public officer.docx

7/27/2019 public officer.docx

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Public Officeis the right, authority, and duty created and conferred by law, by which for a given period, eitherfixed by law or enduring at the pleasure of the appointing power, an individual is invested with someportion of the sovereign functions of the government, to be exercised by him for the benefit of thepublic.

Essential elements1. Created by Constitution or by law or by some body or agency to which the power tocreate the office has been delegated (enabling law)2. Invested with authority to exercise some portion of the sovereign power of the State3. Powers/Functions defined by the enabling law4. Duties are performed independently without control unless those of an inferior5. Continuing / permanent in nature

Distinctions Public Officialis an officer of the Government itself, as distinguished from the officers and employees of

instrumentalities of government.

Officeris distinguished from an employee in the greater importance, dignity and independence of hisposition, being required to take an official oath, and perhaps give an official bond and in the liabilityto be called to account as a public offender for misfeasance or nonfeasance in office.

EligibilityEligibility is the state or quality of being legally fitted or qualified to be chosen. Qualification refer tothe act which a person, before entering upon the performance of his duties is by law required to dosuch as the taking, and often, of subscribing and filing of an official oath, and, in some cases, thegiving of an official bond.

Who are required to give an official bond?Accountable public officers or those to whom are entrusted the collection and custody of publicmoney, and public ministerial officers whose actions may affect the rights and interests ofindividuals.

DisqualificationsDisqualifications to hold public office are mental or physical incapacity, misconduct or crime,impeachment, removal or suspension from office, previous tenure of office, consecutive terms,holding more than one office, relationship with the appointing power, office newly created or theemoluments of which have been increased, being an elective official, having been a candidate forany elective position, and grounds under the local government code. In the absence ofconstitutional inhibition, Congress has the same right to provide disqualifications that it has toprovide qualifications for office. When the constitution has attached a disqualification to the holdingof any office, Congress cannot remove it under the power to prescribe qualifications as to suchoffices as it may create. Presumption is in favor of eligibility. The qualifications are continuingrequirements and must be possessed not only at the time of appointment or election or assumption


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of office but during the officers entire tenure. Formal qualifications are : citizenship, age, suffrage,residence, education, ability to read and write, political affiliation, civil service examination

AppointmentAppointment is the act of designation by the executive officer, board, or body to whom that

power has been delegated, of the individual who is to exercise the powers and functions of a givenoffice. It is to be distinguished from the selection or designation by a popular vote.Power to appoint is generally regarded as an executive function. But it is not limited to the

executive department.Power of appointment is absolute when the choice of the appointing authority is

conclusive. It is conditional where assent or approval by some other officer or body is necessaryto complete the appointment.

Acceptance of appointment is not necessary for the completion or validity of appointment.Acceptance may be express when it is done verbally or in writing. Acceptance is implied whenwithout formal acceptance, the appointee enters upon the exercise of the duties and functions of anoffice.

The general rule is that an appointment to an office, once made and complete, isnot subjectto reconsideration or revocation. The exception is where an officer is removable at will of theappointing power. Steps in the Appointing Process:

1. Nomination exclusive prerogative of the President

2. Confirmation belongs to Congress i.e. Commission on Appointments

3. Issuance of commission a commission is a written authority from a competent source givento the officer as his warrant for the exercise of the powers and duties of the office to which he iscommissioned. Confirmation on the part of the Civil Service Commission is called Attestation.

DesignationDesignation is simply the mere imposition of new or additional duties upon an officer to beperformed by him in a special manner. It presupposes that the officer is already in the service byvirtue of an earlier appointment, performing other functions.

VacancyThere is a vacancy when an office is empty and without a legally qualified incumbent appointed orelected to it with a lawful right to exercise its powers and perform its duties. There can be noappointment to a non-vacant position. Causes of vacancy are death, permanent disability, removalfrom office or resignation of the incumbent. Other causes of vacancy are abandonment, expirationof term, conviction of a crime, impeachment conviction, acceptance of incompatible office, creationof a new office, reaching the age limit, and recall.

De facto, de jure officer; usurperDe facto officer is one who has the reputation of being theofficer he assumed to be and yet is not a good officer in point of law.


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A de jure from it, or who has never actually taken possession of it. When the officer de jure is alsothe officer de facto, the lawful title and possession are united.Usurper is one who takes possession of the office and undertakes to act officially without any colorof right or authority, either actual or apparent.

Scope of PowerScope of power of a public officer consists of those powers which are expressly conferred uponhim by the law under which he has been appointed or elected; expressly annexed to the office bythe law which created it or some other law referring to it; or attached to the office as incidents to it.

Ministerial power is when it is absolute, certain, and imperative involving merely execution of aspecific duty arising from fixed and designated facts.Discretionary power is when it requires the exercise of reason and discretion in determining howor whether the act shall be done or the course pursued.

Modes of Termination of Official Relations

Natural Causes1.Expiration of the term or tenure of office2.Reaching the age l imit (ret irement)3.Death or permanent disabi l i ty

Acts / Neglect of Officer1 . R e s i g n a t i o n2.Acceptance of an incompatible office3.Abandonment of Off ice4.Prescript ion of Right to Off ice

Acts of the Government or People1 . R e m o v a l2 . I m p e a c h m e n t3 . A b o l i t i o n o f O f f i c e4 . C o n v i c t i o n o f a c r i m e5 . R e c a l l

Preventive Suspension

Two Kinds:

1.Preventive Suspension Pending Investigation2.Preventive Suspension Pending AppealThe duration of preventive suspension is coeval with the period prescribed for decidingadministrative disciplinary cases. If the case is decided before ninety (90) days then the suspensionwill last less than ninety (90) days, but if the case is not decided within ninety (90) days, then thesuspension may not exceed the maximum period of ninety (90) days.


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Other important concepts Hold-overa public officers term has expired or his services terminated but he should continue holding hisoffice until his successor is appointed or chosen and had qualified.Nepotism

all appointments in the national and local governments or any branch or instrumentality thereof,

including government-owned or controlled corporations, made in favor of a relative of theappointing authority; recommending authority; chief of the bureau or office; or person exercisingimmediate supervision over the appointee are PROHIBITED. Compensation is not indispensableto a public office.

The next-in rank rule specifically applies only in cases of promotion but it is nota mandatoryrequirement.

Divestment is when a public official is in a conflict-of-interest situation. Suchofficial must resignfrom his position in any private business enterprise within 30 daysfrom his assumption of officeand/or divest himself of his shareholdings or interest within60 days from such assumption.

Official immunity only protects public officials from tort liability for damagesarising fromdiscretionary acts or functions in the performance of their officials duties.

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public officer.docx