, the constitutional criteria are exclusive, and


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Congress cannot add to themexceptif the Constitution expressly orimpliedly 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 designateJudges of First Instance, Judges-at-large of First Instance or CadastralJudges to sit as substitute Justices of the Supreme Court in treason caseswithout them necessarily having to possess the required constitutionalqualifications of a regular Supreme Court Justice. (Vargas v. Rilloraza);

A proviso which limits the choices of the appointing authority to only oneeligible, e.g. the incumbent Mayor of Olongapo City (Flores v. Drilon);

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

A provision that impliedly prescribes inclusion in a list submitted by theExecutive Council of the Phil. Medical Association as one of the qualificationsfor appointment; and which confines the selection of the members of theBoard 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 theduty to appoint any particular person to an office. The appointing power is the exclusiveprerogative 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 onAppointments; and

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

Cuyegkeng v. Cruz

The power of appointment vested in the President by the Constitution connotesnecessarily a reasonable measure of freedom, latitude, or discretion in the exercise ofthe power to choose appointees.

Flores v. Drilon

Where only one can qualify for the posts in question, the President is precluded fromexercising his discretion to choose whom to appoint. Such supposed power of


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appointment, sans the essential element of choice, is no power at all and goes againstthe very nature itself of appointment.

Time of Possession of Qualifications

Q: When must the qualifications be possessed?

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

Where the Constitution or law is silent:

There are 2 views:

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

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

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

Castaneda v. Yap

Knowledge of ineligibility of a candidate and failure to question such ineligibilitybefore 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 acase.

Frivaldo v. COMELEC

The citizenship requirement must be met only on election day. While the LocalGovernment Code requires one year residency immediately preceding election day andthe prescribed age on election day, no date is specified for citizenship. The purpose ofthe citizenship requirement is to ensure leaders owing allegiance to no othercountry. Such purpose is not thwarted, but instead achieved by construing therequirement 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


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



able to read and write

registered voter

resident of the Philippines for not less than two years immediately precedingelection day

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



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)


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)



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 thepractice of law for at least 10 years (See Cayetano v. Monsod)

g) COA Commissioners



CPA with >10 year of auditing experience or

Bar member engaged in practice of law for at least 10 years


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Not have been candidates for elective position in elections immediately precedingappointment

Cayetano v. Monsod Practice of law means any activity, in or out ofcourt, which requires the application of law, legalprocedure, knowledge, training and

experience. Generally, to practice law is to givenotice or render any kind of service which requiresthe use in any degree of legal knowledge or skill.

Aquino v. COMELEC: Residency of not less than 1 year prior to theelections for the position of Congressman. Inelection law, residence refers to domicile, i.e. theplace where a party actually or constructively hashis permanent home, where he intends toreturn. To successfully effect a change ofdomicile, the candidate must prove an actualremoval or an actual change of domicile. Here, it

was held that leasing a condominium unit in thedistrict was not to acquire a new residence ordomicile but only to qualify as a candidate.

Marcos v. COMELEC: Domicile, which includes the twin elements of actualhabitual residence, and animus manendi, theintention of remaining there permanently. It washeld that domicile of origin is not easily lost, andthat in the absence of clear and positive proof of asuccessful change of domicile, the domicile oforigin 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


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Election: Selection or designation by a popular vote

Appointment

Definition

Q: Distinguish between designation and appointment.

Designation Appointment

Definition Imposition of additionalduties upon an existingoffice

Selection of anindividual to occupy acertain public office byone authorized by lawto make such selection

Extent ofPowers

Limited Comprehensive

Security oftenure?

No. Yes.

Whendeemedabandonmentof prior office

Assumption of adesignated position isnot deemedabandonment of the1st position

Assumption of a2ndappointive positionis usually deemedabandonment of thefirst office.

Nature of Appointing Power

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

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

Constitutional Provisions

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

A:

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

Ambassadors (ibid);


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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 theConstitution (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 nototherwise 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 theJudicial 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 theJudicial 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 theJudicial and Bar Council, and from a list of 3 nominees for every vacancythereafter (Art. XI, Sec. 9, 1987 Const.)

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

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

(1) disapproval by the Commission on Appointments; or

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

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


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A: Such appointments shall remain effective unless revoked bythe elected President within 90 days from his assumption orreassumption 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 termsof education , training and experience, civil service eligibility, physicalfitness, and other qualities required for successful performance. (Sec.22, Book V, EO 292)

A statement of the minimum qualifications of a positionwhich shall include education, experience, training, civilservice eligibility, and physical characteristics andpersonality traitsrequired by the job. (Sec. 2, Rule IV,

Omnibus Rules)

With respect to a particular position, such qualification standardsshall serve as the basis for the determination by the appointingauthority of the degree of qualifications of an officer or employee(ibid);

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

Shall be administered in such manner as to continually provideincentives to officers and employees towards professional growth andfoster the career system in the government service (ibid);

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

Their establishment, administration, and maintenance shall be theresponsibility of the department / agency, with the assistance andapproval of the CSC and in consultation with the Wage and PositionClassification Office (ibid);

Whenever necessary, the CSC shall provide technicalassistance to departments and agencies in the developmentof their qualification standards. (Sec. 5, Rule IV, OmnibusRules)

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


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Political Qualifications for an Office

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

Exceptions: (1) Membership in the electoral tribunals of eitherthe 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, LocalGovernment Code)

Property Qualifications

In the cases of Maquera v. Borra and Aurea v. COMELEC, the Supreme Courtstruck down R.A. 4421 which required candidates for national, provincial, city andmunicipal offices to post a surety bond equivalent to the one-year salary or emolumentsof 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 thenature and essence of the Republican system ordained in our Constitution and theprinciple 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 andto be voted shall not be dependent upon the wealth of the individualconcerned. Social justice presupposes equal opportunity for all, rich andpoor 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 tohold public office. (Art. 36, Revised Penal Code)


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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 notcommit 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 beenpardoned 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 apublic 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 tobackpay and other emoluments due to him during the period of hissuspension pendente lite. (Monsanto v. Factoran)

Discretion of appointing official

Discretion, if not plenary, at least sufficient, should thus be granted to thoseentrusted with the responsibility of administering the officers concerned, primarilythe department heads. They are in the most favorable position to determine whocan best fulfill the functions of the office thus vacated. Unless, therefore, the law

speaks in the most mandatory and peremptory tone, considering all thecircumstances, there should be, as there has been, full recognition of the widescope of such discretionary authority. (Reyes v. Abeleda)

Appointment is an essentially discretionary power and must be performed by theofficer in which it is vested according to this best lights, the only condition beingthat 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 therequirements of the Civil Service Law, and when it finds the appointee to bequalified 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 betterqualified. (Lapinid v. CSC)

To hold that the Civil Service Law requires that any vacancy be filled bypromotion, transfer, reinstatement, reemployment, or certification in that orderwould be tantamount to legislative appointment which is repugnant to the


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Constitution. The requirement under the Civil Service Law that the appointingpower set forth the reason for failing to appoint the officer next in rank appliesonly in cases of promotion and not in cases where the appointing power choosesto fill the vacancy by transfer, reinstatement, reemployment or certification, notnecessarily in that order. (Pineda v. Claudio)

The CSC is not empowered to change the nature of the appointment extendedby the appointing officer, its authority being limited to approving or reviewing theappointment in the light of the requirements of the Civil Service Law. When theappointee is qualified and all the legal requirements are satisfied, the CSC hasno 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 issuepromotional appointment would lead to manifest injustice, mandamus will lie tocompel 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 notsubject to reconsideration.

Qualification: Where the assent, confirmation, or approval of some otherofficer or body is needed before the appointment may beissue 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 (Mitrav. Subido);

(3) Midnight appointments

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

Midnight appointments


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

Exception: Temporary appointments to executive positions whencontinued 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. Appointmentis the act of being designated to a public office by the appointing authority. Qualificationis 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 thegiving 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 Presidentnominates; (b) the Commission on Appointments confirms the appointment; and (c)the appointee accepts the appointment by his assumption of office. The first 2 stepsare mere offers to the post but the last step rests solely with the appointee who mayor may not accept the appointment.

Borromeo v. Mariano

A judge may not be made a judge of another district without hisconsent. Appointment and qualification to office are separate and distinctthings. Appointment is the sole act of the appointee. There is no power which cancompel a man to accept the office.

Effect of Failure to Qualify

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

It is a ground for removal:

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

rejection of the office

If not condition precedent: Failure is not ipso facto rejection


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

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

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

Qualification is significant because it designates when security of tenurebegins.

Oath of Office

An oath is an outward pledge whereby one formally calls upon God to witness to thetruth 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 amere incident to the office and constitutes no part of the office itself. However, thePresident, 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 theiroffice. 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 ofofficial business?

A: (1) Notaries public;(2) Municipal judges;(3) Clerks of court

Time of Taking the Oath of Office


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A public officer must take his oath of office before entering upon the discharge ofhis 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 otherqualifications made prior to assumption of his previous office will not be valid forsubsequent 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 thecollection and custody of public money;

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

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

The bond is also an obligation binding the sureties to make good the officersdefault. It is required not for the benefit of the office holder, but for the protectionof the public interest and is designed to indemnify those suffering loss or injury byreason 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 groundfor

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

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

Term and Tenure of Office

Term of Office and Tenure of Office Distinguished

Term of Office Tenure of Office


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De jure De facto

Fixed and definite period of time Period during which the incumbentduring which the officer may actually holds the office. It may beclaim 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 theappointing power and where the power of removal is exercisable at its mere discretionthat the officer may be removed without notice or hearing.

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

RULES:

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

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

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

Congress has the power to change the tenure of officers holding officescreated by it. However, if the term is lengthened and made to apply to theincumbents, 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 officialsdependent upon the pleasure of the President. (Alba v. Evangelista)

Where the office is held at the pleasure of the appointing power and suchappointing power can exercise the power of removal at his mere discretion, the publicofficer 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 incumbentcannot validly object to the alteration of his term since he has no vested right in hisoffice. (Greenshow v. U.S.)

Term of Office Not Extended by Reason of War


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There is no principle, law or doctrine by which the term may be extended byreason 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 allowedto continue holding his office until his successor is appointed or chosen and hadqualified. (Mechem)

Purpose of the Hold-Over Rule

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

Holding-Over Rules

(1) Where the law provides for it: The office does not become vacant uponthe expiration of the term if there is nosuccessor elected and qualified to assumeit. Incumbent will hold-over even if beyondthe term fixed by law.

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

(3) Where the Constitution limitsthe 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 dateof the election or the appointment.

POWERS AND DUTIES OF PUBLIC OFFICERS

Source of Government Authority: The people, the sovereignty.

Scope of Powers of a Public Officer

Lo Cham v. Ocampo


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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 purposefor which the office was created; or

(2) those which, although incidental or collateral, are germane to andserve 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 ofhis office at a particular place, action at a place not authorized bylaw is ordinarily invalid. (Note: This rule is applicable to all publicofficers whose duties are essentially local in nature, e.g. judges.)

EXCEPTIONS: (1) Consuls;

(2) Police officers, who may arrest persons for crimescommitted 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 whichare expressly imposed or necessarily implied.

Classification of Powers

Discretionary Ministerial

Definition Acts which require theexercise of reason indetermining when, where, and

how to exercise the power

Acts which are performed in agiven state of facts, in aprescribed manner, in

obedience to the mandate oflegal authority, without regardto or the exercise of his ownjudgment upon the propriety orimpropriety of the act done(Lamb v. Phipps)

Can be delegated? Generally, NO.

Exception: When the power

Generally, YES.

Exception: When the law


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to substitute / delegate hasbeen given

expressly requires the act tobe performed by the officer inperson and / or prohibits suchdelegation

When is mandamus

proper?

Only if the duty to do

something has been delayedfor an unreasonable period oftime.

In all cases.

Is public officerliable?

Generally not liableExceptions: if there is fraud

or malice

Liable if duty exercisedcontrary to the mannerprescribed by law.

Discretion; Discretionary PowerMinisterial Duty

Q: What is discretion?

A: Discretion, when applied to public functionaries, means a power or right conferredupon them by law of acting officially in certain circumstances, according to thedictates of their own judgment and conscience, uncontrolled by the judgment orconscience of others. (Lamb v. Phipps)

Q: What is a ministerial act?

A: A purely ministerial act is one which an officer or tribunal performs ina given state of facts, in a prescribed manner, in obedience to themandate 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 mustperform. It is a simple, definite duty arising under conditions admitted orproved to exist and imposed by law. It is a precise act, accurately markedout, enjoined upon particular officers for a particular purpose. (Lamb v.Phipps)

Lamb v. Phipps

Auditors and comptrollers, as accounting officers, are generally regarded asquasi-judicial officers. They perform mere ministerial duties only in cases wherethe 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 forsettlement and certification of balances found by them to be due, is not merelyministerial but judicial and discretionary. Mandamus will therefore not issue.

Torres v. Ribo

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


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Aprueba v. Ganzon

Mandamus will not issue to control or review the exercise of discretion of apublic 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 butrevocable 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 rectifyan 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 authorityresulting in manifest injustice (Gesolgon v. Lacson);

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

Q: When will the writ of mandamus never issue?

A: (1) To control discretion;

(2) When another adequate remedy exists;

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

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

A: When the question is one of public right and the object of the mandamus is toprocure the enforcement of a public duty, such as the observance of thelaw. (Miguel v. Zulueta)

Time of Execution of Powers

Where not indicated: Within a reasonable time


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Where indicated: Merely directory

Exceptions:

(1) When there is something in the statute which shows a differentintent (Araphoe City v. Union Pac);

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

(3) When the provision is accompanied by negative wordsimporting that the acts shall not be done in any other manneror 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 arerestricted to the ratification of acts and contracts which they themselves areempowered to make.

It is not enough that the public officer acted beyond his powers in order that he maybe held liable for damages. If the act committed is reasonably related to hisduties 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 voidact of an official to shield him from the demand of the government that he (theindividual) fulfill an obligation which he has contracted with the government, after thebenefits accruing to him as a result of that obligation have been received. Thegovernment can neither be estopped nor prejudiced by the illegal acts of itsservants. (Government v. Galarosa)

Hilado v. Collector

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


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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 ofothers.

Right to Salary or Compensation

GENERAL RULES:

A public officer is not entitled to compensation for services rendered underan 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 haveaccepted the office to serve gratuitously.

After services have been rendered by a public officer, the compensation thusearned cannot be taken away by a subsequent law. However, he cannotrecover salary for a period during which he performed no services.

One without legal title to office either by lawful appointment or election andqualification 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 oremoluments attached to the office.

Compensation not an element of public office


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Compensation is not indispensable to public office. It is not part of the office butmerely incident thereto. It is sometimes expressly provided that certain officers shallreceive no compensation, and a law creating an office without any provision forcompensation may carry with it the implication that the services are to be renderedgratuitously.

Salary, Wages, and Per Diems Defined and Distinguished

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

Salary of Public Officer Not Subject to Attachment

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

Money in the hands of public officers, although it may be due governmentemployees, is not liable to the creditors of these employees in the process ofgarnishment because the sovereign State cannot be sued in its own courtsexcept by express authorization by statute. Until paid over by the agent ofthe government to the person entitled to receive it, public funds cannot in anylegal 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 beconsidered invalid as against public policy where it tends to pervert such compensationto a purpose other than that for which it was intended, and to interfere with the officer'sfree and unbiased judgment in relation to the duties of his office. (This is usually withreference 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 thenwithdrew such certificate and reassumed the position of mayor, thus preventingthe vice-mayor from discharging the duties of the position of mayor, the mayorshould reimburse to the vice-mayor, as the right rightful occupant of the positionof mayor, the salaried which he had received.


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Rodriguez v. Tan

Where a duly proclaimed elective official who assumes office issubsequently ousted in an election protest, the prevailing party can no longerrecover the salary paid to the ousted officer. The ousted officer, who acted as defacto 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 whichwould 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 thenotice 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 beengiven, and the de facto officer still continues to exercise duties and receivesalaries 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 withadditional functions and the public officer is gettingadditional compensation. emoluments for bothpositions.

Q: Differentiate the 2 kinds of allowances.

Commutable Reimbursable

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


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There is a conclusive presumptionthat it was spent.

RULES:

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

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

An allowance for expenses incident to the discharge of the duties of office isnot an increase of salary, a perquisite, nor an emolument of office. (Peraltav. 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 recoversalary for the period of his preventive suspension.

If he was given penalty ofremoval from office, but was YES, he can recover because

completely exonerated upon he was completely exonerated.appeal:

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

If the suspension / removalfrom office is unjustified: YES.

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

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

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


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ADMINISTRATIVE DISCIPLINE

Over Presidential Appointees

Olonan v. CSC

Administrative charges were filed against the PUP President and other officers forviolations of RA 3019 with the CSC. Olonan et.al. filed a motion to dismiss the complaintcontending principally that the CSC has no jurisdiction to try and decide the case against her,she being a presidential appointee. The CA upheld Olonans contention. There is nothing in theprovisions of the Constitution or the Administrative Code of 1987 which gives the CSC thepower to discipline presidential appointees like petitioner herein. Sec. 47(1), Book V of EO 292which provides that a complaint may be filed directly with the CSC by a private citizen against agovernment official or employee in which case it may hear and decide the case must be readtogether 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 CSCsjurisdiction in administrative cases to non-presidential appointees and makes patent theconclusion that the disciplinary authority over presidential appointees lies elsewhere thePresident 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 forserious misconduct and inefficiency under Sec. 1, Rule 140 of the Rules of Court and criminallyliable to the State under the Revised Penal Code for his felonious act. Where a criminalcomplaint against a judge or other employee arises from their administrative duties, theOmbudsman must defer action on said complaint and refer the same to the SC fordetermination whether said judge or court employee had acted within the scope of theiradministrative duties. Thus, the Ombudsman should first refer the matter to the SC fordetermination of whether the certificates reflected the true status of his pending case load, asthe 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 courtpersonnel.

Dolalas v. Ombudsman-Mindanao

Citing the Maceda case, the SC power of administrative supervision over judges andcourt personnel is exclusive. Investigation by the Ombudsman violates the specific constitutionalmandate of the SC and undermines the independence of the judiciary.


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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 afterdue 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 Secretariesand heads of agencies and instrumentalities, provinces, cities and municipalities for officersand employees under their jurisdiction.

Decisions of Secretaries and heads of agencies and instrumentalities, provinces, citiesand municipalities shall be final in case the penalty imposed is suspension for not more thanthirty 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 theCommission, the same may be initially appealed to the department and finally to theCommission and pending appeal, the same shall be executory except when the penalty isremoval, in which case the same shall be executory only after confirmation by the Secretaryconcerned.

Decisions imposing the penalty of suspension for more than thirty days or fine in an amountexceeding thirty days salary, demotion in rank or salary or transfer, removal or dismissalfrom office shall be appealable to the CSC.

Procedure in Administrative Cases Against Non-Presidential Appointees

Administrative proceedings may be commenced against a subordinate officer oremployee by the Secretary or head of office of equivalent rank, or head of local government, orchiefs 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 hiswitnesses together with his documentary evidence.

If based on such papers a prima facie case is found not to exist, the discipliningauthority shall dismiss the case. Otherwise, he shall notify the respondent in writing of thecharges against the latter.

Respondent shall be allowed not less than seventy-two hours after receipt of thecomplaint to answer the charges in writing under oath, together with supporting swornstatements and documents. He shall also indicate whether or not he elects a formalinvestigation if his answer is not considered satisfactory.

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


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Although a respondent does not request a formal investigation, one shall neverthelessbe 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 judiciouslywithout conducting such an investigation.

The decision shall be rendered by the disciplining authority within thirty days from thetermination of the investigation or submission of the report of the investigator, which reportshall 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 attendanceof witnesses and the production of documentary evidence in his favor through thecompulsory 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 decisionwithin fifteen days from receipt of the decision unless a petition for reconsideration isseasonably 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 theinterests 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 casewhere respondent is found guilty of the charges against him. But when the respondent isexonerated of said charges, as in this case, there is no occasion for appeal. PD 807shows that it does not contemplate a review of decisions exonerating officers oremployees from administrative charges. Party adversely affected by the decision inSection 39 of the Civil Service Law refers to the government employee against whomcase was filed.

Summary Proceedings

No formal investigation is necessary and the respondent may be immediatelyremoved 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


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(3) When the respondent is notoriously undesirable.

Preventive Suspension

The proper disciplining authority may preventively suspend any subordinate officer oremployee 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 bepreventively suspended for only sixty (60) days. If the case is filed in the Ombudsman, thelatter may impose a preventive suspension for a period of six (6) months.

When the administrative case against the officer or employee under preventivesuspension 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, therespondent shall be automatically reinstated in the service.

Penalty

In meting out punishment, the same penalties shall be imposed for similar offenses andonly 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 exceedingsix 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 imposedshould be that corresponding to the most serious charge or count and the test may beconsidered as aggravating circumstances. (Sec. 17 of the Implementing Civil Service Rulesand Regulations)

A reprimand whether given by the Civil Service Commission or the head of departmentor agency shall be considered a penalty. However, a warning or an admonition shall not beconsidered 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 asSec. 16 of the Police Act of 1966 expressly provides that a suspended member of thepolice force shall be entitled to his salary for the period of his suspension uponexoneration. A reprimand is not equivalent to an exoneration. It is more severe than an


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admonition, which is considered a mild rebuke. A reprimand is administered to a personin fault by his superior officer or a body to which he belongs. It is an administrativepenalty, although it may be slight form of punishment.

NOTE: A warning is an act or fact of putting one on his guard; anadmonition is a

gentle or friendly reproof or a mild rebuke; while a reprimand is aformal and public censure or a severe reproof.

Removal of Administrative Penalties or Disabilities

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

Over Elective Officials

Impeachment

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

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

The Committee, after hearing, and by a majority vote of all its members, shall submit itsreport to the House within sixty session days from such referral, together with thecorresponding 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 toaffirm a favorable resolution with the Articles of Impeachment of the Committee, or overrideits contrary resolution.

In case the verified complaint or resolution of impeachment is filed by at least one-thirdof all the members of the House, the same shall constitute the Articles of Impeachment, andtrial 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 thePresident 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 allthe members of the Senate.

Judgment in cases of impeachment shall not extend further than removal from officeand disqualification to hold office under the Republic of the Philippines, but the partyconvicted shall nevertheless be liable and subject to prosecution, trial and punishmentaccording to law.


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No impeachment proceedings shall be initiated against the same official more than oncewithin 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, ordereliction of duty

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

(5) Abuse of authority

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

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

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

Procedure

(1) Verified Complaint

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

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

Sangguniang panlalawigan - elective official of a municipality

Sangguniang panlungsod orsangguniang bayan - elective barangay official

(2) Answer

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


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(3) Investigation

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

However, no investigation shall be held within ninety (90) days immediatelyprior to any local election, and no preventive suspension shall be imposed within the saidperiod.

Preventive Suspension

Preventive suspension may be imposed:

a) By the President: if the respondent is an elective official of aprovince,

a highly urbanized or an independent componentcity;

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

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

Preventive suspension may be imposed at any time after the issues are joined, whenthe evidence of guilt is strong, and given the gravity of the offense, there is great probabilitythat the continuance in office of the respondent could influence the witnesses or pose athreat to the safety and integrity of the records and other evidence.

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

Furthermore, in the event that several administrative cases are filed against an electiveofficial, he cannot be preventively suspended for more than ninety (90) days within a singleyear 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 bedeemed reinstated in office without prejudice to the continuation of the proceedings againsthim, which shall be terminated within one hundred twenty (120) days from the time he wasformally notified of the case against him.

Note: The respondent official preventively suspended from office shallreceive no salary or compensation during such suspension; but upon subsequentexoneration and reinstatement, he shall be paid full salary or compensation includingsuch 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


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prior to the 90-day period immediately preceding local election, it shall be deemedautomatically 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 requirethe attendance of witnesses and the production of documentary process of subpoena orsubpoena duces tecum.

Form and Notice of Decision

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

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

The penalty of suspension shall not exceed the unexpired term of the respondent or aperiod of six (6) months for every administrative offense, nor shall said penalty be a bar tothe candidacy of the respondent so suspended as long as he meets the qualificationsrequired for the office.

The penalty of removal from office as a result of an administrative investigation shall beconsidered 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.


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Execution Pending Appeal

An appeal shall not prevent a decision from becoming final or executory. Therespondent shall be considered as having been placed under preventive suspension during thependency of an appeal in the event he wins such appeal. In the event the appeal results in anexoneration, 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 termb) End of Pleasure where one holds office at pleasure of appointingauthority

c) Loss of confidence in primarily confidential employment

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

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

Expiration of Term or Tenure of Office

End of Fixed Term

Upon the expiration of the officers term, unless he is authorized by law to holdover, 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 wascreated at the pleasure of the President. What is involved here is not the question of


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removal, or whether legal cause should precede or not that of removal. What is involvedhere is the creation of an office and the tenure of such office, which has been madeexpressly dependent upon the pleasure of the President.

Fernandez v Ledesma

The Charter of Basilan City provides that the President shall appoint and may removeat his discretion any of the citys officers, including its Chief of Police, with the exceptionof the municipal judge, who may be removed only according to law. The legislative intentis 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 isthe right for a given period, either fixed by law or enduring at the pleasure of the creatingpower.Alba v. Evangelista states that the replacement is not removal, but an expirationof tenure, which is an ordinary mode of terminating official relations. What is involved isnot removal, or whether legal cause should precede such removal, but the creation of anoffice and the tenure of such office, which has been made expressly dependent upon thepleasure of the President.

Loss of Confidence in Primarily Confidential Employment

Hernandez v. Villegas

Even officers and employees of the civil service occupying primarily confidentialpositions are subject to the constitutional safeguard against removal or suspensionexcept for cause.

Official and employees holding primarily confidential positions continue only for solong 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 fromoffice 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 innature is subject to removal at the pleasure of the appointing power isinaccurate. Such statement (a mere obiterin the case of De los Santos v. Mallare), ifdetached from the context of the decision in said case, would be inconsistent with theconstitutional command to the effect that no officer or employee in the Civil Serviceshall be removed or suspended except for cause as provided by law, and it is concededthat 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 primarilyconfidential position holds office at the pleasure only of the appointing power. It shouldbe noted however, that when such pleasure turns into displeasure, the incumbent is notremoved or dismissed from office - his term merely expires in much the same wayas an officer, whose right thereto ceases upon expiration of the fixed term for which hehad been appointed or elected is not and cannot be deemed removed or dismissedtherefrom, upon the expiration of said term. The main difference between the former -


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the primarily confidential officer - and the latter is that the latters term is fixed or definite,whereas that of the former is not pre-fixed but indefinite, at the time of his appointmentor election, and becomes fixed and determined when the appointing power expresses itsdecision to put an end to the services of the incumbent. When this event takes place,the latter is not removed or dismissed from officer- his term has merely expired.

Gray v. De Vera

President appointed Gray as Board secretary of the Peoples Homesiteand Housing Corporation but was later terminated through a board resolution due to lossof confidence. SC reversed ruling that Grays appointment was a permanent one.

Although the President, EO 99, declared the position of secretary to the board of agovernment corporation primarily confidential in nature, it does not follow that a boardsecretary whose appointment was permanent may be removed from office without aformal charge specifying the ground for removal and without giving him an opportunity tobe 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 andintegrity. The act of Gray in re

Documents

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